Thursday, June 6, 2013
Posted by D. Daniel Sokol
Adrian Emch and Jonathan Liang (Hogan Lovells) describe Private Antitrust Litigation in China—The Burden of Proof and Its Challenges.
ABSTRACT: On March 20, 2013, the Guangdong High People's Court issued its verdict in the dispute between two leading Chinese information technology companies, Qihoo 360 and Tencent. The court dismissed 360's claim that Tencent had committed an abuse of dominance in violation of the Anti-Monopoly Law on the grounds that 360 had put forward a wrong definition of the relevant market and that Tencent was not in a dominant position.
The reaction in the local press was instant-observers claimed that the burden of proof was too high for plaintiffs seeking redress for antitrust violations through the Chinese courts, in particular for abuse of dominance cases.
Although not all judgments are made public in China and the picture is therefore incomplete, the judgments that have been published since the AML took effect close to five years ago would seem to confirm the difficulties for plaintiffs to succeed in private antitrust actions in China. The publicly available information indicates that only very few plaintiffs have won a clear victory in AML-based actions thus far.
This article examines how the burden of proof is allocated in private antitrust suits in China, and tries to assess whether the criticism about the high burden of proof is merited. The remainder of the article is organized as follows: section 2 provides an introduction to the legislative background, and section 3 lays out the general principle for the burden of proof in antitrust cases. Sections 4 and 5 describe two broad ways for parties to "lower" the burden of proof-by resorting to presumptions and by seeking discovery through the courts. Section 6 concludes.