I OVERVIEW OF RECENT PRIVATE ANTITRUST LITIGATION ACTIVITY

Since the enactment of the PRC Anti-Monopoly Law (AML), the use of private litigation has been rapidly growing. According to the latest information published by the Supreme People’s Court, up to the end of 2014, 274 antitrust private actions were accepted by courts all over the country, 250 of which were closed. Please see the chart below based on the most recent data disclosed by the Supreme People’s Court.

 

August 2008–2009

2010

2011

2012

2013

2014

Accepted

10

33

18

55

72

86

Closed

6

23

24

49

69

79

Private antitrust litigation in China has involved industries in cutting-edge areas, such as the internet, telecommunication and standard-essential patents (SEPs), and has covered all three types of monopolistic conduct under the AML regime (i.e., horizontal monopoly agreements, vertical monopoly agreements and abuse of dominance). Furthermore, two new types of private antitrust actions have arisen in the past year: follow-on litigation and litigation against the abuse of administrative power. With respect to follow-on litigation, as reported, an antitrust litigation against the Zhejiang branch of PingAn was filed and accepted by the Zhejiang People’s Court in early 2015, following the National Development and Reform Commission’s (NDRC) September 2014 penalty decision in the cartel investigation of Zhejiang insurance companies. The case is reported to have been settled by the plaintiff and PingAn. With respect to antitrust litigation against the abuse of administrative power, on 26 April 2014, Thsware Technology Corporation brought a lawsuit against the Guangdong Education Department for its appointment of certain software as the exclusive software for a government-organised competition event. On 2 February 2015, the Guangdong Intermediate People’s Court issued its judgment in favour of the plaintiff. The defendant then lodged an appeal.

Besides these two new types of antitrust litigation, several local consumer associations have brought, or have been planning to bring, public interest litigations recently. Consumer associations could be more active in the future in bringing public interest litigation, including litigation premised upon monopolistic conduct.

Some notable cases are summarised in chronological order below:

i Rainbow v. Johnson & Johnson

On 1 August 2013, the Shanghai Higher People’s Court made a final judgment overruling the first-instance decision, and held that Johnson & Johnson had violated the AML by entering into and enforcing an RPM agreement with Rainbow.

ii Huawei v. IDC

On 28 October 2013, Guangdong Higher People’s Court announced its final judgment, which upheld the first-instance judgment that IDC had abused its market dominant position by engaging in excessive pricing and tying SEPs with non-SEPs.

iii Lou Binglin v. Beijing Aquatic Product Wholesale Association

On 9 April 2014, the Beijing Higher People’s Court announced its final judgment, which upheld the first-instance judgment that concluded that the association should be held liable for organising aquatic product sales companies to reach monopoly agreements to fix or change prices.

iv Qihoo 360 v. Tencent

On 16 October 2014, the Supreme People’s Court announced its final judgment, which upheld the first-instance judgment that Tencent did not have a market dominant position and its conduct did not have the effects of eliminating or restricting market competition.

v Thsware v. Guangdong Education Department

On 2 February 2015, the Guangdong Intermediate People’s Court ruled that the Guangdong Education Department violated the AML by handpicking the exclusive software for a government-organised competition event. The case is now under appeal to Guangdong High People’s Court. At present, Guangdong High People’s Court has not yet reached a verdict.

vi Emiage v. Qihoo 360

On 30 April 2015, the Beijing Higher People’s Court upheld the judgment of the first-instance court and rejected Emiage’s claims that Qihoo 360 had abused its market dominant position.

vii Dongguan Hengli Guochang Electrical Appliance Store v. Dongguan Shengshi Xinxing Gree Trading Co, Ltd and Dongguan Heshi Electrical Appliance Co, Ltd

On 30 August 2016, Guangzhou Intellectual Property Court dismissed the lawsuit filed by a retailer of Gree air conditioners against a wholesaler and a general distributor regarding resale price maintenance. The Court dismissed the case on the ground that there was no evidence to show that the price restrictions would eliminate or restrict the market competition.

viii Yunnan Yingding Bio-energy Co, Ltd v. Sinopec Sales Co, Ltd and its Yunnan branch

On 8 October 2016, Yunnan Kunming Intermediate People’s Court rejected a claim raised by Yunnan Yingding Bio-energy Co, Ltd against Sinopec Sales Co, Ltd and its Yunnan branch, where the plaintiff alleged that the defendants had abused their market dominant position to refuse to deal with the plaintiff. The Court rejected the case on the ground that the defendant’s refusal to deal was justifiable.

II GENERAL INTRODUCTION TO THE LEGISLATIVE FRAMEWORK FOR PRIVATE ANTITRUST ENFORCEMENT

In China, the substantive law governing monopolistic activities and regulating monopolistic conduct is the AML, which took effect as of 1 August 2008.

At its core, a monopolistic civil dispute could be either a tort law issue or a contract law issue, and thus the PRC Tort Law (the Tort Law) (effective as of July 2010) and the PRC Contract Law (the Contract Law) (effective as of October 1999) are also applicable in a monopolistic civil dispute. In addition, the General Principle of Civil Law (effective as of January 1987) applies where the laws mentioned above do not account for particular scenarios.

The PRC Civil Procedure Law (the Civil Procedure Law) and its corresponding judicial interpretations issued by the Supreme People’s Court provide rules for a civil lawsuit proceeding. Considering the particularity of antitrust disputes and to facilitate the resolution of growing antitrust private actions, the Supreme People’s Court issued the Provisions of the Supreme People’s Court on Application of Laws in the Trial of Civil Disputes Arising from Monopolistic Practices (the AML Judicial Interpretation) on 3 May 2012, which provide specific rules on procedures concerning antitrust civil actions.

In summary, the following shows the legislative framework of a monopolistic civil dispute:

  • a Regarding monopolistic violations:

• The Anti-Monopoly Law (issued by the Standing Committee of the National People’s Congress on 30 August 2007, effective as of 1 August 2008).

  • b Regarding legal liabilities:

• The General Principle of Civil Law (adopted at the fourth session of the Sixth National People’s Congress on 12 April 1986, effective as of 1 January 1987).

• The PRC Tort Law (adopted at the 12th session of the Standing Committee of the Eleventh National People’s Congress on 26 December 2009, effective as of 1 July 2010).

• The PRC Contract Law (adopted at the second session of the Ninth National People’s Congress on 15 March 1999, effective as of 1 October 1999).

  • c Regarding legal procedure:

• The PRC Civil Procedure Law (amended at the 28th session of the Standing Committee of the Eleventh National People’s Congress on 31 August 2012, effective as of 1 January 2013).

• The Provisions of the Supreme People’s Court on Application of Laws in the Trial of Civil Disputes Arising from Monopolistic Practices (adopted at the 1,539th session of the Judicial Committee of the Supreme People’s Court on 30 January 2012, effective as of 1 June 2012).

• Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law (adopted at the 1,636th session of the Judicial Committee of the Supreme People’s Court on 18 December 2014, effective as of 4 February 2015).

• Several Provisions of the Supreme People’s Court on Evidence in Civil Proceedings (adopted at the 1,201st meeting of the Judicial Committee of the Supreme People’s Court on 6 December 2001, effective as of 1 April 2002).

According to Article 16 of the AML Judicial Interpretation, the limitation period for private antitrust claims is two years from the date when the plaintiff becomes aware or should have become aware of the monopolistic conduct that gives rise to the action. If the alleged monopolistic conduct is continual by nature and has continued for more than two years from when the plaintiff files the lawsuit, the defendant’s statute of limitations defence will not bar the plaintiff’s claims. In this situation, however, the compensation for damages should be calculated for the two years before the lawsuit filing date.

Further, according to the AML Judicial Interpretation, where the plaintiff reports the alleged monopolistic conduct to the AML enforcement agency, the statute of limitations is interrupted from the date of such a report. If the AML enforcement agency decides not to open a case, or decides to revoke a case or terminate an investigation, the statute of limitations shall be recalculated from the day when the plaintiff becomes aware or should have become aware of the decision not to open a case, to revoke a case or to terminate an investigation. If the AML enforcement agency determines after an investigation that the alleged monopolistic conduct exists, the statute of limitations shall be recalculated from the day when the plaintiff becomes aware or should have become aware that the decision of the AML enforcement agency affirming the existence of monopolistic conduct has come into force.

Under the authorisation of the Anti-Monopoly Commission of the State Council, the NDRC is drafting six guidelines respectively on the automotive industry; abuse of IP rights (the State Administration For Industry & Commerce (SAIC), the Ministry of Commerce and the State Intellectual Property Office are also drafting their own IP antitrust guidelines respectively while the Anti-Monopoly Committee will consolidate the guidelines drafted by four authorities to issue one unified guideline); exemptions of monopoly agreements; the commitment programme; the leniency programme; and the calculation of fines and illegal gains. Although these guidelines are being drafted to provide guidance on AML enforcement activities, they may also be referred to by the people’s court during private antitrust litigation. In particular, guidelines on the leniency programme and the commitment programme also provide rules concerning the relationship between the programme and antitrust litigation.

III EXTRATERRITORIALITY

Pursuant to Article 2 of the AML, the AML will apply to monopolistic conduct occurring overseas if the conduct has the effect of restricting or eliminating competition in the Chinese market. Due to the extraterritorial application of the AML, the people’s courts have the authority to apply the AML when ruling on monopolistic conduct occurring in other countries if the conduct has affected the domestic Chinese market.

In practice, monopolistic conduct may involve foreign sovereigns or may be engaged under the requirements of the foreign sovereigns. In this instance, the defendant may try to invoke the sovereign immunity principle or foreign state compulsion immunity principle to defend its behaviour. However, as we have not seen antitrust litigation invoking the above principles, how these principles will be implemented in China remains untested.

IV STANDING

According to the Civil Procedure Law, to bring a civil lawsuit, the following requirements should be met:

  • a the plaintiff must be a citizen, legal person or other organisation with a direct interest in the case;
  • b there must be a specific defendant;
  • c there must be a specific claim and a specific factual basis and grounds; and
  • d the action must fall within the range of civil actions accepted by the people’s courts and within the jurisdiction of the people’s court with which it is filed.

Moreover, Article 1 of the AML Judicial Interpretation provides that any natural person, legal person or other organisation that has suffered losses from monopoly conduct or has a dispute over contractual provisions, charters of trade associations or other documents may file a civil lawsuit before the competent people’s court. Based on the above, both direct purchasers and indirect purchasers who have suffered due to the monopolistic conduct would have standing to bring a civil lawsuit.

In fact, indirect purchasers are usually the ultimate victims of monopolistic conduct, and it is relatively easy for indirect purchasers to identify and reveal the monopolistic conduct. Therefore, granting indirect purchasers, especially customers, the right to file civil disputes greatly increases the possibility of exposing monopolistic conduct, preventing such conduct and awarding the monetary remedies to the victims. In light of the above consideration, Article 1 of the AML Judicial Interpretation does not provide special restrictions on the qualification of the plaintiff, as long as the plaintiff can prove that it has suffered losses caused by monopoly conduct. Regardless of whether the plaintiff is a direct or indirect purchaser, it can bring a civil lawsuit against the defendant.2

V THE PROCESS OF DISCOVERY

i General rules

There is no discovery system under the Chinese legal regime. The parties do not have the right to request any documents, information or admission from the opposing party, or to conduct a deposition of any person of the opposing party. Instead, the parties can either collect and prepare evidence by themselves, or apply to the court for evidence collection or evidence preservation. Moreover, according to Several Provisions of the Supreme People’s Court on Evidence in Civil Proceedings (the Provisions on Evidence), if there is evidence demonstrating that one party is in possession of evidence but refuses to provide it without good cause and the other party claims that such evidence is unfavourable to the party in possession of the evidence, it can be presumed that the other party’s claim is valid. Similar to the evidence collection and evidence preservation mechanisms, the provision aims at facilitating a party’s fulfilment of its burden of proof when it does not have possession of certain information.

According to the Provisions on Evidence, a party to a civil case shall be responsible for producing evidence in support of its own claims or its rebuttal to the claims of the opposing party. Where no evidence is produced or the evidence produced is insufficient to support the claims purported, the party that bears the burden of proof shall face unfavourable consequences. Therefore, the plaintiffs in a monopolistic civil lawsuit shall bear the burden of proof regarding the AML violation of the defendant, their losses and the causal link between the two. The defendant shall bear the burden of providing evidence to prove its arguments or rebut the alleged claims.

Moreover, the AML Judicial Interpretation provides more detailed rules on the burden of proof. Specifically, regarding the monopoly agreements prohibited by Article 13(1) to 13(5) of the AML, the defendant shall have the burden of proving that such agreements do not have the effects of eliminating or restricting competition. Regarding the abuse of dominance prohibited by Article 17, the plaintiff shall have the burden of proving that the defendant has the dominant position in the relevant market and has abused such dominance, whereas the defendant bears the burden of proving the legitimacy of its activities. As for vertical monopoly agreements prohibited by Article 14, although there are no specific rules on the allocation of the burden of proof and thus the general principle provided in the Provisions on Evidence mentioned above shall apply, in Rainbow v. Johnson & Johnson, the judge took the position that the plaintiff shall bear the burden of proving that the vertical agreement has eliminated or restricted the market competition.

ii Evidence collection

Regarding the application of evidence collection by the court, pursuant to Article 17 of the Provisions on Evidence, a party may request the court to investigate and collect evidence if such evidence (1) is kept by relevant governmental agencies and is only obtainable by a court; (2) concerns state secrets, trade secrets or privacy; or (3) is impossible for that party or its counsel to obtain due to objective circumstances. For example, plaintiffs cannot by themselves obtain access to a competition authority’s files or documents that the authority collected during its investigations. Therefore, a plaintiff may file applications to the people’s courts to gain access to such files and documents. As for the materials submitted for the purpose of applying for leniency, according to the draft guidelines on the leniency programme, such material should not be used as evidence in relevant civil proceedings unless otherwise stipulated by the law. Further, in cases where the court believes that the facts of the case may damage the interest of the state, the public interest of society or the lawful rights and interests of any other person, or the evidence may relate to procedural matters that have no bearing on the substantive dispute, such as the addition of a party, the adjournment of the case, the conclusion of the case, the withdrawal of the case, etc., on the basis of the authority of the court, the court should collect evidence on its own initiative.

iii Evidence preservation

Evidence preservation applies to the circumstances where the evidence may be extinguished or may be more difficult to obtain at a later time. The parties may apply for evidence preservation during the litigation proceedings or even before an action is initiated. In the former situation, the people’s court may also take preservation measures on its own initiative, while in the latter situation, the applicant must prove to the court that the circumstances are urgent and therefore pre-action evidence preservation is necessary.

iv Witness testimony

The Civil Procedure Law provides that the entity or individual who has information about the case shall appear in the court as a witness. In practice, however, a witness is rarely summoned by the court to attend court hearings. It is provided in the Provisions on Evidence that if the witness fails to appear in the court, his or her testimony shall not be used independently as a basis for confirming the facts of the case.

VI USE OF EXPERTS

According to the Provisions on Evidence and the AML Judicial Interpretation, the party can apply to the people’s court for up to two people with professional knowledge to appear in court and explain professional questions that are relevant to the case. In the court hearing, the judge and the parties can question this person with professional knowledge when he or she appears in court. In addition, with the approval of the court, the person with professional knowledge hired by one party can question the other person with professional knowledge hired by the other party or the appraiser.

In practice, economic experts are hired in private antitrust litigation in China to provide economic analysis mainly for market definition, dominance and the effects on market competition. For example, in the Qihoo 360 v. Tencent case, both parties hired economists to appear in court to provide support for their arguments, especially concerning the definition of the relevant market. Legal experts may also be hired to appear in court to provide their professional opinion on relevant legal issues. For example, in the Thsware v. Guangdong Education Department case, Professor Sheng Jiemin, an antitrust law specialist, and Professor Zhan Zhongle, an administrative law specialist, both from Peking University, appeared in court to present their opinions with respect to (1) whether the conduct of the Guangdong Education Department constituted administrative monopolistic behaviour and (2) whether it was a specific administrative act that was justiciable. It is rare, however, for the parties to hire experts to assist with the calculation of damages. The damages calculation is mainly argued by the parties and the court will decide on the issue based on evidence provided before it.

VII CLASS ACTIONS

There is no exact equivalent to class action in the Chinese litigation system. Instead, China’s Civil Procedure Law provides for a joint action mechanism. If plaintiffs have a common object of action or if their object of action belongs to the same category, they may file a case to a court jointly. This right to file joint action is contingent upon the court’s approval of such a joint action and upon the plaintiffs’ agreement to file such an action together.

Where there are numerous plaintiffs in a joint application, representatives may be selected by and from the group of plaintiffs. After obtaining special authorisation from the plaintiffs that they represent, the representatives may change or waiver claims, recognise claims of the opposing party, settle with the opposing party or enter into a settlement agreement with the opposing party, or lodge a counterclaim or appeal. Actions undertaken by such representatives will be effective for all joint plaintiffs.

In joint actions, if the number of plaintiffs is uncertain upon institution of the action, the court possesses the right to issue public notices, which state the particulars and claims in respect of joint applications, instructing other potential plaintiffs to file with the court within a certain time. Judgments or orders rendered by the court are effective for all joint applicants. The same judgments or orders are binding on plaintiffs who have not participated in the joint actions but instituted legal proceedings within the limitation period.

The Civil Procedure Law, amended in August 2012, further stipulates new provisions for public interest litigation, which state that for conduct that pollutes the environment, infringes upon the lawful rights and interests of vast consumers or otherwise damages the public interest, an authority or relevant organisation as prescribed by law may institute an action in a people’s court. Correspondingly, the Law on the Protection of Consumer Rights and Interests, which was amended in 2013, provides that for the behaviour that infringes the legitimate rights of numerous consumers, the China Consumers’ Association and its local branches may institute legal proceedings with the people’s court. However, as to whether other trade or professional associations are qualified to bring such claims on behalf of their members, it remains to be tested in practice.

Since the mechanism is not well established in China, it is still unclear as to how to implement the mechanism in practice, especially with respect to the calculation of damages. In addition, in practice, the people’s court also seems to be very cautious when accepting the public interest litigation.

In 2015, the Shanghai People’s Court accepted a public interest litigation filed by the Shanghai Consumers’ Association against Samsung and Oppo, asserting that the companies harmed consumer welfare by pre-installing apps on their smartphones. This is the first public interest litigation that has been accepted by the people’s court. However, the plaintiff later withdrew the case after the two companies pledged to take rectification measures.

VIII CALCULATING DAMAGES

According to the AML Judicial Interpretation, if the defendant carries out monopolistic conduct and causes loss to the plaintiff, the people’s court may, according to the plaintiff’s claims and the facts presented, order the defendant to bear the civil liabilities such as ceasing the infringement and indemnifying the loss. Punitive damages are not available under the Chinese law.

The AML Judicial Interpretation, the General Principle of Civil Law and the Tort Law do not provide detailed rules on how to calculate damages if a plaintiff is injured by monopolistic conduct. Therefore, the principle of recovery of the losses suffered by the plaintiff should be applied to determine damages resulting in the plaintiff being placed in the same position he or she was in before the infringement occurred. For example, in the Rainbow v. Johnson & Johnson case, the court believed that the damages should not be calculated according to the principle under the Contract Law, which would be the loss of profits should Rainbow comply with the RPM clause (i.e., a profit margin of 23 per cent). Instead, the court deemed the loss of profits should be calculated based on the profits that the company could normally earn in the relevant market (i.e., a profit margin of 15 per cent).

In addition, according to the AML Judicial Interpretation, upon the request of the plaintiff, the court may include in the damages any reasonable expenses of investing or preventing the monopolistic conduct incurred by the plaintiff.

IX PASS-ON DEFENCES

Although there is a lack of clear provisions, the passing-on defence should be applicable considering that both direct and indirect purchasers are allowed to file an antitrust action under the AML.

In light of Section VIII, supra, regarding the principle of calculating damages, if the defendant can prove that the plaintiff has not actually suffered any loss due to the pass-on effect, the court would then not support the plaintiff’s claim for a damages award. However, other non-monetary relief such as cessation of the infringement could still be awarded.

X FOLLOW-ON LITIGATION

A claimant can bring a follow-up action where a breach of the AML has already been established in an infringement decision taken by the administrative enforcement authority. In a follow-on litigation, subsequent litigation proceedings may be affected by the preceding administrative enforcement procedures in the following aspects.

First, with respect to the statute of limitations, as mentioned in Section II, supra, according to Article 16 of the AML Judicial Interpretation, the limitation period for private antitrust claims is two years from the date the plaintiff becomes aware or should have become aware of the monopolistic conduct that gives rise to the action. Where the AML enforcement agency determines after an investigation that the alleged monopolistic conduct exists, the two-year statute of limitations shall be recalculated from the day the plaintiff becomes aware or should have become aware that the decision of the AML enforcement agency affirming the existence of monopolistic conduct has come into force.

Second, in relation to the influence of administrative decisions made by antitrust enforcement authorities, the findings and conclusions of antitrust enforcement authorities are not binding on the court. However, such findings and conclusions are more likely to be adopted by the people’s court compared with other documented evidence in accordance with Article 77(1) of the Provisions on Evidence, which provides that the documents formulated by state organs or social bodies according to their respective functions are, as a general rule, more forceful than other written evidence. Therefore, a valid decision finding the defendant in violation will be a persuasive, influential and valuable piece of evidence in the follow-on litigation.

Third, with regard to evidence collection, a plaintiff in a follow-on litigation may apply for the court to collect evidence in the possession of an antitrust enforcement agency, which has been considered by the agency in the preceding investigation, and may use such evidence to support its arguments. With regard to the materials submitted by the leniency applicant, however, as mentioned above, according to the draft guidelines on the leniency programme, such material should not be used as evidence in relevant civil proceedings unless otherwise stipulated by the law.

XI PRIVILEGES

Attorney–client privilege is not recognised under the Chinese law. In other words, confidential communications between an attorney and a client, attorney work product or joint work product are not privileged or protected. Theoretically speaking, attorney–client communications and attorney work product could be used as evidence in civil proceedings. Nevertheless, in practice, it is rare to see such privileged information disclosed in court proceedings, and the application of collecting such information is rarely granted by courts.

In some investigations administrative agencies request target companies to turn in the files of in-house counsel, which contain their correspondence with outside counsel and with other employees of the company. If a court successfully collects evidence from administrative agencies, such privileged documents may be disclosed and used in litigation proceedings. However, according to public resources, there have not been any precedents in this regard.

XII SETTLEMENT PROCEDURES

There are two kinds of settlement procedures under the Civil Procedure Law: court mediation and settlement by the parties. The court will not compel the parties to settle or to use other forms of alternative dispute resolution during the proceeding. Instead, the courts will normally inquire as to the intention of the parties to settle the case at the end of a court hearing or at other stages of the proceedings. If the parties are willing to settle the case, the court may conduct mediation under the principle of free will and legality. Generally, mediation is encouraged by courts.

Mediation can be conducted by a judge or by the collegiate bench. Once a settlement is reached, courts will issue a ‘bill of mediation’ signed by the judge and the court clerk that will be affixed with the seal of the people’s court. Such a bill of mediation will be legally binding and enforceable by courts once properly signed for by the parties.

In addition to mediation, the parties may reconcile of their own accord. However, the conclusion of a settlement agreement does not automatically lead to the termination of the proceedings. The plaintiff needs to withdraw its complaint in order to close the litigation. Since a settlement agreement is only signed by the two parties, it cannot be enforced by the court directly. In order for the settlement agreement to have the same binding effects as a valid judgment or order issued by the court, the parties may apply for the court to confirm the terms of the settlement agreement in accordance with the law and work out a bill of mediation in accordance with Article 4 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Civil Mediation in the People’s Courts, so that the settlement agreement can be directly enforced by the court if a party fails to comply with it.

XIII ARBITRATION

There are no clear provisions as to whether antitrust disputes are arbitrable in China. However, according to Article 2 of the Arbitration Law of the People’s Republic of China, disputes over contracts and disputes over property rights and interests between citizens, legal persons and other organisations with equal standing may be submitted for arbitration. Considering that antitrust claims are generally contractual disputes or disputes over property rights and interests between parties with equal standing, there is a high likelihood that they can be resolved through arbitration. According to publicly available information, a multinational electronics company is seeking to use arbitration to resolve a dispute with its Chinese distributor over allegations that it committed a violation concerning a vertical monopoly agreement.

XIV INDEMNIFICATION AND CONTRIBUTION

Under the Chinese legal regime, where two or more persons jointly commit a tort that causes harm to another person, they shall be liable jointly and severally. Nevertheless, a defendant can seek contribution or indemnity from other defendants. Pursuant to the Tort Law, the compensation amounts corresponding to the tortfeasors who are jointly and severally liable shall be determined according to each tortfeasor’s degree of responsibility. If the degree of responsibility of each tortfeasor cannot be determined, the tortfeasors shall evenly assume the compensatory liability. A tortfeasor who has paid an amount of compensation exceeding his or her contribution shall be entitled to reimbursement by the other tortfeasors who are jointly and severally liable.

XV FUTURE DEVELOPMENTS AND OUTLOOK

Under the authorisation of the Anti-Monopoly Commission of the State Council, the NDRC is drafting six antitrust guidelines respectively on the automotive industry; abuse of IP rights (the SAIC, the Ministry of Commerce and the State Intellectual Property Office are also drafting their own IP antitrust guidelines respectively while the Anti-Monopoly Committee will consolidate the guidelines drafted by four authorities to issue one unified guideline); exemptions of monopoly agreements; the commitment programme; the leniency programme; and the calculation of fines and illegal gains, among which the guidelines on the leniency programme and on the commitment programme are likely to provide more clarifications on the general provisions under the current AML regime regarding the adoption of evidence in a civil litigation.

i Draft Leniency Guidelines

It is provided in the draft Guidelines for the Application of the Leniency Programme to Cases Involving Horizontal Monopoly Agreements that all reports submitted and documents generated under the Draft Leniency Guidelines will be kept in special archives by the AML enforcement agencies and must not be disclosed to any third party without the consent of the business operator concerned. No other agencies, organisations or individuals can obtain access to this information and the documents shall not be used as evidence in relevant civil proceedings, unless otherwise stipulated by the law.

ii Draft Guidelines on Commitments in Anti-Monopoly Cases

The draft Guidelines for Commitments in Anti-Monopoly Cases provide that the AML enforcement agencies’ decision on suspension or termination of the investigation shall not affect other business operators’ or consumers’ institution of a civil action with the people’s court against the suspected monopoly conducts, while such decision on suspension or termination of the investigation must not be taken as relevant evidence for affirming that relevant conduct concerned constitutes monopoly conduct.


1 Susan Ning is a senior partner, Kate Peng is a partner and Sibo Gao is an associate at King & Wood Mallesons.

2 See, Xiangjun Kong, Comprehension and Application of the Relevant Judicial Interpretation Regarding Intellectual Property (China: Legal Publishing House, 2012), 265–266. This book was edited by Mr Xiangjun Kong, the then Chief Judge of the IP Division of the Supreme People’s Court, in 2012, right after the issuance of the AML Judicial Interpretation. It includes relevant judicial interpretations and guidance regarding intellectual property disputes and competition disputes, as well as the explanation and illustration from the drafters of certain official documents and the chiefs of certain adjudication divisions from the Supreme People’s Court.