On 25 April 2011, the Supreme People's Court issued for
public comments draft rules which govern civil action in relation
to Anti-Monopoly Law (AML) disputes. These rules
are entitled "Provisions on Issues Concerning the Application
of Law in the Trial of Monopoly Civil Dispute
Cases"("Draft Rules"). Prior to the release of these
Draft Rules, there haven't been any detailed rules in relation
to AML civil action. The court will consult on this Draft Rules
till 1 June 2011.
The Draft Rules contain 20 articles covering jurisdiction,
standing of plaintiffs, burden of proof, evidentiary rules,
relationship of antitrust administrative investigations and the
judicial process, form of civil liabilities and the statute of
limitations. The objective of these Draft Rules is to ensure proper
adjudication of civil monopoly disputes cases, prevent monopolistic
conduct, protect fair competition in the market and safeguard the
interests of consumers and public interest.
As set out in its preamble, the Draft Rules are promulgated in
accordance with the AML1, the General Principles of
Civil Law, the Tortuous Liability Law, the Contract Law, and the
Civil Procedure Law. In fact, even before the AML formally came
into force on August 1, 2008, the Supreme Court showed its efforts
in paving the way for upcoming AML private actions by recognizing
monopoly dispute as a cause of action under the section of
intellectual property disputes2. In late July 2008, the
Supreme Court explicitly provided in a notice that anti-monopoly
cases shall be handled by the intellectual property division of the
The current Draft Rules addressed some of the most important
unresolved issues. It confirms that civil antitrust cases of first
instance shall be heard by specified intermediate people's
courts3. It recognizes the standing of indirect
customers to bring an action. The Draft Rules also make some
break-through in respect of the rules for allocation of the burden
of proof. Noticeably, the current Draft Rules do not contain
provisions on representative actions and punitive damages, which
had existed in previous drafts.
We understand that the Supreme Court commenced the drafting of
these Draft Rules sometime in 2009 (i.e. a year after the enactment
of the AML). We also understand that the Supreme Court has held
several rounds of consultations and workshops to discuss
It is the first time the Supreme Court officially published the
Draft Rules for public comments. It suggests that the Supreme Court
sees the Draft Rules as a rather mature product and it is
reasonable to expect that the finalized provisions will come out in
the foreseeable future. According to a press interview with the
Supreme Court judge, from the period August 1, 2008 to the end of
2010, the local courts in China have accepted 43 private actions
under the AML and have closed 29 of them. We anticipate that more
private actions will come up when the Draft Rules come into
1. Article 50 of the AML provides the source power for
private actions. Article 50 states that business operators who
engage in monopolistic conduct and cause damage to other shall bear
2. See the 2008 Provisions on the Cause of Action of
Civil Cases. The 2010 Provisions on the Cause of Action of Civil
Cases sets out further three categories of monopoly disputes, i.e.,
monopoly agreement disputes, abuse of dominance disputes, and
concentration of undertakings disputes.
3. Intermediate courts having jurisdiction over antitrust
cases are those in capital cities of the provinces and autonomous
regions, municipalities directly under the State Council or cities
separately listed on the State plan, or those specifically
designated by the Supreme Court.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Anyone with standard form contracts who deals with small business must review the contracts for potential unfair terms.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).