China: A Further Look At The Draft Rules Governing AML Private Actions

Last Updated: 2 May 2011
Article by Susan Ning, Liu Jia, Ji Kailun and Shan Lining

On 25 April 2011, the Supreme People's Court (the Court) published draft rules which govern Anti-Monopoly Law private actions (Draft Rules).  These draft rules are entitled "Provisions on Issues Concerning the Application of Law in relation to Trials of Monopoly Civil Dispute Cases".

This article outlines the salent provisions of, and points to some interesting features of, these Draft Rules.

  1. Objective

    The objective of the Draft Rules is to "to ensure the proper judgment of civil antitrust disputes, prevent monopolistic conducts, protect fair competition in the market, and safeguard the interests of consumers and social public interest"

  2. Overview of the provisions

    The Draft Rules has 20 provisions in total, these cover the following matters:

    • Articles 1 to 3 deal with jurisdiction issues;
    • Articles 4 deals with the issue of standing;
    • Articles 5 to 6 provide outline the different forms of AML civil litigation;
    • Articles 7 to 14 outline the rules of evidence;
    • Articles 15 to 16 outline the link between AML investigations and litigation;
    • Articles 17 to 19 deal with remedies; and
    • Article 20 provides for a statute of limitations.

  3. Jurisdiction

    The Draft Rules provide that first instance AML cases will be heard by:

    • intermediate people's courts located in the capital cities of the provinces and autonomous regions;
    • intermediate people's courts in municipalities which fall under the purview of the State Council or in cities listed in the State Plan1 ; and
    • intermediate people's courts which have been designated by the Supreme People's Court.

    The Court was interviewed about the draft recently2 and during this interview, a spokesperson from the Court said that only certain intermediate people's courts were given jurisdiction to hear AML cases because their experience with AML cases are that these are highly complex and "technical" in nature. The spokesperson also said that China is still at its infancy re AML litigation and thus far the courts haven't had the opportunity to become experienced AML courts. It was also disclosed during the interview that AML cases (along with Anti-Unfair Competition Law cases) will be heard by the Intellectual Property Rights Tribunals within the courts possessing jurisdiction.

  4. Standing

    The Draft Rules echo Article 50 of the AML. Article 50 of the AML provides that business operators which implement monopoly acts and thereby causing others to suffer losses will bear civil liability. The Draft Rules state that "natural persons, legal persons and other organisations who have suffered harm as a result of monopolistic conduct, including business operators and consumers, may file a civil suit". From the relatively broad way in which the Draft Rules are phrased, it would appear that persons who are directly or indirectly harmed by a monopoly act may sue.

    During the interview mentioned above, the spokesperson from the Court explained that victims of monopoly acts often do not come into direct contact with entities who breach the AML – for instance consumers.

  5. Forms of AML civil litigation

    The Draft Rules provides for both stand alone and follow on rights of actions.

    The Draft Rules also provide that there are only follow on rights of actions in relation to breaches of the AML by administrative agencies 3.

  6. Rules of evidence

    Burden of proof on plaintiff. Pursuant to PRC Civil Procedure Law, the burden of proof always lies on the plaintiff. This is also the case in the Draft Rules. Specifically, the Draft Rules state that plaintiffs will bear the burden of proof in the following respects:

    • the existence of the alleged monopolistic conduct;
    • the existence of damages;
    • the causal link between the alleged monopolistic conduct and damages.

    Cartel cases. In relation to cartel cases, the plaintiff bears the burden in relation to proving how the cartel arrangement has eliminated or restricted competition (i.e. the effects test). However, in relation to specific conduct outlined pursuant to Articles 13(1) to (5) and 14(1)-(2) of the AML, the plaintiff does not have to prove effects. Article 13 of the AML prohibits cartel agreements and arrangements and parts (1) to (5) outlines examples of cartel agreements and arrangements such as price fixing, restricting supply and dividing markets. Article 14 of the AML prohibits anti-competitive vertical agreements and arrangements including resale price maintenance. The Draft Rules make it clear that one does not need to prove "effects" in relation to these examples of cartel agreements or anticompetitive vertical agreements.

    Abuse of dominance cases. In relation to abuse of dominance cases, the plaintiff bears the burden of proof in relation to proving: what the relevant market is, dominance of the defendant in the relevant market and the alleged abuse.

    Defences. The defendant would bear the burden of proof to prove the legitimacy of his actions, after the plaintiffs are able to prove the above mentioned elements.

    The Draft Rules also address "pass through" defences – in relation to pass through defences, the defendant would have the burden of proof that the plaintiffs have passed through all their damages or part of their damages to other entities.

    Special sectors. The Draft Rules also provide that so long as there is sufficient evidence, the courts would be able to provide a "preliminary" determination that dominance exists in respect of:

    • public enterprises including the suppliers of water, electricity, heat and gas;
    • business operators other than public enterprises, who are entitled by the relevant laws, regulations and rules to be the dominant operator in relation to specific commodities and services;
    • in markets which lack efficient competition and where business operators provide commodities or services to others who place great reliance on these business operators.

    Type of evidence. Evidence to prove dominance may include: economic analysis, statistical results put together by a qualified and independent third party and "confessions" by the alleged dominant entity.

    Court order to provide evidence. There is also a provision within the Draft Rules which give courts the power to instruct defendants to provide evidence. Specifically the Draft Rules state that plaintiffs may apply for a court order to instruct defendants to provide further evidence, provided the a number of elements are satisfied, including: that plaintiffs are able to prove the "probable existence" of damages due to the monopolistic conduct and plaintiffs have used "reasonable means" to obtain evidence but to no avail.

    Expert Evidence. The Draft Rules provide that plaintiffs and defendants may apply to the courts if they wish to submit expert evidence.

  7. Link between AML investigations and litigation

    The Draft Rules provide that there is a link between AML investigations and litigation. Specifically, in situations where monopolistic conduct has been investigated by but not yet determined by the antitrust authorities, the courts may still make determinations based on these investigations.

    The courts may also decide to grant a stay to cases in which investigations into alleged monopolistic conduct has not been concluded by the antitrust authorities.

  8. Remedies

    The Draft Rules state that business operators who commit monopolistic conduct should bear civil responsibilities pursuant to civil law, tort liability law and the AML.

    These remedies include: an order to stop the infringement; an order to eliminate the "danger" of causing losses to others and damages for loss caused to others.

  9. Statute of limitations

    The Draft Rules provide that the statutory limitations for civil antitrust actions are:

    • in relation to stand alone actions, two years commencing from the day when the aggrieved party is aware of or should be aware of the infringement;
    • in relation to follow on actions, the two year limit is calculated from the day when the aggrieved party either is aware of or should be aware of the determination by the antitrust authorities.
  10. Concluding remarks

    These Draft Rules are very comprehensive and cover many aspects of AML litigation. Going forward and especially after these rules are enacted, we expect to see a rise in terms of AML litigation as plaintiffs become familiar with and confident with what they can expect and need to prove to establish a breach of the AML.

  11. 1Currently, there are 5 cities separately listed on the State Plan. These are: Shenzhen, Dalian, Qingdao, Ningbo and Xiamen.


    3The AML prohibits an abuse of administrative powers by administrative agencies which result in the elimination and restriction of competition (see Chapter 5, AML).

    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

Click to Login as an existing user or Register so you can print this article.

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”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.