China: Supreme Court of China Issues Judicial Interpretation Governing Private Antitrust Litigations

Last Updated: 6 June 2012
Article by Susan Ning, Liu Jia and Hazel Yin

On 3 May 2012,China's Supreme People's Court issued the Rules of the Supreme People's Court on Several Issues Concerning the Application of Law in Hearing Civil Cases Caused by Monopolistic Conduct ("Rules").The Rules contain 16 articles covering standing of plaintiffs,jurisdiction,burden of proof,evidentiary rules,expert witness,the judicial process, form of civil liabilities and the statute of limitations.The Rules entered into force on 1 June 2012.

Compared to the draft Rules released last year for public comments ("Draft Rules")1,the Rules contain fewer articles and remain silent on a few issues that were previously addressed in the Draft Rules.This article discusses the major provisions in the Rules.

  • Relationship of antitrust administrative investigations and the judicial process

    Since the AML does not mandate ex ante administrative proceedings,the Rules recognize that a plaintiff can either directly bring a civil action before the court,or bring a civil action after the decision of the AML enforcement agencies2 is confirmed effective.

    However,the Rules choose to stay silent on whether administrative decisions may be used as proof of the facts confirmed therein in a follow-on litigation.Under the Draft Rules,the parties do not have to bear the burden to prove facts that have been ascertained by the AML enforcement agencies in their valid decisions.It is unclear whether this retreat is intended to uphold the independence of courts in the fact-finding process.In practice,the role an administrative decision can play in a follow-on litigation remains to be tested.

  • Jurisdiction

    The Rules provide that civil monopoly cases of the first instance shall be heard by intermediate courts(i)in capital cities of the provinces and autonomous regions,(ii)in cities separately listed on the State plan,(iii)in municipalities directly under the State Council,or(iv)by intermediate courts specifically designated by the Supreme Court.

    In addition,the Rules also clarify that primary courts may also have jurisdiction over civil monopoly cases of the first instance,if approved by the Supreme Court.To empower primary courts with the jurisdiction to hear civil monopoly cases of first instance may encourage more consumers or smaller enterprises to file private actions under the AML.

  • Consolidation of cases

    The Draft Rules originally provided that plaintiffs can file"joint actions"against the defendant.However,the Rules removed this provision and only provide that where two or more plaintiffs have separately filed lawsuits before a court over the same monopolistic conduct, the court may consolidate the cases into one case for hearing.The Rules however does not specify what would constitute"the same monopolistic conduct",whether it refers to one particular conduct or one type of conduct.Such ambiguity may give the court more discretion in determining whether or not to consolidate the cases

  • Allocation of burden of proof in relation to a monopoly agreement claim

    Pursuant to the principles of Civil Litigation Law,a plaintiff shall bear the burden of proving:(i)the existence of the alleged monopolistic conduct;(ii)the damages it claims; and(iii)the causal relationship between the alleged monopolistic conduct and the damages.Whether or under what circumstances a plaintiff shall prove the anti-competitive effects of the challenged conduct remained a controversy before the Rules were promulgated.

    According to the Draft Rules,a plaintiff does not have to prove that a monopolistic agreement,either horizontal or vertical,has the effect of eliminating or restricting competition if the challenged conduct is expressly listed in the AML as constituting a monopolistic agreement, unless the defendants have enough evidence to prove otherwise.

    The Rules,on the contrary,removed the presumption of anti-competitive effects for vertical agreements,which under the AML include fixing resale price and restricting minimum resale price("RPM").For horizontal monopoly agreements that are explicitly identified in the AML(i.e.price fixing,output restriction,market segmentation,restriction on the procurement or development of new technologies,and joint boycott),the Rules followed the position in the Draft Rules,namely the defendant shall bear the burden to prove the lack of anti-competitive effects.As to other unidentified types of horizontal monopoly agreements,it will still be the plaintiff's burden to prove that such horizontal agreements have the effect of excluding or restricting competition.

    Such a change of position may suggest that the Supreme Court has adopted different standards of proof for horizontal agreements vis-ŕ-vis vertical agreements.The head of the Intellectual Property Division of the Supreme Court said in a press interview in relation to the Rules that in most cases,vertical agreements become harmful only if the supplier and/or the buyer has market power.Therefore,in practice,if a plaintiff intends to challenge a vertical agreement,like RPM,it may have to establish that the agreement has anti-competitive effects and that the defendant has market power.In fact,this was the position taken by a Shanghai court in the Ruibang v.Johnson&Johnson case,where the plaintiff's vertical agreement claim was denied on the ground that it failed to prove J&J has market power and the RPM is anti-competitive.

    The broader implication of this evidentiary rule is that the Supreme Court appears to be advocating a rule of reason analysis for RPM.It is not clear whether the administrative agencies,in particular,the NDRC,will follow suit.

  • Allocation of burden of proof in relation to an abuse of dominance claim

    As to abuse of dominance,the Rules provide that the plaintiff shall bear the burden of proof regarding the dominant position of the defendant in the relevant market, and the alleged abusive conducts,whereas the defendant shall bear the burden of proving the justifications of its conduct if it asserts such a defense.

    In addition,the Rules provide that if the defendants are public utility enterprises or other undertakings legally authorized to possess a monopoly position, the court may have a preliminary finding of market dominance on the basis of the market structure and the competition conditions,unless otherwise rebutted by evidence to the contrary.

    The Rules have further clarified that the plaintiff can use information publicly released by the defendant as evidence of its dominance and the court may make a finding of the defendant's dominance on such basis.This article provides for a very helpful way for plaintiff to establish the defendant's dominant position.Companies with market power should also become more prudent in public promotions of their market positions.

  • Expert witness and independent professional institutions

    Antitrust cases may involve very complex issues that demand industry expertise or economics analysis.The Rules therefore provide that parties to litigations can apply to the court to entrust one or two specialists to testify at court hearings.They can also apply to the court to entrust an independent institution,either agreed by both parties,or designated by the court,to conduct market survey or economic analysis. For credibility reasons, it may take some time before independent professional institutions are involved in antitrust private actions.Nevertheless,expert witnesses have already been employed in an antitrust case,i.e.,the most recent 360 v.QQ case.3


Since the enactment of the AML in August 2008, quite some antitrust private actions have been filed. However, there barely is any case where the court ruled in favor of the plaintiff.More often,the courts ruled against the plaintiffs due to their failure of meeting the burden of proof.The Rules have made great efforts in filling the gap between the AML and its implementation in civil litigations.

A lot still remains uncertain.For example,the Rules do not clarify what action a private party can file in relation to a merger.Compared to the Draft Rules,it is less clear whether indirect purchasers would have the standing as a plaintiff.It also becomes less certain as to the assumption of dominance for public utility enterprises,potentially suggesting a compromise by the Supreme Court with other interested parties.

It may be too optimistic to anticipate that the Rules may bring about an outburst of private antitrust actions.Nevertheless,the Rules have laid a solid foundation for the development of antitrust judicial reviews in China.It is expected that along with the AML administrative enforcement, AML private actions will play an increasingly important role in shaping the antitrust regime in China.


1To read more,please refer to our articles titled" Supreme People's Court Issues Draft Rules Governing Private Actions under the Anti-Monopoly Law"," A Further Look At The Draft Rules Governing AML Private Actions,and AML Class Actions and The Draft Litigation Rules".
2 The AML enforcement agencies include the National Development and Reform Commission("NDRC"),in charge of the price-related monopolistic conducts,the State Administration for Industry and Commerce("SAIC"),in charge of the non-price related monopolistic conducts,and the Ministry of Commerce("MOFCOM"),in charge of merger control review.
3 Both Qihoo(operator of 360,the anti-virus software)and Tencent(operator of QQ,the instant messaging software)employed specialists in the court hearing held at April 18th at the Guangdong Higher People's Court.For details of the case, please refer to our article entitled" 360 v. QQ-Abuse of Dominance Action Tried at Guangdong Higher 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

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”

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
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 you may opt out by clicking here

    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.

    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.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    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.

    By clicking Register you state you have read and agree to our Terms and Conditions