China: Anti-Monopoly Disputes Are Not Arbitrable According To Chinese Court

Last Updated: 12 September 2016
Article by Lester Ross and Tingting Liu

On August 29, the Jiangsu Provincial Higher People's Court ruled that an arbitration clause did not apply to an anti-monopoly dispute in a 10 million yuan ($1.5 million) case brought by a distributor against a manufacturer. This is the first time a Chinese court has ruled on the validity of an arbitration clause in an anti-monopoly dispute.1 The court held that anti-monopoly cases involve the public interest and, in the absence of an express rule allowing arbitration of such private disputes, an arbitration clause may not serve as a basis for jurisdiction in a dispute between private parties.

In this case, the plaintiff, a distributor for a Fortune 500 manufacturer, entered into Distribution Agreements in 2012 and 2013 with the manufacturer, each of which stipulated that all disputes arising out of or in connection with the Distribution Agreement shall be resolved through arbitration. The award rendered by the arbitral tribunal is final and binding on both parties.2

The plaintiff filed an anti-monopoly lawsuit in the Nanjing Intermediate People's Court in 2014 accusing the defendant of abuse of market dominance, price monopoly conduct, tying, and market allocation by vertical restraint agreements and restriction of competition, and demanded compensation in an amount of more than 10 million yuan.3

Subsequently, the defendant filed a jurisdictional objection arguing that the court lacked jurisdiction because the Distribution Agreements included an arbitration clause.4

The Nanjing Intermediate Court, the court of first instance, held that the parties had not excluded anti-monopoly disputes from the arbitration clause, and under the Arbitration Law contract disputes and other property right disputes between citizens, legal persons and other organizations of equal status may be arbitrated. The court of first instance therefore rejected the jurisdictional objection. It also rejected the request for arbitration, however, on the grounds that the Distribution Agreements did not designate a single arbitration institution but instead provided for different arbitration institutions, which rendered the arbitration clause invalid.5

The Jiangsu Provincial Higher Court affirmed the Intermediate Court's ruling on appeal and held that there are three reasons why an anti-monopoly case may not be arbitrated:

(i) at present, relevant laws and judicial interpretations expressly provide for civil litigation as a means to resolve civil monopoly disputes;

(ii) public policy considerations favor litigation over arbitration; and

(iii) the particular case involves the public interest, third-party interests and consumer interests and therefore overrides the preference of the parties for private dispute resolution under the arbitration clause.6

The decision by the Jiangsu Provincial Higher Court may have significant impact on business operators in China, including multinationals. Until now, it had been common practice both internationally and domestically for civil and commercial contract parties to submit their disputes arising out of contract to arbitration. The US and major European countries have also gradually included antitrust disputes in the arbitral domain.7,8 However, this case shows that such arbitration agreements may be trumped by public interest considerations, i.e., even though the parties have expressly agreed to resolve monopoly disputes through arbitration, the litigation through the courts will prevail over arbitration.

When such disputes between distributors and manufacturers are adjudicated on the merits under Article 14 of the Anti-Monopoly Law (AML) which prohibits vertical agreements between businesses and their trading parties, they will be decided on the basis of the rule of reason.9


See MLex, Antitrust disputes take precedence over arbitration agreements, Jiangsu court rules in 10 milllion yuan lawsuit (Sept. 5, 2016).

2. Id.

3. See Huang Wei and Dong Jian, The arbitrability of Chinese anti-monopoly cases (Dec. 8, 2015), available at

4. See Tianyuan Lawyers, Jiangsu Higher Court, antitrust cases are not arbitrable (Sept. 5, 2016), available at

5. Id.

6. Id.

7. In Mitsubishi v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985), the United States Supreme Court ruled that the Federal Arbitration Act was broad enough to require arbitration of statutory claims as well as contractual ones, extending a recent line of court decisions favorable to arbitration. In Hough v. Merrill Lynch, 757 F. Supp. 283 (S.D.N.Y., 1991), J. William C. Conner in the Southern District of New York held that along with the later cases, Mitsubishi should be read to make domestic antitrust claims arbitrable, and the Second Circuit affirmed without issuing an opinion.

8. In Eco Swiss (ECJ, June 1, 1999, Eco Swiss, Case C-126/97, [1999] ECRI-3055), the European Court of Justice accepts the arbitrability of EU competition law. Courts in various EU Member States have pronounced their respective competition law to be arbitrable, including France, Italy, England and Wales, and Sweden. Under Swiss law, competition law is also arbitrable. See Phillip Landolt, "Arbitration and Antitrust: An overview of EU and national case law" (Apr. 13, 2012), available at

9. See AML, Art. 14. Vertical agreements include monopoly agreements on fixing the prices of commodities resold to a third party, restricting the lowest prices for commodities resold to a third party, and other monopoly agreements confirmed as such by the relevant anti-monopoly enforcement authority. See Ding Liang, "After Many Twists and Turns China's First Vertical Monopoly Agreement Dispute Has Ended – Comments on Rainbow v. Johnson & Johnson," Wolters Kluwer (Aug. 5, 2013). The Supreme People's Court has yet to rule on a resale price maintenance case and has not cited Rainbow v. Johnson & Johnson as a model case.

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.

Similar Articles
Relevancy Powered by MondaqAI
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”

Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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