High-profile judgment draws focus towards antitrust civil actions

With the recent publication of the first instance judgment in Qihoo v QQ, antitrust civil actions have drawn a great deal of attention. Although only article 50 of the Anti-Monopoly Law (AML) – which states “if in committing a monopolistic act a business operator causes third parties to incur losses, it shall bear civil liability in accordance with the law” – has any bearing on civil actions, anti-monopoly actions have consistently been an important means of seeking private remedy against monopolistic acts.

The Provisions of the Supreme People’s Court on Several Issues Concerning the Application of the Law in Trials of Civil Dispute Cases Triggered by Monopolistic Acts, implemented on 1 June 2012, is the first set of judicial interpretations issued by the Supreme People’s Court in the field of antitrust civil litigations. The judicial interpretation clarifies the basic procedural issues in antitrust civil actions, such as filing for suit, acceptance, jurisdiction, rules of evidence and civil liability.

Q: Who has standing to initiate antitrust civil actions?

A: Any natural person, legal person, or other organisation that has been injured by a monopolistic act or is involved in a dispute arising from contractual provisions, industry association charters, etc. in violation of the AML may institute a civil action in a People’s Court. This means that antitrust civil actions include both actions based on a contractual relationship, and where no contractual relationship exists but damages were incurred as a result of a monopolistic act. Accordingly, the plaintiffs can range from business operators or consumers who have a transactional relationship with an enterprise suspected of monopolistic behaviour, to actual and potential competitors, or indirect consumers with no such relationships.

The plaintiff may file suit directly in a People’s Court or wait to do so after the penalties imposed by the AML enforcement authorities for monopolistic behaviour have taken effect. In other words, an administrative law enforcement procedure is not a precondition to the institution of an antitrust civil action.

Michael Gu is a partner and Song Ying is an associate at AnJie Law Firm