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Navigating through PRC Private Antitrust Litigation - Highlights of the Judicial Interpretation on PRC Private Antitrust Litigation issued by the Supreme People's Court
On June 24, 2024, the Supreme People's Court of the People’s Republic of China ("SPC") issued the Interpretation of Several Issues Concerning the Application of Law in the Trial of Private Litigations over Monopolistic Conducts (the "Judicial Interpretation"), which took effect since July 1, 2024.
Chinese antitrust cases have grown more common and complicated in recent years. The people's courts in China have released 656 rulings[1] in private antitrust cases since the PRC Anti-monopoly Law ("AML") went into force in 2008, including first instance cases and appeals. Numerous industries have been affected by the lawsuits, including the Internet, public utilities, pharmaceutical, petrochemical, and automotive sectors. Some of the cases have also had a broad social impact.
(Diagram: China's Private Antitrust Litigation Statistics, 2008–2024)
The promulgation of this Judicial Interpretation represents a significant milestone in China's antitrust litigation landscape, reflecting the evolving legal framework and the judiciary's dedication to tackling the intricacies of monopolistic practices. The Judicial Interpretation offers extensive and precise regulations that cover both procedural and substantive aspects of private antitrust litigations, in accordance with the AML amendment that went into force in 2022 and incorporating previous litigation practices. The following aspects are particularly noteworthy:
It first reaffirms the extraterritorial effect of the AML in private litigations, meaning that the PRC courts would have jurisdiction over monopolistic conducts that took place outside China if they could have the effect of eradicating or limiting competition in the Chinese market. Additionally, it offers comprehensive guidelines for territorial and hierarchical jurisdiction in first instance and appellate proceedings.
By, for example, shifting the burden of proof in specific situations and establishing the presumption of monopolistic activities based on administrative findings, the Judicial Interpretation, from an evidential standpoint, lessens the burden on the plaintiff. It is expected that more plaintiffs will file antitrust lawsuits as a result of these modifications.
Additionally, it restates specific guidelines for identifying monopolistic behavior from a substantive standpoint, drawing on years of trial experience. It offers detailed advice in sectors where monopolistic activities are more complex, such as the digital economy and intellectual property.
In this article, we highlight the key issues addressed by the Judicial Interpretation and introduce the latest development of private antitrust litigations in China.
01
Rules of Procedure for Jurisdiction
1. The extraterritorial effect of the AML
According to the Judicial Interpretation, PRC courts have the authority to hear antitrust cases involving monopolistic practices that took place outside of China if they had or would have the effect of eradicating or limiting competition in the Chinese market.[2]
The SPC has noted in earlier judgements that the courts would only need to consider information pertinent to the establishment of jurisdictional nexus when making a jurisdictional decision. Furthermore, at this point, it is not required to specify market definition or provide concrete proof of anti-competitive harm; jurisdiction can be established if there is sufficient evidence that suggests market competition in China may be impacted to a debatable degree.
T Corp. et al. v. E Co. et al.[3]
In an antitrust case against Company E and its Chinese affiliate (collectively, "E Group"), Corporation T and three affiliates (collectively, "T Group") claimed that E Group had abused its dominant market position in the SEP licensing market with regard to 2G, 3G, and 4G wireless communication technologies used in cell phones.
The SPC ruled that T Group's evidence might demonstrate that E Group's actions may have directly, materially, and substantially eradicated or limited T Group's participation in market competition within China, and impacted market competition within China. Consequently, the Shenzhen Intermediate People's Court, the court where the first instance case has been filed, should have jurisdiction.
2. Guidelines for determining which Chinese courts might have jurisdiction over first instance and appellate cases
（1）Hierarchical jurisdiction for first instance cases
The Judicial Interpretation states that first instance civil monopoly lawsuits shall be heard by Intellectual Property Courts ("IPCs") or intermediate people's courts appointed by the SPC.[4]
Not all intermediate people's courts shall have the authority to hear cases involving civil monopolies. The SPC will either approve the jurisdiction or determine it through pertinent regulations issued by the provincial High People's Courts ("HPC") and approved by the SPC.[5] The purpose of this provision is to guarantee that judges with necessary knowledge and experience review monopoly claims.
（2）Territorial jurisdiction for first instance cases
According to the Jurisdictional Interpretation, the jurisdictional rules pertaining to tort or contract issues under the PRC Civil Procedure Law shall be followed when determining geographical jurisdiction for first instance civil monopoly cases.[6]
Specifically, in China, two types of actions can be used to bring relevant antitrust cases: contractual disputes, where the plaintiff may argue that relevant contract clauses are invalid because they violate the AML, or tort claims, where the plaintiff alleges damages as a result of monopolistic conduct.[7] Consequently, in practice, the courts which have jurisdiction would be:
For actions based on tort claims, the court at the defendant's domicile or the location of the alleged conduct, including the location of the tortious act and its consequences; and
For actions based on contractual disputes, the court at the location where the contract is performed or the defendant resides.
（3）Appellate cases
The so-called "leap appeal" rules, which provide that antitrust cases on appeal will be handled at the SPC's Intellectual Property Tribunal, are reiterated in the Judicial Interpretation with regard to the appeal of private antitrust litigations.[8] Therefore, in practice, appeal cases would be directly handled by the SPC.
3. Can the court's jurisdiction be excluded by arbitration clauses?
In the past, there have been discussions in China about whether parties' agreed-upon arbitration agreements and clauses may bar a court from hearing a case.[9] The public interest aspect of monopoly disputes is confirmed by the Judicial Interpretation, which states that relevant parties cannot exclude a court’s jurisdiction over the case by claiming that they have agreed that arbitration should be used to resolve the dispute.[10]
C Co., Ltd. v. S Co., Ltd.[11]
Company C is an authorized distributor of Company S. It primarily sells Company S's industrial lubricant products in Shanxi Province's northern region. Company C filed a complaint against Company S in the Beijing IPC in January 2018, alleging that the company had exploited its position as the market leader by imposing unreasonable trade conditions, demanding unfair high prices, and engaging in exclusive dealing and discriminatory treatment.
The Beijing IPC held that it had jurisdiction over the case while the Beijing High People's Court ("Beijing HPC")[12] and the SPC overruled the assertion of jurisdiction. In December 2021, the Supreme People's Procuratorate of the People's Republic of China ("SPP") initiated an ex officio civil supervisory procedure against the case.[13] The SPC upheld the Beijing IPC's jurisdiction on June 25, 2024, the day following the publication of the Judicial Interpretation, ruling that the appellate courts had applied the statute wrongly.
In practice, determining whether the case is a monopoly dispute is the crucial point. We understand that the court will dismiss the lawsuit and hold the disputes to be governed by the arbitration agreement if a party tries to evade a lawful arbitration clause by wrongfully alleging the dispute is related to monopolistic conduct.
02
Rules of Evidence
In principle, private antitrust cases are subject to the same broad evidentiary requirements as civil lawsuits; that is, the plaintiffs must prove a prima facie case. In practice, plaintiffs may have to invest plenty of time and resources to reach the necessary standard of proof because monopolistic practices are intricate and secretive.
To address this issue, the Judicial Interpretation sets out special rules of burden of proof in specific situations.
1. Burden of proof for horizontal monopoly agreement allegations
The Judicial Interpretation first lays out that in cases alleging monopoly agreements, the general principle is that the plaintiffs shall provide evidence to support the proposed market definitions.[14] This is because, in order to establish that an agreement is a monopoly agreement under the AML, it must be demonstrated that it would have the effect of eradicating or restricting competition. This has undoubtedly raised the burden of proof for plaintiffs.
To address this issue, the Judicial Interpretation points out that if the alleged monopoly agreement concerns an act explicitly prohibited by the AML, the plaintiff does not need to provide evidence regarding the definition of the relevant market.[15] Accordingly, in practice, the court would assume that relevant agreements pertaining to price and quantity fixing, market division, prohibition on the acquisition or development of new technologies and/or equipment, and group boycotts have the effect of eradicating or restricting competition. The plaintiff would only need to demonstrate the existence of such agreements.
Additionally, the Judicial Interpretation states that plaintiffs may shift the burden of proof to defendants in the case of concerted practice, a more subtle kind of horizontal monopolistic behavior that makes gathering evidence extremely difficult, provided that they can demonstrate some of the following elements:[16]
(a)
there is consistency between the market behaviors of the undertakings;
(b)
there has been communication of intent and exchange or transfer of information between the undertakings;
(c)
the market structure, competition status, market change and other situations of the relevant market;
Notably, the plaintiff does not have to provide evidence for each of the aforementioned elements. By providing preliminary evidence about (a)the consistency of market behaviors and (b) evidence of the communication of intent or (c) evidence of relevant market structure, competition status, and/or market change, the plaintiff can meet the initial burden of proof by demonstrating that there is a high likelihood of concerted practice. The defendant then bears the responsibility of demonstrating that there is consistent market practice. The court would rule that the concerted action is established if no plausible explanation could be offered.
2. Burden of proof for vertical monopoly agreement allegations
Prior to the publication of the Judicial Interpretation, plaintiffs in private proceedings involving vertical monopoly agreements were typically required to prove that the agreement in question would have the effect of eradicating or limiting competition.[17]
According to the Judicial Interpretation, the burden of demonstrating that a vertical monopoly agreement does not have the effect of eradicating or limiting competition rests with the defendant in cases where the agreement involves acts of fixing resale prices or restricting minimum resale prices (also known as resale price maintenance, or "RPM").[18] This is in line with the AML amendment, which states that if it can be demonstrated that the relevant vertical agreement would not have any anti-competitive effect, it should not be prohibited. It also echoes the semi "per-se illegal approach" adopted by the antitrust enforcement agencies during RPM investigations.[19]
The Judicial Interpretation deletes the clause that expressly assigns the burden of proof to plaintiffs in relation to vertical non-price monopoly agreements (such as geographic restriction, customer restriction, exclusive arrangement, etc.), as provided in the draft Judicial Interpretation (for public comments). We understand that in practice, the plaintiff would be responsible for proving the market definition and the effect of eradicating or limiting competition as a result of such agreements.
3. Burden of proof for abuse of dominant market position allegations
When determining whether an undertaking has abused its dominant market position, the following criteria are taken into account under the AML:
(a)
the undertaking in question has a dominant market position;
(b)
the undertaking engages in an abusive act, such as refusing to deal, charging an unfairly high price, restricting sales, or tying or bundling sales;
(c)
the act has an anti-competitive effect on market competition; and
(d)
the undertaking does not have a justifiable cause.
Therefore, defining relevant markets and demonstrating the defendant's dominant market position—a relatively high bar—is the first and perhaps most important threshold the plaintiff should meet in private antitrust litigations where the plaintiff seeks to claim that the defendant abused its dominant market position.
By stating that the plaintiff does not need to define the relevant market or demonstrate that the defendant holds a dominant market position, the Judicial Interpretation lessens the burden on the plaintiffs if they have evidence directly demonstrating that the alleged monopolistic conduct obviously has the effect of eliminating or restricting competition.[20]
The conditions that give rise to the presumption of a dominant market position are further outlined by the Judicial Interpretation:[21]
The defendant either keeps prices much higher than the price level of the competitive market or the quality of commodities declines dramatically for a considerable amount of time without losing many customers, and the relevant market clearly lacks competition, innovation, and new entrants; or
The relevant market clearly lacks competition, innovation, and new entrants, and the defendant maintains a relatively high market share that may surpass that of other undertakings in a relatively short amount of time.
Furthermore, the plaintiff may use information that the defendant had made public as initial proof of the defendant's dominant market position.[22]
4. The probative value of administrative decisions
In follow-on litigation, the Judicial Interpretation affirms that plaintiffs may use legitimate and effective administrative rulings from Chinese antitrust enforcement agencies as proof of the alleged facts, while the defendants have the burden of proving the opposite.[23]
Consumer v. SG Co., Ltd. et al.[24]
A Chinese customer ("Consumer") entered into sales and after-sale agreements for a car with Company Y and Company SG in 2014. The Shanghai Municipal Pricing Bureau issued a penalty decision in 2016, concluding that Company SG engaged in monopolistic practices, such as RPM, with other distributors in Shanghai. The Consumer sued Company SG in a civil court to recover his damages based on this penalty ruling.
According to the SPC, the Consumer properly relied on an effective administrative penalty ruling to prove that Company SG engaged in monopolistic practices. The SPC ordered that Company SG reimburse the Consumer for his damages.
03
Guidance on Substantive Aspects of Monopolistic Behaviors
Based on years of trial experience, the Judicial Interpretation fills in the gaps in the AML from a judicial standpoint. For example:
It introduces the concept of "single economic entity" and clarifies that undertakings within a single economic entity would not be regarded as competitors;[25]
It reaffirms that when an agent does not bear any substantial business risk or operating risk, resale price restriction towards such agent would not constitute a vertical monopoly agreement;[26] and
It delineates determination factors regarding unfairly high prices,[27] predatory pricing,[28] refusal to deal,[29] exclusive dealing,[30] unreasonable trading conditions,[31] and differential trading conditions.[32]
Furthermore, the Judicial Interpretation lays out sector-specific regulations in response to the additional difficulties posed by the intricate business models in the digital platform economy and antitrust concerns pertaining to intellectual property rights ("IPRs").
1. Providing judicial guidance for antitrust issues in the platform economy sector
（1）Providing clarification on the market definition in light of the characteristics of the platform economy
Based on relevant guidance, in light of the platform economy industry, when defining a relevant product market, demand-side substitutability analysis shall be conducted on the basis of factors such as platform functions, business model, user groups, multilateral markets and offline transactions. Supply-side substitutability analysis shall consider factors such as market entry, technical barriers, network effects and cross-sector competition. For the relevant geographic market, it is generally defined as the Chinese market or a regional market considering the characteristics of the platform, while in some particular cases, a global market may be defined.[33]
The Judicial Interpretation recognizes the bilateral or multilateral nature of platforms, and notes that relevant product markets can typically be determined based on the products/services on the platform’s side that are most pertinent to the monopolistic behavior at issue. It is also possible to define multiple relevant product markets based on the multilateral commodities involved in the monopolistic behavior under complaint. Where there are cross-side network effects on a particular platform and sufficient competitive constraints are imposed on the operators of that platform, the relevant product market may be defined on the basis of the platform as a whole.[34]
（2）Listing explicit algorithm conspiracy as a new form of monopoly agreement
With the development of computer and network technology, monopoly agreements are no longer limited to written agreements or secret meetings. Algorithm conspiracy can also be reached using sophisticated technical techniques, data, and algorithms.
The employment of algorithms, technical techniques, etc. to reach horizontal or vertical monopoly agreements is expressly regulated by the Judicial Interpretation:[35]
（3）Identifying dominant market position based on the characteristics of platform economy
The first and most challenging step in identifying the abuse of dominant market position is typically establishing market dominance. Based on the characteristics of platform economy, the Judicial Interpretation puts forward additional factors to be considered in determining dominant market position of undertakings in the Internet industry.[36]
（4）Further refining the rules on refusal to deal
In practice, there are various forms of refusal to deal in the field of platform economy. In addition to the traditional forms of ceasing, delaying, interrupting existing transactions and refusal of new transactions, the Judicial Interpretation encompasses industry-specific restrictions in terms of platform rules, algorithms, technologies, and traffic allocation, etc., which make it difficult for counterparties to carry out transactions.
However, the Judicial Interpretation also affirms that the following elements may be taken into account when deciding whether an action qualifies as refusal to deal,[37] suggesting that the courts may adopt a more thorough approach:
(a)
the economic, technical, legal, and security feasibility of the implementation of compatibility, opening access, or licensing by the operator;
(b)
the substitutability of the goods, platforms or software systems, technology, data, IPRs, etc. and the cost of reconstruction;
(c)
the extent to which other operators rely on the goods, platforms or software systems, technologies, data, IPRs, etc. of the operator for effective competition in the upstream or downstream markets;
(d)
the impact on innovation and the launch of new products of refusing compatibility, opening access, or licensing;
(e)
the effects of licensing, opening access, or compatibility implementation on the operators' own commercial operations and legitimate rights and interests; and
(f)
whether competition in the relevant market would be significantly eradicated or limited by the refusal of compatibility, allowing access, or licensing.
2. Protecting IPRs while addressing antitrust concerns
（1）Confirming that holding an IPR would not lead to the presumption of a dominant market position
IP protections grant patent, trademark, and copyright holders specific exclusive rights over their works, whereas antitrust laws aim to encourage open competition. In practice, patent owners' refusal to grant IP licenses or charging high prices have been challenged as abuses of their dominant market position.
K Co., Ltd. v. H Ltd.[38]
Company K is a Chinese company engaged in the manufacturing of sintered NdFeB, a type of rare earth material. Company H owned more than 600 patents related to sintered NdFeB, and licensed such patents to eight Chinese companies. Company K and Company H have repeatedly attempted to discuss the licensing of NdFeB patents but were unable to come to an agreement. In December 2014, Company K filed a lawsuit against Company H, alleging that: (a) Company H held a dominant market position in the market for essential patents of sintered NdFeB; and (b) Company H had abused this position by refusing to grant Company K a license for these patents without providing a valid reason and by tying the granting of essential patents to non-essential patents.
The SPC held that the patents held by Company H did not necessarily constitute a relevant market. The global market for sintered NdFeB material production techniques, encompassing both patented and non-patented methods with close substitutability, should be considered the relevant market instead. Company H did not hold a dominant position in this market.
The Judicial Interpretation supports the aforementioned viewpoint and offers considerations for determining whether possessing pertinent intellectual property would result in a dominant market position:[39]
(a)
the substitutability between the concerned IPRs and others, the number of alternative IPs and the cost of switching to alternative IPs;
(b)
the substitutability between the products which utilize the concerned IPRs with other products, and the market share of that product;
(c)
the ability of counterparties to a transaction to provide constraint on the owner/operator of the particular IPRs;
(d)
innovation and technological change in the relevant market; and
(e)
other factors relevant to the exercise of the IPRs.
Given the foregoing, we understand that the court would likewise adopt a thorough assessment methodology, giving greater leeway to contend that possessing an IPR would not result in a dominant market position.
（2）Reverse payment between patent holder and generic drug applicant may constitute a monopoly agreement
Specific to the pharmaceutical sector, the Judicial Interpretation points out that a reverse payment arrangement reached between the patent holder of a brand-name drug and the applicant for a generic drug may qualify as a horizontal monopoly agreement if it satisfies the following requirements:[40]
The patent holder of the brand-name drug provides or undertakes to provide the generic drug applicant with evidently unreasonable compensation in cash or other forms; and
The applicant for a generic drug agrees to not challenge the legality of the brand-name drug’s patents or postpone the release of the generic drug into the relevant market.
If the defendant can offer reasonable explanations for the aforementioned consideration, such as covering the cost of dispute resolution, or if the agreement in question satisfies the AML's exempted requirements (e.g. bringing benefits to customers and national economy), the reverse payment agreement does not amount to a monopoly.[41]
Company A v. AP Co., Ltd.[42]
Company V filed a request for invalidation against a patent ("the Patent").
Company V concluded a settlement agreement with the original patent holder before it transferred the Patent to Company A. According to the settlement agreement, Company A and the original patent holder would release Company V from its patent infringement liability with regard to the sale of tablets that included the Patent if Company V withdrew its request for patent invalidation. Company A launched a patent infringement case against Company AP, an affiliate of Company V, at the Nanjing Intermediate People's Court in spite of the agreement and Company V's withdrawal of the invalidation request.
The court of first instance held that, under the settlement agreement, Company V and its affiliate Company AP had the right to implement the Patent and dismissed Company A's claims. Company A appealed to the SPC, but later filed a request to withdraw the appeal for it had reached a settlement agreement with Company AP.
The SPC discovered that the settlement between Company V and the original patent holder was in the form of a reverse payment agreement when it was examining the withdrawal request. The SPC points out that courts should examine the legality of settlement agreements or other arrangements with the appearance of "reverse payment agreements" in pharmaceutical patent litigations that involve both brand-name and generic drugs. Particular attention should be paid to determining whether the patent in question could have been declared invalid if the invalidation request had not been withdrawn. Based on such evaluation, the court can next determine whether and to what degree the agreement has restricted competition in the relevant market.
04
Remedies
According to the Judicial Interpretation, damages in private lawsuits related to monopolistic behaviors are granted to the plaintiff as compensation for the economic loss attributable to the alleged conduct.[43]
The losses suffered by the plaintiff attributable to the alleged monopolistic conducts include direct losses and expected losses if such conducts had not occurred. When determining the losses, the court could consider the following factors:
commodity prices, operating costs, profits, market share etc. in the relevant markets before and after the implementation of the alleged monopolistic behavior;
commodity prices, operating costs, profits etc. in comparable markets that are not affected by the monopolistic behavior;
commodity prices, operating costs, profits, market share etc. of comparable undertakings that are not affected by the monopolistic behavior; and
other factors that can reasonably prove that the plaintiff has suffered losses due to the alleged monopolistic act.
When the plaintiff has evidence to prove that it had incurred losses due to the alleged monopolistic act, but it is difficult to determine the specific amount of losses, the court may determine a reasonable compensation amount by taking the nature and extent, duration of the alleged monopolistic act and benefits obtained into account.[44]
In addition, the Judicial Interpretation reinforces that contracts, bylaws, resolutions, decisions, and other documents in violation of the AML should be invalid, and the courts should support a party’s claim to nullify relevant clauses.[45]
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Footnotes：
[1] The above data is calculated based on the publicly released decisions and rulings available on Wolters Kluwer (https://law.wkinfo.com.cn/).
[2] Article 6 of the Judicial Interpretation. See also Article 2 of the AML.
[3] See (2019) Zui Gao Fa Zhi Min Xia Zhong No. 32.
[4] Article 4 of the Judicial Interpretation.
[5] See “Official Reply of the SPC on Approving the Establishment of Special Trial Institutions in the Intermediate People’s Courts of Nanjing City, Suzhou City, Wuhan City, and Chengdu City and the Adjudication of Some Intellectual Property Cases Across Regions” (Fa [2017] No.2); “Notice of the Tianjian HPC to Adjust Jurisdiction for Civil and Administrative IP First-Instance Cases,” at: https://hxqfy.tjcourt.gov.cn/article/detail/2022/04/id/6664204.shtml.
[6] Article 5 of the Judicial Interpretation.
[7] The Judicial Interpretation also stipulates that under the circumstance where the plaintiff only requires the court to decide if the conduct in question would constitute a monopolistic conduct and does not claim any legal liability of the defendant, the court should not accept the case. See Article 2 of the Judicial Interpretation.
[8] Article 2 of the Provisions of the SPC on Several Issues Concerning the IP Tribunal.
[9] For instance, see (2019) Zui Gao Yuan Zhi Min Xia Zhong No. 46 and (2019) Zui Gao Fa Min Shen No. 6242.
[10] See Article 3 of the Judicial Interpretation.
[11] Please visit: https://www.spp.gov.cn/spp/zhuanlan/202411/t20241117_673531.shtml.
[12] Beijing HPC acts as the appellant court and SPC acts as the retrial court of this case. This case was heard before the “leap-appeal” rule was established.
[13] The SPP has the right to initiate an ex officio civil supervisory procedure over a case if during the adjudication of the case: there has been impairment of national or social public interests; there has been incorrect application of law; the judges and other executive officers committed illegal acts such as corruption, bribery, favoritism and obstruction of justice, and etc. See Article 37 of Rules for the Supervision over Civil Proceedings by the People’s Procuratorates.
[14] Article 14 of the Judicial Interpretation.
[15] Id. Acts explicitly prohibited by the AML refer to Article 17 (1)-(5) and Article 18 (1)-(2) of the AML.
[16] Article 18 of the Judicial Interpretation.
[17] See Beijing Ruibang Yonghe Kemao Co., Ltd. v. Johnson & Johnson (Shanghai) Medical Equipment Co., Ltd. et al., (2012) Hu Gao Min San (Zhi) Zhong No. 63. Considering the difficulty for plaintiffs to produce evidence and the public interest nature of monopoly cases, certain courts will consider to obtain evidence ex officio as required by the circumstances of the case. However, if the plaintiff is unable to collect sufficient evidence despite the court’s retrieval of evidence, the legal consequences of ineffective and insufficient proof shall still be borne by the plaintiff. See Dongguan Hengli Guochang Electronic Appliance Shop v. Dongguan Shengshixinxing Gree Trade Co., Ltd. et al., (2016) Yue Min Zhong No. 1771.
[18] Article 21 of the Judicial Interpretation.
[19] Article 18 of the AML.
[20] Article 29 of the Judicial Interpretation.
[21] Id.
[22] Id.
[23] Article 10 of the Judicial Interpretation.
[24] See (2020) Zui Gao Fa Zhi Min Zhong No. 1137.
[25] Article 19 of the Judicial Interpretation.
[26] Article 23 of the Judicial Interpretation.
[27] Article 36 of the Judicial Interpretation.
[28] Article 37 of the Judicial Interpretation.
[29] Article 38 of the Judicial Interpretation.
[30] Article 39 of the Judicial Interpretation.
[31] Article 40 of the Judicial Interpretation.
[32] Article 41 of the Judicial Interpretation.
[33] See Article 4(2) of the Antitrust Guidelines for the Platform Economic Industry (“Platform Guidelines”), issued by the Anti-Monopoly Bureau of the SAMR on 10 November 2020.
[34] Article 16 of the Judicial Interpretation.
[35] Article 24 of the Judicial Interpretation.
[36] Article 30 and 32 of the Judicial Interpretation and Article 11 of the Platform Guidelines.
[37] Article 38 of the Judicial Interpretation.
[38] See (2021) Zui Gao Fa Zhi Min Zhong No. 1482.
[39] Article 33 of the Judicial Interpretation.
[40] Article 20 of the Judicial Interpretation.
[41] Article 20 of the AML provides that, a monopoly agreement is not prohibited if it achieves any of the following positive effects, the agreement will not significantly impede competition in the relevant market and consumers may benefit from the positive effects:
(1) It promotes technological improvement or research and development of new products;
(2) It improves, product quality, reduces costs, increases efficiency, unifies product specifications and standards, or implements specialization of labor;
(3) It improves the operational efficiency of small and medium-sized undertakings or strengthens the competitiveness of small and medium-sized undertakings;
(4) It realizes public interests such as energy conservation, environmental protection, and disaster relief;
(5) It mitigates severe decrease of sales or evident overproduction during an economic recession;
(6) It protects legitimate interests in foreign trade or foreign economic cooperation;
(7) It belongs to any other circumstance as specified by laws or the State Council.
[42] See (2021) Zui Gao Fa Zhi Min Zhong No. 388.
[43] Article 43 of the Judicial Interpretation.
[44] Article 44 of the Judicial Interpretation.
[45] Article 48 of the Judicial Interpretation.
Authors
Liu Cheng
Partner
Corporate & Commercial Group
liucheng@cn.kwm.com
Areas of Practice: antitrust and competition law, cross-border M&A and corporate investment, and international trade
Audrey Li
Corporate & Commercial Group
liyumeng@cn.kwm.com
Areas of Practice: antitrust and foreign investment
Yelena Wang
Associate Assistant
Corporate & Commercial Group
Jiang Hanxue
Associate Assistant
Corporate & Commercial Group
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封面图源：洪流 · Tillian Reeves, 2017
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