CHINA Law and Practice Contributed by: Yi Xue, Zhong Lun
Joint Litigation/Representative Litigation The Civil Procedure Law stipulates that, in principle, when multiple litigants are involved in separate law - suits with claims that share common or analogous subject matter, these cases can be simultaneously heard as joint litigation by the court. The joint litiga - tion framework is indeed applicable to monopoly dis - putes, as it was subsequently incorporated into the New Judicial Interpretation, which grants the court the authority to consolidate cases involving the same monopolistic conduct for trial if more than two plain - tiffs have filed actions related to the identical monopo - listic behaviour. Representative litigation ‒ similar to Western-style class action ‒ refers to joint litigation involving a large number of litigants (usually exceeding ten), where one or more parties can be selected as representatives to engage in the joint litigation on behalf of the other litigants. If the number of litigants can be determined when representative litigation is initiated, those parties can directly co-ordinate among others to nominate their representatives. Nevertheless, if the number of parties is uncertain upon instituting representative liti - gation, litigants must register with the court following the publication of relevant notices to participate in the action. In such a scenario, representative parties can be elected through consensus among the litigants or through consultations between the court and the liti - gants. The court’s judgment in representative litigation is binding on all properly registered litigants, as well as other non-registered parties who have filed actions related to the identical or analogous dispute. Public Interest Litigation As the other type of collective redress mechanism, public interest litigation has been incorporated in the AML, allowing the people’s procuratorate to file a law - suit on behalf of the public against entities suspected of engaging in monopolistic behaviours that pose potential harm to the collective interest. The author - ity to initiate this public interest litigation is a legally endowed power granted to the people’s procuratorate by law. There is therefore no authorisation or permis - sion needed from victims. Consequently, any resulting compensation from the public interest litigation will only be used to enhance overall social welfare and will not be allocated to any parties who may have suffered
depending on various factors that may affect litiga - tion proceedings, such as whether an objection to jurisdiction is raised and whether the case involves a foreign factor. In general, the Civil Procedure Law provides as follows. • For a first-instance case where the ordinary proce - dure is adopted, the court will conclude the case within six months from the date when the case is officially accepted. Under special circumstances where an extension is necessary, the period can be extended by six months upon the approval of the president of the court and – upon the approval of the higher level of court – the period can be further extended if necessary. In cases where the sum - mary procedure is adopted, the court will conclude the case within three months from the date of official acceptance, with the possibility of an exten - sion upon approval from the president of the court if necessary. • For a case on appeal against a judgment, the court will conclude within three months from the date of official acceptance and – under special circumstances where an extension is necessary – the period can be extended upon the approval of the president of the court. For a case on appeal against a written order, the court must conclude within 30 days from the date of official acceptance. The judgment and the written order of a court of second instance will be final. The collective redress system in China, commonly referred to as joint litigation/representative litigation and public interest litigation, is primarily established within the framework of the Civil Procedure Law. These two forms of collective redress mechanism are designed to be applicable to various civil lawsuits, including those concerning anti-monopoly claims. However, due to the lack of comprehensive regula - tions governing the litigation processes within the col - lective redress system, instances of either joint litiga - tion/representative litigation or public interest litigation specifically tied to anti-monopoly claims have been infrequent in court proceedings thus far. 4. Class and Collective Actions 4.1 Statutory Basis
58 CHAMBERS.COM
Powered by FlippingBook