CHINA Law and Practice Contributed by: Yi Xue, Zhong Lun
11. Funding and Costs 11.1 Litigation Funding
10.2 Alternative Dispute Resolution Arbitration, court mediation, people’s mediation and commercial mediation represent prevalent avenues of ADR for addressing civil conflicts in China. Arbitration serves as a resolution mechanism based on the parties’ mutually agreed arbitration contract. However, according to Article 3 of the New Judicial Interpretation, where a party files a monopoly-related civil lawsuit with the court and the other party claims that the court shall not accept the case on the ground that there is a contractual relationship between the two parties and that there is an arbitration agreement, the court will not uphold the claim. In addition, given that monopoly disputes encompass market competi - tion that may affect public interest matters (ie, exceed - ing the typical scope of arbitration clauses), the SPC has also stated that “arbitration clauses cannot auto - matically preclude court jurisdiction” in numerous instances. Consequently, arbitration’s applicability to monopoly disputes tends to be limited in Chinese judicial practice. Mediation, distinguished by its voluntary nature, offers a potential way to address monopoly disputes. Court mediation, serving as a fundamental part of litigation proceedings, can be organised by the court through - out the whole litigation process. People’s mediation and commercial mediation can also be arranged by entities such as people’s mediation committees and commercial mediation organisations, which are well- established in China. Following mediation efforts, parties can voluntarily finalise mediation agreements to resolve disputes and any breach of the agreements can subsequently be brought before the court for further dispute resolu - tion. Although mediation is widely recognised as a convenient and cost-effective route for conflict resolu - tion, its utilisation in civil monopoly cases remains rare – largely owing to the intricate nature of the disputes, which often makes achieving consensus between par - ties quite difficult.
Litigation funding of civil claims is less evolved in China, where the law has not provided any provisions on it. In practice, there is no well-known antitrust case where third-party funding has been adopted. 11.2 Costs The costs in a civil lawsuit could consist of the litiga - tion fee charged by the court, the attorney’s fee and other reasonable expenses arising from the lawsuit, such as notarisation fees and travel expenses. The New Judicial Interpretation provides that the court may, upon the request of the plaintiff, include reason - able expenses incurred by the plaintiff for investigating and preventing the monopolistic act in the scope of losses for compensation. The typical expenses that may be supported in judicial practice include court fees, investigation and evidence collection fees (eg, notary fees, document copy fees, appraisal fees) and attorney’s fees. Courts will not normally order the plaintiff to provide security for the defendant’s costs. An exception to this is that the plaintiff applying for pre-litigation preserva - tion should provide for security. As with other types of cases, against a first-instance judgment of a monopoly-related dispute case, the plaintiff and the defendant will both have the right to file an appeal with the next higher-level court within the prescribed time limit after the service of the written judgment – unless it is made by the SPC. An appeal can be filed based on the grounds of wrongful applica - tion of law, wrongful finding of fact, and/or procedural violation. It should be noted that according to the Provisions of the Supreme People’s Court on Several Issues concerning the Intellectual Property Court, the Intel - lectual Property Court of the SPC has jurisdiction to 12. Appeals 12.1 Basis of Appeal
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