CHINA Law and Practice Contributed by: Qian Xiaoqiang, Yang Yikai and Chu Linxian, Haiwen & Partners
1.3 Private Enforcement Under the AML, undertakings that breach its provisions and cause losses to others may be subject to private enforcement. Article 2 of the 2024 Judicial Interpretation stipu - lates that the People’s Court shall accept a civil lawsuit filed directly by a plaintiff under the Anti- Monopoly Law or one filed after an anti-monop - oly enforcement agency has determined that the defendant’s conduct constitutes monopolistic behaviour, provided the case meets the statu - tory acceptance criteria. The statutory acceptance criteria refer to Article 122 of the Civil Procedure Law of the People’s Republic of China (the “Civil Procedure Law” ) amended in 2023: • the plaintiff must be a citizen, legal person, or organisation with a direct stake in the case; • there must be specific defendant(s); • there must be specific claim(s), facts and reasons; and • the case must fall within the scope of civil lawsuits accepted by the People’s Courts and within the jurisdiction of the court accepting the case. Notably, Article 2 of the 2024 Judicial Interpreta - tion also specifies that the People’s Court shall not accept a lawsuit if the plaintiff merely seeks a declaration that the defendant’s conduct consti - tutes a monopoly without requesting the defend -
with competitive relationships are prohibited from reaching monopolistic agreements on the following matters: • fixing or changing the price; • limiting the production or sales amount; • segmenting the sales market or the raw mate - rial procurement market; • restricting the purchase of new technology or equipment or the development of new tech - nology or product; • boycotting transactions; and • other matters as determined by Competition Authorities. Article 19 further prohibits undertakings from: • organising other undertakings in the reaching of monopolistic agreements; and • providing substantial assistance to other undertakings in the reaching of such agree - ments. Exchanging competitively sensitive information (such as pricing, cost, profit, production data, commercial strategies, revenue projections, etc) can also be considered a cartel arrange - ment (and, by extension, an antitrust violation) if the purpose of such exchange is to co-ordinate Article 20 of the AML stipulates that an agree - ment would not be considered a violation of Article 17 if the undertaking can prove that such agreement serves one of the following purposes: • improving technologies, researching and developing new products; • improving product quality, reducing cost, improving efficiency, unifying specifications or behaviour among competitors. Justifications and Exemptions
ant to bear civil liability. 1.4 “Cartel Conduct” Cartel Conduct
There is no statutory definition of “cartel con- duct” in the AML. Article 17 of the AML provides the statutory basis for prohibiting cartel conduct and the manifestations thereof: undertakings
37
CHAMBERS.COM
Powered by FlippingBook