CHINA Law and Practice Contributed by: Qian Xiaoqiang, Yang Yikai and Chu Linxian, Haiwen & Partners
Antitrust lawyers are readily available to repre - sent clients as whistle-blowers seeking damag - es (via initiating a lawsuit) or a fair competition environment (via reporting to the Competition Authorities) resulting from cartel conduct. 4. Procedural Framework for Cartel Enforcement 4.1 Obtaining Evidence From Employees During an antitrust investigation, all individuals related to the case, including current and for - mer employees, shall fully co-operate with the Competition Authorities, furnishing the informa - tion and materials as requested (see 2.2 Dawn Raids/Search Warrants and 2.5 Obtaining Evi- dence/Testimony ). 4.2 Obtaining Documentary Evidence From Subject/Target Companies During an antitrust investigation, the Competi - tion Authorities can inspect and make copies of documentary information from the target under - taking and others related to the case, including working emails, account books, bank accounts, business agreements, etc. The target company and others shall fully co-operate with the Com - petition Authorities, furnishing all requested information (see 2.2 Dawn Raids/Search War- rants and 2.5 Obtaining Evidence/Testimony ). 4.3 Obtaining Evidence From Entities Outside the Jurisdiction In practice, if the target undertaking located out - side the PRC has domestic affiliates, Compe - tition Authorities would typically first approach these domestic entities. If the target undertaking has no domestic presence, Competition Authori - ties may request information directly from the foreign entities, provided that the suspected car - tel conduct eliminates or restricts competition
within the PRC, as stipulated by Article 2 of the AML (see 1.6 Jurisdiction ). Normally, without legitimate and acceptable reasons, a company or individuals within the PRC shall produce documents or evidence even if physically located abroad, provided that they have control or access to such data. Cloud storage may to a certain extent compli - cate such compliance duty due to cross-border data flows, but does not negate the obligation to co-operate, and the company or individuals have to navigate both submission requirements and potential applicable foreign data laws and requirements. 4.4 Domestic Inter-Agency Co-Operation There are various forms of inter-agency co-oper - ation and co-ordination within the PRC antitrust enforcement framework. • Regarding the initiation of cartel investiga - tions, some investigations originate from referrals by other government agencies. These agencies may identify potential anti - trust violations in the course of their duties and subsequently pass on relevant clues and information to the Competition Authorities. Such referrals are not rare in practice, and serve as an important source for detecting antitrust violations. • Throughout the investigation process, to evaluate the anti-competitive impact of the case under investigation, the Competition Authorities may engage with other agencies to solicit comments and insights on market- or industry-related issues. The Competition Authorities may also request manpower or technology support from other agencies, especially in dawn raids where it is common for personnel from different agencies to form a special task group.
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