CHINA Law and Practice Contributed by: Qian Xiaoqiang, Yang Yikai and Chu Linxian, Haiwen & Partners
concluded that the defendant had engaged in a vertical monopolistic agreement in violation of the AML, the plaintiff pursued a civil lawsuit. The judicial opinion indicated that the trial court obtained certain evidence from the Competition Authorities, such as distribution contracts form - ing the basis of the administrative decision (for further information, see 5.3 Effect of Liability Being Established ). 6.5 Frequency of Completion of Litigation Based on publicly available information, the People’s Court has accepted over 1,000 first- instance cases concerning antitrust disputes since the implementation of the AML in 2008. There are no official statistics as to the ratio of cases being dismissed or settled. Among those, cases relating to cartels amount to a small por - tion of less than 20%. China does not have a discovery process as seen in the common law jurisdictions. Instead, the People’s Courts rely on a civil law approach, where parties submit evidence independently. However, according to the AML and Civil Pro - cedure Law, the People’s Courts can request specific evidence, and parties may apply for court-facilitated evidence collection, particularly when the information is held by the opposing party or third parties. For details of the allocation of burden of proof, see 4.7 Issuing Civil Com- plaints ; for details of the People’s Courts’ power to require evidence from the third party, see 6.4 Evidence Obtained From Governmental Inves- tigations/Proceedings . As regards the typical timeframe of cartel-related litigations from the acceptance of the cases by the People’s Court to resolution, according to the Civil Procedure Law, cases of first instance are generally subject to ordinary procedures and
the People’s Court should complete the review within six months from the date of case accept - ance. The review of cases of second instance should be completed within three months from the date of case acceptance for the second instance. The aforementioned timeframes can be extended upon approval. However, it is important to note that cases involving foreign elements are not bound by these timelines and can last for several years. 6.6 Attorneys’ Fees According to Article 45 of the 2024 Judicial Interpretation, the People’s Court may, based on the plaintiff’s request, include reasonable expenses incurred by the plaintiff for investiga - tion and curbing of the anti-competitive behav - iour. In several established rulings, the SPC has recognised that the attorney fee amounts to the “expenses incurred by the plaintiff for investiga - tion and curbing of the anti-competitive behav- iour” . Therefore, successful and reasonable attorney fees paid by the plaintiff can be com - pensated by the defendant. Usually, the plaintiff needs to submit the engagement agreement and relevant invoices, etc, to substantiate its claim. 6.7 Costs/Fees Typically, unsuccessful claimants are not obliged to pay defence costs and/or attorney fees to the defendant but would need to bear litigation fees. 6.8 Judicial Review or Appeal Trial of Second Instance According to the Civil Procedure Law and rel - evant rules, any litigants who disagree with the judgment of the first instance relating to an anti - trust dispute can appeal to the Intellectual Prop - erty Tribunal of the SPC within the timeframe set by the Civil Procedure Law. To start the proceed - ings, the litigant shall formulate a petition as per Article 172 of the Civil Procedure Law and sub -
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