CHINA Law and Practice Contributed by: Qian Xiaoqiang, Yang Yikai and Chu Linxian, Haiwen & Partners
mit the petition to the court that originally heard the case, which would then transfer the petition, together with the case files and evidence, to the SPC. The SPC would examine the relevant facts and applicable laws relating to the appeal. Re-Trial Re-trial is targeted at a judgment or ruling which has already come into effect. A litigant who deems that there is an error in such judgment or ruling may apply for re-trial. The standards for the People’s Court to successfully initiate a re- trial are rather strict (more details can be found in Article 211 of the Civil Procedure Law) and a re-trial in relation to a cartel infringement is rarely seen in practice. 7. Trends in Cartel Enforcement 7.1 Information Sharing as a Cartel Offence Exchanging competitively sensitive information among undertakings may be deemed a cartel arrangement if such conduct amounts to a con - certed practice as defined by Article 16 of the AML. It is important to first clarify what constitutes competitively sensitive information. While the AML does not explicitly define its precise scope, the 2024 revised Guidelines on Anti-monopo - ly Compliance for Undertakings gives some insights – including the cost, price, discount, quantity, quality, turnover, profit or profit margin of the goods, as well as the research and devel - opment investment, production and develop - ment, investment, production, marketing plans, customer list, future business strategies and other information closely relating to market com - petition of an undertaking, except for information that has been publicly disclosed or is available through open channels.
Secondly, the exchange of competitively sensi - tive information does not necessarily constitute a violation, but will amount to “concerted prac- tice” under the AML if certain conditions set out in Article 18 of the 2024 Judicial Interpretation are met. When determining whether a concerted practice exists, the People’s Court shall take into account the following factors. • (1) Whether there is a consistency of the mar - ket behaviours of the undertakings. • (2) Whether there has been any meaningful contact, information exchange or transfer between the undertakings. • (3) The market structure, competition, market changes and other information in the relevant market. • (4) Whether the undertakings can provide a reasonable explanation for the consistency of their behaviours. Where the preliminary evidence provided by the plaintiff in items (1) and (2), or in item (1) or (3), can prove that there is a relatively high possibility of concerted practice, the defendant shall pro - vide evidence or make a full explanation to rea - sonably explain the consistency of their behav - iours. If no reasonable explanation can be made, the People’s Court may find that the concerted actions are established. In practice, cartel cases in relation to information sharing are not uncommon, especially in cases involving price-fixing, market allocation, and oth - er hard-core behaviours. What is more, in recent years, guidelines in relation to antitrust compli - ance issued by the Competition Authorities for different fields and subjects (such as intellectual property, trade associations, pharmaceutical field, and internet platforms) have clearly noted the risks of competitively sensitive information exchange and given appropriate warnings.
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