November 2008, Mr. Xi Xiaoming, Vice Chief Justice of the Chinese Supreme Court, informed the media the Chinese Supreme Court would initiate drafting of judicial explanations complimenting the Chinese Anti-monopoly Law (AML). Before such formal expression, another Justice in the No.3 Civil Division of the Chinese Supreme Court publicly stated plaintiffs may file civil AML cases directly, bypassing the wait for administrative decisions.
Due to the characteristic of the AML, the administrative departments, other than courts, are the leading force in law enforcement. Presently, there is uncertainty in the AML administrative procedure and administrative departments take caution in announcements and practices. In such an atmosphere, Chinese courts come to the front.
In accordance with practice, under certain civil litigation which concerns administrative procedure, Chinese courts prefer to accept the civil litigation after the administrative departments issue a decisions. For example, a case concerning misrepresentation damage and the stock market, involved the Chinese Securities Regulatory Commission (CSRC) promulgating its punishment; only after did the courts permit the plaintiffs to file their civil cases. However, the Chinese Supreme Court has now announced an administrative decision is not a precondition to civil litigation. This is somewhat unexpected and will likely result in conflict. If a civil process and an administrative process proceed simultaneously, we must question how to avoid conflicts between their results.
Additionally, judicial explanation must proceed slowly as courts lack experience and typical cases, therefore, it is fundamentally difficult for the Chinese Supreme Court to draft a practical explanation. However, enforcement of AML consumes tremendous fiscal and human resources of both administrative and judicial forces. How to avoid waste and increase efficiency during the parallel processes is a conundrum for the system designer. Such issues are more complicated than the simple announcement of permission to AML litigation.
Compared with their administrative counterparts, becoming familiar with the AML is an urgent matter for Chinese judges. Inasmuch as there are no detailed guidelines or specific regulations, administrative organs could delay their action temporally. However for courts, there is no excuse and courts must provide a remedy for damages even without a specific provision.
Courts also face the immediacy of AML enforcement. In Chongqing, plaintiffs sued insurance companies in the local court. Organized by an insurance guild, some insurance companies set a bottom line for car insurance premiums. Consumers perceived the agreements as price fixing. In Beijing, a litigator sued CHINANET, the main telecommunication provider in China; clients with Beijing ID cards enjoyed telephone service priority and clients without local ID cards argue such deeds violated the discriminative treatment stipulation of the AML. Presently the details of the proceedings have not been disclosed.
At first, many within the Chinese professional circle expected a breakthrough in AML enforcement by administrative institutions, although such optimism could not be upheld long. After three months, the actual actions of administrative organs have been seldom heard. Surprisingly, the courts appear determined to enforce the AML quickly.
If the statement by the Chinese Supreme Court is not simply theory, the first real AML attempt would be trigged by anti-monopoly litigation, and will bring many surprises to AML enforcement.