At the beginning of November, Mr. Xi Xiaoming, the Vice Chief Justice of the Chinese Supreme Court, informed the media at a press conference that the Chinese Supreme Court would initiate the drafting of judicial explanations to compliment 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.


Such opinion is considered novel to the professional circle studying the AML. Due to the characteristic of the AML, the administrative departments, other than courts, are the leading force in law enforcement. Presently, there is a bulk of uncertainty regarding the AML administrative procedure. Therefore the administrative departments take necessary cautions in their announcements and practices. In such atmosphere, Chinese court obviously comes to the front.


In accordance to its precedent, when dealing with certain civil litigation suits which also concern the administrative procedure, Chinese courts prefer to accept the civil litigation after the administrative departments issue their relevant decisions. For instance, regarding the misrepresentation damage case in stock market, after the Chinese Securities Regulatory Commission (CSRC) promulgated its punishment decision about misrepresentation behaviors, courts then permitted plaintiffs to file civil cases pursuing compensation. Thus, the Chinese Supreme Court has now announced that the administrative decision is not a precondition to civil litigation. This is somewhat unexpected and there will likely be conflicts in such arrangements to some extent. If a civil process and an administrative process proceed at the same time, we must question how to avoid conflicts between their results. The enforcement of AML consumes tremendous time, fiscal and human resources of both administrative and judicial forces. Taking consideration of the Chinese economy, how to avoid wasting limited resources in the parallel processes should be a severe conundrum to the system designer. Such issues are more complicated than the simplicity of the announcement of permission to AML litigation.


In fact, judicial explanation should not be tangible in the near future. Usually Chinese Supreme Court promulgated judicial explanations relate to a specific law and arrive quite late after the enactment of such law. For AML, courts lack experience and typical cases, therefore, it is fundamentally difficult for the Chinese Supreme Court to draft a practical explanation.


Compared with their administrative counterparts, the familiarity with AML is more urgent to Chinese judges. Inasmuch as there are no detailed guidelines and specific regulations, administrative organs could delay their action temporally. However for courts, there is no excuse and courts should provide remedy for damage even without the specific provisions.


As far as practice is concerned, courts also face the immediacy of AML enforcement. For example, in Chongqing, plaintiffs sued insurance companies in the local court. Organized by an insurance guild, some insurance companies agreed to set a bottom line for car insurance premiums, amongst fierce competition. Consumers perceived the agreements as price fixing. In Beijing, a litigator sued CHINANET, the main telecommunication provider in China, arguing the defendant had treated clients differently. Clients with Beijing ID cards enjoyed priority in telephone service, and clients without local ID cards argue such deeds violate AML with regard to the discriminative treatment stipulation. The acceptance of AML litigation in Chinese courts spurred curiosity though 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 so quickly.


If the statement by the Chinese Supreme Court is not just theory, the first real AML attempt would be trigged by anti-monopoly litigation, and will bring many surprises to AML enforcement.