Since the Anti-monopoly Law was passed, around 50 private anti-monopoly litigations have been brought and the courts’ jurisdiction over such cases has become a key issue.

Under the internal organisation of the Supreme Court, No 3 Civil Division is in charge of hearing anti-monopoly cases and directing anti-monopoly litigations at local level. This responsibility is no surprise. Previously, No 3 Civil Division focused on IP cases. Ostensibly, competition issues have an indispensable connection with IP rights; thus, on promulgation of the Anti-unfair Competition Law, No 3 Civil Division became responsible for anti-unfair competition cases. No 3 Civil Division has now become the full-time anti-monopoly court within the Supreme Court.

Kong Xiangjun is the director of No 3 Civil Division. Before becoming a Supreme Court judge, Kong was an official in the State Administration for Industry and Commerce, which deals with cartels and abuse of dominance. Although it will be some time yet before the Anti-monopoly Law is promulgated, Kong had already published a book regarding antitrust law.

Article 50 of the Anti-monopoly Law states that where another entity or an individual suffers loss due to a business operator’s monopolistic conduct, the business operator shall assume civil liabilities. However, as Article 50 does not cover jurisdiction, damages, plaintiffs, burden of proof or other practical issues that relate to private antimonopoly litigation, some local courts have accepted anti-monopoly litigation without a detailed judicial interpretation.

Practice shows that so far, local courts have handled the issue of jurisdiction for private anti-monopoly litigation based on the regulations relating to IP litigation. The Supreme Court has issued judicial interpretations relating to jurisdiction for IP cases. The Civil Procedure Law stipulates that the Chinese court system consists of four levels: district, intermediate (municipal), high (province) and supreme. In regard to IP litigation, only intermediate courts and district courts specifically designated by the Supreme Court can accept IP claims as first instance courts.

In accordance with this regulation, some intermediate courts and district courts have heard anti-monopoly cases; such cases have mostly been heard by IP panels. In the opinion of the legal profession, the judgments and verdicts in these litigations are unsatisfactory. The courts seldom provide detailed reasoning in their decisions and rarely permit economic analysis in private anti-monopoly cases.

Therefore, this has cast doubts over private anti-monopoly litigation. When the Supreme Court drafted the exposure draft of its judicial interpretation on civil anti-monopoly litigation, the jurisdiction issue was explictly considered. To simplify matters, the exposure draft does not grant jurisdiction to courts at district level. Even at municipal level, not all intermediate courts can hear anti-monopoly cases; only the intermediate courts located in the capitals of provinces and autonomous regions, municipalities with independent planning status and municipalities directly under the central government, as well as intermediate courts designated by the Supreme Court, are competent to hear anti-monopoly cases.

This stipulation regarding jurisdiction has satisfied the legal profession to a degree because the courts should now treat anti-monopoly cases more carefully than IP cases. Thus, the judicial interpretation bodes well for enforcement of the Anti-monopoly Law by the courts.