The evidential rules that apply to litigation in certain jurisdictions, especially those regarding the allocation of the burden of proof, have a significant impact on the ultimate result of a case. Private antitrust litigation is often highly complex and thus puts the plaintiff at a disadvantage. As such, several evidential rules have been instituted for this type of litigation in China. Because private antitrust litigation falls under the scope of civil litigation, the evidential rules that apply in general civil litigation apply in cases to which no special rules apply.
In a general civil procedure, the claimant bears the burden of proof. However, in private antitrust litigation, special rules regarding the burden of proof have been introduced due to the fact that the principle of the claimant having to produce evidence places plaintiffs in a difficult position, as they often cannot produce sufficient evidence to support their claims. As such, before the enactment of the Anti-monopoly Law, plaintiffs seldom won such cases.
In this context, the Supreme People's Court issued the Antitrust Judicial Interpretation on private antitrust litigations in 2012, in which different burdens of proof were allocated to different alleged monopolistic behaviours.
Specifically, for horizontal monopolistic agreements involving specific types of behaviour, the burden of proof that "there is no effect of eliminating or restricting competition from [the] concerning agreement" is borne by the defendant. Such types of behaviour include:
- price fixing;
- restricting sales or production volumes;
- allocating sales or the procurement market;
- restricting the purchase or development of new technology and equipment; and
- collective boycotting.
Despite this rule, the plaintiff still bears the burden of proof with regard to market definition and the existence of a horizontal monopolistic agreement. In the case of a tort dispute, the plaintiff must also prove damages and the causal links between the horizontal monopolistic agreement and the damages.
The Antitrust Judicial Interpretation does not stipulate specific rules regarding the allocation of the burden of proof in the case of vertical monopolistic agreements – most likely because vertical agreements often produce net pro-competitive effects. That said, the general rules for civil procedures should be followed in cases relating to vertical monopolistic agreements. In such cases, the plaintiff must – for tort disputes – prove not only market definition, the existence of monopolistic behaviour, damages and the causal link between the damages and the monopolistic behaviour, but also that the concerning agreement eliminated or restricted competition. For example, in Rainbow v Johnson & Johnson, the Shanghai High People's Court held that the plaintiff, Rainbow, had had to prove that the relevant vertical agreement had excluded or restricted competition.
In regard to an allegation of an abuse of market dominance, the Antitrust Judicial Interpretation provides that the plaintiff must prove that the defendant had a dominant position in the relevant market and carried out specific abusive behaviour. Where the defendant claims justifiable reasons, it bears the burden of proof accordingly. Two special rules are worth mentioning in this regard:
- First, information made public by the defendant – such as information posted on its official website, its annual reports or public interviews with its senior management – can be used as evidence to prove its market dominance.
- Second, in cases regarding public utility companies or companies with an exclusive position in the relevant market pursuant to Chinese law, the court may find market dominance based directly on specific situations regarding market structure and competition (ie, a rebuttable presumption).
Pursuant to the Civil Procedural Law, evidence can be provided in the format of:
- statements from the parties;
- documentary evidence;
- physical evidence;
- audio and visual material;
- digital data;
- witness testimonies;
- appraisal opinions; and
- transcripts of inspections and examinations.
In light of the specific and highly complex nature of private antitrust litigation, expert opinions are a common form of evidence.
The Antitrust Judicial Interpretation states that "the parties may apply to the court, for one to two persons with special knowledge to appear in the court, for the purpose of explaining on special issues related to the proceeding". In practice, persons with special knowledge have been invited to the court in a number of private antitrust litigations. For instance, in Qihoo v Tecent, Rainbow v Johnson & Johnson, Yunnan YingDing v Sinopec, Rijing v Panasonic and the Rare Earth case, the parties engaged economic or technical experts to appear in court and provide expert opinions on various issues, such as substitutability, market dominance and the pro and anti-competitive effects of the behaviour at issue.
Following the Antitrust Judicial Interpretation's publication, the nature of expert opinions was called into question. Some parties argued that they are a type of witness testimony, while others claim that they are appraisal opinions. The Supreme People's Court Interpretation on the Application of the Civil Procedure Law clarified that opinions of persons with special knowledge should be deemed to be party statements.
While there is no US or UK-type discovery procedure in China, the courts may, of their own volition or on request from the parties, organise a pre-trial evidence exchange. The courts may also, of their own volition or on request from one of the parties, order a company or an individual to produce a certain document.
Specifically, Article 112 of the interpretation provides that:
"Where a piece of documentary evidence is under the control of the other party, the party bearing the burden of proof may, prior to the expiration of the time period for producing evidence, apply to the competent court in writing to order the other party to submit the said evidence. Where the reasons for the application are established, the court shall make such order, and the expenses so incurred shall be borne by the applicant. Where the other party refuses to submit without justified reasons, the court could determine that content of concerning documentary evidence alleged by the applicant is true."
This provision may be advantageous to the plaintiff, especially where it is hard for it to collect evidence. For example, in some follow-up private litigations, the plaintiff often only knows of the existence of monopolistic behaviour, while the material evidence is under the defendant's control. In such cases, the plaintiff may submit a written application to the court pursuant to the above rules.
In making an application for a court order to produce documents, the following requirements must generally be met:
- the applying party is unable to collect the documents;
- the documents are under the other party's control;
- the order relates to specific documents; and
- the documents are closely related to the case.
In addition, the application must clearly specify the basic details of the evidence concerned, such as:
- the name and address of the person or entity to be investigated;
- the nature of the evidence to be investigated and collected;
- the reason why the evidence needs to be investigated and collected by the people's court; and
- the facts in support of which the evidence is sought.
In practice, these details must be specific. Information such as the name, content and time of occurrence of such documents, if any, should usually be included in the application for a disclosure order.
The above rules are only three of many that apply in private antitrust litigation in China. In summary, since several special evidence rules were introduced in 2012, the success rate of plaintiffs in private antitrust litigation has started to increase, although the proportion is still low. Looking forward, more concrete evidential rules and good judicial practice in private antitrust litigation are eagerly awaited.
For further information on this topic please contact Hao Zhan or Ying Song at AnJie Law Firm by telephone (+86 10 8567 5988) or email ([email protected] or [email protected]). The AnJie Law Firm website can be accessed at www.anjielaw.com.?
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