05.12.10 19:58 Age: 7 yrs
Anti-monopoly Litigation in China
Under China anti-monopoly law, the litigation clearly has much difficulty in proving a dominant position. One reason is the determination of the market boundaries, a lot of the information needed may not be available. And it cost too much. Moreover, in China, the third party analysis of market shares may not match the definition of the market chosen by the court or other enforcer. Another reason is that the court may use an excuse to get rid of what they believed were difficult or sensitive cases, for example, the Baidu case.
In anti-monopoly cases, which known as particularly fact-intensive, evidences are quite important. However, the key evidence is usually held by the defendant or by third parties. Whilst it is essential to overcome this structural information asymmetry and to improve victims’ access to relevant evidence, it is also important to avoid the negative effects of overly broad and burdensome disclosure obligations, including the risk of abuses.
In addition to proving the claim, access to evidence is the key to proving damages (i.e. the defendant’s sales or profits) and may well be one of the reasons for the perception of low damage awards in China. When it comes to investing in an expensive market analysis the plaintiff often wishes to know the possibility of recovering enough in damages to make the lawsuit a reasonable investment.
It is estimated that a draft judicial interpretation on the Anti-monopoly Law may be out this month or early 2011.