Beijing: Supreme People’s Court Commented on Implementation Issues of Anti-Monopoly Law

The long-awaited PRC Anti-monopoly Law (“AML”) has left quite a number of implementation questions unanswered; and recently, the head of Administrative Tribunal of the Supreme People’s Court of China responded to some of those questions with respect to administrative lawsuits that may be brought under AML.

Who has the jurisdiction?
Pursuant to the AML and the PRC Administrative Litigation Law, people’s courts that have jurisdiction over AML-related administrative lawsuits are relevant intermediate or higher people’s courts located where defendants reside.

Who can be defendants?
AML set up two-level institution. One is a Anti-monopoly Commission under the State Council, which is to coordinate anti-monopoly related work at a national level, and research for, make, and publish anti-monopoly related policies and regulations. The other is institutions which are responsible for enforcement of AML, i.e., the Ministry of Commerce (“MOFCOM”), the National Development and Reform Commission (“NDRC”), and the State Administration for Industry and Commerce (“SAIC”), and their respective counterparts at provincial level.

Given that the second-level institutions are those who will enforce AML in daily practice, and take specific administrative acts, they are potential defendants in AML-related administrative lawsuits.

What acts can be sued?
Under the PRC Administrative Litigation Law, only specific administrative acts (as opposed to administrative rules for general application). Therefore, specific administrative acts related to AML (including, without limitation, administrative licensing, penalties, decisions, approvals, and enforcement) can be cause of actions for AML-related administrative lawsuits.

Who bears the burden of proof?
As a general rule under the PRC Administrative Litigation Law, defendants bear the burden to prove that their specific administrative acts are in compliance with applicable laws, and facts that are not recorded at the time of conducting administrative acts should be excluded as inadmissible. If defendants do not produce evidence or delay in producing evidence without justification, it is deemed that disputed administrative acts lack corresponding evidences.