Enhancing the Antitrust Damages Action in China

Electronic versions

Documents

  • Xue Gan

    Research areas

  • PhD, Law - dissertations

Abstract

Article 50 of the Anti-Monopoly Law of China (AML) 2007 and its complementing rules, the Judicial Interpretation 2012 of the Supreme People’s Court (SPC), have provided a legal framework for the antitrust damages action in China. However, the general and ambiguous language of Article 50 and the Judicial Interpretation 2012 fails to provide clear guidance for the courts and parties to antitrust damages actions, in terms of key issues, such as quantification of antitrust damages and the availability of collective action. Moreover, the current framework provided by the AML 2007 has not touched on some controversial issues, such as whether damages litigation is possible against antitrust violations conducted by an administrative agency. These weakness and gaps have impeded the development of the antitrust damages mechanism in China.
Meanwhile, the EU has adopted Directive 2014/104 to facilitate private enforcement of competition law in the Member States. Due to the similarity in the combined public/private enforcement model of competition law between the EU and China, the thesis adopts the private enforcement mechanism of EU competition law, as a comparative reference. In doing so, the thesis seeks to fill in some gaps in the existing antitrust damages mechanism provided by the AML 2007, by focusing not only on civil procedural issues in the antitrust damages action against private anticompetitive behaviour, but also examining the administrative litigation procedures and substantive issues involved in the antitrust damages action against administrative monopoly.
Regarding the debate on compensation vs. deterrence as goals of antitrust damages actions in China, the thesis contributes to this debate, by submitting that full compensation should be the goal actively pursued by antitrust damages actions, while deterrence, as a side effect of antitrust damages actions, complements optimal deterrence pursued by public enforcement of the AML. Then the thesis examines the quantification of antitrust damages which is directly linked to the achievement of full compensation.
The thesis also seeks to propose a workable collective action mechanism for antitrust damages actions in China, which is indispensable to achieving full compensation in an antitrust mass harm situation. By referring to the recent reform of collective actions adopted in the UK, where opt-out collective proceedings have been introduced into the antitrust collective action, the thesis finds that opt-out proceedings would be a good incentive to support the initiation of antitrust damages litigation in China, while proper limitations are needed to be imposed on its application in order to avoid US-style unmeritorious litigation.
In addition to private anticompetitive behaviour, the thesis also explores the antitrust damages mechanism against public anticompetitive behaviour, from both substantive and procedural perspectives. It finds that a proportionality test would be an approach to consider when assessing whether an anticompetitive administrative measure is justified on the grounds of public interest, or alternatively whether such regulation or behaviour amounts to abusive and ultimately illegal conduct. In the procedural aspect, the thesis proposes a two-step procedure, including first, judicial review of the alleged measure, and second, the follow-on damages assessment; and the requirement for a compulsory linkage to be established between them.

Details

Original languageEnglish
Awarding Institution
Supervisors/Advisors
  • Dermot Cahill (Supervisor)
  • Zhen Jing (Supervisor)
Thesis sponsors
  • Max Planck Institution for Innovation and Compertition
Award date2018