Inversion of burden of proof
Decrease in standard of proof
Further to an increase in awareness of private rights and interests and the measures available to protect them, private antitrust litigation is becoming more popular and now acts as an important supplement to public antitrust enforcement actions in China. When an antitrust lawsuit is filed, the court must first ascertain the facts. In order to do so, courts principally require each party to provide the necessary evidence to prove their respective statements. Each party will – subject to the laws or discretion of the relevant court – be allocated with a different burden of proof. If a party presents evidence that carries no testimonial weight and fails to convince the tribunal of its claims, the court will likely rule against it.
When the Anti-monopoly Law entered into force in 2008 there was a lack of clear guidelines on private antitrust litigation, other than a general provision under Article 50 which allowed for the civil prosecution of undertakings engaging in monopolistic activities. However, in 2012 the Supreme Court issued the Interpretation of Several Issues Relating to Laws Applicable for the Trial of Civil Dispute Cases Arising from Monopolies, which introduced feasible rules for private antitrust litigation. In particular, Articles 7 to 10 of the interpretation provide specific regulations governing the allocation of the burden of proof in certain circumstances, thereby helping to stimulate the development of the private antitrust litigation system and benefit the interests of all parties concerned. After nearly four years, practitioners are experienced in enforcing the Supreme Court interpretation. In this regard, it is pertinent to explore the issues regarding the allocation of the burden of proof in private antitrust litigation.
Where the alleged monopolistic conduct is a monopolistic agreement, the plaintiff will assume the burden to prove not only the existence of the monopolistic agreement, but also that the agreement excludes or restricts competition. However, as proving the anti-competitive effect of a horizontal agreement can be unduly burdensome for the plaintiff – and as horizontal agreements are usually deemed to be the core monopolistic conduct leading to serious anti-competitive effects and are therefore prohibited by the Anti-monopoly Law – the Supreme Court designed the 'inversion of the burden of proof rule' for horizontal agreements.(1) Under this rule, the defendant must prove that the alleged horizontal agreement does not exclude or restrict competition. This provision of the Supreme Court interpretation applies only to horizontal agreements as described in Articles 13.1(1) to (5) of the Anti-monopoly Law. If the horizontal agreement falls under Article 13.1(6),(2) the plaintiff may not be exempted from the burden of proving the anti-competitive effect.
Whether the inversion of the burden of proof rule also extends to vertical agreements remains a controversial issue. The draft Supreme Court interpretation that was released for comment(3) stated that plaintiffs will not assume the burden of proving the anti-competitive effect of monopolistic agreements as described in Articles 13.1(1) to (5) and Articles 14(1) to (2) of the Anti-monopoly Law. However, the formal version modified these provisions by removing Articles 14(1) to (2). This was likely done to prevent an excess of lawsuits, as vertical agreements are less harmful to competition and are not always regarded as the core violation (compared with horizontal agreements). Rainbow v Johnson & Johnson also brought this contention into focus. Rainbow accused Johnson & Johnson of minimum resale price maintenance in its distribution agreement and claimed that the inversion of the burden of proof rule should also apply to vertical agreements. However, the Shanghai High Court imposed the burden of proof on the plaintiff and eventually ruled against the plaintiff's claims due to its failure to prove the anti-competitive effect of the vertical agreement. Therefore, based on the lack of an evidence rule specifically relating to vertical agreements, the Supreme Court's interpretation cannot be used to support the contention that the inversion of the burden of proof rule should extend to vertical agreements. As such, the standard provisions for the allocation of the burden of proof according to civil procedure legislation can be assumed (ie, the plaintiff bears the burden of proof for vertical agreements).
'Presumption' refers to the acceptance of something as true without proof, which is subject to rebuttal by the adversely affected party. Presumption is comprised of 'legal presumption' and 'factual presumption', the former being a type of presumption expressly stipulated by law, which allows a court to assume that a fact is true until it is rebutted by prevailing contrary evidence. By shifting the burden of proof to another party, legal presumption helps the party concerned to eliminate the difficulty of proving these presumed facts. Article 19 of the Anti-monopoly Law, as a typical provision carrying a legal presumption, presumes that a business operator has a dominant market position based on their occupied market shares. Further to Article 19, the Supreme Court interpretation sets out two kinds of situation in which business operators are presumed to have a dominant position.
First, where a public utility or any other business operator that has a dominant market position pursuant to the legislation is charged with abuse of such a dominant position, the court can – in light of the market structure and specific competitive circumstances – determine that the defendant has a dominant position in the relevant market.(4) Such defendants mainly operate in naturally monopolised or insufficiently competitive markets, so their dominant position is inherent or determined by regulation. In this regard, plaintiffs do not have to go to great lengths to prove such basic facts. However, considering that the presumption can be wrong, the legislation grants the defendant opportunities to rebut such claims through contrary evidence.
Second, where the information externally released by the defendant is sufficient to prove that the defendant has a dominant position in the relevant market, the court can make a determination on this basis, unless such a determination can be overturned by contrary evidence.(5) Before the Supreme Court interpretation was issued, information publicly released by the defendant pertaining to its market position or a financial report including market share information that was submitted by the plaintiff would not have been adopted by the court as evidence for determining a dominant position, as the court held that such materials and information did not constitute a defendant's self-admission. However, the Supreme Court has since ruled that information externally released by a defendant is valid evidence. Thus, it is now easier and there is more of an incentive for plaintiffs to file a lawsuit regarding abuse of a dominant market position.
In addition to materials sourced from the defendant, information collected from or opinions expressed by public antitrust enforcement authorities is useful in defining the relevant market and determining a dominant position. Therefore, some countries such as the United States and Japan allow public antitrust agency decisions to be accepted as evidence in private antitrust litigation, and such agencies can also be asked to engage in the investigation and evidence collection during the judicial process. The court can determine the defendant's dominance in the relevant market on this basis, unless there is contrary evidence to overturn such a determination. The provisions concerning public agencies' assistance in private litigation contribute to relieving the burden of proof for plaintiffs and increase the probability of success for lawsuits initiated by plaintiffs. However, there are no such provisions in Chinese antitrust legislation that focus on the coordination of the roles and functions between public and private antitrust enforcement. It is therefore expected that, in the future, plaintiffs will be able to:
- apply materials accumulated from the National Development and Reform Commission, the Ministry of Commerce of the People's Republic of China and the State Administration for Industry and Commerce during litigation to support their claims; and
- seek favour from such public agencies in the investigation and collection of evidence.
The fundamental constitutive factors for antitrust tort liabilities include those that apply in general tort liabilities, such as:
- damages; and
- the causation between misconduct and damages.
In accordance with the general standard, where the burden of proof lies with the affirming party, a plaintiff must prove four constitutive factors sufficiently to win a lawsuit. However, due to the complexity, specialisation and other characteristics of private antitrust litigation, plaintiffs:
- are relatively disadvantaged;
- may lack comprehensive professional knowledge; and
- may have difficulty providing sufficient proof.
As a result, many countries have reduced the standard of proof to mitigate the burden on the plaintiff. The following two examples represent the tendency towards a reduction in the standard of proof in private antitrust litigation.
First, infringing parties engaging in monopolistic conduct look forward to the success of such monopolisation and intend to illegally benefit from the reduced competition. It is undisputed that infringing parties knowingly take part in monopolistic activities. As a result, fault is no longer deemed to be a constitutive component of antitrust infringement liability. This is consistent with the legislative tendency in major countries to specify in antitrust law that:
- proof of fault is not required in antitrust litigation; and
- civil liability will still be borne by the defendant in its absence.
In terms of judicial practice, this also applies in China.
Second, as damages caused by monopolistic conduct are indirect and decentralised, it is hard for victims that suffer from a loss of benefit to determine the accurate amount of compensation by providing sufficient proof. In light of this, and for the plaintiff's convenience, some countries have taken measures to reduce the standard of proof regarding the amount of compensation to encourage more victims to file antitrust claims. For instance, in a 1931 antitrust case the US Supreme Court asserted that the standard of proof for the amount of compensation should be lower than that for the existence of damage. The Japan Civil Procedure Law also clearly stipulates a provision applicable to private antitrust litigation, which is that the courts will determine the appropriate amount of compensation by considering all of the existing evidence and the trial schedule, on the condition that there is obvious damage and enormous difficulty for the plaintiff to calculate accurately the amount of compensation due. In China, the standard of proof for the amount of compensation will comply with the general principle of a high degree of probability, which means that a plaintiff must submit sufficient evidence to convince the court of the accuracy of their losses before their loss of benefit can be compensated accordingly. Due to a plaintiff's disadvantage in accessing relevant information, the requirements for it to protect its rights and interests are not always completely satisfied. A high standard of proof leads directly to low efficiency in private antitrust litigation and raises distrust of the judicial system. Therefore, it is recommended that:
- the standard of proof for the amount of compensation be kept in line with international tendencies; and
- the courts be granted the right to determine the amount of damages when a plaintiff encounters difficulties in proving the amount accurately.
Following the issuance of the Supreme Court Interpretation of Several Issues Relating to Laws Applicable for Trial of Civil Dispute Cases Arising from Monopolies, great progress has been made regarding the evidence rules for private antitrust litigation in China. Some valuable rules, such as inversion of the burden of proof, legal presumption and a decrease in the standard of proof are supplementary to and play a significant role in the evidence system. Therefore, the volume of private antitrust litigation can be expected to increase significantly in the future, with the rights of the affected parties being better protected and guaranteed.
For further information on this topic please contact Hao Zhan or Ping Zhichen 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.
(1) Article 7 of the Supreme Court interpretation.
(2) Article 13(6) of the Anti-monopoly Law, "Other monopoly agreements as determined by the Anti-monopoly Law Enforcement Agency under the State Council".
(3) Article 8 of the draft Supreme Court interpretation, which was released for comment.
(4) Article 9 of the Supreme Court interpretation.