Steve Harris a? partner at US legal giant? Jones Day recently participated in a symposium at the Research Institute of Competition Law of the East China University of Politics and Law, in Shanghai, and has in turn provided an interesting article published by the Atlanta Business Journal
He writes:
The purpose of the symposium was to provide training in antitrust law and economics for leading Chinese judges who have been tasked with deciding cases under China?s new Anti-Monopoly Law.
The new law, which was passed by the National People?s Congress in August of 2007 and became effective in August, 2008, is the first comprehensive antitrust, or competition, law ever adopted by the People?s Republic of China, and marks an important juncture in China?s transition from a centrally-planned economy to a market-based economy.
The law was adopted after more than ten years of debate and consultation with domestic officials and academic experts, including Prof. Xu Shiying, a competition law scholar and teacher at ECUPL, who hosted and chaired the symposium.
In addition to input from Chinese experts, the drafters of the new law sought input over many years from foreign antitrust enforcement agencies, notably those of the U.S. and the European Union, as well as foreign legal, economic and business organizations.
I was fortunate enough to have been invited to participate in a number of those symposia and consortia organized by the Chinese government and to participate in the preparation of comments on numerous drafts of the law prior to its passage.
Many officials who are now leaders in the agencies charged with the administrative enforcement of the law participated in the lengthy drafting process and gained substantial understanding of complex legal doctrines and economic theories underpinning antitrust law, which have been developed over more than a century of antitrust jurisprudence in the U.S. and elsewhere.
Chinese judges, however, did not participate to an extensive extent in the discussions leading up to the enactment of the law.
As is true with many competition law systems, the Chinese law permits parties injured by violations of the law to file lawsuits in courts, as well as empowering the administrative agencies to impose fines and issue orders prohibiting illegal conduct.
The Supreme People?s Court decided late in 2008 to establish special Anti-Monopoly Tribunals, or Divisions, within the Intellectual Property Tribunals, special divisions of each level in the Chinese court system.
These IP Tribunals were established to handle IP cases, and include some of the most experienced judges familiar with procedural aspects of highly complex litigation. We were honored to have more than 30 judges from many of these special tribunals in attendance at our symposium in Shanghai.
These included Justice He Zhonglin, the Presiding Justice of the Anti-Monopoly Panel of the IP Division of the Supreme People?s Court, Justice Kong Xianghun, the Presiding Justice of the IP Division of the Supreme People?s Court, Judge Ying Xinlong, Chief Judge of the Shanghai High People?s Court, Judge Li Shulan, Presiding Judge of the IP Division of the Shanghai High People?s Court, Judge Ding Wenlian, Chief Judge of the IP Division of the Shanghai High People?s Court, and Judge Sun Hailong, Chief Judge of the Chongqing People?s Court. The other speakers were Anita Stork, a partner with Covington & Burling, Prof. Michael Jacobs, a professor of antitrust law at DePaul University, and Joseph Bial, a partner with Cadwalader, Wickersham and Taft.
During the two days, the speakers presented a comparative law study between the provisions of the China law and those of the U.S., EU and other jurisdictions. We also addressed ways in which courts in various jurisdictions have developed procedural and substantive approaches to reducing the time and court resources required to handle competition cases, which tend to involve massive amounts of documentary evidence as well as complex expert economic analysis.
The speakers sought to provide the judges with tools designed to efficiently identify the key issues in such cases and determine, where possible, at an early stage claims that do not present a viable theory of harm to competition and thus should be dismissed. The judges were keenly interested in the issues discussed, and asked many in-depth questions that demonstrated concerns about the best way to integrate the current economic learning and legal doctrines into the procedural and substantive law to be adopted by their tribunals.
China is still in the middle of its transition toward a market-based economy, with large state-owned enterprises still representing a significant percentage of the economy, and dominating some industries. In these conditions, judges seeking to implement a modern competition law such as China?s new Anti-Monopoly Law face unique challenges.
As such, it is almost certain that China?s antitrust jurisprudence will differ in some important respects from that of other major jurisdictions. That said, the judges who attended this conference demonstrated their desire to apply modern economic science and legal doctrine to anti-monopoly cases to the extent possible given China?s economic circumstances. The competitiveness of the huge Chinese economy will depend on that.
Steve Harris, a partner in the Atlanta and Washington offices of international law firm Jones Day, practices antitrust law, including class actions and cartel and merger investigations, before U.S. and international courts and agencies. He also serves as Jones Day?s Asia competition law coordinator
