| The Fourth Plenary Session of the 18 th Central Committee of the Communist Party announced that China should “against monopoly,promoting reasonable competition,and maintaining a fair market order.” In the process of maintaining fair market competition order,the anti-monopoly law plays a fundamental role.The implementation of the anti-monopoly law mainly relies on two modes of “public enforcement” and “private enforcement”.Public enforcement mainly refers to the agencies implement the anti-monopoly law through the administrative power,while the private enforcement is that the undertakings infringed by the monopolistic behavior,bring a lawsuit to the court or bring an application to the arbitration institution.Traditionally,maintaining market competition order mainly relies on public enforcement agencies.However,various types of anti-monopoly disputes are between equal individuals.Such disputes cannot be resolved through public enformcment.At this time,the anti-monopoly disputes between equal individuals needs to be resolved by private enforcement.Public enforcement is different from private enforcement.The purpose of public enforcement is to protect public interest or maintain market order,with certain administrative and supervisory nature.Monopolistic behaviors may be subject to administrative penalties,such as those who violates Articles 101 and 102 of the TFEU(Treaty on the Functioning of the European Union)may bepunished of a 10% penalty of operating income in the previous year.In the United States,monopolistic conduct may face criminal punishment.Compare with the public enforcement,the private enforcement of anti-monopoly disputes is primarily initiated by an individual that has been infringed by a monopolistic conduct or by another individual that has breached the anti-monopoly law.The main purpose of the private individual is to protect its own interests.The basis of the anti-monopoly law applied by the court or arbitration is the contractual relationship or the infringement relationship.Also,it shall be noted that public enforcement and private enforcement are not two isolated parallel systems.For example,certain anti-monopoly infringement disputes in private enforcement will be filed following the decision of public enforment agency.In the trial,private individuals can apply the court for collecting the evidence and information obtained by public authority and may even require public enforcement officers to testify in the court.Moreover,the court often respects and recognizes the decisions made by public enforcement agencies and tries to avoid inconsistencies between judicial decisions and administrative penalties.This kind of behavior allows the private body to “free ride” to alleviate the burden of proof of the private individuals,especially the definition of the relevant market and the burden of proof in the determination of the dominant position,and greatly enhances enthusiasm and initiative of the individual.In addition,private enforcement may also assist the public agencies to a certain extent.The main reason is that private individuals are accompanied by complaints and reports during the litigation process which provides clues to unveil the monopolistic conduct.Public enforcement and private enforcement jointly support the functions of “investigation,deterrence and punishment” in the anti-monopoly law.Many countries have established the status of two enforcement systems.The private enforcement can not only safeguard the interests of individuals,but also,to a certain extent,assist the public enforcement to achieve the goal of maintaining fair competition order.The process of world economic integration and globalization are accelerating.The market behavior of operators in one country or one jurisdiction may affect the market competition order in another country or another jurisdiction.The monopolisticbehavior accompanied with the development of integration distorts the compeititon order and shows the characteristics of foreign-related and transnational.A monopolistic conduct that is a damage to the competitive order in the affected country may not be considered an illegal act in the country where it is occurred,or even may be an encouraged act,such as export cartel or restricting technology exportation.In particular,when the undertakings are related to the state-owned companies or large multinational companies which have a great influence on the local economic,employment and tax,although theirs behaviors may have the effect of eliminating and restricting competition,they may also promote development of the country where the act is conducted and may attain the immunity from the country.The most typical cases are Boeing's acquisition of MD in the last century and General Electric's acquisition of Honeywell.The EU and the United States have disagreed in the review of the above transactions,which have led to trade dissensions.Due to the conflicts between the interests of the affected countries and the countries where they are occurred,the rationality of the extraterritorial effect of anti-monopoly laws has been debated by EU and United States.The affected country proves that it has reasonable jurisdiction to apply its anti-monopoly law on overseas monopolistic behavior according to the principle of “effect principle”,while the country of conduct occurred does not agree the jurisdiction of the affected country according to the traditional “territorial principle”.In 1945,in the case of Alcoa,US court first applied “effect principle” to monopolistic behaviors outside the US territory but restricted competition in the US market,and it was criticized by the companies involved and governments where the companies registered.The European Commission has also been promoting the extraterritorial application of its competition law.The international community has also actively conducted mediation and communication on this issue.The countries that have recognized the “effect principle” must adjusted and restricted the extraterritorial application and cooperated with other countries by bilateral agreements or multilateral agreements,in order to avoid escalation of contradictions.With the development of China's “Reform and Opening” policy and “Going global” policy,the business of foreign investors in China and Chinese investors in oversea have grown steadly,meanwhile,during the operation they also encountered complicated disputes,one of them is foreign-related anti-monopoly disputes.There are some high-profile cases attracted worldwide attention,such as “Huawei vs IDC” case,“Hitachi”case,“Vitamin C” case,“Qualcomm” case and“Tetra Pak” case.In order to protect Chinese market from the infringement of overseas monopolistic behaviors,and regulate behaviors of foreign investors in China,it is necessary to conduct research and analysis on such foreign-related anti-monopoly dispute resolution issue.The existing research on foreign-related anti-monopoly case in China focus on publich enforcement of anti-monopoly law,the leniency principle,the conflicts and coordination between anti-monopoly private enforcement and public enforcement or explore foreign anti-monopoly private litigation systems by countries.Some scholars mentioned some private international law issues in the dissertation of foreign-related anti-unfair completion law.However,there is few paper or dissertation cover private international law issues systematically which should include jurisdiction,choice of law,litigation and arbitration,recognition and enforcement of foreign judgment and international arbitration awards.This dissertation is trying to do the research covering the issues mentioned above from the interational private law perspective.Expect for the Introduction,this dissertation is divided into five chapters.The Introduction contains the importance of this dissertation,the recent research of China and other countries,research methods and innovations and difficulties of this dissertation.Chapter One mainly focus on the general issues of anti-monopoly,which is composed of three sections.Firstly,it should be clarified the different understandings of “monopoly” from economics and legal perspective.The monopoly that economics scholars understand is an uncertain economic situation.Scholars in the field of law believe that monopoly is a behavior formed by market entities in economic activities,focus more on the behavior of market entities and whether theyshould be prohibited and be punished.At present,there is no unified understanding of the definition of monopoly,which leads to different definitions of the monopoly and monopoly behaviors and the means of punishment.In addition,this Chapter introduced the basic forms of anti-monopoly law,including monopolistic agreements,abuse of dominant position,merger control and administrative monopoly.Moreover,this Chapter discusses the motivations of the foreign-related anti-monopoly disputes.The traditional international law believes that the effectiveness of one country's law can only be attributed to acts within the territory of the country,and the territory should be the boundary to the law can be applied.In the field of anti-monopoly law,it can against monopolistic acts that occur outside the country,due to the“extraterritorial effect”.The main purpose of the EU and US debates on the application or influence of extraterritoriality is to protect the competitition order of its relevant market.Through the analysis of the manifestations and causes of foreign-related anti-monopoly disputes,the definition of foreign-related anti-monopoly disputes is further clarified.In the process of competition,certain conflicts and disputes will inevitably occur between market entities.When the subject,object or legal fact of the anti-monopoly dispute contains foreign-related factors,it constitutes a foreign-related anti-monopoly dispute.Chapter Two is concentrated on the jurisdiction of foreign-related anti-monopoly case.Jurisdiction issue is about the power of allocation and which court the case shall be heard.To analyze the issue of jurisdiction foreign-related anti-monopoly dispute,firstly it is necessary to understand basis for the establishmenton of jurisdiction,the types of jurisdictions and the impact of the characteristics of foreign-related anti-monopoly disputes on the determination of jurisdiction.There are two ways to determine the jurisdiction of foreign-related anti-monopoly disputes: throughing domestic special legislation or assigning international conventions on jurisdictions.Since the failure of the Convention on the recognition and enforcement of foreign judgements in civil and commercial matters of Hague Conference on Private International Law and the Convention on Choice of Court Agreement explicitly excluding antitrust/anti-monopoly and unfair competitionmatters,it is difficult to solve jurisdiction of foreign anti-monopoly disputes through international treaty approach.Jurisdiction of foreign-related anti-monopoly disputes can only be stipulated by domestic laws.The EU adjusts the jurisdictional issues with the “Brussels System”,while the United States tends to expand the“extraterritorial jurisdiction” in accordance with the “effect principle”.In the era of rapid development of the network economy and E-commerce,the “territorial principle” in the traditional jurisdiction theory has encountered unprecedented challenges.The internet giants gradually expanded their market shares and dominated the markets by means of the “network effect”.The theory of jurisdiction over the monopolistic behavior of internet companies has attracted the attention of academics and practice.In addition,in order to resolve the issue of active jurisdiction conflicts,the most effective approach is to establish “Forum Nor Convenience” and “Lis Pendens” in domestic law.Finally,in the design of the jurisdiction system,it is also necessary to consider from the perspectives of facilitating the parties,protecting the vulnerable groups,and facilitating the recognition and enforcement of the judgments.Chapter Three mainly describes the applicable law of foreign-related anti-monopoly cases.Once the jurisdiction is determined,the court needs to choose the applicable law.It is likely that different results will be obtained by applying the laws of different countries,which may not only cause trouble to the infringed person,but also may violate fairness and justice.Therefore,when resolving foreign-related anti-monopoly disputes,it is impossible to directly apply the domestic law for dispute resolution,and it should be in accordance with the basic requirements of international commercial economic value standards and the principle of international comity.In the process of application,the court needs to identify,characterize or classify the nature of the facts involved,and classify it into a specific legal category.From the perspective of classification,foreign-related anti-monopoly disputes are divided into contract disputes and tort disputes.For contract disputes,the law of the parties' choice can be applied.When the parties lack the agreement of choice of law,they can be based on the characteristic of the contract or the principle of place with the most significant relationship.For the analysis of the infringement,it can be discussed fromthe perspective of the place where the act of act is occurred and the damage of the infringement result.Chapter Four discuss the dispute resolution mechanism of anti-monopoly.The traditional anti-monopoly dispute resolution mechanism can be divided into two types:public enforcement and private enforcement.If the public enforcement agency fails to investigate or punish the monopolistic illegal act,then the individual can sue to the court for damage caused by the monopolistic illegal act,which means that the individual is independent to the public enforcement.This Chapter first studies the special issues in foreign-related anti-monopoly private litigation,such as standing,especially whether the indirect purchaser in the foreign-related anti-monopoly dispute has the qualification.Private enforcement can assist public exforcement,and the results of public law enforcement agencies and the evidence obtained are of great help to private enforcement,especially to alleviate the plaintiff's burden of proof.The punitive damages in the anti-monopoly dispute are not recognized by most countries and may even be in violation of the public interest of the state,which leads to the refusal to recognize or refuse to perform the judgements.The public interest involved in the anti-monopoly dispute plays an important role through the entire process of the arbitration.Recognizing the arbitrability of anti-monopoly disputes,allowing individuals to obtain relief through efficient and private arbitration mechanisms can also greatly ease the pressure on the judicial system,which has been recognized by Europe and the United States.At the same time,this part will discuss and analyze the issue of the arbitrator's ex officio application of anti-monopoly law obligations,the evidence rules in arbitration and the recognition and enforcement of foreign-related anti-monopoly arbitral awards.The last part,which is also the Conclusion of this dissertation.It is concentrates on the realities in the legislation,judicial practices and international commercial arbitration.China's Anti-Monopoly Law stipulates dispute resolution in Article 50,which is very general and simple.Operator which implement monopolistic activities and causing others to suffer losses therefrom shall bear civil liability pursuant to the law.In 2012,the Supreme People's Court issued a judicial interpretation on theanti-monopoly disputes,clearly stipulating relevant issues such as jurisdiction,burden of proof,and statute of limitations.On January 1,2019,the jurisdictional system of anti-monopoly cases in China has undergone major changes.According to the provisions of the Regulation of the Supreme People's Court on Several Issues Concerning Intellectual Property Court,the newly established Intellectual Property Court of the Supreme People's Court will jump the provincial court and directly tried the first-instance appeal case of an anti-monopoly civil lawsuit.So far,China has formed a special jurisdictional pattern of anti-monopoly disputes.However,no special provisions were made on the handling of foreign-related cases related to jurisdiction,applicable law and dispute resolutions.This Chapter discusses the status and shortcomings of foreign-related anti-monopoly dispute resolution from legislation and judiciary.Also,the suggestion for improvement of the legislation and judicial practices are provided. |
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