Draft Rules of China's Supreme People’s Court Explicitly Allow for the Use of Economic Analysis and Economic Experts in Private Antitrust Litigation

03 May 2011

New York -- On 25 April 2011, China's Supreme People's Court issued draft rules on litigation of civil antitrust cases. The draft, entitled "Supreme People's Court Provisions on Issues Concerning the Trial of Monopoly Civil Dispute Cases (Draft for Comment)," is open for public comment until 1 June 2011. These rules, which are expected to be finalized soon thereafter, will provide guidance to private parties involved in antitrust litigation in China.
Several of the Articles specifically address the use of experts. Article 9, which specifies how market dominance may be established, states that reports issued by qualified independent organization(s) involving market surveys, economic analysis, specialized research, and statistical results may be admitted by the courts as preliminary evidence to establish the presumption of market dominance. However, it is not clear from the draft rules what types of independent organizations will be regarded as "qualified."

Article 13 addresses expert opinion more generally. It identifies two ways that expert opinion may be put before the court. First, a party may apply to the court to allow person(s) with professional knowledge in economics or the industry to appear in court and present their opinions on specific issues relevant to the case. Second, a party may request that the court allow an independent professional organization(s) or person(s) to submit to the court a report based on market surveys or economic analysis. The professional may be retained by the party or appointed by the court.
The use of experts described in the draft rules has some similarities to the expert witness system in the United States. In both systems, experts may issue reports and offer opinions through a court appearance. In both systems, an expert may be retained by a party or appointed by the court (in the United States, a court may appoint a “special master”). One notable distinction between the two systems is that, in China, the term “witness” applies only to people who have actually "witnessed" factual matters related to the event in dispute. Thus, in China, an expert making a presentation in court would not be called an "expert witness," but rather an "expert" or “professional” instead.

The full text of the draft rules is available (in Chinese) at www.court.gov.cn/gzhd/zqyj/201104/t20110425_19850.htm.

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