Wang Xiaoye, one of China’s leading experts on competition law, says foreign companies that feel wrongly accused of antitrust behavior need to take their cases to Chinese courts.
Most so far have been prepared to accept fines from the authorities, rather than to appeal their cases in the courts, and some have expressed fears privately that they will not get a fair hearing.
Sounds reasonable. If you have a strong case, why not go to court?
Yes, well, a couple of things. First, would there be any hope of success challenging a decision of a Chinese government regulator? Probably not, although the general idea is not as crazy as it might sound. Administrative decisions are appealed all the time these days, including many I’ve seen personally from the trademark and patent office. While those cases are not exactly comparable to the more politically-sensitive decisions made under the Anti-monopoly Law, at least there is a general precedent.
Second, what would be the scope of the challenge? This is where I part company with the suggestion. These “aggrieved” companies are not, for the most part, complaining about the specifics. From what I’ve read about quite a few regulatory decisions, the bitching and whining has focused more on selective enforcement than on the merits of particular cases.
Therefore, even if there was a chance of winning in court, what would they be challenging? A claim that the regulators may have gotten the analysis right but was unfair in its selection of targets is not, I would suppose, a winning litigation strategy.
© Stan for China Hearsay, 2014. |
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