The Role of Presumptions of Market Dominance in Civil Litigation in China

Posted by Social Science Research Network

Contracting Authorities Inability to Fight Bid Rigging in Public Procurement: Reasons and Remedies – Felix E Mezzanotte (Hong Kong Polytechnic University) & Liyang Hou (Shanghai Jiao Tong University)

Abstract: We examine the use and effects of the presumptions of market dominance in antitrust litigation in China (Article 19 Antimonopoly Law). To this end, thirteen court decisions in cases of abuse of market dominance were analyzed. We found that the presumptions are mentioned in eight cases. The presence of the presumptions, however, did not influence the court’s rationale and findings in a meaningful way. In those cases in which the presumptions are cited and market dominance found (three cases), the court’s views were guided less by the logic underlying the presumptions than by the fact that the defendants held a monopoly position due to patent holdings or exclusive rights. In the other five cases that cite the presumptions, the defendants operated in a competitive market and dominance was not found. Here, the plaintiffs systematically failed to satisfy the requirements of the presumption due to problems of market definition and measurement of market shares. In terms of effects, the possibility that the presumptions connote a shift in the burden of proof from the plaintiff to the defendant remains unclear, and further guidance from the Chinese courts on this issue is critical.