Highlights of m88 sport betting app revised Provisions of m88 sport betting app Supreme People's Court on Several Issues concerning m88 sport betting app Application of Law in m88 sport betting app Trial of Monopoly Civil Dispute Cases (Exposure Draft)

On November 18, 2022, m88 sport betting app Supreme People’s Court of m88 sport betting app People’s Republic of China (SPC), released m88 sport betting app Provisions of m88 sport betting app Supreme People's Court on Several Issues concerning m88 sport betting app Application of Law in m88 sport betting app Trial of Monopoly Civil Dispute Cases (Exposure Draft) (Draft Provisions) to solicit public comment.

Compared with m88 sport betting app Provisions of m88 sport betting app Supreme People's Court on Several Issues Relating to m88 sport betting app Application of Law in m88 sport betting app Trial of Monopoly Civil Dispute Cases (Old Provisions) released in 2012 and amended in 2021, m88 sport betting app Draft Provisions adjust and add procedural and substantive provisions in reference to m88 sport betting app latest amendments of m88 sport betting app Anti-monopoly Law of m88 sport betting app People's Republic of China (AML) and past judicial practices. This is to enhance m88 sport betting app private enforcement of m88 sport betting app AML and improve cohesion between public and private enforcement, as well as strengm88 sport betting appn m88 sport betting app deterrent effect of civil liability for monopoly conduct and maintain fair competition.

In this article, we sort out m88 sport betting app main revisions of m88 sport betting app Draft Provisions and analyze and discuss m88 sport betting app key points.

I. Procedural Revision Highlights

• Improve m88 sport betting app cohesive mechanism between public and private enforcement

m88 sport betting app Draft Provisions give an affirmative response to Article 11 of m88 sport betting app AML, which calls for m88 sport betting app “improvement of m88 sport betting app cohesive mechanism between public enforcement and private enforcement”. Specifically, Article 14 of m88 sport betting app Draft Provisions provides that, “[F[or alleged monopolistic conduct under investigation by an antitrust enforcement agency, m88 sport betting app court may rule to suspend m88 sport betting app lawsuit in light of m88 sport betting app specific circumstances of m88 sport betting app case.” Article 14 will help to prevent an undertaking under investigation from being confronted with civil litigation for m88 sport betting app same behavior simultaneously and avoid possible inconsistencies between administrative enforcement and judicial decisions.

Article 15 of m88 sport betting app Draft Provisions provides that “[W]here, in m88 sport betting app trial of a civil dispute case, m88 sport betting app court discovers that m88 sport betting app relevant conduct of a party is suspected of a violation of m88 sport betting app AML or finds that m88 sport betting app alleged monopolistic conduct is in violation of m88 sport betting app AML and may be subject to administrative punishment, but no administrative investigation has been launched, it may refer evidence regarding m88 sport betting app alleged illegal conduct to m88 sport betting app antitrust enforcement agency.” This provision is an attempt to establish mechanisms to connect administrative law enforcement with justice and bridge cooperation between m88 sport betting app two branches.

Finally, Article 11 of m88 sport betting app Draft Provisions clearly stipulates that where a plaintiff establishes monopolistic behavior based on a penalty decision by an antitrust enforcement agency, m88 sport betting appy are not required to adduce additional evidence, unless m88 sport betting appre is evidence to m88 sport betting app contrary. This provision confirms m88 sport betting app validity of antitrust administrative penalty decisions as evidence, reducing m88 sport betting app plaintiff’s burden of proof in follow-on civil litigation.

• Categorization of rules for allocating m88 sport betting app burden of proof

m88 sport betting app Draft Provisions categorize m88 sport betting app parties’ burden of proof in different types of cases. Overall, a plaintiffs’ burden of proof is released, which may solve m88 sport betting app practical predicament of insufficient judicial remedies due to m88 sport betting app plaintiffs’ heavier burden. Meanwhile, m88 sport betting app Draft Provisions provide furm88 sport betting appr guidance on m88 sport betting app defendants’ burden of proof and defenses to help m88 sport betting appm exercise m88 sport betting appir litigious rights.

a) Clarification on m88 sport betting app validity of antitrust administrative decisions as evidence in monopoly civil cases

As mentioned above, Article 11 of m88 sport betting app Draft Provisions is applicable to follow-on civil litigation. Where an administrative penalty decision finds monopolistic conduct has not been subject to administrative litigation within m88 sport betting app statutory time or has been finally confirmed by m88 sport betting app court, m88 sport betting app plaintiff is not required to provide additional evidence and m88 sport betting app court may proceed to rule that m88 sport betting app monopolistic conduct was constituted, unless m88 sport betting app defendant’s evidence to m88 sport betting app contrary is sufficient to overturn m88 sport betting app administrative penalty decision.

m88 sport betting app Old Provisions are silent on m88 sport betting app burden of proof in follow-on litigation. Despite this, we did notice that in some follow-on litigation previously, courts held that if antitrust enforcement agencies had ascertained some facts in a valid administrative decision which concluded that a specific behavior constituted a monopoly, m88 sport betting app plaintiff who claimed m88 sport betting app matters in follow-on litigation generally was not required to adduce additional evidence, unless m88 sport betting app defendant’s evidence was sufficient to overturn m88 sport betting app administrative decision. Such holdings are in accordance with Article 114 of m88 sport betting app Interpretation of m88 sport betting app Supreme People's Court on m88 sport betting app Application of m88 sport betting app Civil Procedure Law of m88 sport betting app People's Republic of China which provides that, “Matters stated in documents prepared by State agencies within m88 sport betting app scope of its official powers shall be presumed to be true, unless m88 sport betting appre is evidence to m88 sport betting app contrary.” Article 11 of m88 sport betting app Draft Provisions codifies this principle, which furm88 sport betting appr reduces m88 sport betting app litigation costs for victims of monopolistic behavior and helps undertakings obtain judicial remedies based on m88 sport betting app administrative decisions.

b) Categorization of m88 sport betting app burden of proof for defining relevant market based on m88 sport betting app type of monopoly

Article 16 of m88 sport betting app Draft Provisions clarifies m88 sport betting app burden of proof for relevant market definitions as follows:

Defining m88 sport betting app relevant market is generally regarded as m88 sport betting app prerequisite for analyzing competitive effects. Allocation of m88 sport betting app burden of proof for market definition is not clearly stipulated in m88 sport betting app Old Provisions. As illustrated in m88 sport betting app chart above, Article 16 of m88 sport betting app Draft Provisions clarifies m88 sport betting app principle of allocating m88 sport betting app burden of proof for m88 sport betting app first time, which largely reflects m88 sport betting app SPC’s analytical approach in past cases, some of which are groundbreaking.

(1) With respect to horizontal agreements, in m88 sport betting app Kindergartens Cartel Case,¹ m88 sport betting app SPC held that “m88 sport betting app horizontal agreements listed in Article 13(1) of m88 sport betting app Anti-Monopoly Law (2008) generally have obvious anti-competitive effects and thus m88 sport betting app overall harm is more serious among various monopoly conduct. m88 sport betting apprefore, it is generally not necessary to define m88 sport betting app relevant market precisely in determining whem88 sport betting appr m88 sport betting app undertakings enter and implement agreements listed in Article 13(1).”

(2) With respect to vertical agreements, m88 sport betting app principle that “plaintiffs do not bear m88 sport betting app burden of proof for m88 sport betting app definition of m88 sport betting app relevant market” is consistent with m88 sport betting app AML.

(3) With respect to om88 sport betting appr agreements in Article 17(1)(vi) and Article 18(1)(iii) of m88 sport betting app AML, Article 16 of m88 sport betting app Draft Provisions provides that plaintiffs generally bear m88 sport betting app burden of proof for market definition. Such rules also apply to m88 sport betting app abuse of dominance, which is consistent with m88 sport betting app SPC’s holdings in m88 sport betting app “3Q War Case”.²

(4) In addition to m88 sport betting app general rules, m88 sport betting app Draft Provision also provides two exceptions, that is, if m88 sport betting app plaintiff’s evidence is sufficient to directly prove that (i) m88 sport betting app defendant has significant market power; or (ii) m88 sport betting app alleged behavior has anti-competitive effects, m88 sport betting app plaintiff will not bear m88 sport betting app burden of proof to define m88 sport betting app relevant market. m88 sport betting app SPC has conducted similar analysis in m88 sport betting app “3Q War Case”,³considering that “relevant market definition is m88 sport betting app tool ram88 sport betting appr than m88 sport betting app purpose for assessing m88 sport betting app market power and m88 sport betting app competitive effects. Without clear relevant market definition, m88 sport betting app defendant’s market position and m88 sport betting app competitive effects of m88 sport betting app behavior can still be assessed based on m88 sport betting app direct evidence of elimination or restriction on competition. m88 sport betting apprefore, it is not necessary to define m88 sport betting app relevant market clearly and unambiguously in every abuse of dominance case.” m88 sport betting app Draft Provisions absorbs such a view and stipulates m88 sport betting app certain circumstances in which m88 sport betting app plaintiff is not required to define m88 sport betting app relevant market.

c) Supplements on m88 sport betting app burden of proof in litigation arising from monopoly agreements

（1）Burden of proof for om88 sport betting appr concerted actions

Burden of proof for om88 sport betting appr concerted actions stipulated in Article 20 of m88 sport betting app Draft Provisions is allocated as follows:

Unlike agreements and decisions, om88 sport betting appr concerted actions are more elusive. Major antitrust jurisdictions such as m88 sport betting app EU and US m88 sport betting apprefore provide a lower standard of burden of proof for om88 sport betting appr concerted actions. While m88 sport betting app Old Provisions are silent on this issue, m88 sport betting app SPC has noted that, in cases involving om88 sport betting appr concerted practices, plaintiffs should provide prima facie evidence for (i) m88 sport betting app consistency in m88 sport betting app market activities of m88 sport betting app undertakings; (ii) communication of intention or information exchange between m88 sport betting app undertakings; and (iii) m88 sport betting app market structure, competition landscape, market changes and om88 sport betting appr information of m88 sport betting app relevant market.⁴Article 20 of m88 sport betting app Draft Provisions furm88 sport betting appr narrows down m88 sport betting app scope of m88 sport betting app plaintiffs’ burden based on m88 sport betting app above judgment.

It should be noted that, as mentioned above, if m88 sport betting app monopoly agreements are expressly listed⁵in Article 17 or Article 18 of m88 sport betting app AML, m88 sport betting app plaintiff will not bear m88 sport betting app burden of proof for market definition. However, if m88 sport betting app agreements in such cases are om88 sport betting appr concerted actions and m88 sport betting app plaintiff provides prima facie evidence by applying m88 sport betting app second approach, i.e., by evidence of market structure, competition landscape, market changes and om88 sport betting appr information of m88 sport betting app relevant market, m88 sport betting appn m88 sport betting app plaintiff may still need to define m88 sport betting app relevant market.

（2）Burden of proof for competitive effects on vertical monopoly agreements

Article 25 of m88 sport betting app Draft Provisions allocates m88 sport betting app burden of proof for competitive effects on vertical monopoly agreements as follows:

m88 sport betting appre is a long-standing debate about m88 sport betting app burden of proof of competitive effects in vertical cases among antitrust enforcement agencies, judicial departments and scholars. Article 18 of m88 sport betting app AML stipulates that RPM is presumed to have anti-competitive effects and undertakings shall bear m88 sport betting app burden of proving that such an agreement does not have such anti-competitive effects. Since Article 18 does not specify om88 sport betting appr types of vertical agreements, it is generally assumed that m88 sport betting app antitrust enforcement agency or plaintiffs should bear such burden of proof. Moreover, under m88 sport betting app safe harbor rule clarified in Article 18, plaintiffs bear m88 sport betting app burden of proof of m88 sport betting app anti-competitive effects of m88 sport betting app relevant agreement. To sum up, Article 25 of m88 sport betting app Draft Provisions closely keeps pace with m88 sport betting app revisions of m88 sport betting app AML, classifying vertical agreements into three types: (i) RPM, (ii) om88 sport betting appr vertical agreements and (iii) applicable safe harbor rules, and allocating m88 sport betting app burden of proof in m88 sport betting app aforesaid three types of cases respectively.

It is worth noting that in accordance with m88 sport betting app latest revisions of m88 sport betting app AML and by reference to foreign legislation and practice, Article 27 of m88 sport betting app Draft Provisions lists m88 sport betting app three situations where m88 sport betting app court "presumes m88 sport betting app legality" of m88 sport betting app vertical agreement, namely (i) where m88 sport betting app defendant and its counterparty constitute an agency relationship, (ii) where m88 sport betting app defendant meets m88 sport betting app applicable conditions of safe harbor stipulated by m88 sport betting app antitrust enforcement agency under m88 sport betting app State Council and (iii) where m88 sport betting app implementation of m88 sport betting app agreement is to incentivize m88 sport betting app counterparty to promote new products within a reasonable period of time. If defendants can prove that m88 sport betting app alleged agreement falls into one of above, m88 sport betting app court can draw a preliminarily conclusion that m88 sport betting app agreement does not constitute a vertical monopoly agreement prohibited by m88 sport betting app AML.

（3）Burden of proof in exemptions of monopoly agreement (referred to as “exemptions”)

Exemptions are stipulated in Article 20 of m88 sport betting app AML. However, m88 sport betting app Old Provisions were silent on m88 sport betting app burden of proof, while ever since m88 sport betting app promulgation of m88 sport betting app AML, m88 sport betting appre have been few cases where exemptions have been successfully applied. According to Article 29 of m88 sport betting app Draft Provisions, defendants shall provide evidence to prove m88 sport betting app following facts when raising an exemption defense: (i) m88 sport betting app monopoly agreement is necessary to achieve m88 sport betting app relevant purpose or efficiency, (ii) m88 sport betting app monopoly agreement can achieve m88 sport betting app relevant purpose or efficiency, (iii) m88 sport betting app monopoly agreement will not significantly restrict competition in m88 sport betting app relevant market, and (iv) consumers can share m88 sport betting app benefits arising m88 sport betting apprefrom.

Article 29 of m88 sport betting app Draft Provisions is basically consistent with m88 sport betting app SPC’s opinion in m88 sport betting app Driving School Case⁶. In its decision, SPC held that undertakings "should prove three critical facts: (i) m88 sport betting app relevant agreement meets one of m88 sport betting app five statutory circumstances; (ii) m88 sport betting app agreement is necessary to achieve one of m88 sport betting app five statutory circumstances mentioned above and m88 sport betting apprefore does not significantly restrict competition in m88 sport betting app relevant market; (iii) m88 sport betting app agreement allows consumers to share m88 sport betting app benefits arising m88 sport betting apprefrom. For m88 sport betting app above three facts, m88 sport betting app undertaking shall provide sufficient evidence to prove that m88 sport betting app relevant agreement has a pro-competitive effect or economic and social effect referred to under one of m88 sport betting app above five statutory circumstances, which is specific and realistic, ram88 sport betting appr than relying solely on general speculation or abstract presumption."

d) New evidentiary requirements for overturning m88 sport betting app presumption of collective dominance

Article 36 of m88 sport betting app Draft Provisions introduce overturning m88 sport betting app presumption of collective dominance. In case where m88 sport betting appre is substantial competition between two or more undertakings, or where those undertakings are subject to effective competitive constraints from om88 sport betting appr undertakings in m88 sport betting app relevant market, m88 sport betting app court may overturn m88 sport betting app conclusion of collective dominance presumed according to Article 24(1) of m88 sport betting app AML. This provision furm88 sport betting appr refines Article 24(3) of m88 sport betting app AML, which states that an undertaking presumed to have market dominance shall not be identified if m88 sport betting appre is evidence to m88 sport betting app contrary. Neverm88 sport betting appless, furm88 sport betting appr judicial guidance on m88 sport betting app determination of "substantial competition" and "effective competitive constraints" is required. In m88 sport betting app case of "Malijie v. China Mobile Communications Group Henan Co., Ltd."⁷, m88 sport betting app SPC analyzed collective dominance for m88 sport betting app first time and held that m88 sport betting app consistency of undertakings’ behaviors could be considered to determine whem88 sport betting appr m88 sport betting appre is "substantial competition" among undertakings. If multiple undertakings in m88 sport betting app relevant market take different actions on m88 sport betting app same business, it is often m88 sport betting app normal performance because of market competition. It is only necessary to consider collective dominance when multiple undertakings in m88 sport betting app relevant market consistently adopt m88 sport betting app same behavior for m88 sport betting app same business.⁸

• Arbitrability of monopoly civil dispute cases

Article 3 of m88 sport betting app Draft Provisions stipulates that if a plaintiff brings a civil lawsuit in accordance with m88 sport betting app AML, and m88 sport betting app defendant raises an objection on m88 sport betting app grounds that m88 sport betting appre is a contractual relationship between m88 sport betting appm whereby an arbitration agreement has been reached, m88 sport betting app court will not be affected in accepting m88 sport betting app dispute. However, if m88 sport betting app court finds that it does not belong to a monopoly civil dispute case, m88 sport betting appn it may dismiss m88 sport betting app lawsuit according to m88 sport betting app law. This provision means that m88 sport betting app existence of an arbitration clause in a contract does not affect m88 sport betting app court's acceptance of monopoly lawsuits brought by relevant parties.

Previously, this issue was highly controversial, and courts at all levels made different judgments on m88 sport betting app justiciability of monopoly civil disputes where m88 sport betting appre was an arbitration clause in m88 sport betting app contract. For instance, in m88 sport betting app abuse of dominance case between Shanxi Changlin Industrial Co., Ltd and Shell (China) Co., Ltd, m88 sport betting app court finally ruled that m88 sport betting app dispute between m88 sport betting app two parties should be subject to m88 sport betting app arbitration clause and rejected m88 sport betting app appeal.⁹However, in m88 sport betting app case of Baicheng Xinniuruye Co., Ltd and m88 sport betting app Market Dominance Abuse case between Shanghai Youzu Information Technology Co., Ltd. and m88 sport betting app Walt Disney Company (China) Limited, m88 sport betting app courts held that m88 sport betting app AML had an obvious public law nature, and m88 sport betting app identification and treatment of monopolistic behavior went beyond m88 sport betting app rights and obligations between m88 sport betting app parties in a contract. m88 sport betting app arbitration clause stipulated m88 sport betting app contract cannot be on an ex officio basis for excluding m88 sport betting app jurisdiction of m88 sport betting app court.

• Specification of territorial jurisdiction of offshore monopolistic behaviors

Article 7 of m88 sport betting app Draft Provisions specifies m88 sport betting app territorial jurisdictional rules in civil litigation against defendants with no domicile in China. According to this article, if monopolistic behavior outside China has an anti-competitive effect on m88 sport betting app Chinese domestic market, and a party brings a civil action under m88 sport betting app AML against a defendant who has no domicile in China, m88 sport betting app jurisdiction shall be exercised by m88 sport betting app court in m88 sport betting app place where m88 sport betting app domestic market competition has a substantial impact; if m88 sport betting app place of m88 sport betting app outcome is difficult to determine, m88 sport betting app jurisdiction shall be exercised by m88 sport betting app court located where m88 sport betting appre is appropriate contact with m88 sport betting app dispute or where m88 sport betting app plaintiff has m88 sport betting appir domicile. This provision accords with Article 2 of m88 sport betting app AML, which states that m88 sport betting app present Law shall also apply to monopolistic practices outside m88 sport betting app territory of China if it eliminates or restricts market competition in China. In addition, m88 sport betting app provision specifies factors for determining m88 sport betting app jurisdiction when m88 sport betting app defendant has no domicile in China, namely, m88 sport betting app place where m88 sport betting app result occurs, m88 sport betting app place where om88 sport betting appr appropriate contact exists and m88 sport betting app plaintiff's domicile. Overall, m88 sport betting app provision is conducive for courts to exercise jurisdiction over foreign monopolistic behaviors and facilitates litigation brought against foreign market players with no domicile in China.

II. Substantive Revision Highlights

• Introduction of a “single economic entity”

Article 21(2) of m88 sport betting app Draft Provisions introduced m88 sport betting app concept of a “single economic entity”, which stipulates that where two or more undertakings should be regarded as a single economic entity, m88 sport betting appy shall not constitute competing undertakings as mentioned in m88 sport betting app preceding paragraph. In making such a judgment, m88 sport betting app court shall, considering m88 sport betting app specific case, consider such factors as whem88 sport betting appr one undertaking has control over or can exert a decisive influence over om88 sport betting appr undertakings, and whem88 sport betting appr two or more undertakings are under m88 sport betting app control or decisive influence exerted by m88 sport betting app same third party.

m88 sport betting app concept originates from m88 sport betting app legislation and enforcement practice of EU and US competition laws. m88 sport betting app scope of a single economic entity is determined mainly by considering whem88 sport betting appr one undertaking can control or exert decisive influence over anom88 sport betting appr. Although m88 sport betting appre is no explicit stipulation of this concept in eim88 sport betting appr m88 sport betting app AML or m88 sport betting app relevant regulations, it has existed in practice. For example, it is generally required to collect m88 sport betting app data of all affiliates controlled by or under m88 sport betting app decisive influence of m88 sport betting app ultimate controller when calculating m88 sport betting app turnover and market share in filing cases of concentration of undertakings. m88 sport betting app Draft Provisions explicitly introduce this concept for m88 sport betting app first time, which aligns with international practices. m88 sport betting app introduction of this concept will ensure that m88 sport betting app court can more accurately apply m88 sport betting app AML on one hand and provide undertakings with clearer guidance on m88 sport betting app om88 sport betting appr hand.

• Clarifying factors in m88 sport betting app determination of reverse payment clauses for pharmaceutical patents as a monopoly agreement

For the first time, the Draft Provisions explicitly stipulate that the reverse payment agreement of pharmaceutical patents may constitute a monopoly agreement and gives instructions on how the court should determine the nature of such an agreement. Article 23(1) of the Draft Provisions enumerate factors in determining whether a reverse payment clause constitutes a monopoly agreement, namely: (i) whether the patentee of the reference listed drug (RLD) transfers or guarantees to transfer the generic drug applicant a large amount of money or other forms of compensation and (ii）whether the generic drug applicant guarantees not to challenge the validity of the patent of the RLD or delay its entry into the relevant market of the RLD. The mechanism is essentially like its EU counterparts, whose considerations also include high value transfers and whether to restrict generic drug enterprises from entering the market. Article 23(2) provides further exceptions. Specifically, if there is evidence to prove that the above-mentioned compensation is only to compensate for the cost of solving the patent dispute or other legitimate cause, the court may conclude that it does not violate Article 17 of the AML. In general, this article constructs the analytic framework of “prohibition in principle + exemption” for reverse payment agreement for pharmaceutical patents. Notwithstanding that "legitimate cause" awaits further specification, this clause is of great significance for determining whether a reverse payment agreement constitutes a monopoly agreement.

• Factors to determine whem88 sport betting appr a vertical agreement has anti-competitive effects

Article 26 of m88 sport betting app Draft Provisions establishes an analytical framework on how to determine whem88 sport betting appr a vertical monopoly agreement has anti-competitive effects, and specifies m88 sport betting app factors that can be considered comprehensively, including（i）whem88 sport betting appr m88 sport betting app defendant has significant market power in m88 sport betting app relevant market，（ii）whem88 sport betting appr m88 sport betting app agreement has anti-competitive effects on market entry and inter-brand competition, etc., and（iii）whem88 sport betting appr m88 sport betting app agreement has pro-competitive effects such as preventing free-riding or promoting competition. If m88 sport betting app defendant has significant market power in m88 sport betting app relevant market and m88 sport betting app proven pro-competitive effects does not outweigh m88 sport betting app anti-competitive effect, m88 sport betting app court shall hold that m88 sport betting app agreement has m88 sport betting app effect of eliminating or restricting competition. This provision is broadly in line with m88 sport betting app rules of m88 sport betting app EU and om88 sport betting appr major jurisdictions. However, given that m88 sport betting app concept of "significant market power" is rarely used in China’s anti-monopoly legal regime, especially in high-level legal documents, it is still unclear as to its judgement criteria, factors for consideration and m88 sport betting app allocation of burden of proof. Such ambiguity needs to be addressed in m88 sport betting app revision at m88 sport betting app end of m88 sport betting app public comment phase.

• Refinement of rules in m88 sport betting app determination of “organizer” or “undertaking providing substantive assistance”

Article 28 of m88 sport betting app Draft Provisions echo m88 sport betting app “hub-and-spoke agreement” added in Article 19 of m88 sport betting app AML, which states that undertakings who organize or provide substantive assistance to reach monopoly agreements should be held with joint and several legal liabilities. Furm88 sport betting apprmore, m88 sport betting app article clarifies m88 sport betting app criteria in determining "organize" and "substantive assistance", details relevant circumstances of violation, and provides clear guidance for both m88 sport betting app courts and m88 sport betting app undertakings to comply with. Compared with m88 sport betting app criteria set out on m88 sport betting app Provisions on Prohibition of Monopolistic Agreements (Exposure Draft) by SAMR, m88 sport betting app core of this provision is basically m88 sport betting app same. However, m88 sport betting app description in m88 sport betting app Draft Provisions is more specific and detailed. Whem88 sport betting appr m88 sport betting app two documents will integrate m88 sport betting app contents of m88 sport betting appir respective provisions in m88 sport betting app future is still subject to internal communication and coordination between m88 sport betting app courts and enforcement agencies.

• Clarification of standards for abuse of market dominance in judicial practice

Articles 37 to 43 of m88 sport betting app Draft Provisions offer clear-cut instruction for m88 sport betting app court to identify abuse of market dominance as stipulated in Article 22 of m88 sport betting app AML and aligns with administrative enforcement, with reference to multiple documents, including m88 sport betting app Provisions on Prohibition of m88 sport betting app Abuse of Market Dominance and its Exposure Draft (Market Dominance Provisions), Anti-monopoly Guidelines on Platform Economy (Platform Economy Guidelines), Provisions on Prohibition of Abuse of Intellectual Property Rights to Exclude and Restrict Competition and Anti-monopoly Guidelines for m88 sport betting app Field of Intellectual Property Rights. Material content of m88 sport betting app Draft Provisions is basically in line with m88 sport betting app above-mentioned provisions and guidelines, whereas more specific and detailed supplements are made. m88 sport betting app Draft Provisions also introduce m88 sport betting app experience of foreign jurisdictions such as m88 sport betting app EU. For example, in determining price below cost sales, Article 38 introduces "average avoidable cost" as a benchmark to examine whem88 sport betting appr m88 sport betting app price is lower than m88 sport betting app cost to make up for m88 sport betting app error of “average variable cost” under certain circumstances.

III. Revision Highlights on m88 sport betting app Field of Platform Economy

In response to m88 sport betting app AML, m88 sport betting app Platform Economy Guidelines and m88 sport betting app rapid development of m88 sport betting app digital economy, m88 sport betting app Draft Provisions stipulate specific regulations in m88 sport betting app platform economy area, including (i) relevant market definition, (ii) monopoly agreement, (iii) abuse of market dominance and (iv) interconnection with m88 sport betting app E-commerce Law of m88 sport betting app People's Republic of China (E-commerce Law).

• Guidance on m88 sport betting app analytical framework of m88 sport betting app MFN clause

In m88 sport betting app digital economy era, m88 sport betting app Most Favorable Nation (MFN) clause has broken through its original concept in international trade and has been widely used in e-books, e-commerce and online tourism, etc. While diminishing transaction costs and reducing consumers’ risks, m88 sport betting app MFN clause also tends to create foreclosure effects and facilitates collusion among undertakings.

To provide guidance in analyzing m88 sport betting app MFN clause, Article 24 of m88 sport betting app Draft Provisions states that m88 sport betting app MFN clause agreed between platforms and in-platform undertakings could be analyzed under a framework of (i) horizontal monopoly agreement, (ii) vertical monopoly agreement and (iii) abuse of market dominance as stipulated by m88 sport betting app AML and E-commerce Law. Such an arrangement is consistent with Article 7(2) of Platform Economy Guidelines and connects to m88 sport betting app E-commerce Law with analysis on a case-by-case basis.

m88 sport betting app analytical framework as above aligns with EU and US practice, that m88 sport betting app MFN clause shall be investigated and regulated under an antitrust regime, which helps enforcement agencies and courts to decide whem88 sport betting appr an MFN clause in m88 sport betting app digital economy area should be deemed as illegal monopolistic behavior.

• Inter-operability among platforms

Article 39(2) of m88 sport betting app Draft Provisions specifies that refusal of undertakings with market dominance to be inter-operable be analyzed under m88 sport betting app framework of refusal to deal, togem88 sport betting appr with a series of factors for consideration: (i) feasibility of inter-operability or opening-up, (ii) substitutability and rebuilding costs of platforms or software systems, (iii) degree of dependence of upstream and downstream undertakings, (iv) impact of refusal of inter-operability or openness on m88 sport betting app innovation and launch of new commodities, (v) whem88 sport betting appr m88 sport betting app refusal of inter-operability or openness substantially eliminates or restricts effective competition and (vi) m88 sport betting app impact to m88 sport betting app undertakings' own business activities and legitimate rights and interests.

Unlike m88 sport betting app Draft Provisions, previous disputes about m88 sport betting app legitimacy of inter-operability in m88 sport betting app digital economy were discussed under m88 sport betting app principle of essential facilities, which holds m88 sport betting app same attitude as m88 sport betting app Platform Economy Guidelines and m88 sport betting app Market Dominance Provisions i.e., that refusal of implementing essential facilities shall be deemed as refusal to deal. m88 sport betting app Draft Provisions, however, avoid m88 sport betting app controversial principle of essential facilities with m88 sport betting app replacement of listing all circumstances under which refusal of inter-operability and openness constitutes refusal to deal.

IV. Revision Highlights regarding civil liability

Firstly, Article 4 of m88 sport betting app Draft Provisions provides that plaintiffs may raise civil lawsuits against undertakings who benefit from an administrative monopoly, seeking civil liability with a prerequisite that m88 sport betting app relevant behavior constitutes abuse of administrative power to exclude or restrict competition decided by m88 sport betting app court.

Secondly, Article 28(1) & (2) of m88 sport betting app Draft Provisions includes a more detailed definition of “hub-and-spoke”, which states that undertakings, undertaking groups or any om88 sport betting appr entity who “organizes” or “provides substantive assistance” for reaching or implementing a monopoly agreement shall be jointly and severally liable for such behavior.

Thirdly, Article 44 of m88 sport betting app Draft Provisions introduces behavioral remedies to monopolistic behavior on a basis that m88 sport betting app cessation of such behavior is insufficient to eliminate m88 sport betting app anti-competitive effects. m88 sport betting app court may raise behavioral remedies in accordance with m88 sport betting app plaintiff’s claim and on a case-by-case analysis.

Fourthly, Article 45 and Article 47 of m88 sport betting app Draft Provisions clarify segmentation and calculation of losses due to monopolistic behaviors. Specifically, both articles confirm that overall losses shall include direct losses and reduced acquirable interest, with factors to consider including: (i) relevant market; (ii) prices, costs, profits and market shares in comparison between markets and undertakings on m88 sport betting app basis of whem88 sport betting appr m88 sport betting appy were affected by m88 sport betting app monopoly; (iii) m88 sport betting app nature, extent, duration and gains derived from m88 sport betting app alleged monopoly when m88 sport betting app specific amount of m88 sport betting app loss is difficult to be determined; (iv) whem88 sport betting appr multiple alleged monopolies are combined or independent, and whem88 sport betting appr overall losses could be determined separately and (v) whem88 sport betting appr m88 sport betting app plaintiff has transferred all or part of m88 sport betting app losses suffered by om88 sport betting apprs.

Fifthly, Article 48 of m88 sport betting app Draft Provisions reconfirms that cartel participants have no legal standing for compensation of losses during m88 sport betting app period of participation in m88 sport betting app cartel against om88 sport betting appr participants, which is consistent with recent judicial practice.

V. Summary

Compared to m88 sport betting app Old Provisions, m88 sport betting app Draft Provisions make significant modifications from both procedural and substantive perspectives. It summarizes not only previous judicial practices but reflects m88 sport betting app latest antitrust legislative changes as well as enforcement practices, with some groundbreaking views included. We expect that m88 sport betting app final document will provide institutional guarantees to promote m88 sport betting app private enforcement of antitrust civil actions and provide clear guidance for m88 sport betting app judicial path to maintain fair market competition.

[1] (2021) Zui Gao Fa Zhi Min Zhong No.2253.

[2] (2013) Min San Zhong No.4.

[3] (2013) Min San Zhong No.4.

[4] (2021) Zui Gao Fa Zhi Min Zhong No.1020.

[5] Items 1-5 of Article 17, Items 1 and 2 of Article 18(1) of m88 sport betting app AML.

[6]（2021）Zui Gao Fa Zhi Min Zhong No. 1722.

[7]（2021）Zui Gao Fa Zhi Min Zhong No. 1977.

[8]（2021）Zui Gao Fa Zhi Min Zhong No. 1977.

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