China’s private antitrust enforcement involving two internet giants, Tencent and Qihoo, touches the essence of antitrust concepts, writes Zhan Hao
The year-long protracted war between two Chinese internet giants, Qihoo and Tencent (Qihoo v Tencent), resulted in Qihoo losing the first instance trial. This case deserves to be labelled as the first real challenge of anti-competitive behaviours by private antitrust enforcement after the promulgation of the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Arising from Monopolistic Conducts. Although mainland China is not a case law jurisdiction, the underlying legal issues and analytical approach involved in the case are very likely to extend their influence in future cases through the case guidance system established by the Supreme People’s Court.
In terms of judicial techniques for applying the Anti-Monopoly Law (AML), the first instance court has made great headway in Qihoo v Tencent. For instance, the court has engaged in a path-breaking analysis on market definition, explored the relations between intellectual property and anti-monopoly, introduced expert witnesses, referred to precedents of other jurisdictions, and made deliberate evaluations of evidence in over 80 pages of judgment. The parties were also proactive in evidence production.