Last week the Beijing Higher Court appeal decisions in the first two abuse of dominant position cases to go to trial in the PRC, 唐山市人人信息服务有限公司诉北京百度网讯科技有限公司 (Tangshan City Renren Information Service Co., Ltd. v. Beijing Baidu Network Technology Co. Ltd.) and李方平诉中国网通（集团）有限公司北京市分公司(Li Fangping v. China Netcom (Group) Co., Ltd. Beijing Branch) were released by the Intellectual Property Division of the Beijing Court system on their web site: http://bjgy.chinacourt.org/cpws/?LocationID=0901020000.
Baidu Appeal Decision (in the language in which it was heard – Chinese): http://bjgy.chinacourt.org/public/paperview.php?id=602265 (dated July 9, 2010)
China Netcom Appeal decision (in the language in which it was heard – Chinese): http://bjgy.chinacourt.org/public/paperview.php?id=602277 (dated June 9, 2010)
The trial decision in the Baidu case was released live online on December 18, 2009 (see my December 20, 2009 update for details). It can still be found here online, Transcript (in Chinese) and Photos: http://www.chinacourt.org/zhibo/zhibo.php?zhibo_id=1865 (Use Internet Explorer only).
Baidu Case Trial Decision Commentary in English: https://www.competitionpolicyinternational.com/using-a-sledgehammer-to-crack-a-nut-why-china-s-anti-monopoly-law-was-inapproriate-for-renren-v-baidu/ (paid Subscribers Only); SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1682771 .
China Netcom case Trial Decision English Commentary: http://www.chinalawinsight.com/2010/09/articles/corporate/antitrust-competition/li-fangping-vs-china-netcom-abuse-of-dominance-case-dismissed/.
In both cases the plaintiffs faced a major hurdle in proving that the defendants were dominant without the benefit of pre-trial discovery. It has been suggested that in the Netcom case the plaintiff did not try very hard. The plaintiff was a lawyer out to make a point, and in fact despite the dismissal of his action, China Netcom changed its fee and credit policies, so he obtained the result that he wanted.
However in the Baidu case the plaintiff made a considerable effort to prove that Baidu had a dominant position. And it should be noted for readers not fully familiar with China that both Baidu and China Netcom are perceived to occupy dominant positions in their relative markets. Baidu’s main competitor was Google (and may still be). Here is a UK Financial Times blog from April 22, 2011 that puts Baidu’s market share at 75%: http://blogs.ft.com/beyond-brics/2011/04/22/googles-china-market-share-declining/#axzz1WMjkoHYE . China Netcom’s market share in Beijing is even greater.
Thus the Beijing Higher Court noted in the appeal that the plaintiff had made a great effort to meet its burden of proof, but at that time there were no special arrangements with respect to the burden of proof in AML so the allocation of the burden of proof still had to be allocated in accordance with the general principle “谁主张，谁举证” (Who pleads a position has the burden of proving it). Despite all the items presented the plaintiff had failed to prove that the market share evidence and analysis was based on a scientific and objective economic analysis.
Remember that the Baidu decision was written over a year ago (the Beijing court system has been slow to post decisions online over the last year). On April 24, 2011 the Supreme People’s Court released最高人民法院关于审理垄断民事纠纷案件适用法律若干问题的规定（征求意见稿）(Supreme People’s Court Provisions On a Number of Issues Applicable to the Trial of Monopoly Civil Dispute Cases (Draft) (in Chinese: http://www.court.gov.cn/gzhd/zqyj/201104/t20110425_19850.htm that proposed to shift the burden of proof to correct this problem. The ABA Antitrust and International Section comments on the draft are here: http://www.americanbar.org/content/dam/aba/administrative/antitrust_law/at_comments_20110601.authcheckdam.pdf .