Competition neutrality in courts: can China's Anti-Monopoly Law 2022 ensure the supremacy of competition law in antitrust private litigation involving state-owned enterprises

China adopts a new (revised) Anti-Monopoly Act (AML 2022), which came into force on 1st August 2022. One of the key amendments was introduced by Article 4 of the 2022 Act, stating "[t]he State adheres to the principles of marketisation and the rule of law; strengthens the fundamental status of competition policy […]". Focusing on this very amendment, in this Article the author will review three leading antitrust cases heard before China's courts between 2012 and 2022, taken by private enterprises challenging State-Owned Enterprises (SOEs), to illustrate how China's courts have stepped away from protecting competition and misapplying key antitrust concepts, such as the abuse of dominant position. By closely examining three cases – namely Bao Cheng v. Wuxi China Resource (2012); Yunnan Yingding v. Sinopec (2017), and Weihai Hongfu v. Weihai Water (2022), this Article will demonstrate that the lack of competition neutrality in courts challenges antitrust provisions, and thereby, injured parties (e.g., private enterprises) were left in pain.

Although promoting the supremacy of competition law is one of 5 pillars of the amended AML 2022, the new Act makes no reference to the Judiciary's role in antitrust private enforcement to ensure competition neutrality in the market, apart from strengthening interplay between public and private enforcement (Article 11, AML 2022) and officially introducing antitrust public interest litigation (Article 60, AML 2022). This rarely amended area of antitrust private enforcement leaves the future of injured parties in doubt. Can AML 2022 protect private enterprises (non-SOEs) in antitrust private enforcement and maintain competition neutrality against SOEs in court? This Article will provide an answer, and suggestions to overcome judicial uncertainty against SOEs’ anti-competitive practices will be proposed.