1 Legal framework

1.1 Which laws regulate competition in your jurisdiction?

The Monopoly Regulation and Fair Trade Act (MRFTA) is the primary source of law governing competition matters in Korea. The MRFTA is the counterpart of the United States Sherman Act and the Treaty on Functioning of the European Union.

1.2 Which authorities are responsible for enforcing the competition legislation? What is their general approach to enforcement?

The Korea Fair Trade Commission (KFTC) is responsible for administering and enforcing the MRFTA. The KFTC, which is part of the executive branch, is an independent regulatory agency. The KFTC is led by nine commissioners, appointed by the president of South Korea for three-year terms. The term can be extended only once by another three years. The KFTC has five bureaux:

  • Business Groups;
  • Cartel Investigations;
  • Consumer Policy;
  • Business Trade Policy; and
  • Anti-monopoly.

The KFTC, headquartered in Sejong-si, has five regional offices in Seoul, Busan, Gwangju, Daejeon and Daegu.

After a report has been filed by a victim of a breach of the MRFTA or any person with knowledge of an actual or potential breach of the MRFTA (Section 2, Article 80 of the MRFTA), the KFTC may initiate an investigation by giving notice of the investigation to the person who allegedly is violating or has violated the MRFTA. The KFTC may also begin its investigation ex officio. The KFTC will present the notice of investigation on site to the respondent at the beginning of a dawn raid or on-site investigation. The KFTC must reveal substantial information of the investigation in the notice, including:

  • the objectives of the investigation;
  • its anticipated duration; and
  • the method of investigation.

If the KFTC believes that the MRFTA is being or has been violated following its investigation, it will issue and serve an examiner's report to the respondent. This report is a charging document consisting of factual allegations with citations on violations of the MRFTA (it is the equivalent of an administrative complaint in the United States and a statement of objections in the European Union). The respondent is given the opportunity to object to the allegations during the investigation and even after the examiner's report has been released. Respondents (and even interested parties) are allowed to present their opinions or provide testimony to the KFTC even after the report has been issued; however, further investigation after issuance of the report is prohibited, unless approved by the KFTC).

Following the release of the examiner's report, the KFTC will hold a hearing on the charges set forth in the report; additional hearing(s) can be held, but this is not common. After the hearing(s), the KFTC will deliberate and render its decision on the case. The KFTC cannot bring a case directly to the court for remedies instead of instituting administrative proceedings briefly described above.

The respondent may appeal the KFTC's decision to the Seoul High Court, which has exclusive jurisdiction over appeals of KFTC decisions. The appellate court's decisions may be appealed to the Supreme Court, the highest court in South Korea.

2 Private claims

2.1 What types of private claim may be brought for breach of competition law in your jurisdiction?

Anyone that has suffered injury resulting from a breach of competition law may bring an action seeking compensation for damage to the court. Such private damages suits may either follow on from a successful government case (ie, a follow-on suit) or as a standalone suit. Most private damage litigations are follow-on or piggyback actions because the plaintiff may rely on the prior findings of the Korea Fair Trade Commission (or the judgment of the appellate or Supreme Court). However, such government findings and the court judgment need not be final.

In addition, anyone that has suffered or is likely to suffer injury from a breach or likely breach of competition law may request the district court to enjoin the defendant from continuing or preventing the breach. However, an injunctive remedy is available only for:

  • unlawful resale price maintenance; and
  • unfair trade practices under the Monopoly Regulation and Fair Trade Act (MRFTA), such as:
    • unfair refusal to deal;
    • unfair discriminatory conduct;
    • unfair exclusionary conduct;
    • unfair coercion or inducement of a competitor's customer to trade with itself;
    • abuse of a superior bargaining position;
    • trade with a trading party under unfairly restrictive conditions;
    • unfair interference with a trading party's business activities; or
    • any other conduct that could harm fair trade.

Injunctive remedies were introduced to the MRFTA in 2020.

2.2 What is the legal basis for bringing a claim for breach of competition law?

The legal basis for bringing a breach claim of competition law are stipulated under Articles 108 and 109 of the MRFTA, which provide for:

  • injunctive relief (for a limited scope of MRFTA offences – see question 2.1); and
  • a monetary damages action.

Article 108 of the MRFTA allows anyone threatened with loss or damage from unfair trade practices or unlawful resale price maintenance under the MRFTA to seek injunctive relief in the district court. The injured party may seek injunctive relief to enjoin the defendant from a continuance of such violations of the MRFTA.

Article 109 of the MRFTA allows anyone that is injured by a breach of the MRFTA to file a civil damages action. At its discretion, the court may award punitive damages – up to treble damages – only to the victims of:

  • unlawful cartels; or
  • retaliatory action by a party accused of an unfair trade practice or unlawful resale price maintenance under the MRFTA.

The damages that can be recovered from a successful leniency applicant for cartel activities are limited to actual (or compensatory) damages suffered by the plaintiff(s), as opposed to the punitive damages permitted by the MRFTA.

The nature of a private damages action under Article 109 of the MRFTA is generally based in tort (Article 750 of the Civil Code). Thus, the Civil Code addresses issues not stipulated in the MRFTA. For instance, the limitation period is:

  • three years from the date of the plaintiff learning of the damage and the person who caused such damage; or
  • 10 years from the date of knowledge of the cause of action, whichever is earlier.

Further:

  • defendants that have been found civilly liable for conspiring with each other to violate the MRFTA are jointly and severally liable for the plaintiff's damages; and
  • a defendant that pays more than its share of a judgment against multiple defendants has the right to seek contribution from others in accordance with Article 760 of the Civil Code. (A successful leniency applicant for cartel offences is jointly and severally liable for the plaintiff's actual (or compensatory) damages only, and not for any punitive damages awarded by the court.)

3 Parties

3.1 Who has standing to bring a claim for breach of competition law?

Anyone that has knowledge of a breach of competition law may file a report with the Korea Fair Trade Commission (KFTC) (Article 80 of the Monopoly Regulation and Fair Trade Act (MRFTA)). Following such report, the KFTC may initiate an investigation and administrative proceeding may be instituted if the KFTC's examiner submits an examiner's report following his or her investigation.

On the other hand, the following parties may bring a civil damages action or an action for injunctive relief before the court:

  • anyone that has suffered loss or damage caused by breach of the MRFTA; or
  • anyone that has suffered or is likely to suffer loss or injury resulting from the commission of unfair trade practices or unlawful resale price maintenance under the MRFTA (see question 2.1).

3.2 Can a claim for breach of competition law be brought against parties outside the jurisdiction?

Article 3 of the MRFTA sets forth the principle of extraterritorial application. The MRFTA applies to any unlawful conduct under the MRFTA (including any collusive or abusive conduct) that has a "direct, substantial, and reasonably foreseeable effect" on the South Korean market (Supreme Court Decision 2012Du13665, 16 May 2014). Thus, the KFTC may apply the MRFTA to foreign entities in relation to their (often purely foreign) conduct if such conduct has effects on the South Korean market.

3.3 Can a claim for breach of competition law be brought against individuals, or only companies?

A claim for breach of competition may be brought against both individuals and companies. The MRFTA applies to a "business entity", which is defined as "an entity that engages in manufacturing business, service business, or any other business". However, the MRFTA further provides that: "Any executive officer, employee, agent, or any other person who acts for the benefit of a business entity shall be deemed a business entity in the application of the provisions pertaining to trade associations." Thus, an MRFTA claim may be brought against individuals and companies.

4 Collective actions

4.1 Is it possible to bring a collective action for breach of competition law in your jurisdiction? If so, what is the applicable regime?

A collective action or class action for breach of the Monopoly Regulation and Fair Trade Act (MRFTA) is not available in South Korea. A bill for class actions for breach of the MRFTA was proposed but was not enacted.

However, under the Civil Procedure Act (CPA), a plaintiff (or plaintiffs) may bring a representative action on behalf of themselves and other similarly situated individuals. This is a pure opt-in action, so the judgment will apply only to the plaintiffs that joined the action from the outset.

4.2 Do collective actions proceed on an ‘opt-in' or an ‘opt-out' basis?

As noted in question 4.1, collective actions or class actions are not available in South Korea. However, a representative action under the CPA is close to an action on an ‘opt-in' basis.

4.3 Do collective actions require certification? If so, what requirements must be met to obtain certification?

As noted in question 4.1, collective actions or class actions are not available in South Korea. Even a representative action under the CPA does not require certification.

5 Forum

5.1 In what forum(s) are claims for breach of competition law heard in your jurisdiction?

A civil damages action or action for injunctive relief should be instituted in a district court with appropriate jurisdiction in accordance with the Civil Procedure Act.

The Korea Fair Trade Commission's (KFTC) decision in administrative proceedings may be appealed before the Seoul High Court. The Seoul Hight Court has exclusive appellate jurisdiction over the KFTC's administrative ruling (Article 100 of the Monopoly Regulation and Fair Trade Act). The Seoul High Court's appellate decision may be appealed to the Supreme Court, the highest court in South Korea, unless dismissed for "discontinuance of a trial". The latter is a Supreme Court ruling not to hear an appeal and to dismiss it in accordance with the Act on Special Cases Concerning Procedure for Trial by the Supreme Court and other relevant laws.

6 Bringing a claim

6.1 What is the limitation period for claims for breach of competition law in your jurisdiction?

The limitation period for civil damages claim for breach of the Monopoly Regulation and Fair Trade Act (MRFTA) is:

  • three years from the date of the plaintiff learning of the damage and the person who caused such damage; or
  • 10 years from the date of knowledge of the cause of action, whichever is earlier.

A seven-year limitation period applies for the Korea Fair Trade Commission (KFTC) to bring an administrative case, except in relation to unlawful cartels. The clock begins to run at the end of the alleged violations. For unlawful cartels, the statute of limitations is:

  • five years from the date of commencement of the investigation; or
  • seven years from the end date of the alleged conspiracy.

6.2 What are the formal requirements for bringing a claim for breach of competition law?

For private civil actions (for monetary damages or injunctive relief), the party that suffered damage or loss resulting from a breach of the MRFTA must file a complaint or application with the district court that has appropriate jurisdiction. The Supreme Court provides the civil complaint templates for various claims at https://help.scourt.go.kr.

For KFTC administrative proceedings, any party may file a report with the KFTC. The KFTC provides the report templates on its website at www.ftc.go.kr.

6.3 What are the procedural and substantive requirements for bringing a claim for breach of competition law?

The nature of private civil actions (for monetary damages or injunctive relief) is civil litigation. Thus, all substantive and procedural requirements under the MRFTA, the Civil Procedure Act (CPA) and other relevant laws must be met. Civil litigation for monetary damages is instituted by filing a complaint stating the plaintiff's competition claims against the defendant with the district court that has appropriate jurisdiction. A civil action seeking injunctive relief is instituted by filing an application stating:

  • the existence of unfair trade practices or unlawful resale price maintenance; and
  • the reasonably foreseeable loss or damage resulting therefrom.

For administrative proceedings before the KFTC, anyone that believes it has suffered loss or damage resulting from a breach of the MRFTA or that has knowledge of a potential or actual breach of the MRFTA may file a report with the KFTC. If the KFTC begins to investigate the case, that party may continue to present its opinions or provide testimony until the KFTC's hearing for deliberation and its ruling.

6.4 What are the implications if a public enforcement action in relation to the same behaviour is pending? Can a claim still be brought?

A private action for damages or injunctive relief may still be instituted even if a public enforcement action is pending. Standalone claims are not common, but are not prohibited under the MRFTA.

6.5 How is jurisdiction over the claim determined?

The CPA provides the basic jurisdictional rule. The appropriate jurisdiction is determined in accordance with the CPA. Under the CPA, jurisdiction rests with the court located in the place where:

  • any one of the defendants is domiciled or has its habitual residence; or
  • the unlawful act under the MRFTA occurred

6.6 How is the applicable law determined?

The applicable laws for claims for breach of the MRFTA are:

  • the Civil Code;
  • the CPA; and
  • the MRFTA itself.

6.7 Under what circumstances must security for costs be provided?

In case of a private action for injunctive relief, the court may order security for costs at the request of the plaintiff or at its own discretion to protect the defendant's interests (Article 108, Section 3 of the MRFTA).

6.8 Are interim remedies available in competition litigation? If so, how are they obtained?

Under Article 108 of the MRFTA, anyone that has suffered or is likely to suffer loss or damage caused by certain violation(s) of the MRFTA may file a petition to seek injunctive relief to enjoin the defendant's unlawful act with a district court that has appropriate jurisdiction in accordance with the CPA. However, injunctive relief may be sought only against unlawful resale price maintenance and certain unfair trade practices (see question 2.1).

7 Disclosure and privilege

7.1 What rules apply to disclosure in your jurisdiction? Do any exceptions apply?

Discovery is not recognised in South Korea. Pursuant to Article 111 of the Monopoly Regulation and Fair Trade Act (MRFTA), a party may request the court to order the other party to produce documentation and/or information necessary to prove liability or damages (excluding documentation and information related to leniency application for cartels).

If production is refused by the party in possession or control of the requested documentation or information, the court may still request such production to determine whether the cause of the refusal is justifiable. Even if such documentation or information is deemed to be a trade secret of the requested party, the court may order production if this is deemed necessary to prove liability or damages. Further, if the requested party refuses to produce the requested documentation or information without presenting justifiable grounds, the court may presume that the other party's argument regarding such document or information is true.

7.2 What rules on third-party disclosure apply in your jurisdiction?

The MRFTA does not have competition litigation-specific rules on third-party disclosure, except in relation to the Korea Fair Trade Commission (KFTC). As noted in question 7.1, under the MRFTA a party can request the court to order a party to produce documentation and/or information necessary to prove liability or damages. Under Article 110 of the MRFTA, in case of private damages action, the court may request the KFTC to convey the case records to the court.

Further, the Civil Procedure Act (CPA) provides for various measures to request third parties to produce or disclose document or information in their possession or under their control (eg, Articles 294, 345 and 352 of the CPA).

7.3 What rules on privilege apply in your jurisdiction?

Attorney-client privilege is not fully recognised in South Korea. Article 26 of the Lawyer Act prohibits a lawyer from disclosing "confidential matters … learned in the course of performing his or her duties", unless otherwise prescribed by other laws. The CPA provides that a lawyer may refuse to testify under oath or may withhold documentation from production where such testimony or production may violate the lawyer's confidentiality obligation regarding ‘secrets' (ie, information not available in the public domain) received in the exercise of his or her profession.

8 Evidence

8.1 What types of evidence are permissible in your jurisdiction? Is expert evidence accepted?

Any type of evidence will be admissible if it is relevant and helpful to prove the facts at issue in court proceedings. Evidence can take several forms, such as:

  • documents;
  • sound and video recordings; and
  • witness oral or written statements.

Expert witnesses are often accepted where one of the issues in litigation requires specialised knowledge which qualifies them to provide expert opinions. The procedure for an expert witness statement is the same as that for a general witness statement.

8.2 What is the applicable standard of proof?

The applicable burden of proof in civil litigation under South Korean law is a "high degree of probability" of evidence, according to the Supreme Court (Supreme Court Decision 2008Da6755, 28 October 2010). The applicable burden of proof in civil litigation is close to clear and convincing evidence – the standard of proof employed in United States federal civil and criminal trials.

8.3 On whom does the burden of proof rest?

The plaintiff bears the burden of proof. The plaintiff must prove that:

  • the defendant breached the Monopoly Regulation and Fair Trade Act (MRFTA); and
  • the plaintiff suffered loss or damage for which it can be compensated.

Article 109 of the MRFTA provides a rebuttable presumption that the defendant wilfully or negligently breached the MRFTA. This rebuttable presumption shifts the burden of proof to the defendant(s) to demonstrate a lack of wilfulness or negligence.

In addition, where a court finds liability for damages but deems that it is substantially challenging for the plaintiff to substantiate the damages amount, the court may assess a reasonable amount of damages based on the available evidence.

8.4 What defences are typically available in competition litigation?

The passing-on defence as an affirmative defence is typically available in private damages action against cartels. This is a defence that a member of the distributive chain which was overcharged or undercharged passed on the allegedly excessive price adjustment to reflect the charge and thereby suffered no loss or damage. A successful passing-on defence may limit the scope of liability.

9 Settlement

9.1 Can the proceedings be discontinued without a full trial? If so, how; and what are the implications?

A private damages action has the nature of a civil tort proceeding. Under the Civil Procedure Act, the plaintiff may voluntarily dismiss the action by choosing to drop the case or by entering into an out-of-court settlement with the defendant.

9.2 In the case of collective actions, is collective settlement possible? If so, how; and what are the implications?

As noted in question 4.1, collective actions or class actions are not available in South Korea.

10 Court proceedings

10.1 Are court proceedings in your jurisdiction public or private? If the former, are any options available to the parties to keep the proceedings or related information confidential?

Court proceedings are public; however, the parties may request the court to keep trade secrets confidential.

In civil litigation for monetary damages, a party to the litigation may request the court to keep its trade secrets confidential under Article 112 of the Monopoly Regulation and Fair Trade Act (MRFTA). The requesting party must convince the court that:

  • its trade secrets are included in:
    • briefs that have been submitted or should be submitted;
    • evidence that has been reviewed or is subject to review; or
    • other information that has been presented or should be presented upon the court's order for producing documents and information under Article 111 of the MRFTA; and
  • restrictions on the use or disclosure of its trade secrets are necessary because the use or disclosure of such trade secrets beyond the litigation is likely to have an adverse impact on its business.

Breach of the court order may result in:

  • imprisonment for up to two years; or
  • criminal fines of up to KRW 20 million.

10.2 How do the court proceedings unfold in your jurisdiction?

Civil trial proceedings generally begin when the plaintiff files a complaint with a court that has jurisdiction over the case (this can also be filed electronically). In the complaint, the plaintiff must set out its claim(s) together with relevant evidential documents.

Once the complaint has been submitted, the court will serve the complaint through multiple methods such as hand delivery or, if needed, public notice. Usually, the defendant must file a written answer within 30 days of receipt of service. If a written answer is submitted, the court will hold hearings and the parties will submit briefs and evidence in their favour.

Depending on the complexity of the case, the court may hold one or more preparatory sessions – similar to a pre-trial conference in the United States – before a hearing to facilitate the more efficient management of the case. Generally, during such a preparatory session, an appointed judge of the court will set out future hearing dates and clarify and narrow down the main issues and facts of the dispute.

The court will then hold several hearings during which both parties will appear before the court to clarify their respective positions on disputed issues and witnesses will be examined. Hearings will be held until the court believes it has received sufficient information and the parties have no further evidence or issues to bring to court. As the court has broad discretion and exclusive authority to manage the case, it will set out the schedules of brief submission deadlines, witness examination and the release date of its ruling.

Once the court has closed the proceedings, it will enter a written judgment – usually within four to six weeks of closing.

A losing party, even if has only partially lost the case, can appeal to the high (appellate) court, which will conduct the proceedings de novo and examine both facts and legal issues. In comparison, high court decisions can be appealed only on questions of law.

10.3 What is the typical timeframe for proceedings?

Once a complaint has been filed in a private damages lawsuit, it may take at least six months before the district court issues its decision. However, the timeframe for a district court proceeding is often much longer than six months. For example, it took eight years in a district court proceeding for 18,131 farmer-plaintiffs to be awarded compensation for damages they suffered due to a conspiracy among 13 fertiliser companies to fix prices for 16 years.

10.4 What rules apply to the joinder of third parties?

Under Article 71 of the Civil Procedure Act, third parties may intervene in a pending lawsuit only if they have a legal interest that relates to the subject of the litigation. The joinder of third parties is not granted if this is likely to substantially delay the proceeding. For example, in 2017, in the case of Qualcomm Technologies, Inc. (Qualcomm)'s abuse of dominance, Apple Inc intervened in the appellate proceeding at the Seoul High Court of Appeals in which Qualcomm appealed the Korea Fair Trade Commission's (KFTC) decision. The Seoul High Court dismissed Qualcomm's appeal and the case is still pending at the Supreme Court (Supreme Court Decision 2020Du31897, pending).

10.5 To what extent do the decisions of national or foreign competition authorities influence the court's decision?

The court should not be influenced by the decisions of national or foreign competition authorities. However, in a follow-on private damages action:

  • the court, if necessary, may request the KFTC to submit all case records (Article 110 of the MRFTA); and
  • the plaintiff may rely on the prior findings of the KFTC as prima facie evidence.

11 Remedies

11.1 What remedies are available in competition litigation in your jurisdiction?

In a private action, anyone that suffered or is likely to suffer loss or damage caused by infringement of the Monopoly Regulation and Fair Trade Act (MRFTA) may either:

  • seek monetary compensation for such loss or damage; or
  • seek injunctive relief to enjoin the continuance of such infringement.

Unlike monetary compensation, injunctive relief is not granted against all MRFTA offences; only against unlawful resale price maintenance and unfair trade practices (see question 2.1).

11.2 Are punitive damages awarded in your jurisdiction?

Punitive damages may be awarded. In a private damages action, the court may award punitive damages of up to three times the actual or compensatory damages. No court has yet awarded punitive damages in private damages actions against MRFTA infringers.

As noted in question 2.2, a successful leniency applicant will be jointly and severally liable for actual or compensatory damages only, and not for any punitive damages awarded.

11.3 Will the courts consider any fines imposed by the competition authorities in deciding on the quantum of damages? What other factors will it consider in this regard?

Under Article 109 of the MRFTA, the court will assess the damages to be awarded, considering:

  • the degree of perception of intent or possibility of causing damage;
  • the severity of the damage caused by the violation;
  • the economic benefits that the relevant business entity or trade association gained by committing the violation;
  • any criminal fines and administrative fines imposed for the violation;
  • the duration and frequency of the violation;
  • the financial status of the defendant(s); and
  • the degree of effort made by the defendant(s) to redress the damage.

The courts will not consider the size of any administrative fines imposed on the defendants by the Korea Fair Trade Commission (KFTC) (or even the size of any criminal fines) when assessing the quantum of damages, because the nature of (compensatory) damages is different from that of administrative fines imposed by the KFTC. Compensatory damages aim to make the injured plaintiff whole; whereas administrative fines aim to deter the defendant(s) from violating the MRFTA.

12 Appeals

12.1 Can the decision of the court or tribunal be appealed? If so, on what grounds and what is the process?

In a private damages action (or a civil action for injunctive relief), if a party is dissatisfied with the decision of a district court, this decision may be appealed to the High Court of Appeals. The decision of the High Court of Appeals may in turn be appealed to the Supreme Court, the highest court in Korea. The High Court of Appeals retries cases on issues of fact and/or law, whereas the Supreme Court retries cases on issues of law only. A notice of appeal to the High Court of Appeals or the Supreme Court must be filed within two weeks of service of the lower court's decision. The Civil Procedure Act governs the appeal process.

13 Costs, fees and funding

13.1 What costs and fees are incurred when litigating in your jurisdiction? Can the winning party recover its costs?

In a private damages action (or a civil action for injunctive relief), the plaintiff bears the court fees, including the fees for service of process. The court fees will depend on the amount of the claim or application.

The ‘loser pays' rule generally applies in South Korea. Under the loser pays rule, the losing party in a lawsuit must pay the opposing party's attorneys' fees and costs. There is a statutory limit on the amount that the opposing party may recover from the losing party in this regard. In other words, all attorneys' fees and costs cannot be recovered in civil litigation in South Korea. However, the court will decide which party should bear the costs incurred during litigation (eg, fees for an expert appraisal). The court will order in its decision how such interim litigation costs should be apportioned between the parties.

13.2 Are contingency fees and similar arrangements permitted in your jurisdiction?

Contingency fees or success fees in civil proceedings are permitted. Thus, lawyers often enter into contingency fee arrangements with the plaintiff in private actions for damages or injunctive remedies.

13.3 Is third-party funding permitted in your jurisdiction?

There is no regulation in Korea that prohibits third-party funding for litigation.

14 Trends and predictions

14.1 How would you describe the current competition litigation landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

In the past few years, the Monopoly Regulation and Fair Trade Act (MRFTA) has been revised to facilitate private actions for breach of the MRFTA. For example, the revised MRFTA:

  • introduced punitive damages (up to treble damages) and injunctive relief; and
  • empowered the court to request the production of documents or information necessary to prove liability and/or damages at the request of a party.

These revisions were a response to criticisms that the victims of MRFTA violations have little incentive to bring private actions. Private actions for breach of competition law are expected to be promoted and are likely to help to prevent violations of competition law.

15 Tips and traps

15.1 What would be your recommendations to parties facing competition litigation in your jurisdiction and what potential pitfalls would you highlight?

As noted above, punitive damages are available only in certain types of violations of the Monopoly Regulation and Fair Trade Act (MRFTA). Punitive damages are not available for all offences under the MRFTA. Punitive damages can be awarded only to the victims of unlawful cartel activity and retaliatory action by a party accused of an unfair trade practice or unlawful resale price maintenance under the MRFTA. The victims of other types of MRFTA violations can be awarded actual or compensatory damages. Further, even in cases where punitive damages are available, actual damages are not automatically trebled. The amount of punitive damages is left to the court's discretion and the maximum amount of punitive damages is limited to three times the actual damages awarded.

In addition, there are still grey areas that need further judicial interpretation in connection with:

  • court orders for the production of documents or information to prove liability and/or damages at the request of a party; and
  • court orders for keeping confidential a party's trade secrets.

For instance, the MRFTA does not specify the scope and extent of a successful leniency applicant's documentation or information that should not be subject to a production order. Further, in connection with a confidentiality order, it is unclear to what extent the party requesting such an order must convince the court of the need for restrictions on the use and disclosure of its trade secrets. Thus, the parties to competition litigation should bear in mind that the law on various newly adopted measures is not yet fully settled, so there could be lots of challenging hurdles ahead.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.