The Decision of the Supreme People’s Court in Qihoo v. Tencent and the Rule of Law in China: Seeking Truth from Facts¹

By Emilio Varanini and Feng Jiang^*

I. INTRODUCTION

The rule of law is important not only to create order in society and enhance government legitimacy but also to promote economic growth.² However, the development of the rule of law is about process as much as it is about results.³ The English Common Law, for example, developed because King Henry II sought to impose a system of courts that would administer a law common to England so as to increase his power at the expense of local customary feudal rights.⁴ Such courts could offer litigants "better justice than they could have at the hands of their lords" via offering a fairer process.⁵ For example, only royal judges could summon a jury.⁶ And a jury came to be "a safeguard from arbitrary perversion of the law."⁷ This encouraged the people to resort to royal courts that were staffed with professional judges, removed from local prejudices, who would apply a law common to the entire country.⁸ Even though antitrust principles are subject to revision based on the evolution of economic understanding,⁹ antitrust is no more exempt from the rule of law than any other body of law.¹⁰

The process behind the rule of law has important aspects that deserve widespread attention. First, the rule of law involves the development of principles that can be applied or expanded to novel circumstances.¹¹ Those principles have to be administrable—capable of ready understanding and application—even though insofar as antitrust is concerned, concerns of administrability can be foreign to economics.¹² Nonetheless, even in antitrust, the gap between developing administrable principles and applying complex fact-dependent economic theory has been filled by the use of presumptions and structural factors.¹³ Thus, antitrust presents cutting-edge issues for the application of the rule of law because of the desire to balance application of economic principles to complex factual circumstances while avoiding every antitrust case from degenerating into a "graduate economic seminar."¹⁴