The Application Of The Essential Facilities Doctrine Under The Regulation Reform

Regulatory reforms arise all over the world since 1980s. The theme of this wave of reform is the introduction of competition and deregulation. It is discussed broadly what role anti-monopoly law should play in (or after) the progress of regulatory reform. This article discussed the application of the essential facilities doctrine (EFD) under the regulatory reform, which is helpful to answer that question. As an important measure of the anti-monopoly law replying to the regulatory reform, EFD continues to be developed and improved. The application of EFD reflected the interrelation between the anti-monopoly and regulation, which is a microcosm of the role of the anti-monopoly law in the background of the regulatory reform. The article examines the historic background of EFD, sums up the practical experience of the major countries and regions, generalizes the meaning of EFD, and analyzes the restrictive conditions of EFD and the conflict of the application of EFD. It hopes for providing the proposals of the Chinese Anti-monopoly legislation and enforcement.Chapter I is devoted to the meaning and origin of EFD. Though there are differences in the exact meaning of the necessary facilities among countries, EFD mainly defines those conditions under which the owner of the facilities have the obligation to provide the access to the facilities for his competitor at a reasonable price. In addition, this chapter appreciably introduces the prospect of the development in the field of intellectual property rights.Chapter II discusses the inevitability of the emergence of EFD. This part inspects the background of the emergence and development of EFD. It analyzes the "bottleneck" problems in the regulatory reform progress and the necessity of providing network access to new entrants in natural monopoly industries. It is concluded that EFD is the inevitable choice of dealing with the "bottleneck" problem under regulatory reform.Chapter III focuses on the restrictions of the application of EFD. The chapter summarized the applicable legal standards of EFD and its meaning based on the case laws of the United States and the EU. Then it focuses on "the essentiality of the facility", which is the core of the applicable legal standards of EFD. And it is concluded that EFD is the new standard to judge the"refuse to deal"case.Chapter IV analyzes the conflict and its causes between EFD and the related provision of the regulatory law. Then it discusses the necessity of the parallel application of EFD and the related provision of the regulatory law and the establishment of the cooperative regime between regulators and competition authorities.Finally, Chapter V make suggestions that China should introduces EFD to the anti-monopoly law and establishes the cooperative regime related to the application of EFD based on the actuality of the .ongoing Chinese regulatory reform.