Regulations On MNCs' Tying Arrangement In China

Tying Arrangement is not a big topic in Anti-monopoly law, and the stipulation involving tying arrangement in Anti-monopoly Law of People's Republic of China is also very recapitulative. Tying arrangement seldom attracts the scholars'attention, therefore the theory and practice research on tying arrangement is inadequate. We can find some of them scattering in the articles on the abuse of dominant market position.Not only multi-national companies implement tying arrangement in China. In fact, Anti-monopoly Law of PRC doesn't aim at multi-national companies. But MNCs tends to be easy to utilize the intellectual properties and advanced technologies, and implement tying arrangement in a secret way, by this means to take up high market shares. This thesis is mainly on the determination and regulation of tying arrangement according to the characteristics of MNCs'tying arrangement in China.In Chapter 1, the author firstly lists the definitions of different scholars. And the subtle differences between these definitions reflect the different understanding of tying arrangement. Basing on it, the author concludes the tying arrangement definition from the anti-monopoly point of view. Then the author pointed out that tying arrangement of MNCs in China characterize in secret way, by means of intellectual property, oligarch occupy the market acquiescing the tying arrangement, and implement full-line forcing. The possible negative influences on MNCs'tying arrangement in China have also been introduced.Chapter 2 is on the determination of MNCs'tying arrangement as well as the legal issues involved. Among all the theories to determine tying arrangement, Per Se Illegal and Rule of Reason take the leading position. But each of them has the advantages and weakness. For China, the Revised Per Se Illegal is a good choice, for one hand, it can prevent the tying case being dragged on in litigation, and for the other hand, it can avoid the reasonable sales strategy being regulated by anti-monopoly law. The elements to determine the tying arrangement including the dominant market position in tying product, two separating products and the sales strategy with the compulsory. With these three elements, the tying arrangement can't be determined certainly, the exemptions need to be investigated on the undertakings. The exemption of MNCs include franchise of MNCs, protecting the new industry, essential safety consideration and protecting the good quality and reputation.To analyze whether the tying arrangement is reasonable and how to improve, firstly we need to study the law-making and judicial practice of foreign countries. The author introduces WTO, Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices,Agreement of European Union and the relevant laws and regulations of America and Japan. Then the author use Microsoft case and Kodak case as examples to introduce the judicial practice of foreign countries.The last chapter is the research on regular MNCs tying arrangement in China. MNCs utilize the intellectual properties they have and the advanced technologies, frequently arrange tying in China, and bring great negative impact on Chinese economy. Before the Antimonopoly Law takes into effect, although we have other laws and regulations to regular tying arrangement, but the definition is very obscure, and it is very hard to take into action, meanwhile the legal liability is also not clear. Although Antimonopoly Law regulars tying arrangement as one of the conduct of abuse dominant market position, the tying definition is not very explicit. Therefore it is very essential for us to publish the Details Articles on Antimonopoly Law.