The Essential Facilities Doctrine In Antitrust Law

The Essential Facilities Doctrine was originated from the development of United States antitrust practice, followed by that of European Union and Australia, which imposes liability when a monopolist or a dominant firm that controls an essential facility, denies another firm reasonable access to a product or service that the latter must obtain in order to compete with the former. That is, a firm could be subject to antitrust liability for refusal to share the essential facility which is indispensable to the effective competition, where the supposition of valid reason not to share is rejected by the evidence of anti-competitive intent. It is considered as an exceptional encroachment into the general rule that firms may normally choose their business partners in the US antitrust, while it was a concept of general duty to supply in the EU competition law, expressly, while in Australia context it exists as The National Third Party Access Regime. Therefore the paper is to compare the historical development and the application of the doctrine in the above three typical approaches. It then brings to light some observations and consequences on the application of the doctrine that the analysis of "essentiality" plays a major role in applying it and the doctrine applies not merely in the case of natural monopolies, but to some intangible assets. Based on the above analysis, the paper clarifies the legal and analytical foundations of the doctrine in the China context and thereby brings up several suggested tests as a workable analytical framework for the application of the doctrine to prohibit the abuse of dominance in the network infrastructure industry as well as the Internet industry in China.