A Study On The Anti-trust Regulation Of Information Exchange Between Competitors

Market information plays an important role in the normal function of competitionmechanism. But for a lot of reasons, information exchange between competitors(“Information Exchange”) is becoming a common practice recently, which has drawnmore and more attention of the international society. As a kind of horizontalcooperation, Information Exchange is very suspicious; but as it does not appear to becompetition eliminating or restricting obviously, the characterization of InformationExchange is still not clear under anti-monopoly law. For such a reason, this article hasbeen intended to analyze and organize the international experiences and theories onthis issue, so as to clarify the analyzing approach adopted in applying anti-monopolylaw to Information Exchange and provide lessons for the development ofcorresponding supervision system in China.The foreign scholars have reached some achievements in this field, and based onthe arrangement of the Organization for Economic Co-operation and Development(OECD), a lot of nations/regions have publicized their attitude towards this issue.Besides, both Unites States and European Union have obtained a lot of experience inregulating Information Exchange. All these are the resource of material for this study.Based on these materials, by using the research technique such as text analyzing, case analyzing, comprehensive comparison, economic analyzing and etc., this articleanalyzed the issues such as anti-trust regulation scheme, the theory foundation andcriterion for judgment of Information Exchange.By the study, this article finds that, Information Exchange can be conducted indifferent forms which shall be subject to different anti-trust regulating approach. As tothe pure Information Exchange, international debates still exist regarding whether itshould be regulated, but the mainstream opinion holds that, Information Exchange ispunishable. When applying anti-monopoly law to pure Information Exchange, boththe indirect presumption approach and the direct analyzing approach are availablegenerally. But actually, the direct analyzing approach has broken through the currentlyin effect anti-monopoly regulation scheme in most nations. There do exists a conflictbetween the traditional law applying approach and the nature/purpose of anti-trust law,and in order to protect the integrity of the traditional approach while havingInformation Exchange regulated, both United States and European Union regard thedirect and indirect approach as substitutes. However, according to the economicanalyze of antitrust damage, we can put forward a unified theory centered on“bargaining power” which is more pervasive.Judging from the recent practice of United States and European Union, both ofthem have in fact adopted a similar criteria thereto, e.g. if theuncertainty/decision-making independence the competitor make a decision isdiminished by the Information Exchange, then its illegality will be affirmed.Generally, three kinds of issues shall be taken into consideration when judging thecompetitive effects of an Information Exchange: the characteristics of the relevantmarket, the characteristics of the information exchanged and characteristics of theexchanging behavior. The first issue determines the possibility of the anti-competitiveeffect may be brought about and the second and third issues will determine whetherthe competitor’s decision-making independence will be damaged by the informationexchanged.As to the situation in China, we may still have some obstacles in applying theAnti-Monopoly Law to Information Exchange nowadays. But this is not unchangeable, and by extending the explanation of “Monopoly Agreement” and issuingsupplementary instruction by the relevant governmental authority, it’s possible for usto have Information Exchange regulated under the current anti-trust scheme.