The Anti-monopoly Law Regulation Of Most-Favored-Nation Clauses By Platform Operators

Today,with the rapid development of e-commerce,Most Favoured Nation Treatment Clause(hereinafter referred to as " MFN Clause")has emerged on the basis of the platform business model.In recent years,with the dramatic increase in the number of implementations of MFN clauses by platform operators,the monopoly of MFN clauses has gradually emerged,which has attracted the attention of anti-monopoly law enforcement agencies in various countries.At present,China's e-commerce market is developing rapidly,and the implementation of MFN clause by platform operators has come up.Moreover,the platform operators' implementation of MFN clauses has obvious competition damages,such as hindering competitors from entering the market,inhibiting competition among upstream suppliers,promoting collusion and damaging consumers'rights and interests.In this regard,China must be forward-looking and put the MFN clause implemented by platform operators within the scope of anti-monopoly law as soon as possible.However,as far as the current situation of the implementation of China's anti-monopoly law is concerned,there are many obstacles in China's anti-monopoly law regulation of this act.From a theoretical point of view,China has no final conclusion on the nature of MFN clause,especially on the regulation mode and principle.From the legislative level,China's current anti-monopoly law has blind spots in regulating this behavior.If China restricts MFN clauses through vertical monopoly agreements,on the one hand,there is a dispute as to whether the actors conform to the subjects stipulated in Article 14 of the Anti-monopoly Law of the People's Republic of China(hereinafter referred to as "the Anti-monopoly Law").On the other hand,Article 14 of the Anti-monopoly Law only stipulates resale price maintenance and a bottom-up clause.For MFN clause,which has both vertical price restrictions and vertical non-price restrictions,there is too much uncertainty in applying the bottom-up clause.If our country restricts this behavior through horizontal monopoly agreements,since there is no competitive relationship between the subjects signing the agreements and our country has not yet applied the theory of " central radiation"monopoly and its handling ideas,restricting this behavior through horizontal monopoly agreements will definitely cause disputes.If the behavior is placed in the regulatory framework of abusing the dominant position in the market,the market power of the actor should be fully considered.If the market share of the actor does not reach the scope of dominant position,it cannot be regulated by abusing the dominant position.From the perspective of law enforcement,it is difficult to enforce the competition law in the platform market under the background of digital economy.China's competition law enforcement agencies still hold a wait-and-see attitude towards the implementation of MFN clause by platform operators.Currently,the phenomenon that the platform operators implement the MFN clauses under the anti-monopoly regulations mainly appears outside the domain.Summarizing the typical cases of Apple's e-books,Booking.com and Amazon e-books outside the domain,it can be found that there are many differences in the way MFN clauses are handled by countries:in terms of limited methods,countries should adopt a horizontal monopoly agreement and a vertical monopoly on MFN clauses.There is no consensus on whether the agreement is limited or by abusing market dominance,but three types of limitations have emerged in practice.In terms of performance,some MFN clauses implemented by platform operators only cover the price level,but there are also MFN clauses implemented by platform operators that involve both price and non-price levels.The dispute resolution methods of MFN clauses vary greatly from country to country,mainly through the implementation of bans,commitments and judicial procedures.Based on the advanced experience of offshore platform operators in implementing MFN clauses and the development trend of China's platform economy,China should give priority to placing MFN clauses implemented by platform operators within the scope of regulation of abuse of dominant market position in the choice of restrictive methods.In view of the fact that market power is a necessary condition for the actor to implement the MFN clause,and that the actor's market position is an important factor to measure the effect of restricting competition,the evaluation of the market power of the actor must be carried out first.Then,whether MFN clause is an " abuse" behavior is determined,mainly from the" exclusiveness"and " exploitative" aspects of competition damage analysis.If the act excludes or restricts the competition of "competitors with equal efficiency"or hinders new competitors from entering the market,or damages the rights and interests of consumers,then the act is an obvious " abuse".Finally,whether the MFN clause implemented by the platform operator is justified or not needs to be weighed to see if the benefits outweigh the disadvantages.If the actor can put forward a reasonable defense,he or she can be exemptedIn addition,combined with the characteristics of MFN clause itself,China should also choose some safeguard measures to help quickly evaluate the MFN clause implemented by platform operators.In the choice of regulatory principles.China should give priority to the application of reasonable principles.In order to help competition law enforcement agencies to better enforce the law,China can establish corresponding auxiliary rules,with the safe harbor rule as the best.On the regulation procedure,our country should attach importance to the application of the fast resolution procedure,especially the commitment system.In addition,our country should also regard consumer welfare as one of the important criteria to consider the legitimacy of MFN clause.