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The Competition Law Regulation Of The Transaction Arrangement Of Exclusive Choosing

Posted on:2020-01-04Degree:MasterType:Thesis
Country:ChinaCandidate:G Y ZhangFull Text:PDF
GTID:2416330590976674Subject:Economic Law
Abstract/Summary:PDF Full Text Request
Exclusive Choosing is not a legal concept,but a common name of a specific commercial phenomenon.Exclusive Choosing means a transaction arrangement,where the actor uses coercion,inducement or other means to urge the trading partner not to trade with the specific competitor of the actor at the same time during the consultation of potential contract or during the performance of the contract.Exclusive Choosing,including three parties thereto,can be categorized as unilateral exclusive choosing and bilateral exclusive choosing,dependent on whether the trading partner reaches consensus with the actor.Exclusive Choosing is an exclusive vertical non-price restriction,the nature of which is exclusive dealing.The occurring of Exclusive Choosing is in need of certain motivation and ability.The actor's conducting Exclusive Choosing will show complicated positive and negative effects on trading partners,competitors,consumers,technological progress and business innovation,competitive order,economic efficiency,etc.Therefore it is necessary to regulate Exclusive Choosing.Regulating Exclusive Choosing under competition law is feasible,because competition law can make up for the limitation of regulation thereof by civil law,consumer protection law and specific industry regulation laws,and provides more comprehensive regulation and relieves.Besides,there is already a general regulation framework thereof within competition law,covering both administrative and civil liabilities.The regulation of Exclusive Choosing by competition law has to restrain the sources of the actor's ability.The approaches to regulate Exclusive Choosing can therefore be classified into three categories---the regulation of Exclusive Choosing based on market powers,the regulation of Exclusive Choosing based on contract arrangement,and the regulation of Exclusive Choosing based on unfair competitive method.The regulation of the Exclusive Choosing based on market power is based on the premise that the actor owns market power to a certain extent.The relevant market must be defined above all.Then it is to be determined whether the actor is dominant in the relevant market according to its market share,coupled with other market structural factors.The actor may be otherwise deemed at a superior bargaining position,if its trading partner lacks enough possibility to expect to trade with another one.It is thereafter to determined whether there is any reason to justify the Exclusive Choosing.Regulation of Exclusive Choosing based on contract arrangement is based on the premise that the actor and its trading partner have reached a conspiracy tocommit the Exclusive Choosing or practice concertedly in that respect.In this way,the Exclusive Choosing may constitute a vertical non-price monopoly agreement.Only when this monopoly agreement meets the requirements of collective exemption or individual exemption can it be exempted.This paper also explores an approach to regulate the Exclusive Choosing based on unfair means,examines the Internet Unfair Competition Provision of China's Unfair Competition law,and analyses the extent to which the General Clause of the Unfair Competition Law can apply.It draws lessons from the competition law of foreign jurisdictions in relation to institutions of“boycott” and “intentionally hindering competitors”,suggesting that,before the final decision of regulation,all of relative interests need to be balanced in order to avoid distorting competition in the market due to excessively protecting the interest of competitor.Finally,this paper puts forth the following suggestions on how to improve the regulation of Exclusive Choosing in the context of China's competition law.In terms of the application of competition law,this paper believes that it should be made clear that the Exclusive Choosing should be thoroughly analyzed in the light of the rule of reason,no matter it is scrutinized under any institution of competition law.Even under norms in relation to competition in industry regulation laws,the analysis thereof should be also consistent with competition law.In terms of improving the legislation,it is necessary to enrich the regulation system towards unilateral conducted Exclusive Choosing,including adding the institution of misuse of superior bargaining position into competition law,as well as expanding the content of the institution of hindering competitors in the anti-unfair competition law.Besides,the institution of regulation towards bilateral conducted Exclusive choosing should be improved,including detailing the rule to determine a monopoly agreement and establishing a safe harbor clause for block exemption of vertical agreements and concerted practices.
Keywords/Search Tags:Exclusive choosing, Exclusive dealing, Vertical restrains, Rule of reason, Unfair competition in the network
PDF Full Text Request
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