Anti-monopoly Regulation Of Exclusive Dealing

This paper takes the “either-or choice” phenomenon of e-commerce platform as the starting point of the study,and proposes that the e-commerce platform forcing the merchants to make “either-or choice” of the platform is suspected of excluding and restricting competition,thus shall be regulated by law,and such conducts shall be included in the scope of the anti-monopoly laws and regulations.However,the anti-monopoly law does not clearly define the “either-or choice” conduct of the e-commerce platform.When the conduct is regulated,both the abuse of the market dominance rules and the vertical monopoly agreement rules have the possibility of application,which brings about the problem of rules overlapping and difficulties in application of antimonopoly law.To solve the problem of rules overlapping,we need to start from two aspects: legal theory and economic analysis.Based on the theory of abuse of market dominance position and the theory of vertical monopoly agreement,this paper combines the characteristics of e-commerce platform under the Internet economy,explore the mode of anti-monopoly regulation of ecommerce platform "either-or choice" conduct from the perspective of law and economics.The main contents of this paper are divided into the following five parts:(1)The introduction of the problem.The paper proposes that "either-or choice" conduct of the e-commerce platform shall be subject to anti-monopoly regulations.First of all,this paper introduces the commercial phenomenon of “either-or choice” conduct of e-commerce platform,sorting out the of representative “either-or choice” events from 2013 to 2018,analyzing the causes of the commercial phenomenon from the perspective of platform economics,summarizing the basic characteristics of the conduct,and limiting the scope of the "either-or choice" conduct of the e-commerce platform discussed in this paper.Secondly,the paper clarifies the necessity to regulate "either-or choice" conduct,and sorts out the analytical framework of relevant legal norms,and concludes that the Anti-Monopoly Law is more propriate on this issue than the Anti-Unfair Competition Law and E-commerce Law,the Anti-Monopoly Law shall be applied for regulation.(2)Raise the core issue,that is,the overlapping of the rules of vertical monopoly agreement and the abuse of market dominance rules,which brings difficulties to the "either-or choice" conduct regulation of e-commerce platform,this part elaborate the meaning of and method to the study of rules overlapping.(3)From the perspective of abuse of market dominance,this part provides economic analysis of the "either-or choice" conduct of e-commerce platform and the analysis of the application of rules and regulations,and concludes that in the definition of market dominance,it is possible to appropriately weaken the determination of dominant position,pay more attention to market power and behavioral outcomes,and judge the effect of competition restriction by the abuse behavior;furthermore,this part analyzes the typical case of US platform economy and network effect,summarizing the analysis framework of bilateral platform abuse of market dominance behavior,which might promote competition as well as exclude competition,and come to the alternative analysis framework of e-commerce platform “either-or choice” conduct from the perspective of abuse of market dominance.(4)From the perspective of vertical monopoly agreement,this part provides economic analysis of the "either-or choice" conduct of e-commerce platform and the analysis of the application of rules and regulations,and draw an analysis framework under which circumstances monopoly agreements rules are applicable e-commerce “either-or choice” conduct;this part also sorts out the laws and regulations,combined with the regulation of vertical monopoly agreements between Europe and the United States,draws the applicable model of the vertical monopoly agreement in the "either-or choice" conduct of the e-commerce platform.(5)Construction of an analysis framework for the “either-or choice” conduct of e-commerce platform regulation in China.First,the framework provides that,it is necessary to,according to the different characteristics of the "either-or choice" conduct of specific e-commerce platforms,combine with the judgment criteria provided in the previous contents,to determine the requirements of which legal transaction are met,that is,whether the conduct is an abuse of dominant market position or a vertical monopoly agreement;Secondly,the conduct shall be analyzed under reasonable principles,by comparing the limiting and excluding effect and promoting effect on competition,to make further conclusion how the anti-monopoly law should be applied.Finally,it is concluded that in the face of emerging economic phenomena,when the abuse of market dominance behavior and the vertical monopoly agreement rules overlap,it should be solved based on the different characteristics of different behaviors,combined with the analysis framework of different antitrust theories to make comprehensive considerations,which might finally provide useful support for the practice of China's anti-monopoly law in the field of Internet economy.