Study On Anti-monopoly Regulation Of Exclusive Dealing Of E-commerce Platform

At present,the e-commerce platform industry has increasingly become a powerful driving force for China’s economic growth,and the competition among e-commerce platforms has become increasingly fierce.In order to consolidate and expand its market power,the platform often adopts a variety of methods,among which exclusive dealing is a typical example.Exclusive dealing is suspected of monopoly,which not only violates the right of choice of the trading counterpart of the transaction,but also harms the fair competition between e-commerce platforms.As a two-sided market,the e-commerce platform market has the characteristics of network effects,complementary demand,etc.,which are different from traditional unilateral markets.These particularities act on the exclusive dealing implemented by the platform,which makes the anti-monopoly regulation of exclusive dealing of e-commerce platform face many difficulties.There are many difficulties in exclusive dealing for anti-monopoly regulation.It is difficult to apply the abuse of market dominant position clause.The first is that the key link of the relevant market definition is in trouble,which is manifested in the difficulty of determining the products or services of the e-commerce platform and the failure of traditional market definition methods.The second is that the determination of market dominance is facing challenges,and the specific manifestation is that the market structure standards encounter electricity.The challenge of the natural monopoly of the business platform industry,the difficulty of applying market share estimation methods to e-commerce platform companies,and the emergence of new market entry barriers have increased the difficulty of determining market dominance.The third is the lack of basis to prove the justification.The fourth is the burden of proof is unreasonably distributed.In addition,If the e-commerce platform and the merchant reach an agreement of exclusive dealing,it can also be regulated according to the bottoming clause of the vertical monopoly agreement.At this time,there are two difficulties: first,the applicable conditions of the bottoming clause of the vertical monopoly agreement are not clear;The second is that there is a single subject to apply the bottom-line clauses of vertical monopoly agreements.The limitation of law enforcement resources and capabilities is also not conducive to the application of this cover-up clause.Therefore,China’s anti-monopoly regulatory system must make corresponding improvements on the basis of fully grasping the particularity of its industry.In general,China may consider introducing special anti-monopoly regulations for the e-commerce platform industry.When an area does need to protect some of the special interests of its vulnerable objects,it is often necessary to formulate special laws or special laws to strengthen the pre-prevention of infringements and legal remedies for the injured party.In addition,e-commerce platforms have many peculiarities,and the introduction of special anti-monopoly regulations on e-commerce platforms is conducive to responding to the new conditions and characteristics of the platform industry to guide practice.Specifically speaking,in order to get rid of the current predicament of applying abuse of market dominance clauses to regulate e-commerce platforms’ exclusive dealing,it is necessary for China to perfect the clause on abuse of market dominance,refine the special factors of e-commerce platform market dominance,and supplement the regulations on the qualitative nature of goods or services related to e-commerce platforms and analytical factors of justification for exclusive dealing.At the same time,readjust the existing relevant market determination methods to adapt to e-commerce platforms,and consider introducing new determination methods,such as the definition of profit model.When applying market structure standards to determine the market dominance of e-commerce platforms,the decisive role of market share should be weakened,and the proportion of market entry barriers should be raised.In the anti-monopoly litigation involving abuse of market dominance,in order to balance the burden of proof of the plaintiff and the defendant,the inversion of the burden of proof should be adopted.In order to get rid of the current dilemma of applying the provisions of vertical monopoly agreements to regulate exclusive dealing of e-commerce platforms,the content of the terms of vertical monopoly agreements should be further perfected.The agreement on exclusive dealing should be clearly listed as a kind of vertical monopoly agreement,and clearly endow the court with the power to determine the bottom clauses of the vertical monopoly agreement.Furthermore,class action can be introduced to protect the interests of disadvantaged groups.