Antitrust Law Regulation Of Platform Most Favored Nation Clauses

In recent years,with the continuous innovation and development of Internet technology,Most Favored Nation Clauses(hereinafter referred to as "MFN Clauses")have been widely applied to the distribution model of online platforms.Due to the positive and negative competition effects,the competition problems caused by MFN clauses in the platform economy have gradually emerged and attracted the high attention of antitrust authorities in various countries.China’s platform economy is developing rapidly,and it is not uncommon for Internet platform enterprises to use MFN clauses to exclude or restrict competition in practice.Under the existing legal framework of China,it is a complex proposition to regulate the platform MFN clause by anti-monopoly law.In this regard,we can try to learn from the excellent experience accumulated in practice by overseas anti-monopoly law enforcement and judicial authorities,and improve the regulatory path of China’s anti-monopoly law on the platform MFN clause on this basis.The whole paper consists of three parts,namely the introduction,the main text and the concluding remarks.The main text is divided into four chapters.The first chapter is an overview of the antitrust law regulating platform MFN clauses.The first section introduces the concept and types of platform MFN clauses,distinguishes wholesale model MFN clauses from agency model MFN clauses,broad MFN clauses from narrow MFN clauses,and clarifies that the platform MFN clauses in this paper are agency model MFN clauses.Section II introduces the phenomenon of MFN clauses in the platform economy and points out that while reducing transaction costs and preventing free-riding,the implementation of MFN clauses by platform operators also has anti-competitive effects such as limiting intra-brand competition,raising market entry barriers and promoting horizontal complicity,and therefore needs to be regulated by antitrust law.The second Chapter is the choice of the basis for the MFN provision of the platform regulated by antitrust law.The first section points out that there is a lack of uniformity in the basis for regulating platform MFN clauses in both extraterritorial practice and Chinese legislation.The second section analyzes the typical cases of platform MFN clauses in foreign countries and concludes that the selection of the regulatory basis is guided by the actual competitive effect: 1.if the platform MFN clause restricts competition within the same brand,a vertical monopoly agreement may be selected for regulation;2.if the platform MFN clause facilitates a conspiracy on price among the operators of competing platforms,a horizontal monopoly agreement may be selected for regulation;3.if the platform MFN clause promotes a conspiracy on price among the operators of competing platforms,a horizontal monopoly agreement may be selected for regulation.3.if the implementer of the platform MFN clause has strong market power and occupies a dominant position in the market,and continues to maintain or enhance its market power through the implementation of the MFN clause to form a market blocking effect,it may choose to regulate the abuse of market dominance.Section III combines the specific practice of the platform MFN clause and based on the existing legal provisions in China,it is considered that the agency agreement and spokes agreement of non-resale relationship should be included in the scope of regulation of monopoly agreement.The third chapter is the application of the principles of anti-monopoly law regulating platform MFN clauses.The first section points out that there is a problem of non-uniform principles of regulating platform MFN clauses in extraterritorial practice.The second section introduces the application of the principle of reasonableness in the United States and the rule of defensible presumption of illegality in the EU to monopoly agreements.Section III combines China’s existing legislative model and advocates that the principle of per se illegality is undesirable and it is appropriate to adopt the principle of reasonableness to assess the competitive effect of platform MFN clauses,to run the competitive effect assessment through the whole process of illegality determination and exemption examination,and to specifically analyze the four examination factors affecting the competitive effect assessment of platform MFN clauses.The forth Chapter is the practical improvement of the anti-monopoly law regulating platform MFN clauses.The first section is based on the improvement at the enforcement level: it is suggested that China establishes the safe harbor rule with the actor’s market share as the threshold criterion when regulating platform MFN clauses,and pays attention to the application of the operator commitment system in practice.The second section is based on the judicial level,considering the complexity of the analysis of the competitive effect of platform MFN clauses,and suggests designing the burden of proof regulation in favor of the plaintiff in specific civil litigation cases.