Research On Antitrust Regulation Of Hub-and-spoke Agreements

The current rules of China divide monopoly agreements into two types in form according to the subject and implementation mode: horizontal monopoly agreements and vertical monopoly agreements.However,the market economy situation is changing constantly and enterprise business models are innovating and evolving.This simple division leads that many new monopoly agreements such as hub-spoke agreement can not be classified in practice,let alone produce comprehensive and good regulatory effects.The Hub-and-spoke protocol is not the traditional horizontal or vertical protocol,but both horizontal and vertical protocol characteristics.The amendments to the Anti-monopoly Law will be the new monopoly agreements into the scope of the Anti-monopoly Law regulation instead of bringing the new monopoly agreements under the traditional dichotomy framework.This is a severe challenge to the traditional dichotomy,and the following series of issues will be discussed in this paper.This paper is divided into four parts.The first part analyzes the necessity and feasibility of incorporating the hub-spoke agreement into the Anti-monopoly Law:Firstly,starting from the practice,through the introduction and examples of the hub-spoke agreement in practice,it shows the background of introducing the hub-spoke agreement in the revised draft and the necessity of incorporating it into the anti-monopoly law regulation;Secondly,through the discussion on special properties of hub-spoke protocol and analyzing the damage of hub-spoke agreement to social public interest and consumer interest,the effect of hub-and-spoke protocol to eliminate and limit competition is clarified.Thirdly,it analyses a few typical cases and points out the limitation of monopoly agreement dichotomy,and then reflects the dilemma brought by hub-and-spoke agreement to law enforcement in practice.Finally,from the perspective of the regulatory effect of the existing rules of anti-Monopoly Law on hub-spoke agreement,this paper comprehensively demonstrates the practical feasibility of adding the hub-spoke agreement clause.The second part discusses a crucial problem: the legal nature of the hub-spoke agreement.From the origin of the hub-spoke agreement,this paper comprehensively combs the viewpoints at home and abroad on the legal nature of hub-spoke agreement.Through the analysis of the limitations and defects of some of the viewpoints,the two indispensable parts of hub-spoke protocol — the longitudinal relation between axis and spokes and the horizontal collusion between spokes,are obtained.The third part refers to foreign theories and practical experience and discusses the main body,behavior,effect and subjective purpose of hub-spoke protocol.It clarifies the theoretical identification standard of hub-spoke protocol.And it discusses the expression,behavior mode and proof standard of some elements in order to provide some guidance for the identification of hub-and-spoke protocol in practice.The fourth part,based on the previous text,discusses the legal application of the hub-spoke agreement and illustrates the necessity and correctness of adding the clause of "organizational assistance agreement" in China's legislature.Through the discussion of the different situations of the axle participants,the responsibility of the hub-spoke agreement is demonstrated.