Legal Research On The Criteria For Identification Of The Hub-and-spoke Arrangement

In 2021,China introduced the concept of "the hub-and-spoke agreement" into the "Anti-monopoly Guide on the Field of Platform Economy",and it is the leading international practice to bring in the concept into laws and regulations,due to the lack of the type of the hub-and-spoke agreement behavior in China,there is no supporting identification standard.The biggest difference between the hub-andspoke agreement and the traditional monopoly agreement is that the structure has a combination of horizontal and vertical structure and the double marginal problems it brings.Through the economic analysis of the hub-and-spoke agreement,it can be concluded that the negative effect of the hub-and-spoke agreement is far greater than the positive effect,and it has a natural illegality.After the competitive analysis of the hub-and-spoke agreement,it is concluded that there is a horizontal conspiracy determination difficulty in the determination of the hub-and-spoke agreement and the judgment that the classic "dichotomy" of the monopoly agreement cannot be applied to the hub-and-spoke agreement.The distribution of the hub-and-spoke agreements is widely present in various fields of monopolistic behavior,the United States,the European Union,the United Kingdom and other extraterritorial academic circles have spent a lot of ink on the theoretical issues of the hub-and-spoke agreement,the United Kingdom verified the hub-and-spoke agreement according to the two-stage information disclosure analysis model for identification,the United States using the "parallel behavior + plus factors" model for identification.Although the two modes of identification of extraterritorial the hub-and-spoke agreement are not the same,but they are actually the same,and the central issue around the two is the evidence of the link of meaning between the hub-and-spoke agreements.The two-stage information disclosure analysis model can be used when there is direct evidence,and a "parallel behavior +plus factors" model is used when there is no direct evidence.Through the comparison of foreign classic cases,combined with the applicable standards of its per se rule and rule of reason,it is imperative to establish a new model for the analysis of the illegality of the hub-and-spoke agreement that is suitable for China’s national conditions,and at the same time,a clear standard framework for determining the illegality of the hub-and-spoke agreement should also be constructed in the analysis model,such as the identification of horizontal and vertical subjects involved in the case,the determination of parallel behaviors,the characterization of meaning linkages and the refinement of additional factors.The agreement should also be constructed in the analysis model,such as the identification of horizontal and vertical subjects involved in the case,the determination of parallel behaviors,the characterization of meaning linkages and the refinement of additional factors.After brought "the hub-and-spoke agreement" concept in China,it doesn’t appear the case of the hub-and-spoke agreement at this time,and the article selects three typical cases from different industries before the introduction of the concept of "the hub-and-spoke agreement" for comprehensive analysis,although the identity of the subject involved in the case is different,the final characterization of the case is different,and the subjects punished are different,but the three types of the hub-and-spoke agreement cases are identified in the same judicial environment,which has a comparative significance of high value.After analyzing and briefly comparing multiple factors such as the subject involved in the case,the applicable principles,the means of contact,the market share,the characterization of the case,and the circumstances of punishment,it is found that there is lack of indirect intention contact which is difficult to prove and the unified standard of law enforcement.Through the analysis and research of cases inside and outside the region,this paper attempts to establish an analysis model for determining the illegality of the hub-and-spoke agreement in China,and uses the analysis model to resolve the lack of unified standards for law enforcement,the existence of disputes in the application of principles,and the difficulty of determining horizontal conspiracy.The analytical model constructed in this paper divides the identification of the hub-and-spoke spoke agreement into two stages,one is the illegal identification stage,and the other is the framework filling stage.The first stage applies the rule of reason to analyze the agreement involved in the case,and when the negative economic effect is significant,the agreement is considered illegal.In the second stage,the agreement involved in the case is analyzed through the framework of the standard for determining illegality established in the initial stage,and the agreement involved in the case is comprehensively evaluated and determined through the identification of horizontal and vertical multiple subjects,parallel and consistent vertical behavior,deconstruction’s argumentation of intention linkage,and additional proof of economic factors.The analysis model for determining the illegality of the hub-and-spoke agreement is based on the empirical analysis of extraterritorial and typical cases in China,which is intended to solve the three major problems encountered in the agreement involved in the case,reduce the burden of law enforcement agencies to determine the illegality of the hub-and-spoke agreement,and provide ideas for improving the standard for determining the illegality of the hub-and-spoke agreement in China.At the end of the article,legislative suggestions for determining the illegality of the hub-and-spoke agreement are proposed to make the study more feasible.