On The Antitrust Regulation Of Hub-and-Spoke Agreement

The provisions of the Antimonopoly Act on monopoly agreements establish a dichotomous sequence of horizontal and vertical monopoly agreements.However,with the innovation and development of business models,a variant of horizontal and vertical relationships has emerged in the market,which is called a "hub and spoke agreement".The structure of a hub-and-spoke agreement includes a single hub and multiple spoke operators at different levels of the chain,with the hub coordinating the horizontal complicity of the spoke operators by establishing multiple parallel and consistent vertical relationships.Although the spokes and axes agreement is essentially a horizontal monopoly agreement,it uses the vertical relationship as a cover,which makes the meaningful contact of the horizontal conspiracy extremely hidden,and the composite attribute of intertwined horizontal and vertical also makes it difficult to determine the principle of illegal acts.The Anti-Monopoly Law of 2022 and its supporting regulations provide for hub-and-spoke agreements,but due to the complexity and concealment of the latter,the new system may still lead to difficulties in determining the principles of identification,rules of proof and legal liability of hub-and-spoke agreements when used in practice.It is difficult to determine the principles,rules of proof and legal liabilities of hub-and-spoke agreements.The study of the antitrust regulation of hub-and-spoke agreements helps to regulate the order of market competition,urge market players to operate in compliance,protect the legitimate rights and interests of consumers,and is of great significance to maintain the stable operation of the economy.Throughout the history of the development of hub-and-spoke agreements,the countries or regions such as the United Kingdom,the United States and Europe emerged a little earlier than China,so the law enforcers in these countries or regions have accumulated a lot of experience in regulating hub-and-spoke agreements.Due to the lack of normative basis for directly regulating hub-and-spoke agreements,the enforcers apply the general principles of monopoly agreements to analyze the anti-competitive effects of hub-and-spoke agreements,and then determine the principles of illegal behavior,while collecting economic factors and constructing a closed loop of evidence to prove indirect conspiracy.Considering the special characteristics of hub-and-spoke agreements,the enforcers will adopt more abundant sanctions to severely condemn the perpetrators of hub-and-spoke agreements.In the light of overseas experience,to improve the antitrust regulation of hub-and-spoke agreements in China,we should abandon the stereotypical thinking of applying the principle of per se illegality to horizontal monopoly agreements and the principle of reasonableness to vertical monopoly agreements,and no longer take the type of monopoly agreement as the criterion for determining the principle of illegality,but emphasize the application of different principles to different situations from the anti-competitive effect.In proving the meaningful liaison of horizontal conspiracy,it focuses on the influence of economic factors and reinforces the facts underlying the presumption with the help of circumstantial evidence.In view of the fact that spokes agreements are still very unfamiliar to most law enforcers and have a large negative impact on competition,the legislation should strive to be fine and comprehensive in setting legal responsibilities,and to distinguish different types of violations when dividing responsibilities,and it is not advisable to ignore administrative organs,industry associations and other special subjects of responsibility,while the introduction of a punitive compensation system can be considered to increase disciplinary efforts.