In this CPI issue, we ponder how resale price maintenance (“RPM”) and most favored nation (“MFN”) clauses are playing out in the brave new world of e-commerce. Europe has witnessed a proliferation of regulatory attention in the ecommerce space, as seen in the EC’s 2010 revised Guidelines on Vertical Restraints, the European Court of Justice’s 2011 ruling in the Pierre Fabre case, and the European Commission’s 2013 E-books commitments decision.
MFN clauses in booking sites are being examined by various European national competition authorities, such as Germany, France, Italy, and Sweden. In the U.S., the Apple Books decision (currently under appeal) also concerns online resale price maintenance. The contributing authors ask certain pertinent questions in this regard – if and how the resale price maintenance related rules are to be applied in online space, contra distinct from when applied in the brick and mortar set up, what has been the approach on the matter in the EU at the EU level and the national level, do lower prices always imply consumer welfare, how should rule of reason be applied in RPM cases. We also look at how the online retail space is evolving in India and how the Indian regulator may view resale price maintenance provisions.
As always, thank you to our great panel of authors.