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Dec. 7, 2021 – “Unfair Competition” and “Uneven Bargaining Positions”: Role in Competition Assessment

Behaviors such as excessive pricing and refusal to supply are classic antitrust abuses. However, in some Asian jurisdictions (such as Japan, Korea and Taiwan); as well as some EU member states (including Germany, France and Italy), such conduct can be deemed problematic even without the company being dominant.

Under these rules, companies can face scrutiny merely when another party is in a position of economic dependence in relation to them. The “victim” could be a customer, a supplier, a distributor, or a franchisee. This type of regulation is considered by some to introduce an additional, arguably relatively onerous, obligation on companies to treat counterparties “fairly” in these geographies.

This discussion relates in particular to the use of this concept to discipline tech companies. For example, in Japan, the JFTC took actions against Amazon; in Korea, the KFTC has adopted decisions concerning Apple. Specifically, the panelists explore whether this concept is the correct way of regulating this potential issue, and how rules should be articulated in a manner that maintains competition in digital markets.