Edited by John Duns, Arlen Duke and Brendan Sweeney
Chapter 9: Vertical conduct: Non-price restraints
This chapter considers the challenges to competition policy posed by non-price vertical restraints (‘NPVRs’) and the responses of leading jurisdictions to these challenges. Jurisdictions certainly vary in their treatment of NPVRs, and sometimes they do so in important respects. Nevertheless it will be suggested that there appears to be a move towards a greater consistency in approach and that the differences may ultimately be confined to the margins rather than reflecting more fundamental divergences. The chapter begins by dealing with some issues of definition and categorization. One reason for this is simply to deal, for the purposes of this chapter, with the confusing variety of labels applied to the conduct being examined. But the issue of categorization, it will be seen, also runs deeper than this. Section 3 then provides an overview of the economics of NPVRs, with a particular emphasis on the circumstances under which they are likely to be anti-competitive. This is because one of the key issues for competition law in this area is how it should respond to the vast economic literature on NPVRs. Section 4 provides an overview of how NPVRs are dealt with in the leading jurisdictions, followed by a brief comparison with the approach in some other jurisdictions.
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