Developments, Policies and Enforcement Trends in the US and Korea
Edited by Jay P. Choi, Wonhyuk Lim and Sang-Hyop Lee
Chapter 5: Structured rule of reason analysis of tying arrangements
Given the widely held agreement that competition authorities must prove anticompetitive effects in order to accuse monopolists of abusive behaviors, this study suggests taking a “structured rule of reason” approach, focusing on tying arrangements, to prove anticompetitiveness. In this approach, competition authorities follow step-by-step procedures, with options to drop cases at any stage, to prove anticompetitive effects. Defendant firms have the opportunity to disprove charges either by refuting the logic or the empirical evidence or by claiming efficiency-enhancing effects. This study also offers a recommendation for enforcement of the Fair Trade Act for Korean competition policy. Abusive behavior must, in principle, be governed by the article on the abuse of dominance, only after proving dominance. Exceptions should be limited to cases where the existence of market power is highly likely but difficult to prove. Exceptional cases must be explicitly specified.
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