涉外垄断侵权责任的法律适用——兼评华为公司诉美国交互数字垄断案中的法律适用

The Legal Application of Foreign-related Monopoly Tortious Liability——On the Legal Application in the Case of Huawei Suing Interactive Digial Monopoly of America

在我国目前法律规定中,虽然承认限制竞争行为的"影响"是判断反垄断法能否域外适用的基本依据,但却未将其作为确定涉外垄断侵权责任准据法的连结点,从而导致了反垄断法本身的适用和相应民事救济手段法律适用相割裂,甚至相矛盾等问题,不利于我国反垄断法立法目的实现和有效执行。以华为与美国交互数字之间垄断纠纷案件为背景,通过对比欧盟反垄断法及欧盟有关非合同之债法律适用条例的相关规定,论证了我国将影响原则作为涉外垄断侵权责任法律适用的冲突规则必要性和合理性。

In the current legal system of our country the effect of the anti-competitive behavior has not been considered as the connecting factor for the case of foreign-related monopoly tortious,though it is the fundamental criterion to determine whether or not the Anti-Monopoly Law can apply extraterritorially.It evokes the question such as the separation of application of Anti-Monopoly Law itself from the application of law to the relating remedy in civil law,even in contradiction etc.Therefore the realization of legislative goals of Anti-Monopoly Law and its effective enforcement would be prejudiced in our cuntry.In the paper the anti-monopoly litigation between Huawei and IDC has been introduced as the background and the author further tries to demonstrate that the effect doctrine shall be accepted as the conflicts rule on foreign-related monopoly tortious liability,through the illustration of EU competition law and the EU Regulation on the law application to non-contractual obligations in comparison.