互联网平台经济下最惠国条款的反垄断法规制

Antitrust Regulation against MFN Clauses in the Internet Platform Economy

互联网平台上私主体签订关于价格的最惠国条款是近年来兴起的商业实践,也是我国《反垄断法》修法专家建议稿关于互联网平台经营者组织或协调达成垄断协议的重要内容。在新经济业态下监管创新已成为法律发展的新趋势,鉴于问题频发而规制鲜少的现实,有必要开展创新探究。文章从法律结构和经济动因考察,传统市场上基础的最惠国条款与互联网市场上的平台最惠国条款存在较大区别,虽二者均兼具促进和限制竞争效果,但后者在平台经济下具备的特性使个案中的经济分析迥异。近半个世纪以来,美欧两大司法辖区的规制实践既存在差异也可提炼共识,以此为鉴,我国对平台最惠国条款的规制,首先应界定现行法下该条款可能构成的垄断行为,其次宜通过经济分析考察个案中的竞争效果,最后须革新数字经济下的平台监管,在审慎原则下增强竞争政策的灵活性。

Signing most-favored-nation clauses on prices between private entities on Internet platforms is a commercial practice that has emerged in recent years. It is also an essential concern of Draft Anti-Monopoly Law(expert opinion)which proposes an innovative provision regarding monopoly agreements between Internet platform operators. Looking beyond the borders,both the United States and the European Union have made the regulation of Platform MFN clauses an important issue. In this new era,when regulatory innovation in the new economy has become a trend of law development,in view of the reality that problems are widespread but solutions are lacking,it is necessary to explore the regulatory path of MFN clauses in an innovative way. From the perspectives of basic structure and economic motivation,there are big differences between basic MFN clauses in the traditional market and PMFN clauses in the Internet market. Although both contain "most-favored-nation" treatment requirements,the latter involves a wider range of subjects and more complicated legal relations,and may have commissions,in addition,platforms become contracting parties in PMFN,all of which make economic analyses in specific cases very different. Through economic analysis,it can be found that the rationality of MFN clauses is reflected in their effects of promoting competition,including prevention of price discrimination,reduction of free-riding problem on the platform,prevention of hold-up question and delay,and reduction of transaction costs. At the same time,their effects of restricting competition,such as reduction of price uncertainty,promotion of horizontal collusion,market foreclosure and softening of competition,will increase the risks in market competition.Making a comprehensive survey and review on relevant regulatory practices in the United States and the European Union over the past half century,it can be concluded that although the two jurisdictions have their own characteristics in aspects of legal basis,regulatory content,procedure,and final result,they have a consensus on at least four sides:both focus on analyzing economic effects,both tend to define these behaviors as vertical restrictions,both distinguish between agent distribution and wholesale distribution models,and both pay close attention to platform supervision in the digital economy. Following regulatory recommendations can be summarized:First,it is advisable to define types of monopolistic behaviors MFN clauses may constitute under current law. Second,the competition effects in a case should be examined through economic analysis. Last but not least,platform supervision must be reformed in the Internet platform economy.