CEU Electronic Theses and Dissertations, 2011
| Author | Gajin, Dragan |
|---|---|
| Title | Antitrust Aspects of Exclusive Distribution Agreements |
| Summary | This paper analyzes the way in which the antitrust laws of the U.S. and the EU assess the legality of exclusive distribution agreements. The main purpose is to evaluate the extent to which the laws of these two jurisdictions can be seen as being in line with the economic theory of exclusive territories. To this end, the paper first lays down what it considers as the most appropriate approach for judging the legality of exclusive territories, identifying a rule of reason as the optimal rule. Compared to this rule, the current U.S. approach, bordering with per se legality, is qualified as inappropriate. On the other hand, the paper praises the EU’s approach towards non-airtight exclusive distribution agreements, characterizing it as a structured rule of reason. Conversely, the paper criticizes the EU’s tough stance towards airtight exclusive distribution agreements, which borders with per se illegality. The paper also addresses some enforcement aspects with regards to exclusive distribution agreements. As for the U.S., the emphasis is on the way in which ideology and the existence of treble damages have contributed to the current state of the law of exclusive territories. Regarding the EU, the essential role of the Commission and its views is stressed. Further, the paper argues that, if not followed by a reconsideration of the fining policy, the trend towards facilitating private damages actions in the EU can lead to an inadequate outcome connected to the EU’s approach to exclusive territories. Finally, the paper addresses the relationship between exclusive distribution agreements and arbitration. In this respect the paper finds that antitrust issues arising out of an exclusive distribution agreement can be referred to arbitration both in the U.S. and the EU; that the court review of awards dealing with antitrust issues is potentially stricter in the EU than in the U.S., in parallel with the approach that the two jurisdiction have towards the legality of exclusive territories; finally, the law of exclusive territories should be considered as mandatory law in both of the analyzed jurisdictions, with pertinent implications for the arbitral proceedings. |
| Supervisor | Professor Tibor Varady and Professor Jules Stuyck |
| Department | Legal Studies PhD |
| Full text | https://www.etd.ceu.edu/2011/gajin_dragan.pdf |
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