Sangyun Lee, 'Some Afterthoughts on the HARMof ASBP / AED, coming after 'Abuse of Economic Dependence / Superior Bargaining Position in Korean Competition Law: From a Comparative Perspective with Japan’ (RikkyoUniversity, Tokyo, Nov 2, 2022)' (Seoul Workshop: Looking at Fairness and Antitrust through the Lens of ASBP, Seoul, Dec 16, 2022)

1. SomeAfterthoughts on the HARM ofASBP/AED
coming after 'Abuse of Economic Dependence / Superior Bargaining Position in Korean
Competition Law: From a Comparative Perspective with Japan’
(Rikkyo University, Tokyo, Nov 2, 2022)1
1
Sangyun Lee
Research Fellow (Ph.D. Candidate) at Korea University
Presented at ‘Fairness and Antitrust in the Digital Era Seoul Workshop:
Looking at Fairness and Antitrust through the Lens of ASBP’
Seoul, December 16, 2022
1. The Rikkyo presentation slides are accessible at https://lnkd.in/ghszAMqy

2. 2
BACKGROUND
A Quick Recap of Previous Findings, and Some Additions

3. Revisiting the AED/ASBP Prohibition as a CL tool
3
1. At the 2022 OECD Global Forum on Competition - Session 1. A record is available here: https://lnkd.in/gAf2eX4J. It starts at 1:23:53.
• In the past – skeptical (with an industrial mindset)
• Today (against the backdrop of digitalization and the advent of big techs)
• US FTC Chair Lina Khan
“.. in recognizing fairness …
the prohibition on unfair methods of competition
is a core part of the FTC's mission, and we are not alone.
Internationally we've looked to counterparts,
including in Japan and Korea,
that have already led the way in thinking about issues
relating to superior bargaining power and fairness
and centering those in their regimes and so
that's also an area where we continue to look and learn
as we develop this unique aspect of the FTC's mission
in particular.”1
Image Source: Nikkei
UMC

4. Revisiting the AED/ASBP Prohibition as a CL tool
4
.
1. Available at https://lnkd.in/dYr4GPk4
• Today (against the backdrop of digitalization and the advent of big techs)
• Italy – Art. 9, LEGGE 18 giugno 1998, n. 192 (ameded by LEGGE 5 agosto 2022, n. 118)1
• Art. 9(1) Presumption of the situation of “dipendenza economica” in B2P relations.
Where a digital platform offers intermediation services and plays a decisive role in
this regard, the state of dependency is presumed unless proven otherwise
(“gatekeeper” offering “core platform services.”)
• Art. 9(2) Strengthening the prohibition by adding more examples of abuse applicable
to platforms
First, not providing sufficient information about the service provided;
Second, imposing unilateral obligations, which is not justifiable in terms of the nature
and content of the activity performed; and
Third, hampering the use of different providers for the same service (through the
imposition of conditions or additional costs)
* Note. No restrictions on interoperability and data portability.
• Art.9(3-bis) If such practices have relevance to the protection of competition, the
AGCM enforces
Source: DW

5. Revisiting the AED/ASBP Prohibition as a CL tool
5
• Germany –Section 20 (as well as Section 19a) GWB
(1) [Section 19(1) + (2) no 1] --> undertakings ... to the extent that other ... suppliers or purchasers ... are dependent on them
[without] sufficient and reasonable possibilities for switching to third parties ... and [if] there is a significant imbalance between
the power of such undertakings ... and the countervailing power of other undertakings (relative market power).
[Section 19(1) + (2) no 1] --> undertakings acting as intermediaries on multi-sided markets to the extent that other undertakings are
dependent on their intermediary services for accessing supply and sales markets [without] sufficient and reasonable alternatives....
A supplier ... is presumed to depend on a purchaser ... if this supplier regularly grants to this purchaser, in addition to discounts
customary in the trade or other compensation, special benefits which are not granted to similar purchasers.
(1a) Dependence ... may also arise from the fact that an undertaking is dependent on accessing data controlled by another
undertaking in order to carry out its own activities. Refusing to grant access to such data in return for adequate compensation may
constitute an unfair impediment pursuant to [subsection (1) + Section 19(1), Section 19(2) no 1] (regardless of whether the data
have been commercially traded or not).
(2) [Section 19(1) + (2) no 5] --> undertakings ... in relation to the undertakings which depend on them.
(3) Undertakings with superior market power in relation to [SME competitors] may not abuse their market power to impede such
competitors directly or indirectly in an unfair manner. An unfair impediment ... exists in particular if an undertaking
1.offers food ... below cost price, or;
2.offers other goods or commercial services not just occasionally below cost price, or
3.demands from SMEs (in downstream distribution market competitors) a price for the delivery ... which is higher than the price it
itself offers on such market, [without] objective justification. ....
(3a) An unfair impediment ... exist[s] where an undertaking with superior market power on a market ... impedes the independent
attainment of network effects by competitors and in this way creates a serious risk of significantly restricting competition on the
merits.

6. Revisiting the AED/ASBP Prohibition as a CL tool
6
• Today (against the backdrop of digitalization and the advent of big techs)
• EU’s Digital Markets Act (‘DMA’)
(2) … characteristics of core platform services are very strong network effects,
an ability to connect many business users with many end users through the
multisidedness of these services, a significant degree of dependence of both
business users and end users, lock-in effects, a lack of multi-homing for the same
purpose by end users, vertical integration, and data driven-advantages.All these
characteristics, combined with unfair practices by undertakings providing the
core platform services, can have the effect of substantially undermining the
contestability of the core platform services, as well as impacting the fairness of
the commercial relationship … this leads to rapid and potentially far-reaching
decreases in business users’and end users’choice, and therefore can confer on
the provider of those services the position of a so-called gatekeeper.
(3) … Some of those undertakings exercise control over whole platform
ecosystems in the digital economy and are structurally extremely difficult to
challenge or contest by existing or new market operators, irrespective of how
innovative and efficient those market operators may be. …
Source: AP

7. Revisiting the AED/ASBP Prohibition as a CL tool
7
Abuse of Dominance
* Direct exploitation is not prohibited
Abuse of Dominance
* Direct exploitation, as well as exclusion, is prohibited
Abuse of Dominance & Dependence
This table draws on Sangyun Lee, 'A Theoretical Understanding of Abuse
of Economic Dependence in Competition Law' (SSRN June 24, 2022)
https://ssrn.com/abstract=4134583 p.61
ENACTED

8. 8
ABUSE OF ECONOMIC DEPENDENCE
(a.k.a., Abuse of Superior Bargaining Position)

9. What is the AED/ASBP Prohibition in CL?
• A Conceptual Dichotomy on Power: ‘Power-to’ and ‘Power-over’ 1
• Morris (2002) ‘power is a dispositional concept and refers to the capacity to effect (i.e.,
accomplish) outcomes, rather than an ability to affect other people (i.e., alter their conduct).’
• Emerson (1962) ‘to say that X has power is vacant, unless we specify “over whom”’; ‘“the
power of A over B is equal to, and based upon, the dependence of B upon A.”’
• Contractual or Regulatory Protection ≠ Competition Law
9
in Civil law or regulatory frameworks in Competition law frameworks
Power differences or imbalances Significant power differences or imbalances
Situational, sector-specific, or party-specific harm Structural, cross-sector, and ubiquitous harm
substantial market power; dominance; or monopolistic position
relative/superior market power; relative dominance; economic dependence; or superior bargaining position
1. Sangyun Lee, 'A Theoretical Understanding of Abuse of Economic Dependence in Competition Law' (SSRN June 24, 2022) https://ssrn.com/abstract=4134583, pp.16-18

10. 10
POWER-TO
ANTICOMPETITIVE
POWER
POWER-OVER
SHERMAN 2 TFEU 102 DOMINANCE & DEPENDENCE
(e.g., AT, BE, DE, FR, IT, JP, KR)
I thank Giorgio Monti for the fruitful discussion on the relationship between dominance and dependence.

11. 11
Substitutes
decreased
A’s capacity to make changes
being formed/fortified
A’s exclusive conduct &
Competitors excluded
Profits
concentrated to A
A’s control over B
(B’ dependence on A)
increased
A’s exercise of
its control/influence
to capture more surplus
A’s profit increased
at the cost of B’s interest
Improved attractiveness of
A’s products to B &
A’s customer lock-in strategies
What is the AED/ASBP Prohibition in CL?
• AED/ASBP’s Harm – Systemic and circular understanding of competitive harm1
AD AED/ASBP
1. Sangyun Lee, 'A Theoretical Understanding of Abuse of Economic Dependence in Competition Law' (SSRN June 24, 2022) https://ssrn.com/abstract=4134583, pp.32-33

12. 12
• Through the lens of substitutability
Google = Dominance? SMP? Very demanding e.g., Epic Games v. Apple
• From the relational and systemic perspective, Google has RMP
First, by increasing users’ reliance on the Google Play Store,
Google gains influence over the users, including app providers
and end-users.
• Individuals' consumption path dependence →
• They are locked in on their repeated consumption patterns -→
• App developers also become dependent on major distribution
channels (‘competitive bottleneck’) →
Second, Google’s position becomes more entrenched over time
in a reinforcing feedback loop
• Google maximizes its profits at the expense of dependent parties
(mainly app suppliers) →
• Dependent parties accept asymmetric terms and conditions →
• Google takes a larger portion of the benefits (money, data, contractual
obligations...) →
• Google's business model gets more powerful, elaborated, advanced.
Application: Google’s Play Store
Sangyun Lee, 'A Theoretical Understanding of Abuse of Economic Dependence in Competition Law’
(SSRN June 24, 2022) https://ssrn.com/abstract=4134583, pp.34-37

13. Key Questions and Considerations in Practice1
• Key questions:
• How to distinguish anti-competitive relativity/superiority from a mere bargaining asymmetry
• How to distinguish market failure from a contract/bargaining failure
• ED or SBP2
1. Considerations focused on external context: the objective absence of feasible alternatives
2. Considerations focused on internal context: the importance of the transaction for the weaker(s)
* Various factors: market structure (e.g., competitive bottlenecks), characteristics of products/services (e.g., perishability,
scarcity, relevance to health), the importance (or essentiality) of the technology, know-how, or infrastructure owned by the
superior incumbent, the incumbent’s brand power or reputation in the market, and customer behavioral patterns (e.g., brand
loyalty, switching, or consumption path dependence), a gross disparity in business capabilities between parties, etc.
13
1. Sangyun Lee, 'A Theoretical Understanding of Abuse of Economic Dependence in Competition Law' (SSRN June 24, 2022) https://ssrn.com/abstract=4134583, pp.52-56.
2. See
Masako Wakui and Thomas K. Cheng, ‘Regulating Abuse of Superior Bargaining Position under the Japanese Competition Law: an
Anomaly or a Necessity’ (2015) 3(2) Journal of Antitrust Enforcement 302, pp.305-306.
Cour de Cassation, Chambre commerciale, du 3 mars 2004, 02-14.529 and Bundesgerichtshof Beschluss vom Jan 23, 2018, EDEKA v Bundeskartellamt, KVR 3/17,
DE:BGH:2018:230118BKVR3.17.0, paras 40-51;
LEXICAL
PRIORITY

14. Key Questions and Considerations in Practice
• Abuse of ED/SBP
• [Basic Nature] Coercive by its nature: high price, shifting costs, customer’s choice...
• ‘The transfer of costs incurred and the shift of entrepreneurial risk to the weaker party in the
relationship represent a common denominator for most of the above UTPs.’ (Green Paper (2013))
• [Boundary] The most extreme and radical AED/ASBP is ‘implicit refusal to deal.’
• Meanwhile, explicit refusal to deal should require the ‘indispensability’ requirement,
given the remedial peculiarity - duty to deal1
• [Harm] Whether one should require exclusionary effects – It depends …
• 3 (possible) approaches to ‘harm’ of AED/ASBP: Exploitation-focused, Exclusion-focused, or Mixed.
• Basically, it’s a matter of policy choice (considering error cost)
‘Requiring exclusionary effects’ means that the jurisdiction has a ‘robust and healthy market mechanism’
so they can wait until the ‘foreclosure’ (market failure) to come more manifest and clearer
14
1. Judgment of March 25, 2021, Deutsche Telekom v Commission, C-152/19 P, EU:C:2021:238, paras 46 and 51; Also, AG Henrik Saugmandsgaard Øe's Opinion, paras 65-88.

15. Key Questions and Considerations in Practice
• Abuse of ED/SBP
Jurisdictions to adopt the AED/ASBP (as a CL tool) should take the following into account
i. the level of economic development,
ii. the degree to which the economy is liberalized,
iii. the NCA’s expertise and resources, and
iv. the NCA’s institutional design (e.g., whether judicially/administratively bifurcated or independent)
15
Pure/Direct
Exploitation
Exclusion
Foreclosure
Mixed
Pros-Cons
Cost-Benefit Analysis
Exclusion-
centered
Exploitation-
centered
Which approach is optimal depends on the case and context

16. 16
Korea’s AED/ASBP Rules in CL
In comparison with the equivalents of Japan

17. Japan & Korea Comp Laws
• Main statutes
• ActonProhibitionofPrivateMonopolizationandMaintenanceofFairTrade(‘AMA’)(1947-)
MonopolyRegulationandFairTradeAct(‘MRFTA’)(1986-)
• Main prohibitions
• Anti-competitive agreements; decisions of associations; and vertical restraints
• Abusive or monopolizing practices by wielding substantial market power
• Also, exploitative practices and unfair trading practices, incl. abuse of economic dependence
• Conceptual Trichotomy of harm (illegality)
• RC: restricting competition (e.g., process, structure), exclusion, foreclosure, CW harm…
• LC: incipient RC, lessening competition, having a proclivity to exclusion or foreclosure, …
• UF: exploitation, coercion, unconscionable or unfair conduct, … (e.g., extracting profits,
limiting choice, foisting costs, shifting entrepreneurial risks)
17

18. 18
Navigating Korea & Japan Comp Laws
TYPE CONDUCT 🇰🇰🇰🇰 MRFTA 🇯🇯🇯🇯 AMA1
Horizontal restraint
(Sec. 1 Sherman Act;
Art. 101 TFEU)
Horizontal agreements and concerted practices Art. 40(1) RC Art. 3 with Art. 2(6) RC
Group boycott (UTPs)2 Art. 45(1)(1) with ED3 1(1) RC Art. 19 with Art 2(9)(i) RC
Art. 19 with GD4 1 RC
Decision of associations of undertakings Art. 51(1) RC Art. 8RC
Vertical restraint
(Sec. 1 Sherman Act;
Art. 101 TFEU)
Tying (UTPs) Art. 45(1)(5) with ED 5(1) LCUF Art. 19 with GD 10 LCUF
RPM (UTPs) Art. 46 RC Art. 19 with Art. 2(9)(iv) LC
Sales restrictions (UTPs)
(exclusive dealing, exclusive distribution agreements, restrictions
on active selling, customer allocation agreements, etc.)
Art. 45(1)(7) with ED 7 (1)-(2) LCUF Art. 19 with GD 11-12 LC
Unilateral conduct
Abuse of dominance (Art. 102 TFEU) or Monopolization (Sec. 2
Sherman Act)
Art. 5(1) RCUF Art. 3 with Art. 2(5) RC
Abuse of economic dependence (UTPs) Art. 45(1)(6) with ED 6 UF Art. 19 with Art. 2(9)(v) UF
Art. 19 with GD 13 UF
Other UTPs2
Discrimination Art. 45(1)(2) with ED 2(1), (2), (4) LC Art. 19 with Art. 2(9)(ii) LC
Art. 19 with GD 3-5 LC
Predation (High/Low) Art. 45(1)(3) with ED 3(1)-(2) LC Art. 19 with Art. 2(9)(iii) LC
Art. 19 with GD 6-7 LC
Unfair (unilateral) refusal Art. 45(1)(1) with ED 1(2) LC Art. 19 with GD 2 LC
Unfair inducement
(aggressive/misleading/deceptive)
Art. 45(1)(4) with ED 4 UF Art. 19 with GD 8-9 UF
Unfair interference Art. 45(1)(8) with ED 8 UF Art. 19 with GD 14-15 UFLC
1. This Section has been made heavily relying on Masako Wakui, Antimonopoly Law: Competition Law and Policy in Japan (2nd edn, 2018), pp.141-142.
2. UTPs: Unfair Trading Practices. Specifically, “other UTPs” only indicate unfair practices that do not belong to other types of conduct.
3. ED: Enforcement Decree of the MRFTA, which sets out specific types and standards of UTPs pursuant to Art. 45(3) (See Table 2, Art. 52, Decree).
4. GD: UTPs designated by the JFTC (pursuant to Art. 2(9)(vi) AMA), which are generally applicable across sectors.
(Source: https://competition.tistory.com/pages/main)

19. AED/ASBP Rules in Korea & Japan
19
🇰🇰🇰🇰 MRFTA 🇯🇯🇯🇯 AMA
Art. 5(1) RCUF Prohibition on Abuse of Market-Dominant Position Art. 3 with Art. 2(5)RC Prohibition on Private Monopolization
Art. 45(1)(6) with ED 6 UF Art. 19 with Art. 2(9)(v) UF
Art. 19 with GD 13 UF
Art. 45 Prohibition on Unfair Trade Practices
Art. 45(1)(6) (Source: Korea Legislation Research Institute https://bit.ly/3TtOsEo)
Trading with a certain transacting partner by unfairly taking advantage of his/her
position in trade
ED 6. (Source: Korea Fair Trade Commission https://bit.ly/3s2AI81)
Abuse of the Position
A. Forced Purchase: conduct in which an undertaking forces its trading
counterparty to purchase goods or services against the will of the counterparty
B. Forced Provision of Benefit: conducts in which an undertaking forces its
trading counterparty to provide money, goods, and services or other financial
benefits for the welfare of the undertaking in question
C. Imposing Sales Target: conducts in which an undertaking sets a sales target
on the goods or services it supplies and forces its trading counterparty to meet
the target
D. Imposed Disadvantages: conducts in which an undertaking imposes
disadvantage to its trading counterparty by setting or a changing terms
of trade or in the execution of the trade, through means other than
forced purchase, forced provision of benefits or imposed sales target
E. Interference with Business Management and Operations: conducts in which
an undertaking interferes with management and operations of its trading
counterparty by imposing restriction on items manufactured, scale of facilities
and equipment, quantity of manufacture, and terms of trade, or by giving order
or approval for appointment or dismissal of staff and executives
Art. 19 with Art. 2(9) Prohibition on Unfair Trade Practices
3. Art. 2(9)(v) (Source: Japan Fair Trade Commission https://bit.ly/3Sgy8Wq)
engaging in any act specified in one of the following by making use of one's
superior bargaining position over the counterparty unjustly, in light of normal
business practices
(a) causing the counterparty in continuous transactions (including a party with
whom one newly intends to engage in continuous transactions; the same
applies in (b) below) to purchase goods or services other than those to which
the relevant transactions pertain
(b) causing the counterparty in continuous transactions to provide money,
services or other economic benefits
(c) refusing to receive goods in transactions with the counterparty, causing the
counterparty to take back such goods after receiving them from the
counterparty, delaying payment to the counterparty or reducing the amount of
payment, or otherwise establishing or changing trade terms or executing
transactions in a way disadvantageous to the counterparty
GD 13 (Source: Japan Fair Trade Commission https://bit.ly/3eIM3qI)
(Unjust Interference with appointment of officer in one's transacting party)
(13) Causing a corporation which is one's transacting party to follow one's
instruction in advance, or to get one's approval, regarding the appointment of
officers of the said corporation (meaning those as defined by Article 2,
paragraph (3) of the Act (The same shall apply hereinafter)) , unjustly in light of
the normal business practices by making use of one's dominant bargaining
position over the party.

20. Comparison of the KFTC & JFTC approaches
20
🇰🇰🇰🇰 공정거래법 🇯🇯🇯🇯 独占禁止法
Unfair Trading Practices Guidelines (2021) Guidelines Concerning ASBP under the AMA (2010)
Position
Differentiating ASBP from civil law issues
- Much stricter standards will be applied than those applicable to bargaining
power imbalances under the Korean Civil Act (Ⅴ. 6. (1))
- If parties were well informed and had a choice at the time of engaging in the
contract, the ASBP is not applicable (Ⅴ. 6. (2) (가))
Considerations (Ⅴ. 6. (3))
- Continued relationship: transaction-specific investments; lock-in; already
invested capitals
- Significant dependency: the proportion of sales to the stronger party in the
total sales of the weaker party
- Market status, characteristics of products/services, etc.
(LSY) Countervailing market power? Outside option? Feasible alternatives?
Basic principle
- When the weaker cannot help but accept the superior’s request, which is
substantially unfavorable to the weaker because the suspension of the
transaction with the superior would substantially impede the weak’s business
(第2-1)
Considerations (第2-2)
- Dependency: the portion of the weaker’s sales to the superior’s sales in the
total sales of the weaker party.
- Market position of the superior: market shares, ranks, etc.
- Possibility for the weaker to switch trade partners: any feasible alternatives,
transaction-specific investments, etc.
- Necessity of the transaction with the superior: the volume of existing
transactions with the superior, the superior’s growth, the importance of the
products/services in question (brand power), the possibility of increased
credit/trust through transactions with the superior, differences in size, etc.
Causality Presumed (第2-3)
Abuse
(Harm)
Restrictions on economic freedom
- Illegality: “substantive unfairness (거래내용의 불공정성)” which means an
impairment of the other trading party’s freedom of decision-making or
imposing disadvantages (Ⅲ. 1. 가. (2). (라) and Ⅴ. 6. (4))
- Considerations: intent, predictability, prevailing custom or practice, legal
context, etc. (Ⅴ. 6. (4) (다))
- Balancing (limited): outweighing efficiency gains or consumer benefits (Ⅴ. 6.
(4) (라))
Restrictions on economic freedom
- Illegality: Impeding transactions based on the parties’ free and autonomous
decisions AND placing victims at a competitive disadvantage while giving
perpetrators a competitive advantage (第1-1)
- Considerations: the severity of the disadvantage at issue, the
extensiveness of the act, the largeness of the number of victims, systemic
violations, ramifications of conduct (第1-1), and being against the prevailing
(legitimate)* custom or practice (第3).
* In light of the “fair competition order” (第3)

21. Status Quo in Korea
• Numbers (Jan – Oct 2022)1
• More than 70 infringement cases
- Horizontal collusion: 612
- Abuse of dominance: 0
- Abuse of superior bargaining position: 4
- Resale price maintenance: 3
- Exclusive dealing (as a vertical restriction): 1
- Unfair competition: 2 (unfair inducement 1, and unfair refusal 1)
21
1. See Sangyun Lee, ‘Main Developments in Competition Law and Policy 2022 – Korea’ (Kluwer Competition Law Blog Dec 13, 2022) https://lnkd.in/gTz2iKAd
2. Incl. decisions of associations and bid riggings.

22. Four ASBP Cases in 20221
• Posco Chemical (July 10, 2022); Froebel House (July 10, 2022)
• Companies were sanctioned for abruptly ceasing supply without negotiation or prior notification
(see here and here)
• Siemens (August 10, 2022)
• The supplier’s unilateral conduct foisting costs for repair and maintenance upon selected
distributors without negotiation and beyond the normal, prevailing custom/practice was prohibited
as an abuse of dependency
• Shinsung E&G (August 24, 2022)
• The perpetrators were accused of shifting their entrepreneurial risks and costs to a trading partner
by, for example, deliberately delaying payments
* Broadcom (pending)
- In 2021, the KFTC raised dependency-related concerns over the allegedly ‘forced’ long-term
contract between Broadcom and Samsung Electronics, especially regarding the use of the radio-
frequency front-end (‘RFFE’) chips.
22
1. See Sangyun Lee, ‘Main Developments in Competition Law and Policy 2022 – Korea’ (Kluwer Competition Law Blog Dec 13, 2022) https://lnkd.in/gTz2iKAd

23. Some Questions on Abuse
• If ASBP includes the explicit refusal to deal
• How to demarcate a borderline between the refusal with dominance and
without dominance?
• What does the ‘not to impose unfair disadvantages’ remedy mean
in this context? Duty to deal?
• If ASBP includes mere contractual failure
• How to handle the increased risk of false positive errors?
• How to redress conceptual incoherence?
• Also, in terms of relevance, does this approach meet the goal of
competition policy?
• Is this an efficient way to use the limited enforcement resources?
• Would the remedy be effective in terms of competition policy?
23

24. Digital ASBP Case1
Delivery Hero (2020)
2nd largest food delivery platform’s (wide) MFNs  ASBP
• Restriction on the restaurants’ freedom to set prices (¶52)
• Against the principle of “the beneficiary pays” (¶53)
• Neither an ancillary restraint for the provision of the delivery service
nor a prevailing custom or practice (‘通常的 去來慣行’) in the industry (¶54)
• “Implemented on a voluntary basis (without coercion)” (¶55)
not clear, and no economic reason to believe so (¶¶56-67)
• “Needed for the prevention of free-riding and prevailed in the industry” (¶58)
it is unlikely that the free-riding problem can take place
the parity obligation was not an ancillary restraint for providing the service
not prevailed in the industry (¶¶59-60)
24
1. Sangyun Lee, ‘Abuse of Economic Dependence / Superior Bargaining Position in Korean Competition Law: From a Comparative Perspective with Japan’ (Rikkyo University, Tokyo, 2
Nov 2022) https://lnkd.in/ghszAMqy
MFNs

25. Again, Questions on Abuse
• If ASBP includes MFNs …
What about narrow MFNs restricting one’s economic freedom? Also, ASBP?
• If ASBP is about restricting one’s economic freedom or choice …
Are coercive practices, by their nature, anti-competitive?
To what extent and how critically can the moral aspects be considered in ASBP cases?
Is it desirable, given that the KFTC is an integrated enforcement model?
• If ASBP does not require negative impacts on competitors at all …
How to distinguish market failure by ASBP from a mere contract failure?
How to redress the risk of false positive errors?
* In Delivery Hero, the 1st player anyhow won the competition, even without MFNs
• Can this case give any valuable guidance for companies to perform self-
assessments?
25

26. • What if the KFTC had invoked the sales restriction provision
instead of the ASBP prohibition?
• Like Japan’s Booking.com W-MFNs (2022) (commitments)
• Korea’s sales restriction provision: Art. 45(1)(7) (ED7) LCUF
26
What if…
Art. 45(1) “7. Making transactions under the terms and conditions that unfairly
restrict business activities of the other party to the transaction” (KLRI translation)
ED Table 2 (7)
(1) exclusive dealing: where a party trades with another business on the
condition that the business does not deal with the party’s competitors
(2) restrictions on business areas or partners: where a party trades with another
business on the condition restricting the business’s acting areas or partners
• MFN is neither market / customer allocation nor exclusive dealing strict sensu
• However, given that the MFN is a contractual arrangement that prevents one’s business partners from
dealing with the one’s rivals on better terms … Any room for such prevention? (Iconsoft?)

27. Iconsoft (2022)
• Iconsoft
- An intermediary app operator that connects designated drivers (locally called “replacement
drivers”) and individuals (who cannot drive when they are inebriated)
• Facts: Iconsoft’s conduct
- Delaying the allocation of calls from end-users to multi-homing driver-users;
- Manipulating some device settings of multi-homing driver-users (to block their access);
- Exploiting the drivers’ consent to use their data to conduct system manipulation.
• KFTC’s Decision:
- Imposing exclusive conditions imposed;
- Restricting multi-homing and thereby undermining drivers’ freedom of choice and excluding
competitors (raising rivals’ transaction costs);
- Obvious intention and effects, no justifications.
- Decision: Afoul of Article 45(1)(7) of the MRFTA (only remedial orders without imposing fines)
27

28. Discussions
• If Iconsoft can’t be a precedent or a reference;
If the prohibition of ASBP does not fit …
If the prohibition of abuse of dominance can’t tackle it; and
Then, such MFNs should be ALLOWED (at least under CL)
• Policy options:
• More tolerance of non-dominant MFN under AD, ASBP, and VR; or
• To revise the MRFTA Enforcement Decree Table 2 Section 7
28
(Art 19, AMA) GD paragraph 11 (exclusive dealing)
(Art 19, AMA) GD paragraph 12. “In addition to any act falling under AMAArticle 2(9) (iv) and the
preceding paragraph [Paragraph 11], trading with another party on conditions which unjustly restrict any
trade between the said party and its other transacting party or other business activities of the said party.” 1
1. Emphasis added. The English translation draws on Masako Wakui, Antimonopoly Law: Competition Law and Policy in Japan (2nd edn, Oct 20, 2018), p190.

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CONCLUDING REMARKS

30. Concluding Remarks (further questions)
30
• To find the optimal, the following questions2 are worth being answered:
• Relevant? – Does the ASBP serve the screening function (objective) of abusive practices?
* Structural relativity (not situational, trivial); market failure (as opposed to contract/bargaining failure)
• Effective? – Does the ASBP effectively contribute to achieving the objective of CL?
* Tackling abusive practices by digital platforms; redressing conflicts in captive vertical value chains
• Efficient? – Does the ASBP make the achievement possible with minimum costs?
* Resource savings; increasing/decreasing the chances of winning/losing the cases; self-assessment?
• Coherent? – Is the ASBP consonant or consistent with other existing competition rules?
* Dominance and dependence?; anti-competitiveness or moral opprobrium (mala in se?)…
Too much intervention?1 or too little?
1. For several challenges that the KFTC face, regarding the ASBP enforcement, see Yong Lim and Soojin Nam, ‘Bringing Abuse of Superior Bargaining
Position into the Digital Era’ (ASCOLA Asia Online Seminar May 30, 2022) https://1drv.ms/v/s!Aj4guqEY12qGuWm7Of5JHcjsRCRy?e=1ZrqSA.
2. European Commission, ‘Better Regulation Guidelines’ (Staff Working Document) SWD(2021) 305 final.

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THANK YOU
감사합니다 / どうもありがとうございました
Sangyun Lee (李相潤)
sangyunl@korea.ac.kr