Microsoft case has again reminded us of the economics and law issue of tying arrangements. Although Tying arrangements are prohibited by American Antitrust law, lawyers and economists are quarreling about the effect of such enforcement. At the mean time, the draft of Chinese anti-monopoly law has been completed in January 26,2002. Chinese antitrust law is on the horizon, so it is important for us to learn successful Judicatory practice and academic research by the developed market economy countries such as the United States of America.This thesis is based on U.S antitrust Judicatory practice, concerning the following four questions:1. The evolution of tying arrangement clause?2. Why prohibit tying arrangements?3. The economic reasons of tying arrangements.4. What is difference between the tying arrangements of visible material products and invisible software products?This thesis includes four parts, and each part concerning one of the above questions.Part 1 " American antitrust law and it's Judicatory practice of prohibiting of tying arrangements". In this part, we mainly discuss the birth of American antitrust law from historic perspective. We concluded that American antitrust law is the result of political process and it lacks theoretical foundations of economics and law. We also discuss the definition of tying arrangements and it's classification. At last, we examine the history of enforcement and point out that the inconsistence of the attitude towards tying arrangement reflecting the theoretical inefficiency. Part 2 " law theory of tying arrangement and it's economic analysis". Lawyers have proposed three related theory to support the enforcement of tying arrangements, that is theory of consumer coercion, leverage theory and theory of barriers to entry. We carefully discussed their economic implications and concluded that those theories cannot be used as excuse of tying arrangement enforcement.Part 3 " economic analysis of tying arrangements". In this part, we listed all kinds of economic explanations towards tying arrangements, including price discrimination, risk sharing, contract selecting, solving the information asymmetry between wholesaler and retailer, elusion of pricing control, supervising the cheating actbetween member of cartel and preventing piracy.Part 4 " economic analysis of software tying arrangements". In this part, at first, wediscuss the characters of software product and it's market structure. Then, weproposed three possible explanations of tying arrangements, which are exploitingconsumer surplus, the super modularity requirement of knowledge and productinnovation.Base on the above discussions, the following points were concluded:1. American Antitrust law was the result of political process and the concern of the law is equality rather than efficiency.2. Monopoly cannot be extended through tying arrangements, which also doesn't harm consumers. The problems brought by tying arrangements were caused by the monopoly power of tying product, the issue of tying arrangement is derived from it.3. There are many economic reasons for tying arrangements such as price discrimination, quality control and reduction of production cost and transaction cost, etc.4. The act of tying arrangements is more commonly used in the new economy, because of the characters of software product. Also as it noted above, tying arrangements can be a way of product innovation under such economic conditions.5. In a word, from the perspective of economics, tying arrangement is an efficient act of the enterprise. |