On The Anti-monopoly Law On The Principle Of Infrastructure And Its Application In China

The essential facility doctrine (referred to as the EFD), originating from the United States case law and being adopted in many countries, has been nearly one hundreds years old. Although the courts in those countries has always applied the EFD in judging antitrust cases, and has improved and perfected the doctrine, the criticism of antitrust law scholars has been persistent. In those scholars'opinion, because the application of the doctrine probably may harm the ownership of private parties and cool down the investment and innovation incentives, the EFD lacks justification and rationality with which the EFD has reason to exist. So those scholars recommend that the EFD shall be restricted heavily or revoked. But the writer is not on the same side with those scholars. The reason for the creation of the opinion of those scholars, in the writer's opinion, is that those scholars have confusion with the area or standard of application of the EFD.In the writer's perspective, the fact that the application area and standard of application of the EFD are unclear and unduly defined results in the confusion of those scholars. After analyzing the rationality and justification of the EFD and reaching affirmative conclusion thereupon, under the guideline of caution application and reconcilement of conflicting interests, the writer comparatively analyze the laws, regulations, cases and theories of the US and the EU concerning the EFD and form my own opinion in this respect. Of the writer's own opinions, the definition and explanation of the application area and standard of application of the EFD is in paramount position. As to the application area, the writer suggests that the application of the EFD is justified only when two separate markets are concerned. As to the standard of application of the EFD, the writer recommends a self-restriction and rigid pattern.In the writer's opinion, due to our country's general need of constructing socialist market economic and the actual requirement of improve the situation of intellectual property and industry regulation reform, our country shall introduce intothe EFD. The strictly defined EFD shall certainly be beneficial to the creation and development of competition, and the construction and development of real market economic in our country.