A Research On Antitrust Regulation Of Joint Venture Non-compete Clause

In market economy competition, improve enterprise competitiveness is the commonpursuit of the enterprise. Between enterprises is often based on lower costs, increaseproduction capacity, the economies of scale benefit, research to develop new products of thejoint venture, such behavior often can effectively improve the competitiveness of theenterprises in a short time. The joint venture participants for maintenance and effectiveoperation of the joint venture and asset values, and in a way that is set up joint venturesnon-compete clause for certain restrictions of competition between each other. But some inestablishing a joint venture, the joint venture participants set unreasonable non-competeclause the anticompetitive effects, the anti-competitive concerns that contrary to the purposeof the joint venture through the integration of resources to enhance competitiveness, and theeffective market competition mechanism. Such as Yamaha to form a joint venture withBinShiyu company case, outboard engines, the relevant product market is the joint venturesparty agreement banning motorcycle products to compete other than snow removal, thenon-compete clause is beyond the scope of the joint ventures products involved, ruled out thecompetition between the joint ventures party, affect the market competition order.For this new type of limiting competition behavior, because our country "antimonopolylaw" in no clear definition about the terms of the joint venture is not competition, nocompetition for the joint venture terms and conditions of the review form institutionalregulation, and the joint venture to the particularity of its organization and characteristics ofthe joint venture participants the commonality of interests, the anti-monopoly enforcementauthority for the investigation of law enforcement work has brought the difficulty. One of theimportant reasons for this problem is the insufficient recognition of academic circles on theissue, the research is not deep. The author is against this background the integrated use of themethod of literature research, comparative analysis, contradiction analysis of the present stageof joint venture of antitrust regulation of the non-compete clause to discuss some problemsand proposes the framework of rules and regulations, makes every effort to the improvementof the provisions of the joint venture is not competition regulation.In this paper, in order to identify problems, solve the problem for the logic thinkingwriting, which is divided into four parts.The first part is a general analysis of the joint venture non-compete clauses: to the investment in the field of the joint venture as a research starting point, and to define theconnotation of the joint venture in the field of anti-monopoly law, and analyze to the jointventure and its related concept; On the basis of the joint venture of the joint venture themeanings of the non-compete clause shall be clear, and in the joint venture are summarizedthe characteristics of the non-compete clause, the type of the non-compete clause of a jointventure to illustrate; Then the rationality of the non-compete clause of a joint venture areanalyzed. These questions clearly are studies the non-compete clause of a joint venture of thestarting point.The second part is the joint venture in China non-compete clause anti-monopoly lawregulation of the current situation and problem analysis: the joint venture in China at thepresent stage are summarized and the present situation of development and regulation of thenon-compete clause, on the basis of the provisions of the joint venture is not competition, thelack of anti-monopoly regulation system to carry on the analysis and concludes the mainproblems.The third part is the European and American non-compete clause of a joint venture ofantitrust regulation experience: this part is based on the second part of the issues raised,combed the us and European antitrust regulation experience, to Europe and the United Statesabout the terms of the joint venture is not competition antitrust regulation under different pathand regulation principle and method of induction.The fourth part is the joint venture of antitrust regulation of the non-compete clauseperfect: this part in Europe and the United States joint venture regulation on the practicalexperience of non-compete clause, puts forward the dual path of rules and regulations, namelyaccording to the nature of the non-compete clauses attached by the joint venture, the jointventure respectively non-compete clause into the concentration of the business operators andthe framework of monopolistic agreements, and then review proposed joint ventures in theframework of competitors focus in the basic principles of non-compete clauses and relevantstandards, points out that the regulation of joint venture in the framework of monopolyagreements in the principles of the non-compete clause.