By Simon ConstantineThe growth in e-commerce and online markets in recent years has been striking. In the UK alone, e-commerce sales in 2013 accounted for 20% of business turnover. While the digital world has brought – and promises to continue to bring – benefits to many, it also raises potential risks and novel challenges. The rapid emergence of so-called ‘digital giants’ has generated a range of new products and services (in particular a multitude of new online platforms and marketplaces). But it has also led to concerns, including some around, among other things, the holding by those players of potential ‘gatekeeper’ positions. This article considers those dynamics in the specific context of the use of so-called retail Most Favoured Nation (retail-MFN) clauses in online distribution arrangements. It considers first the nature of those agreements, and the commercial rationale for their use, and then discusses both how – and thereafter when – those clauses are, in the Competition and Market Authority (CMA)’s experience, more likely to raise competition concerns. This article is the written contribution from the CMA to the OECD Competition Committee’s Hearing on ‘Across Platform Parity Agreements’ held in October 2015.
The full version of this article appears in the 2016 issue 1 of Competition Law Journal.
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