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      Most-favored-nation clauses in commercial contracts: legal and economic analysis and proposal for a guideline

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      Author
      Gürkaynak, G.
      Güner, A.
      Diniz, S.
      Filson, J.
      Date
      2016
      Source Title
      European Journal of Law and Economics
      Print ISSN
      0929-1261
      Publisher
      Springer New York LLC
      Volume
      42
      Issue
      1
      Pages
      129 - 155
      Language
      English
      Type
      Article
      Item Usage Stats
      125
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      322
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      Abstract
      The prevalent use of “most favored nation” (MFN) clauses in commercial agreements has garnered significant attention in the economics and legal literature and by practitioners and enforcement agencies. From an antitrust standpoint, there is a strong consensus that while MFN provisions can lead to procompetitive outcomes or at least play a competitively neutral role, they may also result in competitive harm and a loss of consumer welfare. Therefore, US and EU enforcement agencies and courts have held that MFNs should be reviewed on a case-by-case basis, considering the specific characteristics of both the contractual provision and the industry. While a case-by-case approach is valid, it is not ideal from a variety of standpoints: that of the competition authorities seeking to make best use of their limited resources and that of practitioners seeking to advise their clients. Accordingly, published guidelines on the use of MFNs, containing presumptions and safe harbors, would be both efficient and useful. The paper argues that it would increase the efficiency and accuracy of antitrust enforcement if one of the leading competition authorities issued MFN guidelines. The paper suggests a set of presumptions and safe harbors that should be included in any such guidelines. © 2015, The Author(s).
      Keywords
      Best price clauses
      MFC
      MFN
      Most favored customer clause
      Most favored nation clause
      Price parity clauses
      Permalink
      http://hdl.handle.net/11693/36916
      Published Version (Please cite this version)
      https://doi.org/10.1007/s10657-015-9515-y
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