Most-favored-nation clauses in commercial contracts: legal and economic analysis and proposal for a guideline
Author
Gürkaynak, G.
Güner, A.
Diniz, S.
Filson, J.
Date
2016Source 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
ArticleItem Usage Stats
125
views
views
322
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downloads
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 clausesMFC
MFN
Most favored customer clause
Most favored nation clause
Price parity clauses
Permalink
http://hdl.handle.net/11693/36916Published Version (Please cite this version)
https://doi.org/10.1007/s10657-015-9515-yCollections
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