• Journal of Arbitration Studies
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• v.20 no.1
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• pp.41-65
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• 2010

It is a matter for debate that which types of dispute may be resolved by arbitration. This problem is concerning the arbitrability of the subject-matter of a dispute. National laws establish the domain of arbitration. Each state decides which matters may or may not be resolved by arbitration in accordance with its own political, social and economic policy. In response to complexity and diversity of a social phenomenon, the dispute also is various, therefore can not be settled efficiently by means of court adjudication to which applies a law strictly. To overcome such problems we are going to seek to make use of arbitration. According to Korean Arbitration Act Art. 3 (1), any dispute in private laws would be the object of arbitral proceedings. For the promotion of fair and free competition, it is increasingly wide-ranging antitrust legislation across the world. It is matter for debate what can an arbitral tribunal do when confronted with an allegation that the contract under which the arbitration is brought is itself an illegal restraint of trade or in some other way a breach of antitrust law. The underlying question is how to accommodate the conflicting congressional policies favoring resolution of private controversies by arbitration and encouraging private suits to protect the public interests served by the antitrust laws. It is necessary to inquire into the arbitrability of antitrust issues on case-by-case basis, because the types of them are quite diverse. If antitrust issues are the dispute in private laws and the contracting parties agreed to submit to arbitration disputes which have arisen or which may arise between them in the antitrust issues, the antitrust disputes are arbitrable. Not only international antitrust disputes but also domestic antitrust disputes are capable of being resolved by arbitration. When the public interests in the enforcement of antitrust legislation are asserted, it is possible to justify the annulment or the refusal of the recognition or the enforcement of an arbitral award that ignores public policy as a matter of it.

• KDI Journal of Economic Policy
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• v.13 no.2
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• pp.97-127
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• 1991

This paper investigates the roles and the limitations of the Korean antitrust agencies-the Office of Fair Trade (OFT) and the Fair Trade Commission (FTC) during the making of the major industrial policies of the 1980's. The Korean antitrust agencies played only a minimal role in three major industrial policy-making issues in the 1980's- the enactment of the Industrial Development Act (IDA), the Industrial Rationalization Measures according to the IDA, and the Industrial Readjustment Measures on Consolidation of Large Insolvent Enterprises based on the revised Tax Exemption and Reduction Control Act. As causes for this performance bias in the Korean antitrust system, this paper considers five factors according to the current literature on implementation failure: ambiguous and insufficient statutory provisions of the Monopoly Regulation and Fair Trade Act (MRFTA); lack of resources; biased attitudes and motivations of the staff of the OFT and the FTC; bureaucratic incapability; and widespread misunderstanding about the roles and functions of the antitrust system in Korea. Among these five factors, bureaucratic incompetence and lack of understanding in various policy implementation environments about the roles and functions of the antitrust system have been regarded as the most important ones. Most staff members did not have enough educational training during their school years to engage in antitrust and fair trade policy-making. Furthermore, the high rate of staff turnover due to a mandatory personnel transfer system has prohibited the accumulation of knowledge and skills required for pursuing complicated structural antitrust enforcement. The limited capability of the OFT has put the agency in a disadvantaged position in negotiating with other economic ministries. The OFT has not provided plausible counter-arguments based on sound economic theories against other economic ministries' intensive market interventions in the name of rationalization and readjustment of industries. If the staff members of antitrust agencies have lacked substantive understanding of the antitrust and fair trade policy, the rest of government agencies must have had serious problems in understanding the correst roles and functions of the antitrust system. The policy environment of the Korean antitrust system, including other economic ministries, the Deputy Prime Minister, and President Chun, have tended to conceptualize the OFT more as an agency aiming only at fair trade policy and less as an agency that should enforce structural monopoly regulation as well. Based on this assessment of the performance of the Korean antitrust system, this paper evaluate current reform proposals for the MRFT A. The inclusion of the regulation of conglomerate mergers and of business divestiture orders may be a desirable revision, giving the MRFTA more complete provisions. However, given deficient staff experties and the unfavorable policy environments, it would be too optimistic and naive to expect that the inclusion of these provisions alone could improve the performance of the Korean antitrust system. In its conclusion, this paper suggests several policy recommendations for the Korean antitrust system, which would secure the stable development and accumulation of antitrust expertise for its staff members and enough understanding and conformity from its environments about its antitrust goals and functions.

• KDI Journal of Economic Policy
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• v.12 no.3
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• pp.153-172
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• 1990

The present paper investigates the potential value of strategic antitrust policy in an oligopolistic international market. The market is characterized by a non-cooperative Cournot-Nash equilibrium and by asymmetry in costs among firms in the world market. The model is useful for two reasons. First, it is important in the context of policy-making to examine the conditions under which it may be beneficial to relax antitrust law to enhance competitiveness. Second, the explicit derivation of the level of cost-saving required for a gain in total domestic surplus provides an empirical rule for excluding industries that do not satisfy the requirements for a socially beneficial antitrust exemption. Results of the analysis include a criterion that tells how the cost-saving and concentration effects of a merger offset each other. The criterion is derived from fairly general assumptions on demand functions and is simple enough to be applied as a part of the merger guidelines. Another interesting policy implication of our analysis is that promoting mergers would not be a beneficial strategy in a net importing industry where cost-saving opportunities are thin. Cost-saving domestic mergers are more likely to increase national welfare in exporting industries. The best candidate industries for application of strategic antitrust policy are those with the following characteristics: (i) a large potential for efficiency enhancement; (ii) high market concentration at the world but not the domestic level; (iii) a high ratio of exports to imports. Recently, many policymakers and economists in Korea have also come to believe that the appropriate antitrust policy in an era of increased foreign competition may actually be to encourage rather than to prohibit domestic mergers. The Industry Development Act of 1986 and the proposed bill for Mergers and Conversions in the Financial Industry of 1990 reflect this changing perspective on antitrust policy. Antitrust laws may burden domestic firms in the sense that they have a more constrained strategy set. Expenditures to avoid antitrust attacks could also increase costs for domestic firms. But there is no clear evidence that the impact of antitrust policy is significant enough to harm the competitiveness of domestic firms. As a matter of fact, it is necessary for domestic financial institutions to become large in scale in this era of globalization. However, the absence of empirical evidence for efficiency enhancement from mergers suggests caution in the relaxation of antitrust standards.

• Journal of Internet Computing and Services
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• v.11 no.6
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• pp.135-144
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• 2010

Apple recently announced a new policy about software development kit that banned the use of tools that convert apps built on other platforms into iPhone apps. Therefore, Adobe cannot develop their software to AppStore that inquire to the Department of Justice and the Federal Trade Commission about antitrust actions. Someone argue that Apple try to exclusive smartphone market such as the Microsoft antitrust lawsuit in 1998, but this case is essentially different. First, it need to define Apple's software development kit for iPhone and iPad is whether antitrust or not. Because of the characteristics of two-sided market in Smartphone Apple's iPhone cannot monopoly in cellphone or smartphone market, but it can be an antitrust in application store market. However, Apple re-announced new software development kit policy that shows positive results. Instead of hastily intervened regulatory agencies, the DOJ or the FTC, it is quite desirable that watching the interaction between companies that whether market failures or not and if it's harmful for consumer's benefit. Adobe attack Apple to advocate consumers and developers freedom of choice, but the most important thing is conclusion based on a comprehensive analysis need to objective point of view that Apple do whether antitrust act or not and damage to developers and consumers who are both side of platform.

• STI Policy Review
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• v.8 no.1
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• pp.87-112
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• 2017

This study analyzes patenting practices in the pharmaceutical industry and the impacts of sequential innovation. The main argument of the research is that strategic patenting is common in the pharmaceutical sector and it is legal within the context of patent law. However, when these practices have negative effects on the competition process post-grant, the practices that are legal under patent law may come into conflict with antitrust laws, which are not applied. The study brings into question whether sequential patenting practices characteristic of the pharmaceutical industry encourage or discourage innovation, and moreover, the overall functionality of the patent system. Ultimately, the functionality of the patent system creates market incentives that neglect consumer, i.e., patient, welfare; potential solutions to deal with the shortcomings are discussed.

• Korea Journal of Hospital Management
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• v.3 no.1
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• pp.238-260
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• 1998

This article describes the theoretical foundations of government policy for hospitals in terms of correcting market failure and enhancing equity. It then discusses the characteristics that desirable payment systems should have, and the effects of the DRG-based prospective payment system on hospital behavior, its financial performance, hospital industry, and health care expenditure. The rationales and impacts of other public policies for hospitals such as antitrust and fair trade regulation, dissemination of practice guidelines and hospital mortality information, regulation of hospital capital investment, and tax policy are also discussed.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.49
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• pp.237-256
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• 2011

A Liner Conference can be defined as "a group of two or more vessel operating carriers which provide international liner services for the carriage of cargo on a particular route or routes within specific geographical limits and which has an agreement or arrangement within the framework of which they operate under uniform or common freight rates and any other agreed conditions with respect to the provisions of the liner services". This study reviews maritime transport policy regarding liner conference and the changes in the liner market over the decades. Liner shipping industry has long been protected from competition by block exemption. The repeal of the block exemption for liner conferences and the abolition of any special EC antitrust regime for the shipping industry marks an important step in European maritime competition policy. This article examines the origins and the rationale of the EC antitrust immunity granted so far th the shipping industry and explains the causes of this historic changes. The abolition of Regulation 4056/86 and of the EU commitment to the UN Code of Conduct marks an historical evolution in international maritime policy, which will have an influence far beyond the EU.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.45
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• pp.165-188
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• 2010

The repeal of the block exemption for liner conferences and the abolition of any "special EC antitrust regime" for the shipping industry marks an important step in European maritime competition policy. This article examines the origins and the rationale of the EC antitrust immunity granted so far to the shipping industry and explains the causes of this historical change. Moreover, based on the precedents which have appeared so far, a general assessment is offered under this new EC regime on agreements restricting competition in the liner shipping industry, in particular horizontal ones: conference and tariff/freight arrangements will be doomed, whereas the legitimacy of consortia agreements should not be cast in doubt; a case-by-case analysis will be the approach as regards exchange or dissemination of information by shipowners in the market, and the relevant case law which emerges on these matters in other industries will be the criterion for their evaluation. Finally, a few remarks are made in respect of the international dimension of the decision to outlaw liner conferences and hence carve out EU Member States from the UN Code of Conduct regime.

• Proceedings of the Technology Innovation Conference
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• 1996.12a
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• pp.196-238
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• 1996

Because global innovation-based competition is increasing and the amount of R&D expenditures becomes severely large, it is more likely that mergers and collaborative ventures tend to affect adversely to R&D competition Against this trend, enforcing agency of advanced countries including U.S.A are reassessing certain aspects of competition policy toward mergers and acquisition to ensure that procompetitive, efficiency-enhancing transactions are permitted. The role of competition policy is developing and appropriating new technology and protects the risks involved in the licensing contract of technologies. The role of intellectual property rights is also contrived to promote technological innovation and to increase consumer welfare. That is to say, dynamic efficiency of intellectual property rights includes (l) increase in social welfare and (2) promotion of growth by improvement of quality through invention and commercialization of new product as well as enhanced productive efficiency thorough appropriating new process. Because intellectual property rights are licensed to make use of complementary inputs, the rule of reason approach seems proper when applying antitrust law. To analyze the "Antitrust Guidelines for the Licensing and Acquisition of Intellectual Property"by DOJ and FTC in U.S.A, the author surveyed pros and cons on innovation market approach. This approach will only be used in a narrow range of situations when the evidence is solid, concentration numbers are extremely high, and the agencies can predict with a high degree of certainty that the merger will likely lead either to a slowing in the pace of innovation or the loss of an alternative research track that is likely to lead to a product beneficial to consumers. The author introduces the studies on licensing contract of intellectual property rights and competition polices on behalf of potential inquirers. Also the author invites the interdisciplinary researchers to analyze further with a model on the aspects of the "Notice 1995-10 for Types and Criteria on Unfair Transaction Behavior in International Contracts" by Fair Trade Committee of Korea.

• Journal of Korea Fair Competition Federation
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• no.73
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• pp.2-12
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• 2001

미 법무부의 독점금지국(the Antitrust of the U.S. Department of Justice)은, 지난달 제일제당과 두 일본기업이 미 독점금지법 위반을 인정하는데 동의했다고 발표하였다. 미 법무부 독점금지국은 미국 상거래에 영향을 주는 호전적 카르텔에 있어서는, 연루된 기업의 국적에 상관없이, 또한 그 기업이 미국 역내에 있느냐 역외에 있느냐를 불문하고 자국의 독점금지법을 일괄적으로 적용해 오고 있다. 따라서 이런 기업들은 미국 독점금지법하에서 벌금이나 심지어는 금고형으로부터 자유로울 수가 없는 것이 현실이다. 미 법무부의 독점금지국은 판사의 형 선고 재량권을 현저하게 약화시킨 형 선고에 관한 지침(United States Sentencing Guidelines), 그리고 카르텔 공동협력에 있어 공모에 대한 증거제공 및 공동행위를 신고한 기업에 대해 형량감경제도(Corporate Leniency policy)를 효율적으로 운영함으로써 지난 몇 년간 미국 역외에서 발생한 공동행위에 대해 수많은 형사적 유죄판결을 받아내었다. 지난 수십년간 독점금지국은 가격고정, 입찰담합, 시장할당 그리고 셔먼법에 의해 당연위법으로 인정되는 경쟁자간의 합의에 관련된 기업들과 개인들에 대해 조사하고 형사적으로 소추해왔다. 이 모두는 불합리하게 거래를 제한하는 합의로 독점금지법에 의해 금지되는 행위들이다. 연방법은 현재 셔먼법 위반에 대한 벌칙으로 거래를 제한하는 공모에 합의함으로써 셔먼법을 위반한 기업에게는 최고 1,000만 달러, 개인에게는 최고 35만 달러의 벌금을 부과할 수 있으며 최장 3년간의 징역에 처해 질 수 있다고 규정하고 있다. 그러나 벌금액은 1987년의 형사벌금개선법(The Criminal Fines Improvements Act: 법원이 개인 및 기업에 대한 범죄에 의해 야기된 이익이나 손실의 두 배에 해당하는 금액 중 더 큰 금액을 선택적으로 부과할 수 있다는 규정)에 의해 극적으로 늘어나고 있다. 이 논고에서는 미 법무부 독점금지국이 글로벌 카르텔과의 전쟁을 성공적으로 수행하게 된 과정을 간략하게 검토하고, 그 과정에서 다루어진 중요한 사건 중 두 사례를 선정해서 고찰해 보기로 하겠다.