• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.12
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• pp.555-586
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• 1999

United States has extended the extraterritorial application of U.S. Antitrust Law in 1990s. First, The U.S. Federal Supreme Court declared in Hartford Fire Insurance Co. v. California that the extraterritorial application of U.S. Antitrust Law is according to Effect Doctrine. Therefore, U.S. Antirust Division and FTC will continue to base their assertions of juridiction on the test of direct, substantial and foreseeable effects on U.S. interests. Second, U.S. Antitrust Law apply to foreign conduct that such conduct has direct, substantial and reasonably foreseeable effect on U.S. domestic or import commerce and export commerce. Third, United States has extended the extraterritorial application of U.S. Antitrust Law on international licensing contract or international merger. Forth, United States impose criminal responsbility of U.S. Antitrust Law on the foreign anticompetitive conduct. Therefore, our government and industries must consider the corresponding stratigies against the extension of the extraterritorial application of U.S. Antitrust Law.

• 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.

• Electronics and Telecommunications Trends
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• v.33 no.2
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• pp.64-76
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• 2018

This paper addresses the antitrust case of Google's general search service to find evidence and logic used for defining markets, and the proof of dominant power and its abuse in detail. This antitrust case has certain meaning because it is not easy to apply traditional approaches to a general search service, which has two-sided market characteristics. This paper finds some implications through an analysis of the antitrust case shown below. First, for market definition, the overall qualitative analysis can be used to draw conclusions without a quantitative analysis, such as a Small but Significant and Non-transitory Increasing in Price (SSNIP) analysis. Second, the multi-homing behavior seems to be one of the key factors in judging the dominant power in Internet-based services. Lastly, the fact that the value of traffic can differ based on the traffic source needs to be considered to address the competition issue of Internet-based services.

• Journal of Legislation Research
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• no.44
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• pp.801-828
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• 2013

This essay provides a legislative perspective on conflict-of-laws issues in the area of antitrust law. A consistent focus on the affected market question of applicable law is possible and yields content and acceptable results. The law applicable to damages claims should follow the law applicable to the antitrust relation itself. It is problematic, however, where more than one market is affected. In my view, the European perspective provides one general lesson for us. We are not yet prepared to accept american-style of class action in the field of antitrust law, at least until the european have made their legislative decision. Nevertheless we should make our antitrust system more effective, so that it would have strong deterrence to anti-competitive conducts. In this paper I present a proposal for adoption of a international conflict of law instrument, possibly a regulation, on damages actions for breach of art. 32 Korean Anti-trust Law.

• 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.

• Journal of the Korea Safety Management & Science
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• v.6 no.1
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• pp.247-256
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• 2004

Recently, International Standardization is an important issue in competitive world market because of integration of standard, liberalization of international trade and globalization. Consequently, Korean companies need a strategy about corresponding to market circumstance and global standard. In this study, we examine Intellectual Property, Patent and Antitrust Law which are related to standardization. This study suggests company strategy and system integration model to dispose the global standard.

• Journal of Korea Fair Competition Federation
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• no.118
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• pp.70-79
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• 2005

• The Korean Society of Law and Medicine
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• v.12 no.2
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• pp.295-316
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• 2011

If the medical staff privileges, which mean the eligibility to practice at open hospitals, are excluded in the United States, antitrust claims based on the violation of the Sherman Act have been raised a lot. The proliferation of these lawsuits in the United States, which are characterized as antitrust lawsuits, can be understandable situation. The reason is because doctors who don't belong to specific hospitals are seriously damaged, if the medical staff privileges are excluded and doctors cannot use facilities of open hospitals. In order to decide to allow the privileges of certain doctors, hospitals have to rely on peer review to maintain high quality of medical services, and it is not easy to find alternative of peer review in the professional areas like healthcare. However, there are possibilities that members of the peer review can abuse power to unfairly exclude privileges of potential competitors. In this sense, it is asserted in the U.S. antitrust lawsuits that the restraint of medical staff privilege can be the illegal restraint of trade in violation of section 1 of Sherman Act and can be monopolization or an attempt to monopoly by hospitals in violation of section 2 of Sherman Act. As Korea adopted open hospital system quite recently, there is still no case related with the exclusion of medical staff privileges. However, medical staff privilege system of Korea is not different from that of the United States in principle. Thus, the U.S. jurisprudence on the exclusion of medical staff privileges can be referred in the interpretation of "practice that interferes with or restricts the activities or contents of the business" based on Article 19.1.9 of Monopoly Regulation and Fair Trade Law of Korea.