The Exploitative Abuse Prohibition

• Date: 01 December 2017
• Published date: 01 December 2017
• DOI: 10.1177/0003603X17733358

Article

The Exploitative Abuse Prohibition:

Activated by Modern Issues

Tadashi Shiraishi*

Abstract

The prohibition of exploitative abuse has attracted increasing attention in recent years, activated by

many modern issues, also involving intellectual property rights. This article takes a bird’s-eye view of

the policy distance between the United States, a core supporter of nonintervention, and the European

Union, a core supporter of modest intervention. The article also examines the response of Japanese

law, which includes the prevention of abuse of a superior bargaining position, a functional equivalent to

the prohibition of exploitative abuse in this context. The provision against abuses of a superior bar-

gaining position in Japan has been recently enforced in the context of private lawsuits as well. Such a

holistic research framework will enable us to explore the potential responses of competition law to

the challenges raised by data protection, the sharing economy, and other modern issues.

Keywords

abuse of a dominant position, exploitative abuse, abuse of a superior bargaining position

I. Introduction

This article aims to explore the situations in which the exploitative abuse prohibition has been

activated by modern issues, also involving intellectual property rights. “Exploitative abuse” can be

defined as any firm’s conduct that directly imposes an excessive disadvantage on customers; this can

be done without colluding with or excluding competitors. The concept of customers, as employed in

this article, includes sellers, in particular when we are interested in an exploitative abuse by a

purchaser.

Collusion and exclusion are the two main fields that are of interest for competition law. In contrast,

exploitative abuse has been almost entirely excluded from consideration, mostly because it has not

been regarded as an antitrust issue in the United States (U.S.), the home of one of the world’s first

competition laws.

However, competition law in the European Union (EU) has solidly maintained this antitrust cate-

gory, even more recently, and there seems to be an emerging recognition of the importance, even in the

*Graduate Schools for Law and Politics, University of Tokyo, Tokyo, Japan

Corresponding Author:

Tadashi Shiraishi, Graduate Schools for Law and Politics, University of Tokyo, Tokyo 113-0033, Japan.

Email: tsx@j.u-tokyo.ac.jp

The Antitrust Bulletin

2017, Vol. 62(4) 737-751

ªThe Author(s) 2017

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DOI: 10.1177/0003603X17733358

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