A Tale of Two Courts: Handling Market Definition in Abuse of Dominance Cases Under Market Share-Based Statutory Power Presumptions in China and Korea

This article is part of a Chronicle. See more from this Chronicle

Yong Lim, Yunyu Shen, Feb 12, 2015

The decision by the Supreme People’s Court of the People’s Republic of China (“SPC”) in the Qihoo vs. Tencent case is notable in many aspects starting from the fact that it is the SPC’s first decision involving the country’s Anti-Monopoly Law. But, one eye-catching statement in the decision that commentators have been particularly quick to point out is the court’s opening salvo in its reasoning that an explicitly and clearly defined relevant market is not necessary for every abuse of dominance case brought under Article 17 of the AML. Other than hinting that the availability of evidence and relevant data, and the particular complexities of the market involved could all be factors in determining whether market definition is necessary, the decision does not provide further guidance as to determine whether and when, if at all, market definition would be required for antitrust analysis in abuse of dominance cases.

The unqualified and sweeping nature of the court’s declaration on market definition may prompt some to believe that the SPC has embraced the renewed criticism on the futility of the market definition exercise, and is on its way to eventually dumping market definition as a clumsy partner in antitrust analysis for the more adroit and nimble direct analysis of anticompetitive effects. As further explained below, the authors believe that the em