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Vertical Agreements in 35 Jurisdictions Worldwide 2014 Contributing Editor: Stephen Kinsella OBE

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Vertical Agreements in 35 jurisdictions worldwide 2014 Contributing editor: Stephen Kinsella OBE Published by Getting the Deal Through in association with: Accura Advokatpartnerselskab Advokatfirmaet Steenstrup Stordrange DA Allende & Brea Antitrust Advisory Ashurst Advokatbyrå AB Asters Baker & McKenzie Bán, S Szabó & Partners Banning NV Caiado Guerreiro & Associados Cortázar Urdaneta & Cía – Abogados De Berti Jacchia Franchini Forlani Dentons Europe CS LLP Glade Michel Wirtz Golfinopoulos Law Office Herbert Smith Freehills LLP Homburger J Sagar Associates King & Wood Mallesons Korman & Oren Kramer Levin Legal and Economic Avantgarde SC Levy & Salomão Advogados Matheson Momo-o Matsuo & Namba Peli Filip SCA Pellegrini & Cía Sidley Austin LLP Soewito Suhardiman Eddymurthy Kardono (SSEK) Vivien & Associés Wolf Theiss Zaid Ibrahim & Co CONTENTS Vertical Agreements 2014 Increased Scrutiny of Most Favoured Nation European Union 79 Clauses in Vertical Agreements 3 Stephen Kinsella OBE, Stephen Spinks, Contributing editor: Noëlle Lenoir, Marco Plankensteiner and Patrick Harrison and Rosanna Connolly Stephen Kinsella OBE Elise Créquer Sidley Austin LLP Sidley Austin LLP Kramer Levin France 92 Argentina 6 Muriel Perrier Getting the Deal Through is delighted Julián Peña Vivien & Associés Allende & Brea to publish the eighth edition of Vertical Agreements, a volume in our series of Germany 100 annual reports that provide international Australia 13 Markus M Wirtz and Silke Möller analysis in key areas of law and policy Wayne Leach and Sharon Henrick Glade Michel Wirtz for corporate counsel, cross-border legal King & Wood Mallesons practitioners and business people. Greece 110 Austria 21 Christos Golfinopoulos Following the format adopted throughout Guenter Bauer and Robert Wagner Golfinopoulos Law Office the series, the same key questions are Wolf Theiss answered by leading practitioners in each of the 35 jurisdictions featured. New Hungary 119 Brazil 29 jurisdictions this year include Indonesia, Chrysta Bán Norway, Russia and Sweden. There is also Alexandre Ditzel Faraco, Ana Paula Bán, S Szabó & Partners a new chapter on most-favoured-nation Martinez and Mariana Tavares de Araujo Levy & Salomão Advogados clauses. India 127 Amit Kapur, Farhad Sorabjee and Every effort has been made to ensure Chile 37 Amitabh Kumar that matters of concern to readers are Julio Pellegrini and Pedro Rencoret J Sagar Associates covered. However, specific legal advice Pellegrini & Cía should always be sought from experienced Indonesia 136 local advisers. Getting the Deal Through China 45 Fahrul S Yusuf and Meta N Mustikaningrum publications are updated annually. Please Chen Yang and Lei Li Soewito Suhardiman Eddymurthy Kardono ensure you are referring to the latest print Sidley Austin LLP (SSEK) edition or to the online version at www.GettingTheDealThrough.com. Colombia 54 Ireland 143 Getting the Deal Through gratefully Javier Cortázar-Mora Helen Kelly acknowledges the efforts of all the Cortázar Urdaneta & Cía – Abogados Matheson contributors to this volume, who were chosen for their recognised expertise. We Czech Republic 61 Israel 151 would also like to extend special thanks Katerina Schenkova William B Korman and Nachum Oren to contributing editor Stephen Kinsella Baker & McKenzie Korman & Oren OBE of Sidley Austin LLP for his continued assistance with this volume. Denmark 70 Italy 162 Getting the Deal Through Christina Heiberg-Grevy and Fabio Ferraro and Andrew G Paton Malene Gry-Jensen De Berti Jacchia Franchini Forlani London Accura Advokatpartnerselskab March 2014 Publisher The information provided in this publication is Gideon Roberton Law general and may not apply in a specific situation. [email protected] Legal advice should always be sought before Business taking any legal action based on the information Subscriptions provided. This information is not intended to Rachel Nurse Research create, nor does receipt of it constitute, a lawyer– [email protected] client relationship. The publishers and authors Published by accept no responsibility for any acts or omissions Business development managers Law Business Research Ltd contained herein. Although the information George Ingledew 87 Lancaster Road provided is accurate as of March 2014, be [email protected] London W11 1QQ, UK advised that this is a developing area. Tel: +44 20 7908 1188 Alan Lee Fax: +44 20 7229 6910 Printed and distributed by [email protected] © Law Business Research Ltd 2014 Encompass Print Solutions No photocopying: copyright licences do not apply. Tel: 0844 2480 112 Dan White First published 2007 [email protected] Eighth edition 2014 ISSN 1753-9250 www.gettingthedealthrough.com 1 CONTENTS Japan 174 Romania 224 Switzerland 271 Nobuaki Mukai Carmen Peli and Manuela Lupeanu Franz Hoffet, Marcel Dietrich, Gerald Brei Momo-o, Matsuo & Namba Peli Filip SCA and Barbara Wälchli Homburger Malaysia 183 Russia 235 Sharon Tan Alexander Egorushkin and Igor Panshensky Ukraine 280 Zaid Ibrahim & Co Antitrust Advisory Igor Svechkar and Oleksandr Voznyuk Asters Mexico 191 Serbia 243 León Ricardo Elizondo Castro Guenter Bauer and Maja Stankovi´c United Kingdom 288 Legal and Economic Avantgarde SC Wolf Theiss Stephen Kinsella OBE, David Went, Patrick Harrison and Rosanna Connolly Sidley Austin LLP Netherlands 199 Slovakia 251 Minos van Joolingen and Martijn Jongmans Katarína Pecnová Banning NV Dentons Europe CS LLP United States 301 Joel Mitnick Sidley Austin LLP Norway 208 Spain 258 Thomas Sando and Aksel Joachim Hageler Luis Blanquez and Manuel Contreras Advokatfirmaet Steenstrup Stordrange DA Herbert Smith Freehills LLP Portugal 216 Sweden 265 Joana Gomes dos Santos Mats Johnsson and Elsa Arbrandt Caiado Guerreiro & Associados Ashurst Advokatbyrå AB 2 Getting the Deal Through – Vertical Agreements 2014 Sidley Austin LLP UNITED STATES United States Joel Mitnick Sidley Austin LLP Antitrust law Types of vertical restraint 1 What are the legal sources that set out the antitrust law applicable to 2 List and describe the types of vertical restraints that are subject vertical restraints? to antitrust law. Is the concept of vertical restraint defined in the A number of federal statutes bear directly on the legality of verti- antitrust law? cal restraints. Section 1 of the Sherman Act is the federal antitrust The varying forms of vertical restraints are not expressly defined by statute most often cited in vertical restraint cases. Section 1 prohibits statute. Rather, these concepts have evolved through judicial decision- ‘every contract, combination in the form of trust or otherwise, or making, which is commonly referred to as the ‘common law’ of conspiracy, in restraint of trade’ (15 USC, section 1 (2006)). Section antitrust. Numerous types of vertical restraints have been the subject 1 serves as a basis for challenges to such vertical restraints as resale of review under the applicable antitrust laws, the most common of price maintenance, exclusive dealing, tying, and certain customer or which are the following: territorial restraints on the resale of goods. • resale price maintenance – agreements between persons at dif- Unlike section 1, section 2 of the Sherman Act reaches single-firm ferent levels of the distribution structure on the price at which a conduct. Section 2 declares that ‘every person who shall monopolise customer will resell the goods or services supplied. Resale price or attempt to monopolise […] any part of the trade or commerce maintenance can take the form of setting a specific price; but among the several States, or with foreign nations, shall be deemed commonly it involves either setting a price floor below which guilty of a felony’ (15 USC, section 2 (2006)). In the distribution (minimum resale price maintenance) or a price ceiling above context, section 2 may apply where a firm has market power which (maximum resale price maintenance) sales cannot occur; significant enough to raise prices or limit market output unilaterally. • customer and territorial restraints – these involve a supplier or Section 3 of the Clayton Act makes it unlawful to sell goods on upstream manufacturer of a product prohibiting a distributor the condition that the purchaser refrain from buying a competitor’s from selling outside an assigned territory or particular category goods if the effect may be to substantially lessen competition (15 of customers; USC, section 14 (2006)). • channel of distribution restraints – these function similarly to Finally, section 5(a)(1) of the Federal Trade Commission Act customer or territorial restraints in that an upstream manufac- (FTC Act) has application to vertical restraints. This declares turer or supplier of a product prohibits a distributor from selling unlawful unfair methods of competition (15 USC, section 45(a)(1) outside an approved channel of distribution. Commonly, such (2006)). Section 5(a)(1) violations are solely within the jurisdiction restraints involve a luxury goods manufacturer prohibiting its of the FTC. As a general matter, the FTC has interpreted the FTC distributors from selling over the internet; Act consistently with the sections of the Sherman and Clayton Acts • exclusive dealing arrangements – these require a buyer to pur- applicable to vertical restraints. In December 2009, however, the chase products or services for a period of time exclusively from FTC filed a complaint against Intel Corp in which the FTC asserted one supplier. The arrangement may take the form of an agree-
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