미국 연방대법원의 American Express 판결이 양면 플랫폼에서의 관련시장 획정에 주는 함의
The U.S. Supreme Court’s American Express Decision and Its Implications for Market Definition in Platform Businesses
0
조회
0
다운로드
9
인용
0
참고문헌
키워드
초록
In Ohio v. American Express Co., The U.S. Supreme Court had its first opportunity to decide whether, in antitrust analysis, a relevant market involving a two-sided platform business model should be defined as one single market or two separate markets. The Court’s majority held that defining a single market encompassing both sides of a platform is a proper market definition at least for a particular subcategory of platforms called “two-sided transaction platforms.” A transaction platform, according to the Amex majority, supplies a service that facilitates a single simultaneous transaction between the two consumer groups on different sides of the platform-in this case, a credit-card transaction between a merchant and a cardholder. Because this single product is best understood as being jointly consumed by both sides’ consumer groups, a credit-card market should be defined as a whole, the Court’s majority opinion further explained. While the Amex decision was welcomed by some commentators for setting an unique precedent for platform market definition, the decision left many important questions unanswered, unfortunately. Relying heavily on the economic theory still subject to the ongoing debates in academia, the Court failed to account for what the rationale for its classification of transaction/non-transaction platforms is, given that transaction platforms such as Uber can still compete with traditional non-platform taxi services. The Court’s “single-market approach” also did not respond to a normative question of whether harm to one group of customers, in evaluating anti-competitive effects, can be justifiably offset by net gains to another customer group on the other side of the platform, let alone a practical issue of how to assess such balancing of effects. These issues will soon be revisited and tackled by the KFTC faced with emerging regulatory challenges in tech industry, as the industry landscape has went through an upheaval ever since the KFTC’s 10-year old precedent of the eBay/Gmarket merger case.
Abstract
In Ohio v. American Express Co., The U.S. Supreme Court had its first opportunity to decide whether, in antitrust analysis, a relevant market involving a two-sided platform business model should be defined as one single market or two separate markets. The Court’s majority held that defining a single market encompassing both sides of a platform is a proper market definition at least for a particular subcategory of platforms called “two-sided transaction platforms.” A transaction platform, according to the Amex majority, supplies a service that facilitates a single simultaneous transaction between the two consumer groups on different sides of the platform-in this case, a credit-card transaction between a merchant and a cardholder. Because this single product is best understood as being jointly consumed by both sides’ consumer groups, a credit-card market should be defined as a whole, the Court’s majority opinion further explained. While the Amex decision was welcomed by some commentators for setting an unique precedent for platform market definition, the decision left many important questions unanswered, unfortunately. Relying heavily on the economic theory still subject to the ongoing debates in academia, the Court failed to account for what the rationale for its classification of transaction/non-transaction platforms is, given that transaction platforms such as Uber can still compete with traditional non-platform taxi services. The Court’s “single-market approach” also did not respond to a normative question of whether harm to one group of customers, in evaluating anti-competitive effects, can be justifiably offset by net gains to another customer group on the other side of the platform, let alone a practical issue of how to assess such balancing of effects. These issues will soon be revisited and tackled by the KFTC faced with emerging regulatory challenges in tech industry, as the industry landscape has went through an upheaval ever since the KFTC’s 10-year old precedent of the eBay/Gmarket merger case.
참고문헌 (33)
- 권오승, "독점규제법: 이론과 실무" (2017), 법문사
- 김현수, "양면시장에서의 시장획정 및 시장지배력 평가", 안암법학, (34), pp.759~790 (2011), 안암법학회[DOI]
- 변정욱, "온라인 양면 거래 플랫폼의 시장획정 및 시장지배력 판단", 경쟁법연구, 37, pp.119~147 (2018), 한국경쟁법학회[DOI]
- 심재한, "독일경쟁법의 인터넷 플랫폼 적용사례 연구", 경쟁과 법, (7) (2016), 서울대학교 경쟁법센터
- 이석준, "온라인 유통업체 기업결합에 있어서 경쟁법적 이슈 검토: eBay의 G마켓 주식인수 건의 시장획정을 중심으로", 경쟁저널, (145) (2009), 한국공정경쟁연합회
- 이봉의, "ICT 분야 플랫폼의 개념과 경쟁법적 함의", 경쟁과 법, (7) (2016), 서울대학교 경쟁법센터
- 이봉의, "시장경제와 사회조화, 남천 권오승 교수 정년기념논문집" (2015), 법문사
- 이상규, "경쟁법 적용을 위한 보완재 상품군의 시장획정", 경제학연구, 61(3), pp.5~45 (2013), 한국경제학회
- 이상규, "양면시장의 정의 및 조건", 정보통신정책연구, 17(4), pp.73~105 (2010), 정보통신정책학회
- 정세훈, "양면시장에서의 시장 획정", 경쟁저널, (196) (2018), 한국공정경쟁연합회
- 조혜신, "온라인 플랫폼 경쟁에 대한 경쟁법의 적용: 규범적 접근방법의 모색", 경쟁과 법, (7) (2016), 서울대학교 경쟁법센터
- 최승재, "티브로드사건과 양면시장이론의 적용 가능성", 경쟁저널, (143) (2009), 한국공정경쟁연합회
- 디지털 시장의 특성과 경쟁법 적용: 이론과 사례 분석, "홍동표", 한국공정거래조정원, ~ (2018)
- 황창식, "다면적 플랫폼 사업자에 대한 공정거래규제 －양면시장이론의 경쟁법적 적용 및 대법원의 티브로드 강서방송 판결 등의 사례분석을 중심으로－", 정보법학, 13(2), pp.97~148 (2009), 한국정보법학회
- Andrew I. Gavil, "The Many Sides of Ohio vs. American Express Co., Antitrust(Fall 2018)", Antitrust, (Fall) (2018), ABA Section of Antitrust Law
- Alan S. Frankel, "Another Side to the Story: Amex and the Quest for Efficient Payment Systems", Antitrust, (Fall) (2018), ABA Section of Antitrust Law
- Benjamin Klein, "Competition in Two-Sided Markets: The Antitrust Economics of Payment Card Interchange Fees", Antitrust L. J, 73, pp.571~ (2006), ABA Section of Antitrust Law
- Cyril Ritter, "Antitrust in Two-Sided Markets: Looking at the U.S. Supreme Court’s Amex Case from an EU Perspective", J. of Comp. L. & P., 10(3) (2019)
- David S. Evans, "The Antitrust Economics of Multi-Sided Platform Markets", Yale J. on Reg, 20, pp.2~ (2003)
- David S. Evans, "Defining Antitrust Markets When Firm Operating Two-Sided Platforms", Columbia Bus. L. Rev, (3), pp.101~ (2005)
- David Evans, "Issues in Competition Law and Policy, Vol. 667" (2008)
- Gregory J. Werden, "Competition Policy and the Economic Approach: Foundations and Limitations" (2011), Edward Elgar Publishing Ltd
- Hausfeld, "Applying Amex: When Two-Sided Platforms Becomes One Market, Antitrust", Antitrust, (Fall) (2018), ABA Section of Antitrust Law
- Herbert Hovenkamp, "Platforms and the Rule of Reason: The American Express Case", Columbia Business Law Review, (1) (2019)
- Herbert Hovenkamp, "Federal Antitrust Policy: The Law of Competition and Its Processes" (2015), West Publishing Co
- Jean-Charles Rochet, "Two-Sided Markets: A Progressive Report", Rand J. of Econ, 37, pp.3~ (2006)
- A SSNIP Test for Two-Sided Markets: The Case of Media, "Lapo Filistrucchi", NET Institute, ~, pp.NET Institute Working Paper No. 08-34 (2008)
- Market Definition in Two-Sided Markets: Theory and Practice, "Lapo Filistrucchi", TILEG, ~, pp.TILEG Discussion Paper No.2013-009 (2013)
- Marshall W. Van Alstyne, "Pipelines, Platforms, and the New Rules of Strategy: Scale Now Trumps Differentiation", Harvard Business Review (2016)
- Mark Armstrong, "Competition in Two-Sided Markets", RAND J. of Econ, 27, pp.668~ (2006)
- Michael Katz, "Multisided Platforms and Antitrust Enforcement", The Yale Law Journal (2018)
- Richard M. Brunell, "Ohio v. Amex: Not So Bad After All?", Antitrust, (Fall) (2018), ABA Section of Antitrust Law
- Vikas Kathuria, "Platform Competition and Market Definition in the US Amex Case: Lessons for Economics and Law", European Competition Journal (2019)