Lloyd's Maritime and Commercial Law Quarterly

Professor Francis D Rose

Document

THE RELATIONSHIP BETWEEN ECONOMIC DURESS AND ABUSE OF A DOMINANT POSITION

Pınar Akman*

This article investigates, for the first time in the literature, the relationship between the doctrine of economic duress in contract law and the prohibition of abuse of a dominant position in competition law. It finds that these doctrines are substantively rather similar, albeit with different functions in different areas of law. The similarity has important implications, particularly for commercial litigants, who could avail themselves of more favourable remedies such as nullity, damages and compulsory dealing in competition law, in comparison to mere voidability in contract law. This makes it all the more interesting that claimants do not seem to pursue these two issues as alternative grounds in their disputes: this article investigates economic duress cases that could also have been dealt with as abuse of dominance and vice versa. Using this investigation and the relevant theories, the article demonstrates the similarities and the differences between these two legal doctrines, as well as the implications of the intersection of these two doctrines for both claimants in practice and the relevant legal disciplines (ie contract law and competition law) in theory.

* Associate Professor in Law, University of Leeds. Support by the UEA Law School and ESRC Centre for Competition Policy, University of East Anglia, where the author completed most of the research in this article is gratefully acknowledged. The author would like to thank Peter Whelan, Duncan Sheehan, Michael Harker, Morten Hviid, Giorgio Monti, participants at a seminar at the European University Institute in November 2012 and two anonymous referees for very helpful comments. The usual disclaimer applies.

The following abbreviations are used in the footnotes:

Akman (2012): P Akman, The Concept of Abuse in EU Competition Law: Law and Economic Approaches (Hart, Oxford, 2012);

Beatson: J Beatson, The Use and Abuse of Unjust Enrichment: Essays on the Law of Restitution (Clarendon Press, Oxford, 1991);

Bigwood: R Bigwood, Exploitative Contracts (Oxford University Press, Oxford, 2003);

Burrows: A Burrows, The Law of Restitution, 3rd edn (Oxford University Press, Oxford, 2011);

Collins: H Collins, The Law of Contract, 4th edn (Butterworths, London, 2003);

Competition Regulation 1: Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2003] OJ L1/1;

Hovenkamp: H Hovenkamp, “Harvard, Chicago, and transaction cost economics in antitrust analysis” (2010) 55 The Antitrust Bulletin 613;

Jones & Sufrin: A Jones and B Sufrin, EU Competition Law, 4th edn (Oxford University Press, Oxford, 2011);

McKendrick: E McKendrick, Contract Law: Text, Cases, and Materials, 4th edn (Oxford University Press, Oxford, 2010);

Smith–Atiyah: SA Smith, Atiyah's Introduction to the Law of Contract, 6th edn (Clarendon Press, Oxford, 2005);

Trebilcock: MJ Trebilcock, The Limits of Freedom of Contract (Harvard University Press, Cambridge MA, 1997);

Treitel: E Peel (ed.), GH Treitel: The Law of Contract, 13th edn (Sweet & Maxwell, London, 2010);

Whish & Bailey: R Whish and D Bailey, Competition Law, 7th edn (Oxford University Press, Oxford, 2012).

100

The rest of this document is only available to i-law.com online subscribers.

If you are already a subscriber, click Log In button.