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An unilateral refusal to deal is governed as either an abuse of market dominance(under Article 3-2) or an unfair trade practice(under Article 23(1)(1)) under the Monopoly Regulation and Fair Trade Act(the “MRFTA”). In this regard, there have been much disputes over the criteria of assessment of the unfairness of unilateral refusal to deal, and the Korea Fair Trade Commission(the “KFTC”) has recently decided the Microsoft Korea case(the “Microsoft Case”), in which it assessed an unilateral refusal to deal on the basis of criteria of restriction in competition.

On another note, based on the restriction in competition criteria as adopted by the KFTC, such unilateral refusal to deal shall be assessed based on whether or not it would restrict competition in the relevant market. In this regard, since the relevant market shall include a market to which the counterparty belongs (in addition to a market to which the undertaking belongs), a variety of refusal to deal cases in terms of its forms and how it affects competition have transpired to date &\#8211\; such as (i) where the undertaking intends to exclude competitors in the upstream market, (ii) where the undertaking intends to exclude competitors in the downstream market, or (iii) where the undertaking makes a pure vertical refusal to deal (i.e., excluding a certain counterparty in the downstream market).

This article is aimed at reviewing the types of refusal to deal based on the Korean court and the KFTC precedents, and in particular, reviewing refusal to deal cases in non-vertically integrated markets(including the Microsoft Case) and their implications, as appropriate.

Youngyoul Kim
(Attorney at Law, HMP Law)

[Korean Economic Law Review, Vol. 20-2, Aug. 2021]