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Article

Современные теоретические подходы к анализу эксклюзивных соглашений и законодательные нормы их регулирования

The article argues the undesirability of introducing recently proposed changes in the regime of vertical restrictions regulation in Russia. They are similar to the changes, which were introduced in the United States by Robinson – Patman (1936) and Miller – Tydings (1937) Acts. But at the same time these new rules stand in sharp contrast to modern practice of antimonopoly regulation in the USA and the EC countries. At the moment even the most extreme types of vertical restrictions – the exclusive contracts that prohibit selling goods or acquiring them from any but the contracted side – are not automatically condemned as per se illegal. The softening of the regime of regulation was due to the recognition that vertical agreements should not be considered along the horizontal interactions only. The underlying motivation for their introduction can be much wider and may have nothing common with the foreclosure reasons. The article provides an overview of modern institutional theoretical approaches that could potentially be used in the analysis of exclusive agreements (and vertical restraints in general). It is not just the traditional analysis of the exclusive dealing through the lens of investment fostering, but also the considerations based on the multitask moral hazard theory, the «reference point» approach [Hart and Moor 2008] and vertical integration theory of Baker, Gibbons and Murthy.