Exclusiveness clause: It is reasonable limitation competition, still be unfair competition
Two " exclusiveness clause " contract case
Chinese larch capital because " exclusiveness clause " bring money (BitDJ) author Zhao Changpeng told Hong Kong court. One is the orgnaization of venture capital investment of global tip, one is the fictitious money exchange with the hottest whole world, both sides discharges him contend for correlation to go up the heat of area piece catenary and fictitious money, numerous PE pays close attention to the heat that initiates pair of exclusiveness items to discuss.
Lucky favour caffein " exclusiveness clause " the bit Buck is complained execute the law to national antitrust administration orgnaization and to court of concerned city people formal to lodge a complaint. One is the net Gong Xinxiu of coffee group, one is coffee group be the first eldest brother, because property rents clause of the exclusiveness in the contract to be troubled by,go up national level, temporarily between cause the masses to be opposite the attention of exclusiveness clause and discuss.
Exclusiveness clause basically applies setting
L patent permits: Discharge his patent to carry out a license, only patent person and can be carried out by permissive person patent.
LPE circle: Prohibit be being invested while the enterprise is undertaking negotiating with investor, with other investor the contact discusses, connect regular meeting to time is restricted.
L is concessionary manage: Will concessionary inside proper time, particular area right of administration awards be discharged by permissive person he is managed.
L sole sale agent: Namely exclusiveness sells an agreement, show manufacturing business offers money to distributors only inside contract district, distributors is OK exclusiveness ground sells a product; Manufacturing business and the other distributors that produce business must not sell a product actively in this district.
L property rents (commercial synthesis kind) : Operation square (owner) when operation plans, introduce a supplier only with respect to condition of some category, industry, setting, in order to obtain the right of supplier exclusiveness operation.
L is other etc, can appear normally in of all kinds agreement or this or that his clause.
Exclusiveness clause paraphrase
Exclusiveness clause serves as the typical article of the contract, have sanction to contract party only lawfully; Exclusiveness clause is seen from the name, "Discharge him " itself is pair of competitors (include direct competitor or indirect competitor) limitation.
So how does exclusiveness item restrict competition normally? Pass the exclusiveness clause analysis of pair of many categories contracts, above all: The goal that sets exclusiveness provision also is to be implementation contract purpose, include: PE raises negotiation efficiency to achieve negotiation through discharging his negotiation means purpose, concessionary manage through area platoon he permits means to pass his representative to avoid to be sold internal competition, solely means avoids a product to sell operation of internal competition, property appearing to enrol business through discharging his clause in the process is be. Next: Means of setting exclusiveness clause has list type and wraparound type two kinds, connect regular meeting to include: Category of time, area, direct competitor, indirect competition, fluctuation swims the supplier is waited a moment. Finally: Contract of exclusiveness clause tie is become thing square, to balance bilateral interest need.
Exclusiveness clause restricts competitive border
As above, the goal that sets exclusiveness provision is to restrict competition, so, what is the border that limitation of clause of the exclusiveness in of all kinds setting competes, how to discharge him to provide rationality more namely.
1, discharge his patent to carry out a license: Legal patent allows kind, be based on patent person and be permitted interest balance choice is applicable between the person, do not involve forestall competition normally; Can implement need because of country or public interest need and appurtenant patent, use carry out permissive manner change compulsively to discharge him to permit.
2, discharge his negotiation means: The blame such as choice of associate of common PE financing, strategy is common trade; Trade the clause of consideration choice exclusiveness that adversary just is based on negotiation efficiency normally, achieve thereby in a certain time paragraph inside the purpose of exclusive business opportunity; Because of trading adversary honest mistake brings about opportunity of one party business to miss, applicably " contract law " the 42nd in the clause that consults about ill will investigates duty of responsibility method law.
3, concessionary manage with sole sale agent: Both serves as most common fore-and-aft agreement, have the suspicion of fore-and-aft forestall inherently; Contract both sides swims for fluctuation normally enterprise, his clause is discharged to whether forestall goes in judging this agreement unfair competition, normally unified exam Lv trades the market position of adversary and competitor, market is entered it is difficulty, mature to purchase quality of business option, product and market degree; The key is purchasing business at whether be being encroached (consumer) legitimate rights and interests.
4, owner discharges him to enrol business: Owner uses exclusiveness clause to undertake enrolling business normally, in order to attract specific category, brand, in order to promote the competition ability of the bazaar of its place operation or synthesis; Exclusiveness clause more enrols trade measure as, should not involve unfair competition (or forestall) disrelish.
Altogether, exclusiveness clause regards commonly used contract as the clause, restricting internal competition is a method only, efficiency of stimulative business operation just is its purpose. Enhance the positive result that the market competes through exclusiveness clause, law grants his legal status; If produce unfair competition or combat competition because of its (forestall) negative effect, then direct or encroach secondhand trade adversary or consumer close right increase, be punished possibly by the executive authority. Accordingly, when choosing applicable exclusiveness item, the negative effect that should avoid its to arise is more than positive result, this especially important.
