Covid-19 Pandemic and Abuse of Economic Dependence. Short-run Market Vulnerability and Exploitative conduct

Pandémie Covid-19 et abus de dépendance économique. Vulnérabilité du marché à court terme et conduite d'exploitation

Safieddine Bouali (safi@topnet.tn)
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Safieddine Bouali: ISG - Institut Supérieur de Gestion de Tunis [Tunis] - Université de Tunis

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Abstract: Economic disruptions due to the global Covid-19 pandemic have unleashed uncountable litigation between firms on how to enforce their contractual relationships. In this context, the survival of undertakings becomes a real issue when partners in vertical relationships or global value chains behave opportunistically. Should this exploitative conduct be scrutinized as anti-competitive practices by the competition authorities in full separation from ordinary courts? In this paper, we argue that the well-known rule of abuse of the state of economic dependence (ASED) could deter opportunism that arises likewise during the Covid-19 pandemic or any other global crises. Actually, rejected by the Chicago School of Antitrust, and not acknowledged by the contract doctrine except its facet of negligent conduct, exploitative abuses could reintegrate the list of harmful practices to the consumers albeit after an intricate analysis. The article further investigates the extent to which the ASED, deterring a wide spectrum of exploitative conduct, fills the gap left by the provisions punishing unfair practices albeit it confers a considerable room for the specialist judges' discretion. Such ASED implementation would ensure more deterrence of the lawful opportunism inasmuch it narrows cracks of the legal corpus between exclusionary and exploitative abuses.

Keywords: Covid-19; Exploitative conduct; Competition Law; Contract Governance; Abuse of State of Economic dependence (search for similar items in EconPapers)
Date: 2020-05-05
New Economics Papers: this item is included in nep-com and nep-hme
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