ABSTRACT: A number of recent cases have involved a hitherto rarely observed form of Most Favoured Nation clauses in which sellers through an internet retail platform agree not to sell at a lower price elsewhere, including through other retail platforms. We first note that such Retail Price MFN clauses rely on some form of RPM for their existence. We then argue that much of the existing academic literature and case law on RPM effectively combines two elements of RPM, an explicit (and inherent) vertical element and a more implicit horizontal element, the latter being particularly egregious in terms of anticompetitive harm. As retail price MFN clauses essentially mimic this latter, and worst, element of the RPM, we finally argue that such clauses should be treated no less harshly than RPM under competition law.
KEYWORDS: Retain Price Most Favoured Nation clauses, Retail Price Maintenance, anticompetitive effects, competition law
CITATION: Fletcher, A. & Hviid, M. (2014) "Retail Price MFNs: Are they RPM 'at its worst'?", CCP Working Paper 14-5