The Legality of Vertical Restraints by the Rule of Reason and the Character of the Specific Investments[Правомерность Вертикальных Ограничивающих Соглашений С Позиции "Взвешенного Подхода" И Характер Специфических Инвестиций]

The underinvestment in the specific assets due to the “hold up” is one of the key issues in the theory of the firm. Till the very end of the twentieth century discussing the “hold up” problem researchers considered only the so-called “selfish” relation-specific investments. But later their attention was switched to the analysis of another specific investments type, named “cooperative” or “cross” investments, which is much more risky than the selfish investments. Besides that, the riskiness of such investments depends on their specifity degree — the specific investments can be partly specific or full specific. In its turn, the degree of specifity determined by the partners’ ability to benefit from selfish or cooperative specific investments in contacts with “alternative” contractors. If such gains equal zero, that specific investments (cooperative or selfish) are full specific to the “main” partner. Respectively, if the gains from partnership with “alternative” contractors are more than zero, that such specific investments are partly specific to the “main” partner. Unfortunately the present regulatory documents, determining the application the rule of reason, don’t take into account the character of specific investments. The negative consequences of such approach are illustrated in the first part of the article, where the court’s decision in case of Pierre Fabre Dermo-Cosmetique SAS (PFDC) v. President de l’Autorite de la concurrence, Ministre de l’Economie, de l’Industrie et de l’Emploi is analyzed. The second part of the article is dedicated to the discussion of possible solutions of this problem.