CONTENTS

INTRODUCTION
PART ¢ñ THE ORIGIN OF EFD
1. The Origin of EFD under US Law
2. The Origin of EFD under EC Law
3. Comparison
PART II THE EVOLUTION AND APPLICATION OF EFD UNDER US AND EU LAW
1. The Evolution and Application of EFD under US Law
¡¤ US v. Terminal Railroad Association of St. Louis
¡¤ Associated Press v. US
¡¤ Otter Tail Power Co. v. United States
¡¤ MCI v. AT&T
² Requirement One: Monopoly Power or its Substitute
² Requirement Two: Non-duplicability Situation
² Requirement Three: Feasibility of Shared Access
2. The Evolution and Application of EFD under EU law
3. Comparison
4. The Rational for the Difference.
PART ¢ó ESSENTIAL FACILITY DOCTRINE AND INTELLECTUAL PROPERTY
PART ¢ô PROPOSALS FOR CHINA¡¯S COMPETITION LAW
1. The Problem
2. The Proposals
CONCLUSION
This paper discusses the legal issue of Essential Facilities Doctrine in the context of US and EC competition law and the interface with intellectual property. It argues that wide divergence among US and EC case law on Essential Facility Doctrine exists under their jurisdictions. Furthermore, it analyzes the most controversial field involving IP and essential facility doctrine. The core scope of this paper is to compare the different legal approaches of essential facility doctrine from its origin, modification and application in respective practices and construct a comparatively reasonable plan for the choice of China.

INTRODUCTION
It could be recognized that since the appearance of the case United States v. Terminal Railroad Association[1], essential facility doctrine has been presented as a disputed legal issue for almost one century. The doctrine recognizes firms holding a monopoly power in a crucial level of production in an industry may be obliged to provide their rivals in common markets access to its essential facilities. It implies that a monopolist even threatened in competition by its counterparts may have to grant products or services produced in a bottleneck stage to them according to the non-discriminatory conditions.[2]
Right to access to an essential facility controlled by a monopolist has long been a controversial issue under both US and EC antitrust law. On the one hand, it is assumed that if a company is compelled to permit competitors to access to its own creations or required to share its property with rivals, it is a restriction of freedom of contract and also a kind of impingement of its property rights. Worse still, it will hamper any essential facility owners¡¯ incentive to innovation[3] while other competitors could take free ride on it.[4] On the other hand, if the owner of essential facilities with anticompetitive intention refuses other competitors to access, this kind of behavior will prevent competition and be contrary to the purpose of the antitrust law. So the proper balance is to adopt an analytical test measuring when other competitors can be admitted to access to essential facilities.
However, some academics like Derek Ridyard arguing that there is no such an existing framework of test[5] even US and EC have set forth the criteria. As Professor Areeda summed up in his well-known article ¡®Essential Facilities: An Epithet in need of Limiting Principles¡¯ that ¡®you will not find any case that provide a consistent rationale for the doctrine that explores the social costs and benefits of the administration costs of requiring the creator of an asset to share it with a rival. It is less a doctrine than an epithet indicating some expectations to the right to keep one¡¯s creations to oneself, but not telling us what those exceptions are.¡¯[6]
Likewise, Professor Hovenkamp acknowledged that essential facility doctrine has been applied as a principle by some low courts, but asserted the doctrine was so detrimental and superfluous that it should be abandoned,[7] especially when the attributes of essential facilities related to intellectual property rights or forced competitors¡¯ entry in aftermarkets.[8]
Despite Areeda¡¯s argument has a significant influence in the study of Essential Facility Doctrine, there are still some advocates who believe it to large extent restricts some improper behaviors successfully and is not applied excessively and the adverse impact is overstated by some scholars. Professor Waller in his article describes that while Professor Areeda¡¯s concerns were suitable in the time of its publication, most of his concerns are no longer applicable in today¡¯s antitrust background. [9]
The framework of EU Antitrust law has much in common with its counterpart US, but the two regimes are not entirely identical.[10] The specific area of antitrust law illuminating differences between the EU and US antitrust regimes is the application of EFD.
This paper attempts to analyze the application of essential facility doctrine under US and EC antitrust law through a comparative approach. The first part of this paper will introduce the origin of the doctrine. Part two will discuss the evolution and application of the doctrine under EC and US case law. The third part deals with the interface between intellectual property and EFD. Taking into account the practices of application of essential facility doctrine under US and EU, the last Part will present some proposals about it in China.
PART I THE ORIGIN OF EFD
1. The Origin of EFD under US Law
EFD (sometimes called Bottleneck Doctrine) which is originated from American antitrust case law now is defined by different countries¡¯ antitrust agencies. However, the general rule of this doctrine is the same: ¡®the essential facilities doctrine imposes liability when one firm, which controls an essential facility, denies a second firm reasonable access to a product or service that the second firm must obtain in order to compete with the first.¡¯[11]
The general rule of antitrust law was set out in United States v Colgate[12]. ¡®In the absence of any purpose to create or maintain a monopoly, the [Sherman] act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal¡¯.[13] It suggests that EFD is the exception of the general ¡°Colgate Defense¡± principle that allows firms to deal with whom they please, even if that behavior restricts competition, provided that defendant can provide some business justifications.[14]
Fundamentally, EFD is developed from Section 2 of the Sherman Act[15] which prohibits an undertaking to ¡®monopolize, or to attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States.¡¯[16] Under Section 2, ¡®the use of monopoly power, however lawfully acquired, to foreclose competition, to gain a competitive advantage, or to destroy a competitor, is unlawful.¡¯[17] One of Congress¡¯s original goals to draft antitrust law was to prevent the Standard Oil Trust from denying other oil refiners to use the pipelines and rail transportation facilities which are necessary to compete in the product market.[18]
Since Standard Oil Co. v. United States[19] decision, in antitrust law area, the logic that monopolies cannot use their power either to monopolize one market or to expand to another is applied to natural monopoly industries such as telecom, electric power or railroads. Although the basic doctrine can be traced back to the Standard Oil, generally scholars recognize the United States v. Terminal Railroad Association as the first case that Supreme Court invoked essential facility doctrine as an approach.
The legal principle resulted from this case is: A monopolist in control of a facility necessary to other competitors must grant a reasonable access to that facility if it is feasible to do so.[20] After that, this principle has been applied widely to centralized market facilities from natural gas pipeline to football stadiums by Supreme Court and lower courts, although in most circumstances antitrust law does not require one competitor to give rivals a break just because failing to do so offends notions of fair play. [21]
2. The Origin of EFD under EC Law
In the last fifteen years European economies have been largely affected by regulatory reforms aiming for introducing competition in markets where the existence of essential facilities constitutes a hard barrier to entry natural monopoly industries such as telecom, electricity, the postal sector and so on.[22]
As to the legal context, in EC, dominant firms have a general duty to deal. The EC Commission has asserted that, ¡®As a general principle an objectively unjustifiable refusal to supply by an undertaking holding a dominant position on a market constitutes an infringement of Article 86.¡¯[23] Seen from this perspective, case of refusal to deal is judged relying on this text. Before B&I [24]case, the EC commission and some commentators recognized early refusal to deal cases as the authority of EFD. The concept of EFD is first articulated explicitly in Sea Containners v. Stena Sealink in the context of EC law.
3. Comparison
When commentators discuss the legal context of essential facility doctrine generally from a comparative approach, Article 82 of the EC Treaty is frequently analogized to Section 2 of US Sherman Act. According to EC law, dominant firms have a general duty to deal. Therefore the doctrine is a specification of this general rule.[25] By contrast, generally, firms are under no duty to deal with its competitors. Commentators often emphasize the difference on this issue. As far as I concerned, this difference is exaggerated to some extent due to the divergence in case law within each country over time and the academic influence of ¡®Chicago School¡¯ economic theory on both jurisdictions.[26]
After observation of the relative sections under two different legislations, the three differences can be drawn:
Firstly, the approach of Section 2 seeks to prevent monopoly, or even broadly, attempted monopoly. In comparison, by its term, Article 82 is concerned with preventing abuse of dominance rather than merely having dominance.[27] It is concluded that dominance under the EC law seems to require less market power than monopoly under US law. It means the regulated objects¡¯ range under EC law is wider than the US law. The US law gives more liberty to monopoly firms to compete in the market and more tolerance to their behaviors.[28] As Areeda points out:
¡®It is important to contrast the concept of impropriety in acquiring or maintaining monopoly power with the concept of abusing monopoly power. Article [82] focuses on abuse of a dominant position, whereas Section 2 focuses on the manner in which a firm acquires, expands or maintains a monopoly power. ¡¯[29]
Secondly, US monopolization law is constructed in a much more expansive way. Section 2 of the Sherman Act contains only general language.[30] EC law is more specific and narrow and it may prohibit efficient but anticompetitive conduct.[31]
Finally, Section 2 contains an express language requiring intent to exclude rivals. The language that transaction intended to create or maintain are prohibited sheds light on this. In comparison, intent is not required under Article 82.[32] However, proceeding in the recent case, the Commission notes that although intent is not an element to establish an abuse, it is a plus factor in showing objectively abusive behavior.[33]

PART II THE EVOLUTION AND APPLICATION OF EFD UNDER US AND EU LAW
1. The Evolution and Application of EFD under US Law
As Hovenkamp noted there are three sorts of refusal to deal cases under US antitrust law, refusal involving denying access to an essential facility is one of them.[34] Therefore, it means essential facility case is an aspect of refusal to deal. According to the case law, the principle following these cases is ¡®A monopolist does not have a general obligation to cooperate with rivals; but ¡­ some refusals to deal may have ¡®evidentiary significance¡¯ and may produce liability in certain decisions.¡¯[35]
¡¤ US v. Terminal Railroad Association of St. Louis
Generally speaking, the first case involving a refusal to provide access to an ¡®essential facility¡¯ in United States can be traced to United States v. Terminal Railroad Association.[36] In this case, an association by a group of railroads controlled all the bridges and connections from and towards St. Louis which was an important railroad injunction. The court considered this practice as an illegal restraint of trade and an attempt to monopolize against competing railroad services under Section 1. The overt coordination among the numerous independent undertakings within the group indicated the degree of concerted or unilateral action inevitably resulting in the conspiracy or agreement and a combination with the collective power.[37] Finally, the Court directed the issuance of an injunction requiring the joint operators of the only railroad bridge across the Mississippi River to grant open and equal access to all competitors.[38] Although this case is cited in the context of essential facility doctrine, comparing with the following cases, it concentrated on the overt coordination but not the abuse of monopoly power
¡¤ Associated Press v. US[39]
Another concerted case is Associated Press. It was a more doubtful case than Terminal Railroad combination as belonging to the essential facility line. Associated Press was a joint venture among roughly 1,200 newspapers. Each member was given access to news generated by other members.[40] The By-Laws prohibited all members of Associated Press from providing news to non-members and given each member powers to block its non-member competitors from membership. Professor Areeda illustrated that the basic rationale for this venture was to achieve economies of scale or maintaining greater control. However, the Supreme Court found that the associated Press by-laws violated the Sherman Act by limiting membership within the organization and thereby access to its copyrighted news services. The court enjoined this discrimination but was very careful not to mention that the Associated Press had to admit every competitor. Justice Douglas wrote respectively that the court was not requiring AP to admit anybody, but was banning its discrimination. The Justice Frankfurter who is the only advocate of the essential facility compared the Associated Press to a public utility, a business inputted with the public interest that was required to serve all.[41] The concept of public interest was doubtful because Justice Frankfurter did not explain explicitly what is the rational of the admission policy of Associate Express. So, Associate Express which is categorized to essential facility line is not very suitable. Lacking of overwhelming monopoly power held by a combination, AP is better off to use other doctrinal basis to explain.
These two early Supreme Courts¡¯ decisions were considered as the torchbearer of the concept of EFD.
¡¤ Otter Tail Power Co. v. United States[42]
If commentators describe above cases as overt coordination case not as abuse of monopoly power case, Otter Tail is more closed to the Essential Facility Doctrine and generally considered as the first case involving the fact that the monopolist abuses the monopoly power and distinguished from the concerted or conspiracy case.
This antitrust suit was brought by plaintiffs who were municipalities wanted to provide local distribution of electric power to their residents because the defendant Otter Tail sale price is more expensive. Otter Tail was an electric utility operating an extensive power distribution and it also generated and retailed electric power through a network of generating facilities and subtransmission lines. The plaintiff sought to purchase the electricity wholesale from Otter Tail or request Otter Tail to agree to wheel wholesale power to them.[43] Otter Tail refused all of these allegations because it purposed to keep the municipalities out of the local distribution business.[44] According to essential facilities doctrine, the lower court condemned Otter Tail¡¯s conduct under Section 1 of the Sherman Act.[45] On direct appeal, the Supreme Court found that Otter Tail¡¯s refusal to supply or wheel power to the municipalities is in violation of Section 2 of the Sherman act on general monopolization grounds rather than on Essential Facilities Doctrine. Nonetheless, Otter Tail is widely cited as an EFD case though it is so limited.
¡¤ MCI v. AT&T[46]
In MCI v. AT&T, the Seventh Circuit made an explicit reference to the essential facility and set forth the standard analysis of the elements for EFD. AT&T was a regulated monopolist which controlled the local phone system facing the competition from the MCI. MCI alleged that an unlawful violation of Section 2 of the Sherman Act by AT&T¡¯s unjustified failure to interconnect MCI¡¯s long distance traffic to the local phone systems. Such a refusal may be unlawful because a monopolist¡¯s control of an essential facility can extend monopoly power from one stage of production to another, and from one market into another. Thus, the antitrust laws have imposed on firms controlling an essential facility the obligation to make the facility available on non-discriminatory terms.
AT&T argued that its refusal to interconnect was justified based on Cream Skimming Arguments, technological incompatibility, and lack of regulatory approval. MCI prevailed in a jury trial and won a verdict, which after trebling and fees and costs, exceeded two billion dollars.[47]
On appeal, the Seventh Circuit affirmed liability under Essential Facilities Doctrine. It required the plaintiff to establish the following elements:
(1) The monopolist controls access to an essential facility;
(2) The facility cannot be reasonably duplicated by a competitor;
(3) The monopolist denies access to a competitor; and
(4) It was feasible for the monopolist to grant access.
While the MCI test was adopted by the low courts, there are rare cases winning on this basis. Only the practice of one undertaking meets all the requirements, the authority can require the firm to admit the access to the essential facility.
 Requirement One: Monopoly Power or its Substitute
The prerequisite of adopting EFD is that when the undertaking is lack of monopoly power or there is substitute, it will not be applied. It should be clear that if a facility is essential, its owner will be the monopolist in the market for the facility. The mere possession of monopoly power is not unlawful. Only when the undertaking abuses the power, it is unlawful. In US when considering whether or not to apply essential facility doctrine, the authority finds essentiality depending as much on the monopolist¡¯s market power in both upstream and downstream markets as it affects the facility on plaintiff¡¯s ability to compete in the downstream market.[48]
If the monopoly power could not be established, it is superfluous to think about the application of EFD since the competition in the market can regulate the undertaking¡¯s practice by itself. In US, if the court need to adopt the doctrine, it is clear that the alleged facility must be truly essential to competition. In other words, the essential facilities should constitute an input without which a firm cannot compete with the monopolist.[49] ¡®A facility will not be deemed essential if equivalent facilities exist or where the benefits to be derived from access to the alleged essential facility can be obtained from other sources.¡¯[50]
For example, the American courts are becoming gradually careful about establishing the essentiality of the facility. A hospital¡¯s facility was not essential to a doctor who could see patients at a clinic of in his office and there are alternative facilities available for the doctor to work for patient.[51] Also, courts rejected essential facility argument that the plaintiff wanted to access to advertising in the alleged magazine when alternative promotion ways are available for the plaintiff and some other competitors did not access to the advertising of the magazine.[52] One of the most recent cases is the claim alleged by a disfavored seller who can not access to the fur trading in Wyoming. The court rejected the claim since the plaintiff was free to sell his products anywhere he wished.
 Requirement Two: Non-duplicability Situation
The second step is establishing non-duplicability of the facility. Non-duplicability could be understood in a technical sense and economical sense. It is not necessary to be physically of financially impossible to duplicate a facility.[53] It is satisfactory that the cost of duplication would be ¡®unreasonable in light of the size of the transaction such duplication would have facilitate.[54] Furthermore, it is not suffice to demonstrate that using an alternative facility will be so expensive or inconvenient.[55] The problem is that if the entrant input the investment to duplicate the facility then the entrant can not gain margin through entering the secondary market, in fact this facility is non duplicable.
The duplicability of a facility is always determined by economic considerations. This point indicates a more restrictive standard than in earlier cases. ¡®To be ¡°essential¡± a facility need not be indispensable; it is sufficient if duplication of the facility would be economically infeasible and if denial of its use inflicts a severe handicap on potential market entrants.¡¯[56]
 Requirement Three: Feasibility of Shared Access
The final step is to investigate the feasibility of shared access. This means the application of permitting competitors access to the essential facility should never entail the sovereignty of the owner and disrupt the owner¡¯s operation.[57] In Hecht v. Pro-football, Inc. the court held that if interconnection is ineffective or will affect the monopolist¡¯s ability to serve its own customer, the antitrust law will not require that an essential facility be shared.[58] For example, if requiring the monopolist to interconnect to rivals will damage the quality of monopolist¡¯s service to its own customer, it will view the grant of access as unfeasible.[59] However the feasibility investigating is different among cases.
The most difficult step to prove is non duplicity since in the physical world it is hard to say there is no substitute available in absolute sense. Although an undertaking who meets the criteria needs to permit competitors to access to his facilities, it is worth mentioning that the undertaking is entitled to access prices to make sure the compulsory access will not damper the incentives to invest of essential facility owners.
The most important contribution of MCI case is that it provided a test for the doctrine firstly. Except these 4 requirements, other courts have explicitly applied a fifth factor that was indicated from MCI namely that the defendant lacked a valid business justification for its refusal to deal.[60] Aspen Skiing Co. v. Aspen Highlands Skiing Corp. is often cited as the example of this criterion. [61]
In Aspen, the defendant controlled three of four ski mountains in Aspen, Colorado. The defendant had engaged in a long standing popular joint venture arrangement for lift tickets with the remaining competitor which owned the fourth mountain in the valley. The defendant then abruptly terminated the joint venture without a credible business justification. Then, the plaintiff filed a complaint alleged that Ski Co. had monopolized the market for downhill skiing services at Aspen in violation of Section 2 of the Sherman Act, and pray for treble damages.
After the jury found for Highlands on its Section 2 claim, and the district court denied Ski Co.¡¯s motion for judgment. Ski Co. appealed and the Tenth Circuit affirmed on two grounds:
(1) The multi-day, multi-area ski pass was an ¡®essential facility¡¯, and
(2) Ski Co.¡¯s intent in refusing to market the multi-area ticket, considered with its other conduct, was to create or to maintain a monopoly.
The Supreme Court affirmed on the second ¡®refusal to deal¡¯ ground, without relying on the essential facilities ground in order to avoid the deal with essential facilities.[62]
Ski Co. contends that even a firm with monopoly power has no duty to engage in joint marketing with a competitor, that a violation of Section 2 cannot be established without evidence of substantial exclusionary conduct, and that none of its activities can be characterized as exclusionary. It also contends that Court of Appeals incorrectly relied on Essential Facilities Doctrine. An ¡®anticompetitive intent¡¯ does not transform non-exclusionary conduct into monopolization.
¡®The central message of the Sherman Act is that a business entity must find new customers and higher profits through internal expansion - that is, by competing successfully rather than by arranging treaties with its competitors.¡¯[63] Thus it is correct that even a firm with monopoly power has no general duty to engage in a joint marketing program with a competitor. However, the high value placed on the right to refuse to deal with other firms does not mean that the right is unqualified. The court had never dispute the general right that a private business hold in the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.¡¯[64] ¡®But the word ¡°right¡± is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified.¡¯[65] The behavior that petitioner abruptly terminate the joint venture without a credible competitor is a sudden and important change in the market as a monopolist. Evidence of intent is merely relevant to the question whether the challenged conduct is fairly characterized as exclusionary or anticompetitive.
This question can be answered by considering its effect on Highlands and its impact on customer and whether it has impaired competition in an unnecessarily restrictive way.
Firstly, regarding highland¡¯s ability to compete, there was no dispute in this court. Expert testimony demonstrated the extent of its pecuniary injury. The evidence with respect to its attempt to develop a substitute demonstrated that it attempted to protect itself from the loss of its share of the patron of the all-Aspen ticket. As a result, Highlands¡¯ share of the relevant market steadily descended after the 4-area ticket was terminated.[66]
Secondly, with respect to harm to consumers, over the years, the customers of Aspen developed a strong demand for the 6-day, all-Aspen ticket in its various refinements. It provided convenience and flexibility to the customer. The evidence resulted a conclusion that consumers were adversely affected by the elimination of the 4-area ticket.[67]
The most important thing is that the Ski Co. did not persuade the jury that its conduct was justified by any normal business purpose. The jury concluded that Ski Co. elected to forgo these short-run benefits because it was more interested in reducing competition in the Aspen market over the long run by harming its smaller competitor.
This conclusion is strongly supported by Ski Co.¡¯s failure to offer any efficiency justification for its sudden change of the pattern of conduct. Therefore all the evidences supported an indication that Ski Co. was not motivated by efficiency concerns and that it attempted to sacrifice short-run benefits and consumers¡¯ goodwill in exchange for a perceived long-run impact on its smaller rival.[68]
From Aspen, the role of intent is really vital for EFD. It was held that a refusal to deal, coupled with an anticompetitive intent, may support a finding of antitrust liability even absent proof that the withheld input constitutes an ¡®essential facility¡¯.[69]
2. The Evolution and Application of EFD under EU law
Until 1998, ECJ has not formally granted constraint force to essential facility doctrine. In Sealink,[70] the EC Commission firstly made an explicitly reference to EFD and asserted that it was a principle under Article 82. The Sealink decision triggered a heated debate in competition law area.
Broadly speaking, Sealink is cited as the first EC competition law case that explicitly invoked an essential facility theory.[71] In Sealink, respondent Sealink owned an essential facility-the port at Holyhead in Wales which is the base for a ferry service operated by Sea Containers. The Commission found that Sealink which owned the port at Holyhead refused rival firm that desired to invest a new fast-ferry service between Holyhead and Ireland to access to this facility.
The commission then ruled:
¡®an undertaking which occupies a dominant position in the provision of an essential facility and itself uses that facility ( i.e., a facility or infrastructure without access to which competitors cannot provide services to their customers), and which refuses other companies access to that facility without objective justification or grants access to competitors only on terms less favorable than those which it gives to its own services, infringes Article 86 if the other conditions of that article are met.¡¯[72]
Although the EC Commission requires the firms have duty to deal with their rivals, the approach of Sealink does reflect some differences from the approach in the general refusal to deal cases. Seen from this case, the firm owning an essential facility was under a stricter duty not to discriminate its rivals than the duty imposed on dominant firms in cases like United Brands. It may be explained by the dependency/fairness rationale.[73]
From a comparative perspective, essential facility doctrine may play a more important role in EC than in US. The EC antitrust law regulates a wide range of actions than which in US since Article 82 prohibits the abuse of dominant position while Section 2 prohibits monopoly. Indeed, the dominant position has an absolutely broader range than monopoly. So, what EU adopts is lax criterion which regulates more improper behaviors and it stimulates competition in short term and benefits smaller firms, but may jeopardize the incentive of investment for large firms.[74] However, Bronner may be a turning point for the lax criterion.
The plaintiff Bronner who published a newspaper maintaining small market share wanted to access the distribution system with deliveries to the subscribers¡¯ homes established by defendant Mediaprint. The argument of Bronner is that it lacked the ability to establish a substitute system.[75] Then the following requirements are set out in this case:
(1) The facility must be indispensable to carrying on the entrant¡¯s business, in that there are no potential substitutes; and
(2) There must be technical, legal, or economic obstacles which make it impossible or unreasonably difficult to replicate the facility. [76]
In light of the criteria, the court rejected the argument on two grounds:
(1) It was not necessary to have the alleged facility to compete on the newspaper market.
(2) It is not impossible to duplicate in an absolute sense in this case.
It seems strange that Magill which I will discuss in the IP section and Bronner share similar facts but result into different decisions. ECJ explained that refusal to license in Magill case constitutes an infringement of article86 since the license is indispensable for the competitor to compete in the market and it stop the new product which has consumer demand entering in the market. However, in Bronner, plaintiff has alternative system to use even if it is ¡®economically viable by reason of the small circulation¡¯. So the plaintiff did not following that the facility is indispensable for the competitor to compete. I will discuss these two cases in the context of IP below.
3. Comparison
In US, although essential facility has been present for nearly one century, the Supreme Court has never adopted it in its name. It could be explained that the doctrine is applied for limited cases where the party controlling the essential facility own market power in downstream markets.[77] After all, it is so rare that a firm can own market power both in upstream and downstream markets. However, essential facility is applicable to a broader range of conducts in EC since the obligation under Article 86 is far beyond that recognized under Section 2.[78] As I mentioned above, EC established a general principle that ¡®an objectively unjustifiable refusal to supply by an undertaking holding a dominant position on a market constitutes an infringement of Article 86¡¯[79] Future more, ¡®Article 86 apply(s) essential facility doctrine without extensive consideration of the extent to which the dominant firm holds a dominant position in a downstream market.¡¯[80] Regarding these legal context, we can concluded that it is much easier to recognize an essential facility under Article 82. Therefore the basic rule under Section 2 of Sherman Act and Article 86 of EC treaty are different.
The cases in the context of essential facility doctrine among EC and US do demonstrate this difference explicitly. In EC case LEA/Sabena[81], the court found that Sabena abused its dominant position by not granting London-European access to its CRS (computerized reservation systems facilities for airlines) and held that it is obliged to provide CRS service to its competitors. As discussed above, EC cases ruled that under Article 86 they apply EFD without considering whether the dominant firm has a dominant position in a downstream market. So in this case, even though the Sabena did not hold a dominant position in the downstream market i.e. airline market it still had obligation to provide CRS to its competitors. In contrast, in US case Alaska Airlines, the court ruled that even the airline had market power in the CRS market, the competitor only can access its CRS when the airline who refuses access maintain market power in the downstream market.[82] These two cases in both jurisdictions involving similar facts result in different decisions since the obligation under Article 86 is greater than Section 2.
Instead, as I mentioned above, intent test is an anther difference between these two approaches. Under Section 2 US courts have held that a refusal to deal, together with an anticompetitive intent, may constitute antitrust liability even without demonstrating the existence of an essential facility.[83] On the contrary, EC competition law prevents the abuse of a dominant position without consideration of intent. Since the concept of abuse is an objective one as the ECJ held in Hoffmann La-Roche v Commission,[84] it is not necessary to consider it when it proves an abuse of dominant position. However, in its recent decision in Clearstream,[85] the Commission notes that if the intent is present, it is a plus factor to show objectively abusive behavior.[86]
Finally, the difference between them is the different attitude to legitimate business justifications. US courts have declared that if the defendant can provide legitimate business justifications that could persuade courts, the court will not require the grant of access. This is contrary to EC Law. Few report EU cases support refusals to deal based on legitimate business purpose.[87] However, Regarding the role of justification the refusal, the approach of ECJ in Sealink under Article 82 which imposes great obligation on dominant firm to justify its refusal appears similar to the US approach in essential facility context.[88]
4. The Rational for the Difference.
The rational behind these differences can be illustrated by the purpose of competition law in EC and US. Although both jurisdictions share the same purpose of promoting consumer welfare by stopping private undertaking from restraining markets, antitrust Law is in pursuit of different achievement in light of the status quo among different countries. US has more concerned with efficient market.[89] Professor Robert H. Bork demonstrated that the original drafters of the Sherman Act were motivated by concerns of economic efficiency.[90] The antitrust enforcement is significantly influenced by ¡®Chicago school¡¯ which focuses on the efficient operation of markets. Particularly this theory reflects in the context of essential facility doctrine where if the complaint can provide a showing that the conduct tends to increase economic efficiency such as achieving economies of scale or maintaining greater control over distribution.[91] Even though some scholars commended that the Chicago school is falling and the influence is fading, the recent case Trinko[92] reflects in an absolute way that efficiency still maintains predominant position in the application of antitrust law, especially in US. Whereas, EC is more concentrating on the integration of its member states¡¯ markets and prevention of national or private restraints than on promoting market efficiency which is the focus of US.[93]
The other purpose which is more important than efficiency in EC law is to protect the right and ability of small and medium-sized firms to compete with big undertakings.[94]
Future more, when the courts measure the harm of the anticompetitive practice, the US law emphasizes harm to consumers not harm to competitors. By contrast, the EC law recognizes that if competitors are harmed by the undertakings who abuse the dominant position without justifiable reasons, it also amounts to harming competition.[95] Although the ¡®Chicago School¡¯ economic analysis has gradually influenced the European antitrust application, it still attempts to protect competitors in mind.[96]
PART III ESSENTIAL FACILITY DOCTRINE AND INTELLECTUAL PROPERTY
One of the most controversial areas involving essential facility doctrine is the application of it in the context of intellectual property. The question faced by EC and US is whether the authorities need to grant access to the alleged essential facility i.e. intellectual property in this background. The attitude to this question ¡®would open a gap between European and US antitrust law¡¯[97].
The relationship between IPRs (intellectual property rights) and free trade is tensional. On the one hand, IPR encourages innovation and so give the holder the exclusive right for the IPRs which are a kind of legal monopoly. On the other hand, it is vital that the exclusive right of the holder will not hamper competition.[98] According to Fox, among the 1960s-the 1970s in US and in EC, the holder of IPRs was featured as a monopolist and confronts limits in market. But recently they gain more deference than ever. The new guidelines replacing the old strict one became a more flexible and lax one in US. Likewise, EC Commission now regulates IPRs holders in a more relaxed manner. Fox concluded that the EC adopts more restrictive criteria for the regulation of IPRs holders.[99]
As situation where the monopolist¡¯s dominance relying on intellectual property, increases, antitrust authorities began to realize the potential of the application of essential facility doctrine in this context. For example, when the patent, know-how and copyright become the essential facilities of an industry, monopoly undertaking can maintain monopoly power in the downstream market in light of controlling the intellectual property with legal exclusivity. From this point of view, a load of cases demonstrated that intellectual property as an essential facility can result in the severe antitrust effect no less than physical assets. The impact resulted from IP and other tangible assets are the same: the competitor is prevented from sharing in something essential to compete.
However, intellectual property as an essential facility has its own characters:
Firstly, regarding technological concerning, intellectual property is not impossible to duplicate. Contrast to bridge or railway, since intellectual property can be recreated by technology and innovation which can be reached by investing enough money and talent, it is possible to duplicate the intellectual property with the same function.
Secondly, although IP and tangible property are both in pursuit of an aim to increase consumer welfare, the traditional protection for the exclusivity of IP contradicts to the nature of essential facility. The best example to illustrate this is the patent. The patent protection grants exclusivity of holder whereas essential facility doctrine requires the holder to provide it to competitors. This paradox is the most difficult obstacle of the enforcement of the antitrust law.
In Magill[100], the EC commission, CFI and then ECJ held that a refusal by TV broadcaster to grant a license to a company who wanted to use TV broadcaster¡¯s listing to publish a comprehensive weekly TV guide constituted an abuse. They declared that TV listings were an essential facility. The ECJ held that a refusal by a dominant IP owner to grant a license cannot in itself constitute an abuse, although it may involve an abuse in ¡®exceptional circumstances¡¯.[101]
The Court found such exceptional circumstances in Magill due to the fact that:
(1) The refusal in question concerned information which was indispensable for carrying on the business in question,
(2) Such refusal prevented the appearance of a new product for which there was a potential consumer demand.
(3) The refusal was not justified by objective considerations, and
(4) It was likely to exclude all competition in the secondary market of television guides.
Although Magill was described as an essential facility doctrine case, it is worth mentioning that the IPRs cannot be applied as the precedent for the general cases.[102] This can be explained in light of the particular nature of TV listing. The TV listings are a by-product of TV broadcasting which cannot be produced without broadcasting activity. In other words, it is impossible for Magill to produce a TV guides in light of other station¡¯s guides. So the verdict is on the ground that TV broadcasters block the prospect of the competition where there was a potential consumer demand rather than on the exclusivity of monopoly IPRs. The same approach was applied in IMS[103]. The distinctive feature of TV listing does explain why the ECJ choose this approach rather than others.[104] This judgment triggers a debate among the IP and antitrust lawyers. The advocates of this judgment like Cornish and Llewellyn note that ¡®in a period when intellectual property rights are being rapidly expanded, it must be wise for competition authorities to retain some ultimate means of curbing their range in egregious cases, which, in the scramble to satisfy industrial lobbies, legislatures may not have sufficiently cogitated.¡¯[105] However, the Advocate General Jacobs believed that the drawback of mandatory access is it tends to reduce the incentive to invest the original facility. Likewise, some commentator noted that EFD analysis will hamper IPRs which is protected by the EC Treaty.
Contrast to Magill, in Bronner case the court did not accepted the allegation of the plaintiff. The different decision is grounded on how much the court grant exclusivity to the IP owner. The Bronner did not answer clearly that whether the Magill test i.e. IP test could be applied to this case. Bergman in his article compared not only strict criterion and lax criterion but also well-defined criterion and flexible criterion[106]: ¡®
A strict criterion stimulates strong firms towards risk-taking and investment, but hampers competition and may reduce the incentives for smaller firms to invest. A lax criterion, on the other hand, stimulates competition in the short run and helps smaller firms, but may reduce the incentives for strong firms to invest.
A well-defined criterion is good, because it improves the predictability of the laws, but it reduces the scope for the authorities and the courts to weigh short-run and long-run considerations against each other on the basis of the specific circumstances at hand. A flexible criterion on the other hand, reduces legal predictability, but allows one to take into consideration specific circumstances. In other words, it allows making the decision to a larger extent dependent on an economic analysis of the factual circumstances.¡¯
The court in Bronner adopted a well-defined and lax criterion since it concentrated on the importance of the large firms¡¯ incentives to invest.
The court in Magill seems to adopt a strict criterion. The following case IMS illustrates clearly that the standard for compulsory licensing cases is much higher than compulsory access to physical property which is not clear in Magill case.
One of the most widely-cited issues in IP area even in whole essential facility doctrine related cases is that it will hamper the incentives of investment. In Bronner[107], Advocate General Jacobs recognized that ¡®in assessing such conflicting interests between compulsory access to an essential facility and investment incentives. Particular care is required where the goods or services or facilities to which access is demanded represent the fruit of substantial investment. That may be true in particular in relation to refusal to license intellectual property rights. Where such exclusive rights are granted for a limited period£¬that in itself involves a balancing of the interest in free competition with that of providing an incentive for research and development and for creativity.¡¯[108]
This concern also acknowledged by US courts. In Data General Corp. v. Grumman Systems Support Corp. [109], the courts were sensitive to the question whether limiting intellectual property protections may damper incentives of innovation. The courts therefore recognized that antitrust liability in certain circumstances appropriately promotes investment.
After observation of recent EC case law, it can be found that the standard for compulsory licensing of IP is much higher and stricter than for compulsory access to tangible property.[110]
Some scholars believe that US law deals with cases involving IP adopting similar attitude with EC courts. Professor Pitofsky in his article noted that the essential facility doctrine applies to intellectual property and other intangibles.[111] This conclusion is supported by a series of cases like Bellsouth Adver. & Publ'g Corp. v. Donnelly Info. Publ'g, Inc.. [112] In this case, district court adopted the essential facility doctrine approach to telephone directory listings where the defendant claimed copyright protection. The court held that ¡®although the doctrine of essential facilities has been applied predominantly to tangible assent, there is no reason why it could not apply, as in this case, to information wrongfully withheld. The effect in both situations is the same: a party is prevented from sharing in something essential to compete.¡¯[113]
However, Klein and Wiley argue that intellectual property holders were immunized from antitrust liability for refusals to deal by courts.[114] In CSU v. Xerox [115] the Court of Appeals for the Federal Circuit held that without any indication of illegal tying, fraud on the patent office or sham litigation, that behavior never constitutes an infringement of Section 2 liability in case of refusal to license.[116]
Indeed, the American courts have never recognized essential facility doctrine which refected in Trinko[117]. The plaintiff who was a customer of the incumbent local phone service alleged that the dominant firm¡¯s discrimination against interconnected service providers constituted a form of exclusionary conduct prohibited by Section 2.
Court of Appeals stated a claim in verdict. ¡®We have never recognized such a doctrine, and we find no need either to recognize it or to repudiate it here. It suffices for present purposes to note that the indispensable requirement for invoking the doctrine is the unavailability of access to the ¡°essential facilities¡±; where access exists, the doctrine serves no purpose. Thus, it is said that ¡®essential facility claims should ¡­ be denied where a state or federal agency has effective power to compel sharing and to regulate its scope and terms.¡¯[118] Respondent believed that the existence of sharing duties under the 1996 Act supports its case. The courts oppose response on the ground that the 1996 Act¡¯s extensive provision for access makes it unnecessary to impose a judicial doctrine of forced access.[119]
In light of this case, there is a strong argument that an essential facility-type analysis is not proper in the context of intellectual property rights.[120] Although the application of Essential Facility Doctrine should be limited to exceptional circumstances so that it should meet stricter criteria, it is still alive and does not face any fatal criticize.[121] By contrast, following Trinko, the Essential Facility Doctrine even not dead is struggling for life in the USA.[122] However, although the decision in Trniko seems to be end of life of Essential Facility Doctrine in Supreme Court, lower courts may continue to apply it since it in fact has already applied very well.[123]
PART IV PROPOSALS FOR CHINA¡¯S COMPETITION LAW
1. The Problem
As a transitional economy, China moves towards to a modern market economy from a centrally-planned economy, it was no doubt that government regulation still play an essential role in society. Administrative monopoly is one of the main obstacles china¡¯s competition law confronts. A particular chapter on anti-administrative monopoly which is distinguished from US and EC competition law was inserted in China¡¯s brand new Antimonopoly law. However, due to China¡¯s specific status quo, regarding Chinese government¡¯s excessive regulation in the market economy, local governments¡¯ arbitral acts, Antimonopoly Law alone will not correct this phenomenon perfectly.
After the transition from a planned economy to a market economy and China¡¯s successful entry into the World Trade Organization in November 2001[124], more foreign investments have flowed into the Chinese market. Following the wide range of foreign investments, Chinese undertakings confront inevitable and unprecedented challenge. Up until the end of 2003, there were 465,277 foreign-invested enterprises in China, and utilized foreign investment amounted to more than USD 500 billion. Compared with them, China is lack of capital backup, advanced technology and mature management so that in some high-tech areas like software China did not enjoy advantages at all. Under this status quo, one of essential aims for China¡¯s antimonopoly law is to protect interests of national undertakings through preventing multinational enterprises from using anticompetitive policy to beat Chinese competitors. One area which is highlighted is prohibiting multinational companies to abuse its essential facility especially essential technology to monopolize the market.
As I mentioned above, the wide-criticized area which is Chinese-style problem is administrative monopoly. Administrative monopoly amounts to a kind of monopoly caused by government agencies at all levels by abusing their administrative powers to prohibit competition and impede regular market activity.[125] The rationale behind this phenomenon is that the recent economic system is originated from socialist planned economy; planned economy left little room for free competition. Therefore natural monopolies exist in Chinese market concentrating on from gas-transmission to postal service.
The best example to illustrate this phenomenon is China¡¯s Postal industries[126]. China¡¯s postal ministry restricts the market access of China Union which is a private telecom company. The scholars list a series of anticompetitive behaviors of postal ministry:
Firstly, Before China Union can access to telecom services in any province, it must gain the permission from postal ministry whereas the telecom company directly under it can access that market without permission. Secondly, postal ministry restricts interconnection between China Union and local exchange services. Thirdly, postal ministry fixed a monopoly price on the services of between China Union and local different network providers.
Although the postal ministry is abolished now the relevant administrator is still discriminating private telecom company to some extent.
2. The Proposals
Firstly, as to the most sensitive area-IP, the enforcement agencies should avoid interfering cases of refusal to license, especially on the access prices. The agencies are aiming to protect competition instead of competitors. If the agencies adjust the access price, the antimonopoly policy must tend to protect national undertakings. For example, with respect to the event involving DVD refusal to license, although most of Chinese enterprises consider the access price is above the market price, the enforcement agencies should not interfere the event. Since if the agencies fix compulsory price of DVD patent, consequently foreign competitors who thought their interests was infringed will reduce the incentives of investments in Chinese market or opt for some indirectly strategies to beat Chinese firms. Likewise, this practice will jeopardize the enthusiasm of foreign firms to input new-tech. Finally, the agencies will restore the role of central planner which was prevalent in the planned economy system thirty years ago.
Secondly, with respect to natural monopolies, administrators and legislators must distinguish natural monopoly services and competitive services. Under modern economic model, infrastructure network is the basis of natural monopoly. Natural monopoly section is difficult to define since its definition needs academic knowledge. Therefore, it is impractical to stipulate the definition directly in antitrust law. Antitrust law can authorize relevant administrators to define. For example, regarding transportation section, railroad and station are natural monopoly; however, transporting and other services are competitive. As to telecom section, only data routing pipeline is natural monopoly, telecommunicating and local exchanging services are competitive. As the natural monopoly enterprises are State-owned Enterprises (SOEs), it is useful to authorize government to classify. It is feasible that competitive business must be operated by competitors in market whereas natural monopoly can keep the situation of SOEs (State-owned Enterprises) as its nature is not suitable to be operated by private firms.
Thirdly, regarding the access price, competitors can access to infrastructure network provided by the competitors with paying the reasonable access price. The US Telecommunications Act of 1996 gives us a good example. The law requires local telephone companies to allow rivals interconnecting with their local networks to provide a competing service. The Act empowers the FCC to order interconnection.[127] If the infrastructure network and competitive business are separately operated in China in light of the US Telecommunications Act, I believe that there will be more beneficial for the customers.
Essential facility is vital for the problem of administrative monopoly. If we apply this doctrine in our antitrust practices, it will require some essential facility owners especially infrastructure network owners to permit the access to its rivals given they pay some compensation for accessing.
Finally, I suggest adding Essential Facility Doctrine to the Antimonopoly law of the PRC. It is surprisingly to find that Article 17 of China Anti-monopoly Law classifies 7 different acts of abusing the dominant market position. The Clause 3 which can be seen as the closest term to EFD stipulates that refusing to trade with a trading party without any justifiable cause would be regarded as abusing dominant position. Even though it is a progress for China Antimonopoly Law, comparing with the draft issued in 2005, this clause seems to be a result of compromise. Article 22 of the draft stipulates that if an undertaking cannot compete in the market without accessing the essential facility owned by a dominant firm, the latter cannot refuse the access to the essential facility with reasonable price. It appears that the authority recognizes the importance of the protection of access to essential facility. We can observe that this clause refers to Article 19 of Germany Act against Restraints of Competition.[128] Due to no explicit stipulation of EFD in China Anti-monopoly Law, it may be difficult to apply it when this kind of issue appears. So I suggest that Essential Facility Doctrine is inserted in China Anti-monopoly Law. Legislators should stipulate refusal to essential facility as an act of abusing dominant market position. It means that the act of refusing to access to network or other essential facility without any justification should be inserted in Article 17.
However, with regard to EFD, I suggest that China antitrust authorities should be sensitive to the application of EFD. On the one hand, regarding the interests in the short-run, application of EFD will protect the domestic undertakings which now are lack of competitive abilities. On the other hand, it will hamper the incentives of investment in the long-run. Since the owners of EFD are always required to provide access, fewer companies would like to invest costs of research & develop to new facilities. When dealing with essential facility case we should take into account two main policies in China which are encouraging investment and technology importing. The application of EFD without limitation will cause converse effect which goes against main policies.

CONCLUSION
Influenced by professor Areeda¡¯s article ¡®Essential Facilities: An Epithet in need of Limiting Principles¡¯, the Trinko¡¯s decision reflects the near extinction [129] of essential facility. The debate concerning the future of the doctrine is to be continued.
As I discussed in the text, the essential facility is an exception of general duty that Section 2 of Sherman Act imposes on the business. The general duty is recognized in United States v Colgate that even monopolists are not obliged to deal with their rivals.[130] So I believe that the application of Essential Facility Doctrine will not cause detrimental effect, since the criteria evolved from case law are so strict that rare defendant can met all these requirements. Therefore, they would be required to open its creation. It does not be applied frequently under general Section 2 cases but just as an exception to apply when some refusals seriously restrict competition.
Article 86 imposes a much broader obligation on dominant undertakings which is totally contrary to US approach. Although essential facility concept is basically considered beginning from US case law, EC has developed a more practical and comprehensive criteria in its practices, even though we also could hear some more powerful criticized voices. It is may be better to understand that the doctrine is a standard for classifying different cases but not a tool to analyze problems. Director of the EC commission Temple Lang holds the same point of view. Indeed, in B&I, the EC Commission has acknowledged that it is another basic doctrine of Article 86 abusing the dominant position.
Comparing the general practices of the doctrine in US and EC, different approach of legislation and interpretation can lead to the similar aim of administration of market. Section 2 tells us that undertakings with some certain kind of dominant market power and showing the intention of monopoly can be classified as an essential facility holder and give a way to its rival in competition. So it is not hard to see that the US legislators and judges prefer to use a dynamic and functional point of view in dealing with such legal issues.
The counterpart EC achieves the same regulating goal with Article 86 which clearly sets the label distinguishing the competitive position in the market. No matter what does on undertaking do and how it make its competing goal come true, the lack of dominant market position would always result in the same consequence which is out of the ruling of EFD. Market share, infrastructure facilities and the revenue could be the factors deciding the final judgment in the Commission or courts. This approach can be seen as a static or proportional way of interpretation.
China has the market economy and also the giant enterprises among many vital economic sectors. It is obvious that a healthy economy needs competition in market which means a market giving chances to any legal firms. EFD can guarantee a competitive market, but using the doctrine is a sophisticated venture. We can say we have Article 17 and it is capable of regulating monopoly, but we have to admit that we do nothing on the enterprise and there is a long way to go. We hope the comparative experience could give a lesson to us and tell us a practical way, not dynamic not functional, not static or not proportional, handling the issue. I believe that China¡¯s practices will not ignore all the former endeavors.
[1] United States v. Terminal Railroad Association of St. Louis, 224 U.S. (1912)
[2] M. A. Bergman, ¡®When Should an Incumbent be Obliged to Share its Infrastructure with an Entrant under the General Competition Rules?¡¯, (2003) Working Paper Series from Department of Economics, Uppsala University, [WWW]. Available from: http://www.nek.uu.se/pdf/wp2003_25.pdf [Sep 03]
[3] M. A. Bergman, ¡®The Bronner Case: A Turning Point for the Essential Facilities Doctrine?¡¯, (2000) 21 European Competition Law Review 59
[4] V. Korah, ¡®Competition Law and Intellectual Property Rights¡¯, in Vinod Dhall (ed.), Competition Law Today: Concepts, Issues, and the Law in Practice (Oxford, 2007), p.130
[5] D. Ridyard, ¡®Essential Facilities and the Obligation to Supply Competitors¡¯, (1996) 17 European Competition Law Review 438
[6] P. Areeda, ¡®Essential Facilities: An Epithet in need of Limiting Principles¡¯, (1990) 58 Antitrust Law Journal 841
[7] A. Kezsbom & A. V. Goldman, ¡®No Shortcut to Antitrust Analysis: The Twisted Journey of the Essential Facilities Doctrine¡¯, (1996) 11 Columbia Business Law Review 5
[8] R. Pitofsky, D. Patterson & J. Hooks, ¡®The Essential Facilities Doctrine under US Antitrust Law¡¯, (2002) 70 Antitrust Law Journal 443
[9] S. W. Waller ¡®Areeda, Epithets, and Essential Facilities¡¯, (2008) 2 Wisconsin Law Review 360
[10] M. H. Harz, ¡®Dominance and duty in the European Union: A Look Through Microsoft Windows at The Essential Facilities Doctrine¡¯, (1997) 11 Emory International Law Review 189
[11] Alaska Airlines, Inc. v. United Airlines, Inc 948 F.2d 536 542 (9th Cir. 1991)
[12] United States v Colgate & Co, 250 US 300, 39 S. Ct. 465 (1919)
[13] United States v Colgate & Co, 250 US 300, 39 S. Ct. 465 (1919)
[14] J. S. Venit & J. J. Kallaugher, ¡®Essential Facility: A Comparative Approach,¡¯ (1994) 18 Fordham Corporate Law Institute 333
[15] Sherman Act, 15 U.S.C.
[16] Sherman Act, 15 U.S.C. ¡ì 2
[17] United States v. Griffith, 334 US 100, 108 (1948)at 107; Otter Tail Power Co. v. United States, 410 US 366, 377 (1973)
[18] T. A. Piraino, ¡®An Antitrust Remedy or Monopoly Leveraging by Electronic Networks¡¯, (1998) 93 NW. U. L. REV. 6-7
[19] Standard Oil Co. of New Jersey v. United States, 221 U.S. 1 (1911)
[20] A. B. Lipsky, Jr. & J. G. Sidak, ¡®Essential Facilities¡¯, (1998) 51 Stanford Law Review 1191
[21] Twin Labs, Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d cir.1990)
[22] A. Shleifer, ¡®State Versus Private Ownership¡¯, (1998) 12 Journal of Economic Perspectives 133-150
[23] Polaroid/ SSI Europe, Thirteenth Report on Competition Policy (1983), p.157
[24] B&I v. Sealink [1992] 5 CMLR 255
[25] A. Stratakis ¡®Comparative Analysis of the US and EU Approach and Enforcement of the Essential Facilities Doctrine¡¯, (2006) 27 European Competition Law Review 437
[26] N. Kroes, ¡®Tackling Exclusionary Practices to Avoid Exploitation of Market Power: Some Preliminary Thoughts on Policy Review of Article 82¡¯, (2006) Fordham Corp. L. Inst. 381, 385-386
[27] E. Fox, ¡®Abuse of a Dominant Position Under the Treaty of Rome: A Comparison with US Law¡¯, (1983) 7 Fordham Corporate Law Institute 367, 376
[28] Korah, n.4 above, p.15
[29] Areeda, n.6 above, p.841, 846-847
[30] M. Eleanor, ¡®Fox, Monopolization and Dominance in the United States and the European Community: Efficiency, Opportunity, and Fairness¡¯, (1986) 61 Notre Dame Law Review 981, 985
[31] Harz, n.10 above, p189
[32] J. T. Lang, ¡®Defining Legitimate Competition: Companies¡¯ Duties to Supply Competitors and Access to Essential Facilities¡¯, (1994) 18 Fordham Corporate Law Institute 483
[33] COMP/38.096, PO/Clearstream
[34] W. Blumenthal, ¡®Three Vexing Issues Under the Essential Facilities Doctrine: ATM Networks as Illustration¡¯, (1989) 58 Antitrust Law Journal 855
[35] H. Hovenkamp, Federal Antitrust Policy: The Law of Competition and Its Practice (St. Paul, 1994), p.264.
[36] United States v. Terminal R.R. Ass¡¯n, 224 US 383 (1912)
[37] Lipsky & Sidak n.20 above, p.1195
[38] United States v. Terminal R.R. Ass¡¯n, 224 US 383 (1912)
[39] Assoc. Press v. United States, 326 U.S. 1, 4¨C5 (1945) (Associated Press II)
[40] Areeda, n.6 above, p.842
[41] Areeda, n.6 above, p.842
[42] Otter Tail Power Co. v. United States, 410 U.S. 366, 382 (1973)
[43] Lipsky & Sidak, n.20 above, p.1206
[44] Areeda, n.6 above, p.847
[45] Lipsky & Sidak, n.20 bove, p.1206
[46] MCI Commc¡¯ns Corp. v. AT&T Co., 708 F.2d 1081, 1132¨C33 (7th Cir. 1983)
[47] Waller, n.9 above, p.5
[48] Lang, n.32 above, p.439
[49] Pitofsky, Patterson & Hooks, n.8 above, p.449
[50] Twin Labs, Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d cir.1990)
[51] McKenzie v. Mercy Hosp., 854 F.2d 365, 371 (10th Cir. 1988)
[52] Soap Opera Now, Inc. v. Network Publishing Corp., 737 F. Supp.1338 (S.D.N.Y. 1990)
[53] Venit & Kallaugher, n.14 above, p.315, 317
[54] Fishman v. Estate of Wirtz, 807 F.2D 520, 540 (7th Cir. 1986)
[55] Venit & Kallaugher, n.14 above, p.325
[56] Hecht v. Pro Football, Inc., 570 F.2d 982, 992
[57] Venit & Kallaugher, n.14 above, p.315, 317
[58] Hecht v. Pro Football, Inc., 570 F.2d 982, 992
[59] City of Anaheim v. Southern Cal. Edison Co., 1990-2 Trade Case (CCH)
[60] Morris Communications Corp. v. PGA Tour Inc., 364 F.3d 1288 (11 Cir. 2004); United Asset Coverage Inc. v. Avaya, Inc., 409 F. Supp. 2d 1008 (N.D. IL. 2006)
[61] Aspen Skiing Co. v. Aspen Highlands Skiing Corp.472 U.S. 585 (1985)
[62] B. Frischmann & S. W. Waller, ¡®Revitalizing essential facility¡¯, (2008) 75 Antitrust law Journal 7
[63] United States v. Citizens & Southern National Bank, 422 US 86, 116 (1975)
[64] United States v. Colgate & Co., 250 US 300, 307
[65] American Bank & Trust Co. v. Federal Bank, 256 US 350, 358

[66] Aspen Skiing Co. v. Aspen Highlands Skiing Corp.472 U.S. 585 (1985)
[67] Aspen Skiing Co. v. Aspen Highlands Skiing Corp.472 U.S. 585 (1985)
[68] Aspen Skiing Co. v. Aspen Highlands Skiing Corp.472 U.S. 585 (1985)
[69] Pitofsky, Patterson & Hooks, n.8 above, p.451
[70] Containers v. Stena Sealink, OJ L015, 18/01/1994, 94/19/EC Commission Decision of 21/12/9339
[71] Venit & Kallaugher, n.14 above, p.330
[72] Containers v. Stena Sealink, OJ L015, 18/01/1994, 94/19/EC Commission Decision of 21/12/9339 66
[73] Venit & Kallaugher, n.14 above, p.331
[74] Bergman, n.3 above, p.59
[75] Oscar Bronner GmbH & Co. v. Mediaprint Zeitungs, 1998 E.C.R. I-7791, 4 C.M.L.R. 112 (1999)
[76] V. Dhall (ed.), ¡®Key Concepts in Competition Law Competition Law Today: Concepts, Issues, and the Law in Practice¡¯ (Oxford, 2007), p.14.
[77] Venit & Kallaugher, n.14 above, p.317
[78] Venit & Kallaugher, n.14 above, p.325
[79] Polaroid/ SSI Europe, Thirteenth Report on Competition policy (1983) 157
[80] Venit & Kallaugher, n.14 above, p.333
[81] Commission decision 88/589/EEC, OJ1988,L317/47
[82] Venit & Kallaugher, n.14 above, p.333
[83] Pitofsky, Patterson & Hooks, n.8 above, p.451
[84] Case 85/76, Hoffmann La-Roche v Commission E.C.R. 461
[85] Case COMP/38.096, PO/Clearstream, at 218
[86] Stratakis, n.25 above, p.437
[87] Venit & Kallaugher, n.14 above, p.315, 317
[88] Venit & Kallaugher, n.14 above, p.333
[89] Harz, n.10 above, p.18
[90] R. H. Bork, The antitrust paradox (New York, 1978), p.30.
[91] Venit & Kallaugher, n.14 above, p.317
[92] Verizon Communications Inc v. Law Offices of Curtis V. Trinko, LLP, 540 US 398
[93] R. Whish, Competition Law 5th (ed.) (London, 2003), pp.20-21.
[94] D. P. Wood, ¡®The impossible Dream: Real International antitrust,¡¯ (1992) University of Chicago Legal Forum 277
[95] V. Dhall, n.70 above, p.15.
[96] Stratakis, n.25 above, p.438
[97] Pitofsky, Patterson & Hooks, n.8 above, p.443-461
[98] V. Dhall, n.64 above, p.14.
[99] Fox, n.27 above, p.226
[100] Case 70/89 British Broadcasting Corporation & BBC Enterprises Ltd v. Commission [1991] ECR-II 535; on appeal Cases 241&242/91 Radio Telefis Eireann (RTE) and Independent Television Publications Ltd (ITP) v. Commission [1995] ECR-I 743
[101] Case 70/89 British Broadcasting Corporation & BBC Enterprises Ltd v. Commission [1991] ECR-II 535; on appeal Cases 241&242/91 Radio Telefis Eireann (RTE) and Independent Television Publications Ltd (ITP) v. Commission [1995] ECR-I 743 para.56
[102] Ridyard, n.5 above, p.438
[103] Case 418/01 IMS Health GmbH & Co. OHG and NDC Health GmbH & Co. KG (29 April 2004) (ECJ)
[104] L. S. Forrester, ¡®Compulsory Licensing in Europe: A Rare Cure to Aberrant National Intellectual Property Rights?¡¯, (2002) FTC/DOJ hearings on ¡®Competition and Intellectual Property Law and Policy in the Knowledge-Based Economy¡¯
[105] W. Cornish and D. Llewellyn, Intellectual Property: Patents, Copyright, Trademarks and Allied Rights, 5th (ed.) (London, 2003), p.755.
[106] Bergman, n.3 above, p.63
[107] Case C-7/97 Bronner v. Mediaprint [1998] ECR 7791
[108] Case C-7/97 Bronner v. Mediaprint [1998] ECR 7791, para. 62
[109] Data General Corp. v. Grumman System Support Corp., 36 E3d 1 147 (1st Cir. 1994)
[110] D. Ridyard, ¡®Compulsory Access Under EC Competition Law ¨C A New Doctrine of ¡®Convenient Facilities¡¯ and the Case for Price Regulation¡¯, (2004) 21 European Competition Law Review 669
[111] Pitofsky, Patterson & Hooks, n.8 above, p.71
[112] Bellsouth Adver. & Publ'g Corp. v. Donnelly Info. Publ'g, Inc., 933 F.2d 952 (llth Cir. 1991)
[113] Pitofsky, Patterson & Hooks, n.8 above, p.71
[114] B. Klein & J. S. Wiley Jr., ¡®Competitive Price Discrimination as an Antitrust Justification for Intellectual Property Refusals to Deal¡¯, (2003) 70 Antitrust Law Journal 599
[115] CSU, L.L.C. v. Xerox, 203 F.3d 1322, 1325 (2000)
[116] CSU, L.L.C. v. Xerox, 203 F.3d 1322, 1325 (2000)
[117] Verizon Commc¡¯ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004)
[118] Verizon Commc¡¯ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004)
[119] Verizon Commc¡¯ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004)
[120] Venit & Kallaugher, n.14 above, p.337
[121] Stratakis, n.25 above, p.438
[122] Stratakis, n.25 above, p.438
[123] Stratakis, n.25 above, p.438
[124] Z. P. Cheng, The Research on Legal Control of Administrative Monopoly (Beijing, 2002), pp.149-152.
[125] K. X. Li & M. Du, ¡®Does China Need Competition Law¡¯, (2007) 51 The Journal of Business Law 190
[126] W. Y. Zhang & S. Hong, ¡®The Research of Antitrust Problems through Telecom Industries¡¯, (1998) 2 Reform 7
[127] Telecommunications Act of 1996, Pub. LA. No. 104-104, 110 Stat. 56 (1996) ¡ì25
[128] Germany Act against Restraints of Competition ¡ì19
[129] Frischmann & Waller, n.62 above, p.9
[130] Venit & Kallaugher, n.14 above, p.344