Regulating the Abuse of Superior Bargaining Position: Comparative Approaches in East Asia and Europe

Abstract

In commercial practice, firms may exploit superior bargaining positions in contractual relationships, creating situations of economic dependence that allow stronger parties to impose unfair or disproportionate terms on weaker partners. Such practices, although not always amount to market dominance, pose significant risks to competition and fairness. This article examines the legal frameworks developed to address abuse of superior bargaining position in selected jurisdictions of East Asia (Japan and South Korea) and Europe (Germany, Italy, Slovakia, and Hungary).

The analysis demonstrates that regulatory approaches vary across legal systems. In Japan and South Korea, ASBP is embedded within competition law as part of the prohibition of unfair trade practices, actively enforced by the competition authorities through administrative and, in Korea, even criminal sanctions. Germany pioneered the concept of relative market power within competition law, historically aimed at protecting small and medium-sized enterprises, and recently expanded its scope to cover digital markets. Italy, by contrast, initially adopted a civil law approach to economic dependence, later reinforcing the role of its competition authority and adapting legislation to the platform economy. Slovakia and Hungary have chosen sector-specific regulation, particularly in retail supply chains, entrusting enforcement to ministries rather than competition agencies.

The article further highlights ongoing challenges, including evidentiary difficulties in proving economic dependence and the reluctance of small firms to litigate against powerful partners. It concludes that despite diverging models, the overarching purpose of these rules is consistent: ensuring balance in business relationships, protecting weaker parties, preserving fair trading conditions, and safeguarding healthy competition. A growing international trend reflects the recognition that fairness has become a central principle of competition policy, with significant implications for inclusive and sustainable economic growth.