Reasonableness as a way to determine the legal admissibility of a transaction in antitrust law

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NATALIYA V. ZAITSEVA^а

^аJSC «Power Machines»

DOI: 10.22394/2070-8378-2020-22-5-32-40

Abstract:
The article is devoted to the research of the criterion of rationality, its content and interpretation at the international level and in national systems. The author analyzes the role of rationality in the system of antitrust regulation and its impact on the acceptability of transactions that affect competition. The article outlines the criteria of a reasonable approach to permissible actions restricting competition in the conditions of Russian law, as well as the peculiarity of regulating conditions restricting trade in common law countries. Two basic models for the interpretation of rationality are based on assessment of the form and content of the principle. The qualification of rationality is based on existing precedents that gave legal interpretation to this term. A reasonable approach to determining the admissibility of actions that restrict competition is possible for a certain list of actions in the presence of mandatory criteria – no harm (at the moment) and the presence of a positive general economic effect. The author considers the issues of changing the legal content of reasonableness depending on the type of restrictions. There are three approaches to the definition of rationality – utilitarian, pragmatic and formalist, which are used to varying degrees in certain industries, but it is possible to distinguish the use as the main utilitarian approach in tort obligations and some obligations of the administrative order, a pragmatic approach in contractual relations and a formalist approach in a public relationship. The author considers the issues of changing the legal content of rationality, depending on the type of restrictions.

Keywords:
reasonableness, economic feasibility, admissibility of actions restricting competition, restriction of trade, per se approach in antitrust law

Received:
June 26, 2020

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