The Cartagena Agreement lists eight restrictive business practices and other similar restrictive clauses: (1) It stipulates that the recipient must purchase machinery and equipment, intermediate products, raw materials or other technologies from the sources designated by the supplier or employ the personnel designated by the supplier for a long time; (two) limit the sales price of the recipient's technical products; (3) The scope of technology or product structure and output restricted to the recipient; (4) The supplier has the priority to purchase all or part of the products of the recipient; (5) Restrict the recipient from adopting competitive technology; (6) The terms that the recipient should hand over the transferred technical improvement or invention to the supplier are feedback terms; (7) Forcing the assignee to pay the royalties for the unexploited patent; (8) Prohibiting or restricting the export; (9) Other similar restrictive provisions.
2. Provisions on restrictive business clauses in the Treaty of Europe and Rome.
The Rome Convention prohibits restrictive business practices such as restricting and hindering competition, abusing market advantages and seeking market monopoly, mainly including (1) the practice of directly or indirectly restricting the buying and selling price or other trading conditions; (2) Acts of restricting or controlling production, sales, technology development or investment; (3) the practice of dividing the market or supply sources; (4) In the same transaction, different parties are treated differently for different trading conditions; (5) Forcing the other party to accept conditions and requirements unrelated to the transaction, and taking them as the conditions for signing the contract. According to Article 85 of the European Community Agreement and Regulation. No. 17 and No.27 of the Council of the European Community, all agreements and decisions that are detrimental to trade among member States and hinder, restrict and destroy competition in the European market shall be deemed invalid, and all technical agreements shall be submitted to the European Commission for review.
The laws and regulations of regional groups play a very important role in coordinating restrictive clauses among their members. However, due to the lack of unified international law to adjust restrictive clauses, it still brings many inconveniences to effectively control restrictive clauses. Havana Charter (1948) made special provisions on restrictive business measures in international licensing agreements for the first time. Articles 46-52 of the Charter stipulate the rules of restrictive business practices, including consultation procedures, investigation procedures, restrictive business measures, member obligations, cooperative relief system and domestic measures. Article 50 of the Charter stipulates that "Members shall, in accordance with their charters or the provisions of their legal systems and economic organizations, take all possible measures to ensure that they will not engage in (restrictive business measures) within their jurisdiction … and assist the International Trade Organization in stopping such measures". But the charter was stillborn.
Over the years, the United Nations has also been committed to the regulation of restrictive business practices. 1On April 22nd, 980, the United Nations Conference on Restrictive Business Practices adopted a Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices, which clearly pointed out that "restrictive business practices will adversely affect international trade, especially that of developing countries and their economic development; The model law helps to achieve the goal of establishing a new international economic order and eliminating restrictive business practices that are not conducive to international trade; Ensure that restrictive business practices will not hinder or cancel the benefits brought by lowering tariff and non-tariff barriers that are not conducive to international trade, especially to the trade and development of developing countries. " Chapter IV of the Draft International Code of Conduct for Technology Transfer drafted by UNCTAD 1978 has become the focus of previous negotiations, mainly because developed and developing countries are at loggerheads on the meaning and evaluation criteria of restrictive clauses. In the April meeting draft of 198 1, 20 restrictive clauses were listed, but after repeated consultations, 65438 was finally adopted.
The TRIPS Agreement of WTO can be described as "a milestone for the international community to make progress in limiting the abuse of intellectual property rights and cracking down on unfair competition. The restrictive clauses in the Agreement on Trade-related Aspects of Intellectual Property Rights are as follows: Article 7 of the Agreement stipulates that the objectives of the Agreement on Trade-related Aspects of Intellectual Property Rights include protection and management "which should help promote technological innovation, technology transfer and dissemination, mutual benefit of technological creation and users, improve social and economic welfare and help balance rights and obligations"; Article 8, paragraph 22, of the Agreement allows members to take appropriate measures to "prevent rights holders from abusing intellectual property rights or adopting unreasonable practices that restrict trade or adversely affect international technology transfer. "Article 40 is a special provision of restrictive clauses in the licensing agreement, and its paragraph 1 recognizes that certain licensing conditions or practices related to intellectual property restrict competition, adversely affect normal trade and hinder the transfer and dissemination of technology; Paragraph 2 authorizes members to take appropriate legislative measures to prohibit or control these conditions or practices, and clearly stipulates the provisions prohibiting or controlling unilateral feedback, the provisions that cannot object to validity and compulsory licensing; Articles 3 and 4 stipulate the procedure and system of consultation. In the past, there were relatively few provisions on restrictive clauses in international intellectual property conventions, and they focused on the protection of intellectual property rights, paying little attention to the normal development of international economic trade and the interests of the whole society, especially the economic interests of developing countries. TRIPS has made great progress, but at the same time, it should be noted that TRIPS itself has great limitations and there is still a big gap with the expectations of developing countries.
1, the TRIPS agreement adopts the "competition" standard advocated by developed countries instead of the "development" standard of developing countries. This is reflected in the provisions of Section VIII of Part II of the Agreement entitled "Anti-competitive practices in contract licensing" and Article 40 "Recognition and restriction of competition".
2.TRIPS adopted the "reasonable rule" when specifically identifying restrictive clauses. Article 40, paragraph 2, of the Agreement authorizes "Members to clearly stipulate in their legislation that licensing acts or conditions that adversely affect competition in relevant markets may constitute abuse of intellectual property rights in some cases". This increases the uncertainty of the determination of restrictive clauses and is beneficial to developed countries in a strong position.
3.TRIPS stipulates that member countries have the obligation to consult when taking actions to control restrictive clauses. This Agreement authorizes its members to take appropriate measures to prevent or control restrictive clauses according to their domestic laws, as long as they do not conflict with this Agreement. At the same time, it is emphasized that when a member has reason to believe that a national of another member or an intellectual property holder with domicile in China has violated the laws of that country on controlling restrictive clauses and intends to take action according to law, it should consult with that member. This legalizes the intervention of developed countries in restrictive clauses controlled by developing countries. It can be seen that in the future, there will be a fierce debate between developed and developing countries on the control of restrictive clauses.