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B2B: Legal Issues

Antitrust
Although EDI and B2B exchanges may provide efficiencies and opportunities unavailable to businesses before the mediation of electronic commerce, EDI and B2B exchanges also can be breeding grounds for collusion. Two reports issued in 2000 by the Federal Trade Commission, one of which was written jointly with the Department of Justice, acknowledge that antitrust laws should be applied to online exchanges, just as with more traditional marketplaces. (The FTC reports can be found here and here.

B2B exchanges, like all other marketplaces, create a situation where competitors might collaborate. For example, Covisint, an exchange used by the automobile industry, is a joint initiative between three of the largest automakers: GM, Ford, and DaimlerChysler. This competition has the potential to be anticompetitive - a situation disadvantageous to consumers. This collusion can be obvious - a clear price set by the industry - or more subtle thanks to the speed and distributive nature of the Internet. Seemingly minor details, such as the structure, bylaws, operating rules, ownership, and management of a B2B exchange can be considered collusive. Although an FTC probe into Covisint produced no violations against the cooperative, other B2B exchanges with less strict bylaws may have a different fate.

B2B exchange collusion can exist in a variety of forms. Exclusivity is an important factor in collusiveness. To be fair, the exchange cannot be too inclusive or too exclusive. For example, an agreement to exclude rivals from investing in or using a B2B exchange is an exclusive practice. Limiting functionality or features of the exchange can also be a form of exclusion. Inclusion can exist when operating rules prevent contributing parties from using competing exchanges. Time commitments for B2B exchanges can also hinder business for a rival exchange.

Another fear stemming from collusion is the use of information-sharing agreements. As the Internet allows information to be shared with unprecedented speed, businesses could agree to share inside information to benefit each other and harm the marketplace. Additionally, firms could work together to jointly purchase goods. This monopsony power, a market with only one buyer and many sellers, could work together to drive prices down by purchasing less of an item, and thereby decreasing output.

When examining collusive behavior by B2B exchanges, the Federal Trade Commission and the Department of Justice examine two key questions:

    1.) Will the B2B venture permit rivals to exchange and use competitively sensitive information to raise prices to consumers?
    2.) Are there exclusionary rules that limit competitors from using the B2B or the unduly impede the development of competing B2B exchanges by preventing shareholders or participants from using competing exchanges?
Additionally, the agencies consider five factors:
    1.) Who will receive or have access to competitively sensitive information?
    2.) What type of information will be shared?
    3.) How fresh and transaction specific will the information be when it is made available?
    4.) Is the information already available through other sources?
    5.) What is the structure of the market served by the B2B?

For additional information on these factors, see "Applying Antitrust Law to B2B Marketplaces."

While new supply chain and procurement tactics emerge with the adoption of B2B exchanges; "In the end, a B2B, stripped to its essential features, is little more than a joint venture among competitors (anti-trust article). Therefore, online B2B is subject to the same types of scrutiny regular markets face. No anti-competitive behavior can take place, just like in regular marketplaces. As such timeliness of information is also an important consideration when operating B2B exchanges. For example, in U.S. v. Airline Tariff Publishing Co., 58 Fed. Reg. 3971 (1/12/1997), the DOJ charged some airlines because of price-signaling aspects of the B2B arrangement.

Contracts
For all businesses, it is crucial that their significant time and expense for a B2B exchange be protected with a contract. See Dairy Streets Terms and Conditions for an example agreement for an online exchange. Standardization efforts remain a major significant barrier to efficient B2B contracts. Efforts are now in place to automate contracting in the B2B realm. Companies such as I-many, diCarta, MyContracts, and Webango are just a few of the many software firms looking for a piece of the electronic contracting market. If adopted, these types of contracts may compliment the efficiencies of B2B and help provide timelier business to business transactions.

Trust
Trust is also of paramount importance in B2B. Without trust in other firms, B2B is not possible. EDI relationships are usually found between firms with very strong, long-standing relationships. Therefore, these new Internet exchanges leave many questions when firms that do not have strong ties depend on each other for business. "They want to buy the right product from the right supplier and not necessarily get the lowest price today.", says Andy Cohen, vice president of marketing at Instill, a food-servcie e-commerce provider. Trade-Ranger Inc. is an Internet hub for buyers and sellers in the petrochemical industry. Sometimes called "gated communities," these types of exchanges provide membership agreements and security measures to protect business transactions. Industry online market places are a likely response for the past trust barriers to EDI exchanges.



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