Abuse of Economic Dependence

As I discuss at pages 199-204 of my book Wrongful Patent Assertion:  A Comparative Law and Economics Analysis (Oxford Univ. Press 2026), several countries, though not the United States, recognize an “abuse of economic dependence” doctrine.  In general terms, the doctrine forbids a firm with relative strength in comparison with another from abusing that strength.  Exactly what that means, of course, may vary from one country to another; but where applicable the doctrine can result in liability under circumstances in which the defendant lacks sufficient market power to be liable for abuse of dominant position.  At least in some countries, moreover, the doctrine is (or as originally conceived was) specifically intended to protect small and medium-sized enterprises, analogous in some ways to the Robinson-Patman Act in the U.S.  But can the doctrine be employed in response to (alleged) abuses of patent rights?

In this regard, I devote several pages to a recent decision of Belgium’s Cour de cassation, Victrix Socsan S.L. v. Tunstall Group Holdings Ltd., which I also have discussed on this blog at various times as it made its way from trial court to appellate court to Cour de cassation (see here, here, and here).  I was therefore pleased to see an English-language translation of portions of the decision by David Wright-Policepayeh in the current issue of GRUR Int. (specifically, 75 GRUR Int. 781-83 (2026)).  The translation highlights the portion of the decision holding that an abuse of economic dependence claim can be asserted even in the absence of a contractual relationship between the claimant and the defendant.  My own take, as expressed in the book, is that the lower court’s narrower interpretation (requiring a contractual relationship) is more sensible than the more expansive interpretation adopted by the Cour de cassation, which (I argue) “may threaten to provide every disappointed business suitor with a potential cause of action” (p.204).  In contrast, “where there is a contractual relationship, the abuse of economic dependence doctrine arguably could fill a gap by discouraging “holdup” in the sense originally developed by Oliver Williamson and others—as a form of opportunism on the part of the dominant party in a contractual relationship, the ex ante possibility of which could discourage some non-dominant undertakings from proceeding with otherwise beneficial transactions, or induce parties to incur inefficient ex ante costs to prevent such opportunism”—though the efficacy of the doctrine in this regard would hinge on the courts’ ability to apply the doctrine in a manner that would maximize social benefits over unintended social costs.

Whether the Belgian decision will lead to more cases, in Belgium or elsewhere, in which claimants assert the doctrine in response to alleged abuses of patent rights remains to be seen.  Meanwhile, for readers who want to learn more about the doctrine but don’t read French, the GRUR-Int. translation should be helpful—as is, I hope, my discussion in Wrongful Patent Assertion.  (And, just a reminder:  you can download the first chapter of the book for free using this link, through the end of this month; and you can use the promotion code AUFLY30 for a 30% discount).