The position of jurisprudence and the judiciary on the concept of competitive relationship in the case of unfair competition: An analytical study in French and Jordanian law

Abstract

The jurisprudence and judiciary, in general, have long established that a direct competitive relationship between the parties is a necessary condition for filing an unfair competition lawsuit. Many legislations, including Jordanian law, have stipulated the necessity of a competitive relationship between the parties to the lawsuit for this lawsuit to be filed. Conversely, insisting on the necessity of a direct competitive relationship may harm the competing economic project and prevent it from claiming the damage it suffered due to the unfair competitive act that harmed it. From this perspective, we find that French jurisprudence and judiciary have shown development in this regard and a degree of flexibility in assessing the existence of such a relationship, which may arise even though the concerned parties may not be at the same level in economic activity; this helps in identifying behaviours that may be harmful to the market or practices that may undermine trust in the commercial system. This study aims to examine the development witnessed by French jurisprudence and judiciary from abandoning the traditional position of considering a direct competitive relationship between the parties as a condition for filing an unfair competition lawsuit to adopting the idea of protecting the market in general, which is considered from this perspective the ultimate goal of the unfair competition lawsuit, leading inevitably to the abandonment of the idea of the necessity of a direct competitive relationship to file this lawsuit.

This study concludes with a set of findings and recommendations, the most prominent of which is the necessity for the Jordanian legislator to reconsider the requirement of a direct competitive relationship for the possibility of filing an unfair competition lawsuit. Due to specific practices and behaviours that violate the rules of commercial integrity, it explicitly states that the aggrieved party may file an unfair competition lawsuit even if there is no direct competitive relationship between the disputing parties, without the need to prove the existence of an actual competitive relationship between them.