Marketplaces called for a contract – Kommersant

In the context of the growing number of conflicts between marketplaces and counterparties, regulators are trying to point out unacceptable actions to e-commerce market participants. Thus, the expert council under the Federal Antimonopoly Service (FAS) recommended that Wildberries abandon a sharp unilateral change in working conditions and the purchase of goods on the site. Systematic violations of good practices may again raise the issue of direct regulation of marketplaces, which is what the counterparties of the sites are seeking.

The FAS Expert Council recommended that Wildberries exclude unilateral actions that change the working conditions and the purchase of goods on the site in a short time. This is stated in the minutes of the meeting, which Kommersant has read. It is also recommended to Wildberries to create a mechanism for pre-trial settlement of disputes and work out practices “with a view to establishing reasonable and proportionate conditions for users.” The FAS clarified to Kommersant that the company must respond to the recommendations no later than May 30. Wildberries stated that they are in active interaction with the FAS: all questions from the protocol are already in development, the results on them will be presented.

The FAS Expert Council discussed the compliance of companies’ practices with the principles of interaction between participants in digital markets adopted in February 2022. These provisions are a tool of self-regulation, therefore, there is no punishment for their non-compliance, the FAS points out. But, according to the regulator, a systematic violation and failure to achieve the goals of self-regulation may be the basis for studying the issue of introducing state regulation of certain areas of digital platforms. BGP Litigation partner Irina Akimova recalls that market participants were warned about the possibility of such a development. Now, in her opinion, the expert council has actually stated that the measures taken are not enough.

According to SPARK, since the beginning of the year, more than 560 claims have been filed with arbitration courts against Waldberry LLC, and about 730 applications for the entire 2022. Business growth, obviously, leads to more intensive business activity, but there are clearly more resonant disputes, says Yaroslav Shitsle, head of the It & IP dispute resolution department at Rustam Kurmaev and Partners. The lawyer recalls cases related to an attempt by Wildberries to introduce a new system of penalties due to substitution of returnable goods, as well as write-offs for advertising services.

There are also lawsuits related to the distribution of counterfeit goods, he adds. Vegas Lex Senior Associate Artem Gasparyan also noticed a significant increase in litigation over the past year. Lawsuits are often associated with fines, for example, for incorrectly specifying the dimensions of the package. “The terms of the offer allow the imposition of sanctions unilaterally, for partners this is often unexpected and painful news,” explains Mr. Gasparyan. Disputes also occur due to the banal loss of goods by the marketplace, he adds.

Aleksey Kozhevnikov, a member of the public council at the FAS, believes that the violation of the principles of competition by some players has a negative effect on the entire market. “Seeing that nothing happens for some platforms, others are also in no hurry to follow the rules of self-regulation,” he points out. Although Yaroslav Shitsle notes that the intensity of news about conflicts involving other sites is lower. In Ozon and Avito, Kommersant did not answer. In “Yandex. Market” stated that the company adheres to the principles of self-regulation in relations with sellers, and relevant tools are being developed for owners of pick-up points (PIUs). The latest service promises to involve colleagues in the analysis of questions and is preparing the first meeting of the working group.

Wildberries indicate that now the offer is the same for all partners, and all changes in it come into force seven days after publication. Finalization of the document is a matter of interaction with the FAS, they say in the company. Wildberries also expects in the near future to provide the service with a mechanism for the pre-trial settlement of systemic issues, in which business associations and independent experts will take part. Dmitry Gusev, Chairman of the Supervisory Board of the Association of E-Commerce Market Participants, says that it is important for sellers and pickup point operators that the change in the offer does not imply a sharp deterioration in conditions.

Irina Akimova believes that relations between the FAS and Wildberries have not yet reached a critical point, and an adequate response of the company to the council’s recommendations will help avoid direct regulation. She recalls that at the end of March, it was decided to analyze the marketplace shares by the end of May. “The establishment of the dominant position of Wildberries will allow the antimonopoly authority to influence the operation of the site through the use of antitrust response measures,” Ms. Akimova explains.

According to Dmitry Gusev, sellers of goods and pickup point operators are talking about the expediency of legislatively fixing the issues of their interaction with marketplaces. “The market is just being formed, a large number of gaps leads to conflicts,” he is sure. The expert expects to raise the topic of employment, including issues of employment and social guarantees for counterparties of marketplaces.

Alexandra Mertsalova, Anatoly Kostyrev