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Daniel Fordan

A Critique of the Parallel Problem

The thesis is about parallel importation and the rights of exclusive distributors. It seeks

to determine the rights and remedies available to exclusive distributors in light of the passage of

the Philippine Competition Act.

Due to this, it seems that the paper is not answering a legal issue. It merely analyzes the

currently scattered laws and jurisprudence with the goal of consolidating these and clarifying the

available rights and remedies of exclusive distributors.

Also, it seems that the thesis is not sure of its focus. On some parts, it stresses on the

effect of the Philippine Competition Act (PCA) to the rights and remedies available to exclusive

distributors. On others, it emphasizes on the confusion as regards the rights and remedies of

exclusive distributors due to the lack of a single law governing parallel importation.

The thesis also seems to conflate the concepts of copyright, trademark, and patent. On

some parts, it mixes the idea of piracy and counterfeiting which are distinct issues from each other.

Similarly, the concept of unfair competition which is in the area of trademark was mixed up with

the rights of a patent holder in the Conclusion of the paper.

As stated in the outline, the PCA does not per se prohibit exclusive distributorship, in the

same manner that it does not per se prohibit monopoly. These are not prohibited as long as they

do not create undue advantage or unduly impede competition. Thus, it is not clear how the rights

and remedies of exclusive distributors, if they are not considered anti-competitive or abusing their

dominant position, are affected or limited by the PCA.


Lastly, the flow of the arguments based on the outline does not seem to establish a

conclusion other than the fact that the laws on the matter are scattered which is actually the premise

of the problem. It begs the question of what the rights of exclusive distributors are in light of the

PCA. While the thesis concludes that only one remedy is left for exclusive distributors, it is not

clear how such conclusion was reached. This may be related to the lack of focus of the thesis or to

the objective of the thesis which simply seeks to consolidate and analyze the scattered laws on the

matter.

In sum, the paper should choose an aspect or issue in which it would focus. It may

determine the scope of allowable exclusive distributorship within the framework of the PCA. It

may also address the overlaps or gaps, if any, in the rights and remedies available to exclusive

distributors as conferred by the different laws and analyze the interplay of these sources of rights.

As parallel importation may be approached through different perspectives, it must be clear as to

what perspective the thesis seeks to address the issue of parallel importation.