New applications of theories of harm: innovation, non-price foreclosure and ecosystems – what makes the outcome of a competition review harder to predict?

Abstract

In the context of dynamic markets, there have been changes in established approaches to merger assessment by competition authorities across the globe, as well as the application of more established approaches to new contexts. Companies can find it difficult to anticipate what evidence or analysis is likely to make a difference to their prospects of obtaining approval from competition authorities for their transactions, making the outcome of competition reviews less predictable in these dynamic sectors. In this article we consider how this uncertainty manifests itself across a range of theories of harm as applied to dynamic markets, honing in on the particular deal uncertainty surrounding transactions in dynamic sectors, with particular features, where the practice and use of evidence is less established.