Current Competition Law Research Articles

Is Cambodia's Current Competition Law Adequate for Regulating Generative Artificial Intelligence?

Is Cambodia's Current Competition Law Adequate for Regulating Generative Artificial Intelligence?

Analysis of Malaysian Competition Law and Policies in the E-Commerce Platforms Market

The current competition law framework in Malaysia is found in the Competition Act 2010 and Competition Commission Act 2010, supplemented by various Malaysia Competition Commission Guidelines. An analysis of the e-commerce platforms market would demonstrate the creation of complex conglomerate ecosystems surrounding a few incumbent platforms that are resistant to conventional monocentric competition laws and policies focusing on price. Consumer complaints suggest the presence of unfair, exclusionary, and exploitative practices that affect various parties in the multi-sided e-commerce platforms that depend on the platform's infrastructure. This research seeks to identify the e-commerce platforms market ecosystem in Malaysia and analyse the regulatory framework governing market competition and safeguarding consumer protection in the e-commerce platforms market in Malaysia with references to notable competition cases and trending consumer complaints. Crucially, it aims to compare the Malaysian competition laws and policies against the Digital Markets Act and the Digital Services Act of the European Union in the context of the digital market, and employs doctrinal research, wherein the primary data is obtained through systematic content analysis of relevant reports and articles. Malaysian competition laws and policies have potential weaknesses that can be strengthened to safeguard consumer protection in the e-commerce platforms market. Article Details How to Cite

A Novel Framework for Cost Constrained Network Sharing

Network sharing is widely accepted as a cost effective approach for mobile network deployment. It remains uncertain, however, how regulators will evaluate network sharing agreements (NSA) for future networks in the context of the current competition law. For example, 5G mobile network operators (MNOs) seeking to enter NSAs may risk legal challenges, as regulators have not given MNOs sufficient guidance for self-evaluation of their NSAs. One way for MNOs to reduce the risk of legal challenge is to avoid sharing variable costs in the NSA. However, constraining costs to be non-variable (i.e., fixed) rules out the use of most pricing mechanisms that have been widely adopted for dynamic resource trading between MNOs. In this article, we propose a network sharing framework to allow dynamic resource sharing without the use of resource pricing. To incentivize sharing without pricing, our framework presents sharing as a means for MNOs differentiate services and better compete in the service market for profit. We evaluate our framework in a duopoly market model and demonstrate the economic and regulatory viability of our framework.

Addressing Algorithmic Tacit Collusion: Insights from Market Investigations

This article explores the concept of algorithmic tacit collusion and the potential role of market investigation tools in addressing this issue. The use of algorithms in online sales markets has raised concerns about anti-competitive effects and the adequacy of current competition law provisions. The European Commission has been considering the implementation of a 'New Competition Tool' (NCT) to address structural competition issues beyond the scope of existing regulations. The UK's market investigation tool, regulated under the UK Enterprise Act of 2002, serves as a reference point for examining the potential insights and lessons that could inform the development of the NCT at the EU level. The article highlights the impact of algorithmic pricing on market transparency, the challenges of classifying algorithmic tacit collusion, and the potential for market investigations to address competition-related concerns. It also discusses the procedural safeguards embedded in the UK's market investigation system and the benefits of proactive competition promotion through market investigations. Finally, the article considers the implications of adopting similar tools at the EU level and the potential for enhancing the European Commission's competition enforcement framework.

Nachhaltigkeit und Wettbewerbsrecht

AbstractSustainability goals are frequently achieved through cooperation between companies. However, this is often inadmissible under current competition law. So far, the competition authorities have had to limit their assessment of cooperations and mergers to the effects in the relevant market. The EU Commission has now explicitly taken up the issue of sustainability in the draft Horizontal Guidelines. It introduces exemptable cooperation on “sustainability cooperation”. Thus, the exchange of information on sustainable suppliers will be permissible, as will a joint campaign to promote sustainability awareness. The article discusses the possibilities and problems arising from this.

Strengthening effective antitrust enforcement in digital platform markets

ABSTRACT While the initiatives in various jurisdictions to impose ex ante regulation on “digital gatekeepers” – large online platforms that are necessary intermediaries between business users and their customers – have attracted considerable attention, the purpose of this paper is to contribute to the debate on the equally important need to strengthen effective antitrust enforcement in digital markets. The focus is on possible adjustments to the current competition law framework on unilateral conduct. The paper examines four proposals. First, it argues in favour of revisiting the error-cost framework and considering the introduction of presumptions of anticompetitiveness in limited circumstances. Second, it makes the case that competition authorities should make greater use of restorative remedies to reinject lost competition in the market. Third, it discusses the need for greater focus on harms to quality and innovation. Fourth, it argues that when competition has been irreparably harmed, EU competition authorities should consider exploitative cases.

Improve national competitiveness capacity under Vietnamese law

Competition is characteristic of the market economy when the supply and demand of goods and commodity prices are the decisive factors. Competition of enterprises has a direct effect on the national competition. When enterprises develop sustainably, they will promote the development of social production, increase in social labor productivity and improve people’s lives. Over the past 30 years of renovation, the competitiveness capacity of Vietnam has changed and improved gradually, but compared to the world and the ASEAN region, it remains low. Good national competition will ensure to improve the business environment, increase competitiveness, to adapt to the new production in the 4.0 industrial revolution, helping the Vietnamese economy to develop stably firmly in a competitive environment.In the framework of this article, the author focuses on the following issues: (i) Some general theoretical issues about competition and national competitiveness capacity; (ii) Some legal issues in the current competition law in 2018; (iii) Some solutions to improve national competitiveness capacity.

Проблемы правоприменительной практики антимонопольного регулирования на цифровых рынках как показатель необходимости реформирования законодательства о защите конкуренции

Based on the analysis of law enforcement practice in the field of antimonopoly regulation in digital markets, the authors justify the necessity of reforming the current legislation on the competition protection, and provide statistical data on the scale of the introduction of digital technologies. It is pointed out that the prevailing forms of competition in the global digital market are either an oligopoly or a duopoly. The article provides an overview of the practice of applying the current Russian competition law in relation to IT companies (Yandex N. V., Apple Inc., Google LLC). The article analyzes the shortcomings of the Draft Federal Law «On Amendments to the Federal Law «On Protection of Competition» («the Fifth Antimonopoly Package of Amendments»), prepared by the Federal Antimonopoly Service of the Russian Federation in 2018, and propose the ways to eliminate the shortcomings of some projected standards. The author points out the need to link the concept «digital platform» with the term «information system», designated in the Law of the Russian Federation «On Information, Information Technologies and Information Protection», and to take as a basis the definition enshrined in the French Law on the Digital Republic of 2016. According to the authors` opinion, the concept «network effects» can appear in the legislation only after they are supported by the results of experimentally tested methods for calculating network effects. It is proposed to legally «link» network effects with the use of big data that restricts competition. The results of successive attempts of the FAS (Federal antimonopoly Service) of Russia to limit or cancel «intellectual immunities» are considered, and the correctness of introducing a rule on the removal of such immunities in certain cases is justified. The cases of unfair competition of digital platforms associated with the manipulation of search results algorithms (including the use of interactive enriched responses) are investigated. The article describes the risks of digital ecosystems, the development of which may exacerbate the issues of dominance, in particular, due to the monopolization of data. It is concluded that the FAS legislative initiatives of the sample of 2018 need to be carefully revised in the context of the new realities of the development of IT markets.

Critical Analysis of Prohibition of Anti-Competitive Trade Practices in Ethiopia: The Case of Arbaminch Town, Southern Ethiopia

In a free market context, trade competition signifies a state of affairs where in sellers compete with each other to attract buyers with a view to maximizing their sales, profits and market share. Trade competition laws and policies are among the tools that can be used to bring about efficient workings of markets and alleviate market failures. This research sought to explore prohibition of anti-competitive trade practices in Ethiopia in general and particularly in Arbaminch town, Southern Ethiopia. The research has employed doctrinal approach and the data collected were analyzed qualitatively. Both primary and secondary sources of data were used. The findings of the research indicated that there is lack of effective enforcement of the existing law in the study area. There are also anti-competitive trade practices remained uncovered by the law. The current trade competition law of the country needs revision. There is also a need to establish law enforcement bodies and independent adjudicative organs at regional level including in the study area.

Strengthening effective antitrust enforcement in digital platform markets

While the various initiatives in several jurisdictions to impose ex ante regulation on “digital gatekeepers” – i.e., large online platforms that are necessary intermediaries between business users and their customers, and which are typically protected by high barriers to entry – have attracted considerable attention, the purpose of the present paper is to contribute to the policy debate on the equally important need to strengthen effective antitrust enforcement in digital markets. The focus of the paper is on possible adjustments to the current competition law framework or its enforcement with respect to unilateral (single-firm) conduct. Specifically, it examines four proposals to improve the effectiveness of antitrust enforcement in digital markets. First, it argues in favor of revisiting the error-cost framework and considering the introduction of presumptions of anti-competitiveness in limited circumstances. Second, it makes the case that competition authorities should make greater use of restorative remedies with a view to re-injecting lost competition in the market. Third, it discusses the need for greater focus on harms to quality and innovation. Fourth, it is argued that in circumstances where competition has been irreparably harmed and cannot be restored, competition authorities in the EU should consider pursuing exploitative cases.

Competition Law Objectives in Kazakhstan

This article analyses the current competition law objectives of Kazakhstan and compares them to those of other jurisdictions, including the EU and the EAEU. It then explains the importance of setting clear goals for competition law enforcement and policy. Finally, this paper argues that the antitrust law objectives of Kazakhstan should differ from those established in the EU and the US, in particular aiming at sustainable development, growth, innovation, and redistribution.

A Fair Share: Time for the Carbon Defence?

Global warming is causing human suffering and economic damage. Current competition law practice makes it difficult for firms to agree binding commitments that would reduce greenhouse gas emissions. However, a carbon defence that is consistent with the foundations of competition law could provide a means to permit agreements that have sufficient benefit to society as a whole, without the need for changing legislation. This paper sets out the obstacles current competition law practice presents to firms seeking to cut greenhouse gas emissions and examines how and whether the carbon defence proposal could work.

Collusion by code or algorithmic collusion? When pricing algorithms take over

ABSTRACT As algorithmic pricing becomes more widespread, the discussion about the extent to which the use of algorithms results in an increase of collusion also intensifies. While some scholars argue that algorithms are able to collude on their own (algorithmic collusion), others claim that only the use of code to enforce collusion (collusion by code) is a serious threat. In this paper, we discuss both scenarios as well as the conditions under which collusion is likely to occur. As detection and prosecution seems rather challenging, we also discuss possible remedies. These include statistical analyses of market data, an increase in trained staff for competition authorities or even a general ban of specific classes of pricing algorithms. While current competition law seems to be prepared to tackle current issues, it might be adapted for possible future challenges, in case that autonomous algorithms become greater concerns in the future.

COMPETITION LAW OBJECTIVES IN KAZAKHSTAN

This article analyses the current competition law objectives of Kazakhstan and compares them to those of other jurisdictions, including the EU and the EAEU. It then explains the importance of setting clear goals for competition law enforcement and policy. Finally, this paper argues that the antitrust law objectives of Kazakhstan should differ from those established in the EU and the US, in particular aiming at sustainable development, growth, innovation, and redistribution.

Can Antitrust Enforcement Improve Privacy Protection? Privacy as a Parameter of Competition in Merger Reviews

This Article describes how merger reviews under current competition law are able to treat privacy as a dimension of competition. It illustrates this possibility through an examination of the European Commission’s reviews of the Facebook/WhatsApp merger and the Microsoft/LinkedIn merger. This Article examines the legal, factual and practical considerations that collectively amount to large and potentially insurmountable obstacles to this effort to improve privacy protection through merger review. These obstacles include the inability to apply or extend privacy law directly, the unresolved conceptual knots in clarifying the notion of privacy competition, the empirical difficulties in determining the existence and extent of privacy competition, and the requirement to show that any post-merger failure to satisfy privacy preferences results from a substantial lessening of competition, rather than from independent business judgements or the proper operation of competitive forces. This Article concludes that merger reviews are not likely to improve privacy very much. it would be better to turn to other aspects of antitrust law or to privacy law itself to vindicate privacy rights.

Competition law enforcement in Hong Kong SAR and in Ireland: similar and atypical

Purpose This paper aims to understand the emergence, operation and evolution of judge-centred models for the enforcement of competition law in Ireland and in Hong Kong SAR. The public enforcement model in Hong Kong chimes with the Irish regime where competence to adjudicate on competition law violations and to impose sanctions is intentionally reserved exclusively to judges. This design choice renders the Irish and Hong Kong regimes both similar to each other and atypical on the global stage, where in many jurisdictions an administrative competition agency investigates suspected infringements, makes determinations of infringements and may penalise infringers. Design/methodology/approach This paper starts by detailing the current competition law architecture in each jurisdiction. Then, it examines closely the discourse (expressed in consultations, experts’ reports and Parliamentary documents) in the lengthy period preceding their introduction. This approach aims, firstly, to understand why judicial models were chosen over more familiar administrative ones and, secondly, to unearth any similar concerns which had a bearing on the choice of atypical design. Next, it analyses some implications of the judicial model in operation for, firstly, parties; secondly, the administrative competition agencies; and, thirdly, the evolution of competition law. Findings It finds the existence of similar concerns surrounding due process/separation of power arose in each jurisdiction. Other similar strands include a sluggish political appetite which delayed reform. Each jurisdiction actively sought to inform itself about international experience but did not feel obliged to copy the enforcement dimension even where substantive prohibitions were persuasive. Research limitations/implications It shines a light on the independent response by two small Common Law jurisdictions, which does not converge with popular administrative international models of competition law enforcement. Practical implications It is hoped that the decades-long experience in Ireland may interest those involved in Hong Kong competition law, which is at a comparatively fledgling stage of development. Originality/value This is an original research and appears to be the first paper exploring the atypical approaches taken in Hong Kong SAR and Ireland to designing locally suited regimes for the enforcement of competition law.

IMPLEMENTING THE EXTRATERRITORIALITY PRINCIPLE TO STRENGTHEN COMPETITION LAW ENFORCEMENT IN INDONESIA IN THE AEC ERA: A COMPARATIVE STUDY

The regional economic integration that ensues from the ASEAN Economy Community will not only provide its members with boundless opportunities for economic growth, but also with unprecedented challenges. The demands of a more interconnected regional economy will requirethe Indonesian government, as guardians of the competitive process in the Indonesian market, to protect it from anticompetitive conduct occurring both within and outside of its borders. However, there is a major gap since Indonesia's current competition law does not provide the KPPU with the jurisdiction to investigate, prosecute, or punish violations committed by business actors located outside of Indonesia's territory. Thus, this paper examines the implementation o f the extraterritoriality principle to enable the KPPU and Indonesian courts to exercise jurisdiction over foreign business actors who violate Indonesia's competition law from abroad. This paper employs a comparative approach to analyze the development of the extraterritoriality principle in the US's, EU's, Singapore's, and Malaysia's competition laws. This article concludes by determining how the extraterritoriality principle should be implemented to strengthen Indonesia's competition law enforcement.

Conceptualizing Big Tech As ‘Modern Bigness’ and Its Implications for European Competition Law Submission in Reaction to the Call for Contributions – Shaping Competition Policy in the Era of Digitalization

As academic I have been pondering the European competition law response to statements as 'Big Tech is a Big Problem' (Project Syndicate 2018), “the data economy demands a new approach to antitrust rules” (Economist 2018) and “Is it time to break up Google?” (NYT (2017)). Supporting the tenets of these statements – that competition law should do something about Big Tech, even though it is not always clear what exactly – might imply a move away from the basis of the Commission’s current competition law enforcement. Instead of focusing on the question whether the current instruments of and enforcement practice of European competition law is fit-for-21st-century-purposes, in this very brief paper I would like to focus on a more fundamental question: what is it, that makes ‘Big Tech’ so worrisome? Is the power of Big Tech a qualitatively new phenomenon, and if so, is it so fundamentally different from ‘old’ Bigness, that an overhaul of the foundations of competition law should be seriously considered? My hypothesis is, indeed, that Big Tech is not a mere incarnation of ‘old’ ‘Bigness’. Instead, it is something new, captured by the notion of ‘Modern Bigness’, which I will introduce below. It is only by conceptualizing Big Tech as Modern Bigness that the subsequent question how European competition law should respond can be properly addressed. On the one hand, I would like to stress that this is not a fully formed academic paper. It will only outline the contours of a new theory, which might be relevant to answer the Commission’s question on how competition policy should be shaped in the era of digitalization. On the other hand, my follow-up aim is to contribute to the academic literature relating to the interplay between competition law and the digital economy. This literature has focused on specific challenges of the digital economy and on whether the instruments of competition law are fit-for-purpose. It also relates to the ongoing debate on what competition law is for, but this is not always combined with providing a deep understanding of this new phenomenon. In this short contribution, I would like to provide the contours of a novel theory: a theory of Modern Bigness, and indicate why a further deepening of the theory might be a relevant endeavor.

Big Airlines with Big Data: The European Competition Law Issues Associated with Price-Setting in the Airline Industry Using Big Data Analytics and Machine-Learning and the Case for ‘Competition-b

Every sector of the digital economy is being revolutionized by the capacity of computer systems to ‘learn’ and make ‘decisions’. What does this mean for competition law? This article examines this question in the context of the airline industry, a pioneer of technological applications and prolific user of Big Data. It examines whether price-setting using Big Data and machine-learning may lead to parallel-pricing and tacit collusion between airlines. And if so whether the decisions of algorithms may amount to anticompetitive conduct within the scope of Articles 101 and 102 TFEU. Identifying challenges in applying current competition law to tacit collusion using Big Data, the author proposes the airline industry proactively adopt ‘Competition-by-Design’ in order to demonstrate that it has not abdicated its responsibility for compliance with competition law.

Applying the Dynamic Competition Approach to Zero-Priced Markets

This article examines competition law analysis on zero-priced markets within the scope of dynamic competition model. In this regard, following the proliferation of the Internet-based services, zero-priced markets have become an important part of our ecosystem. To that end, given that the current competition law tools and assessment methods depend heavily on the existence of positive prices in the relevant markets, zero-priced markets—as a fast-spreading concept—pose several complexities for competition law practitioners in particular in the fields of relevant product market definition and competitive assessment in such markets. In this regard, recent case law and scholarly analyses clearly indicate that there is a need for implementing a dynamic competition law model when dealing with zero-priced markets by taking their specific characteristics into consideration. In this article, we will discuss the effectiveness of the traditional competition law tools and present alternative competition law approaches for evaluating zero-priced markets in a dynamic manner.