Antitrust Law Research Articles

Drafting a pro-antitrust and data protection regulatory framework


 The Digital Personal Data Protection (DPDP) Act 2023 has significant implications for antitrust issues in digital markets. A consensus has emerged among competition regulators across jurisdictions that in markets underpinned by data-driven business models, antitrust concerns intersect with data protection regulatory issues. With the recent enactment of the law, the landscape in India is now ripe to ensure that the two regulatory tools of data protection and competition work in tandem. The paper provides an overview of why a new approach to antitrust law is required in the realm of data-driven digital platforms, and delves into the evolving antitrust cases in India with respect to digital platforms to lay out the jurisprudence on data-related anti-competitive practices. The main objective of this paper is to map the Digital Personal Data Protection Act in the context of India's jurisprudence to theoretically illustrate how regulation of personal data could impact antitrust enforcement. Finally, the paper outlines how the CCI needs to assess digital antitrust cases and how the personal data legislation will need to evolve to achieve the twin goals of data protection and fair competition.

The Practice of Efficiency Defense in Antitrust Cases: A Comparison of BRICS and European Cases

In non-merger antitrust cases efficiencies should play a significant role when authorities decide on cases as many potentially anticompetitive practices may have pro-competition effects, according to economic theory. In many jurisdictions rule of reason or effect based legal standard is claimed to be the policy adopted according to the own authorities. For such legal standards, considering efficiencies is part of the standard analysis protocol. We review the practice of efficiency defense in antitrust cases in selected BRICS and European countries. The case study shows that efficiencies are considered in rulings less often than expected. Similar arguments are used across countries, suggesting a common underlying economic analysis across jurisdictions that may have different legal institutions. We have employed the cross-country comparison based on Brazil, Russia, India, and South Africa cases. We also summarize the main reasons for efficiencies analysis not to be able to reverse the concluded anticompetitive effect from a business practice.

GDPR and Digital Protectionism in the EU: The Cases of Android and iOS

Digital media corporations such as Alphabet—the parent company of Google—and Apple invade people’s privacy and personal data and make high profits through their operating systems such as Android and iOS. The research question of this article is the following: is it possible to prevent corporations from engaging in unfair and unlawful practices concerning personal data processing by making regulations regarding the laws of data protection and competition? We argue that the laws of data protection, such as the GDPR (General Data Protection Regulation) and anti-trust laws in the EU, structure digital economies in such a way that while the corporations are held liable for the abuse of dominance in the related market, such laws do not affect protecting individuals’ privacy and personal data. A better solution would be to create an environment where individuals have a choice, and where they can negotiate the terms and conditions. This is possible by amending existing laws and designating new provisions that prevent invasive and compelling manners of the companies that users are exposed to in practice.

Models on trial: antitrust experts face Daubert challenges

ABSTRACT Economists are often called upon as expert witnesses by the parties involved in antitrust litigation. One challenge they may face in US federal courts is compliance with the Daubert standard of admissibility of expert testimony. The interplay between model applicability and the Daubert standard is analyzed, suggesting the importance of distinguishing between weak applicability claims, those that state that a model’s critical assumptions are shared by the target, and strong applicability claims, those that connect empirical models and quantitative market features. Recent antitrust cases in which expert testimonies based on economic models have been assessed following the Daubert standard are examined using this framework. Some normative implications are drawn concerning how to improve judges’ assessment of model-based arguments.

AN INTER-DISCIPLINARY APPROACH TO AUTOMATION TECHNOLOGY IN FINANCE - WHAT CAN HISTORY, LAW AND DATA SCIENCE TEACH US?

The year 2008 is etched in human history as the year of the ‘Global Financial Crises’. Post the crises, Historians and financial commentators alike rushed to impute blame. Some blamed securitizations, some the banks and some Lehman Brothers and AIG. However, in the midst of all of this humbug, a key epicentre of the crises escaped academic scrutiny; ‘Automation Technology’. The paper therefore aims to present an alternative view of financial history; one which impleads ‘automation technology in finance’ i.e., Risk Modelling Algorithms and RegTech. However, the underlying aim of this paper is to make a case against systemic automation bias in finance and to achieve that end, the paper employs an inter-disciplinary approach and uses history, law and data science to show case the multifarious perils of using automation technology blindfold in finance whilst also proposing possible solutions such as the incorporating of design thinking and systems theory in finance. Expired data sets, human assumptions, turning code in law, and a lack of standardized financial semantics as but some of these ‘perils’. On the law front; it presents a twofold challenge under constitutional and anti-trust law and aims to reconcile law and technology. Lastly the paper aims to guide regulators by categorizing multiple stages of technological complexity and recommends application of different regulatory approaches to regulating automation. Therefore, the paper shall maintain a ‘solution’ oriented approach throughout.

ABSOLUTE INVALIDITY IN TERMS OF THE COMPETITION AND CONSUMER PROTECTION ACT

While the sanction of invalidity in the classical view ‒ normalized by civil law and its application - does not raise any doubts, the way in which Article 6 section 2 of the Law on Competition and Consumer Protection is normalized has already provoked the doctrine to analyze this provision and its relation to the normalization contained in Article 58 of the Civil Code. Due to the specific shape of the regulation contained in the antitrust legislation, two competing currents have developed in the science of law, whose views, based on different arguments, evaluate the sanction of invalidity in Article 6 section 2 of the u.o.k.k. either as a solution analogous to that of the Civil Code, or as a provision of a special nature. This article attempts to summarize the currents worked out in the doctrine, while undertaking a dogmatic and comparative legal analysis. Undoubtedly, Article 6 section 2 of the u.o.k.k. is a kind of breakthrough in the way of understanding the sanction of absolute invalidity known from civil law.

The role of the national judge for the enforcement of EU antitrust law twenty years since the entry into force of Regulation No 1/2003

The role of the national judge for the enforcement of EU antitrust law twenty years since the entry into force of Regulation No 1/2003

Venture Capital Law in Cambodia: Engineer the Regulatory Framework to Promote the Startup Ecosystem

AbstractAs the startup ecosystem emerges, Cambodia requires a distinct set of legal frameworks to promote many regulatory aspects to boost national innovation and strengthen the connection of key players in the ecosystem. One of them is financial support for startups, ‘Venture Capital Law’. Therefore, this paper studies the current existing legal framework of Venture Capital (VC) in Cambodia, key bottlenecks that VC encountered, comparative analysis with other countries such as the United States, Japan, and China, and then propose new regulatory frameworks which solve the key bottlenecks and aim to optimise the growth of a startup ecosystem. The finding is that different stages of VC present different bottlenecks such as fundraising (funding source), startup investment (investment readiness of the startup, and deal structure), and exit (immature the capital market for startup's IPO and lack of regulations for Merger and Acquisition (M&A)). The new regulatory frameworks should endorse the use of pension funds as a source of VC funds in the future, encourage private corporations to invest in startup causes, include regulations to promote the readiness of founders, encourage the use of convertible notes, and fasten the regulation governing M&A with the balance of antitrust law.

Antitrust: What is it Good For?


 
 
 
 For the last forty years, antitrust cases have largely been argued on the basis of consumer welfare. This basis has enabled firms to excuse practices–no matter how pernicious–if they can show that such practices reduce prices or increase the value of the goods and services they offer to consumers. In the fall of 2021, the Department of Justice filed a complaint which alleged that a proposed merger between Penguin Random House LLC and Simon & Schuster Inc. improperly stifled competition in the market for best-selling books and reduced author advancements within the same market. In December of 2022, the United States District Court for the District of Columbia enjoined the DOJ’s complaint. This article examines the threat that monopsonies present in labor markets; it argues that a shift in antitrust enforcers’ focus from the sell side of a market to its buy side can bolster economic output and empower the labor force.
 
 
 

Is Labor in Sport a Commodity? The Case of American and Japanese Professional Baseball

An important rule that underpins international and domestic labor law is the principle that labor is not a commodity. This principle has interesting application to the labor regulation in professional team sports such as baseball that utilize drafts, salary restraints, the reserve system, and free agency. The article will examine whether these and other labor controls in Major League Baseball in the United States and Nippon Professional Baseball League in Japan commodify labor. Baseball’s labor controls and practices will be assessed to determine if labor is treated as a commodity, and if so, whether there is undue commodification. In doing so, a construct will be created of labor practices that commodify labor on a spectrum. These labor practices and controls will also be evaluated in the context of antitrust law and restraint of trade. The article concludes by suggesting ways to improve the treatment of players that will decommodify labor.

The rule of reason and the fundamentals against more presumption-based illegality legal standards: highlights on CADE’s decisions on digital economy issues

Abstract This article advocates against more presumption-based illegality legal standards. The focus is on the Rule of Reason analysis, which is in line with CADE’s case laws for analysing unilateral conducts, distinguishing between restraints with an anti-competitive effect (or resulting in conduct likely to cause such injury) that are harmful to the consumer, and restraints stimulating competition that are in the consumer’s best interest. In this sense, the article recalls some basic concepts, such as market power, dominant position, concentration indexes, and its interactions, since the recent discussions appear to have forgotten its basics. Moreover, a brief analysis of CADE’s procedures and the Brazilian Competition system, especially the analyses of unilateral conduct cases, is made in order to present a background for the readers. At the end, we report three digital antitrust cases judged by Cade to demonstrate the steps used by the authority in order to reach a decision on the case. In a nutshell, CADE has not shifted the analysis of unilateral conduct from the use of the rule of reason to a more presumption-based illegality approach.

Taking Innovation Seriously: A Dynamic Competition Model for Antitrust Law

Although innovation is often portrayed as a byproduct of competition, innovation and related dynamic aspects of competition are also, and perhaps more so, drivers of competition. The current antitrust framework, as illustrated by merger law and the agency guidelines that bear on that law, emphasizes static, demand-side conditions in defining markets and assessing likely anticompetitive effects. Only after the market has been defined and competitive effects assessed are innovation and dynamic, supply-side developments considered, and then in the context of rebutting anticompetitive findings already made on the basis of the static assessment. In addition, the burden of demonstrating and quantifying the supply-side developments is placed on the merging parties despite their relatively limited access to competitor capabilities, strategies, and plans. The following article suggests a new framework that places the burden of addressing dynamic considerations primarily on the enforcement agencies that must be met before the agencies can establish a presumption of illegality against a proposed transaction or a prime facie case against a competitive practice. It also suggests a more qualitative assessment of innovation and likely supply responses that is elaborated in the accompanying article by Professor David J. Teece.

The Fairness Principle in Competition-Related Economic Law

Abstract Fairness appears as the guiding paradigm for regulating the digital economy. Yet its exact meaning has always remained dubious. The present article, which summarizes key insights of my doctoral thesis, ‘Fairness als Rechtsprinzip’, aims at filling this theoretical void by exploring to which extent fairness phenomena in competition-related economic law (understood as comprising unfair competition, antitrust, IP, trade secrecy, contract, anti-discrimination and data law) may be united under an overarching legal principle. Departing from the classic fairness-defining notion of ‘honest commercial practices’ enshrined in Art. 10bis para. 2 of the Paris Convention for the Protection of Industrial Property, the article overall suggests to (re-)construct the fairness principle as a normative bridge between law and society. Its task, viewed against the backdrop of a legal pluralist analysis of sociological disruptions in the globalized digital economy, is to normatively moderate the interplay of state and non-state rules of market order towards the common good from the perspective of the state.

Imperfect collusion in monitored markets with free entry

AbstractSurveys of antitrust cases reveal that colluding firms usually (1) attempt to minimise the risk of prosecution, (2) achieve merely imperfect levels of collusion, (3) compete against some independently acting firms, and (4) adjust to market entries and exits. In contrast, existing oligopoly models neglect some of the four listed stylised facts and, thus, overlook important interdependencies between them. Therefore, the present paper develops a general quantity leadership model that simultaneously accommodates all four stylised facts. The model is a three-stage game in which each firm must make three consecutive decisions: market entry or not, collusion or not, and output quantity. The framework is augmented by an antitrust authority that ensures free market access. In addition, the antitrust authority may directly obstruct collusion and it may threaten prosecution. The results of this study indicate that the latter two instruments are rather ineffective.

Managed grazing and agroecological transformation in the Midwestern United States

A growing number of intergovernmental agencies, policymakers, scholars, and farmers are calling to transform the dominant food system so that it better supports farmers, communities, and the environment. The goal of this paper is to identify which actions that support managed livestock grazing and graziers can also promote agroecological transformation in the Midwestern U.S. We conducted 128 semi-structured interviews and 3 participatory workshops with farmers, civil society, and agricultural industry professionals focused on visions for the future and actions that could support managed grazing. We then applied a political agroecology framework to assess the transformative potential of specific actions. Action categories with high transformative potential include addressing industry consolidation and inequities in the distribution of land and capital; providing social supports for farm owners and workers; and shifting the social norms that support the dominant food system. Specific actions within these categories include supporting cooperative models of farming, marketing, and resource-sharing; providing healthcare, living wages, and retirement to farmers; supporting farmer-to-farmer networks; modifying crop insurance and anti-trust legislation; addressing farmland access and consolidation; expanding public education on agroecology; and enacting policies that dismantle and repair colonial and racial violence. The workshops revealed that a disproportionate share of attention within the Midwest sustainable agriculture movement is currently focused on strategies that support sustainable farming practices such as education and conservation assistance but do little to address governance structures that maintain the power of the current agricultural system. While these efforts are important, workshop participants and interviewees concluded that more systemic change is needed to build a food system that works better for people, communities, and the environment.

Review: Ethical responsibilities and transformation strategies of focal companies in the meat supply chain: the implementation dilemma.

In Germany (and other Organisation for Economic Co-operation and Development countries), the need for a fundamental transformation of livestock farming has become increasingly evident in recent years. Two broad-based stakeholder commissions including the German farmers' association, the meat industry, and Non-Governmental Organizations have endorsed this demand. Nevertheless, major steps towards its implementation are still missing - a circumstance we refer to in this paper as the implementation dilemma. In a globalised economy, farmers cannot solve the problem of low animal welfare standards alone although they are important actors. Moreover, consumer behaviour is changing too slowly, and possibilities for granting more subsidies are limited in the face of multiple economic crises. Against this background, we argue for a stronger focus on voluntary (private) sustainability agreements. We therefore analyse how the German meat supply chain is organised and what responsibility and power the individual actors have to push the sector's transformation. Large slaughterhouses, processors, and the retailing sector seem promising due to their high market concentration and power. Especially retailers can influence the transformation of the market through their role as gatekeepers between suppliers and consumers. Based on business ethics principles of taking responsibility, we consider the focus on sustainability obligations of the retail sector to be ethically justified. However, it is then necessary to give the four retail groups dominating the meat chain in Germany more leeway for sustainability agreements in antitrust law.

Talent Acquisitions and Lock-in Agreements: Antitrust Concerns

In recent years companies are paying more and more attention to the promising ideas and researchers within their fields. In various pharmaceutical sectors, most part of the firms is buying talent but not a customer base and products. When a company is acquiring a controlling stake in a smaller research and development-focused firm, the vendor is often the leading researcher and she are retained by non-compete clauses, confidentiality clauses and other forms of obligations that will keep the person working exclusively for the target. Acquisitions and strategic collaborations with far-reaching lock-in effects have suffered from underenforcement of competition law, and that neither United States antitrust agencies nor the European Union Commission, nor the competition authorities of the BRICS countries have sufficiently addressed the innovation concerns raised in these regards. Our proposal, which we admit requires further analysis and development, is to view researchers and key individuals as innovation assets — and to recognise these assets on the input markets or R&D markets that they de facto are active on. This would enable analysis of whether large corporations are essentially vacuuming the relevant research and development markets and creating dead zones devoid of any new ideas.

Behavioral Law and Antitrust Legislation in the Agro-Industrial Complex: Interconnection, Challenges, and Solutions

This article examines the interplay between behavioral law and antitrust legislation in the agro-industrial complex. It analyzes the practical and legal implications of these frameworks and their significance in promoting fair competition and addressing behavioral issues within the industry. The research findings highlight the need for effective enforcement mechanisms, adaptable legal frameworks, collaboration among stakeholders, and continuous monitoring and evaluation. The study emphasizes the integration of behavioral insights into competition analysis and enforcement to mitigate the negative effects of cognitive biases on market dynamics. The implications of this study extend to policy development, regulatory initiatives, and future research in the field of behavioral law and antitrust legislation.

Mechanisms for competition development on electronic platforms

Subject. The article considers problems of adapting antitrust legislation to new economic conditions, in which there is an active development of digital technologies. Objectives. The aim is to systematize specific features of the market of electronic platforms. Methods. We employ methods of systems, comparative, structural, and logical analysis. Results. Digital technologies are an integral part of assets of many firms. They form competitive advantages. Electronic platforms are tools for multilateral interaction between suppliers and consumers, but the development of these platforms increases the risk of monopolies and oligopolies. Conclusions. It is necessary to develop mechanisms for establishing the fact of company's dominant position in the market of electronic platforms.

Rethinking Decentralized Antitrust Regimes: A Window on the Future of Protectionism and Overregulation

Over 100 jurisdictions have a domestic competition law, making competition law one of the most widespread forms of economic regulation around the world. The existing decentralized antitrust regimes have increased transaction costs and uncertainties, enforcement conflicts, antitrust protectionism, and global overenforcement of antitrust laws. Yet international coordination has received little attention. Why? Two interest-based explanations suggest that the European Union and the United States have adopted different approaches to regulating competition, making the two leading regulators race to spread their regulatory models. Moreover, the balance of benefits under existing international legal rules continues to favor major corporations in both developed and developing countries. As a result, the developed world, particularly the United States, has viewed attempts at multilateral coordination as against its interests.
 This Article challenges this conventional wisdom. It argues that the increasing heterogeneity among decentralized antitrust regimes poses a larger long-term threat to the US than is commonly believed. A closer examination of the proliferation of antitrust laws demonstrates why antitrust protectionism and overregulation are not temporary and not destined to level off. In addition, as more developing countries have the capacity to prosecute multinationals and as the strictest jurisdiction has the power to set the de facto world standard, today’s positive balance of benefits will disappear tomorrow. This Article argues that the United States should reverse its hands-off approach to international antitrust coordination and instead enact proposals that place greater convergence among national antitrust regimes. It highlights why the present moment is an opportune time to initiate, but notes that the window for initiation is likely to close as developing countries acquire increased economic strength and enforcement capacity.