Editorial Team

by Editorial Team on April 23, 2021

The Importance of Procedural Safeguards for the EU’s New Competition Tool Proposal

By Aman Rizvi

Introduction

The European Commission unveiled its ambitious Digital Services Act (DSA) and Digital Markets Act (DMA) proposals in late 2020.[1] They included a list of dos and don’ts for platforms that act as dominant gatekeepers, and new consumer protection measures like the right to challenge content moderation decisions.[2] But they omitted a controversial and far-reaching idea that the Commission had floated during stakeholder consultations last summer: the New Competition Tool (NCT).

The NCT belongs to a category of competition enforcement powers often called ‘market investigation tools’. It would have allowed the Commission—specifically its Directorate-General for Competition (DG COMP)— to impose structural or behavioural remedies on firms based on concerns about the structure of a market.[3] This contrasts with existing law, under which remedies could only be used to penalise unlawful anticompetitive conduct or as a condition for approving a proposed merger. [Read more…] about The Importance of Procedural Safeguards for the EU’s New Competition Tool Proposal

by Editorial Team on February 11, 2021

The Long and Winding Road . . . To Trial: Perspectives of a Plaintiffs’ Antitrust Practitioner

By Jay L. Himes[i]

Introduction

These days, a plaintiff in the U.S. can expect to encounter a series of obstacles simply to get to the point of putting her evidence to a jury. Plaintiffs litigating antitrust (competition) claims, and those pursuing class actions, encounter even more than those faced by plaintiffs generally. Our would-be plaintiff has to be prepared to “win” multiple times. The obstacles on the road to trial include: [Read more…] about The Long and Winding Road . . . To Trial: Perspectives of a Plaintiffs’ Antitrust Practitioner

by Editorial Team on December 3, 2020

Online Content Regulation and Competition Policy

By Imanol Ramírez*

This is a summary from the full article, available here.

I. Introduction

There is increasing public pressure on internet companies to aggressively intervene with content moderation, particularly to tackle disinformation, harmful speech, copyright infringement, sexual abuse, automation and bias, terrorism and violent extremism.[1] Events like the Russian meddling in the 2016 United States’ presidential election,[2] the genocide of Rohingya Muslims in Myanmar in 2017,[3] and the live footage of the Christchurch terrorist attack in 2019,[4] among others, have fueled the push for more effective online content moderation across the world.

Governments are now requiring large digital platforms, such as Facebook, Twitter and YouTube, to act further and faster with demands for increased use of technology in combating perceived harms.[5] The massive “infodemic” arising from the Covid-19 pandemic[6] and possible interference with the 2020 United States presidential election have increased the questions over the accountability of large tech platforms. This has motivated public actors to become more willing to interfere with the moderation policies of internet companies.[7]

While there are undeniably legitimate policy objectives for state intervention in online content moderation, there is the risk of an adverse effect on competition. Government regulation could serve to benefit large incumbents by raising the industries’ cost of doing business, with these companies being better positioned to bear the costs. Legislators and policymakers need to be aware of the impact that increased regulation on private content moderation policies could have on competition, particularly with digital platform markets characterized by the existence of dominant firms and natural forms of market concentration. In the long run, stringent and divergent regulation across jurisdictions could help large incumbent companies cement their market position to the detriment of consumer welfare. [Read more…] about Online Content Regulation and Competition Policy

by Editorial Team on February 10, 2020 Leave a Comment

The Fundamental Unimportance of Algorithmic Collusion for Antitrust Law

By Dr. Thibault Schrepel[1]

This short article is derived from Thibault Schrepel, Collusion by Blockchain and Smart Contracts,33 Harv. J.L. & Tech. 117 (2019), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3315182.

Antitrust and competition law is subject to increasing polarization,[2] especially regarding Internet giants. Some scholars argue that the tech giants abuse their dominant positions, while others point to the increase they contribute to consumer welfare. These two camps seem irreconcilable, mainly because they are not discussing the same thing.

There is, however, a broad consensus on antitrust and competition policy in the area of collusion (Section 1 of the Sherman Act in the United States, Article 101 of the TFEU in Europe). Few economists and lawyers would defend the beneficial effects of anti-competitive collusion for consumers. In fact, cartels are regularly described as being “the supreme evil of antitrust,”[3] a quasi-moralist assertion on which the academic community seems to have found a point of agreement.[4] On that basis, algorithmic collusion is now the focus of much academic research.[5] This article ambitions to explain, in the absence of fundamental challenges for antitrust law, why it actually results from a publication bias (I), and why the focus should be put instead on blockchain based-collusion (II).

by Editorial Team on December 22, 2019 Leave a Comment

Vestager’s Reappointment as Europe’s Top Antitrust Watchdog

By: Tom Verdonk

On September 10, the President-elect of the European Commission, Ursula von der Leyen, announced that Danish Commissioner Margrethe Vestager would reprise her role as European Commissioner for Competition for a second five-year term. Vestager has held this post since November 2014. After a subsequent hearing without any noteworthy opposition in front of Members of the European Parliament, Vestager obtained the Parliament’s approval. Her re-appointment in itself is unique: No Commissioner has ever been reappointed to the same role for a second term. Moreover, Vestager’s second term is likely to have a significant impact on antitrust enforcement in the European Union (EU), in particular with regard to the tech sector. [Read more…] about Vestager’s Reappointment as Europe’s Top Antitrust Watchdog

by Editorial Team on December 12, 2019 Leave a Comment

Two-and-a-Half Cheers for 1960s Merger Policy

By Sandeep Vaheesan

In the past few years, mainstream antitrust practitioners and scholars have been rudely awakened from their technocratic slumber and forced to accept that their field is unavoidably political. The objective of antitrust—for too long uncontested and accepted by all serious voices as “consumer welfare”—is up for debate again. Yet, some bipartisan beliefs remain unquestioned. A good example is the shared hostility to the anti-merger policy of the 1960s. The strict limits on corporate consolidation in that era are disparaged for supposedly limiting “efficiency-enhancing” mergers and thereby hurting consumers. For example, even as they disagree on many antitrust issues, Joshua Wright on the reactionary right, Herbert Hovenkamp in the establishment center, and Tim Wu on the neo-Brandeisian left are critical of mid-twentieth century rules on corporate mergers. [Read more…] about Two-and-a-Half Cheers for 1960s Merger Policy