The Future of the Law of the Abuse of Dominance
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Description
The laws of nations on abuse of dominance are famously diverse; more so than almost any other area of competition law. Why? This is so for three reasons: 1) Two quite different perspectives can lay claim to “sound economics”—a default presumption of the efficiency of single firm acts, and a default presumption of efficiency through contestability of dominated markets. 2) Markets are different; some are marked by intensive past statism and some are not; behavioral characteristics of firms that have grown up by wits and brawn are different from behavioral characteristics of firms that have grown and are protected by privilege and favor. 3) Especially in developing economies marked by extreme poverty and historic exclusions of masses of the people from the economic mainstream, there may be no efficiency without equity. The people demand a competition law that leans against dominance and nods towards inclusion. Amidst all of this diversity, is there a path for the future? There may be several paths, but I shall boldly suggest three guiding lights for everyone to the future of the abuse of dominance violation. 1. Go for the jugular. We must develop a category of hard core monopolization / abuse of dominance, just as we have developed the category of hard core cartels. We have tended to lump together “abusive” acts that have little potential to harm the market and acts that have great potential to harm the market long and seriously. 2. Lean in towards simplicity. We have overcomplicated the process so that only well-funded agencies can win the most important cases. Simplify rules where simplicity works. 3. Work towards transparency and understanding. For jurisdictions that believe in efficiency-only as the guide and believe that efficiency is (almost always) what dominant firm do, learn more about regimes that beg to differ. For jurisdictions that combine equity and efficiency, raise consciousness about whether a particular enforcement or rule is likely to harm consumers, face the tradeoffs and consider whether the tradeoffs are worth it. Be transparent. These three pointers light the path to the future of the abuse of dominance offense.
Source Publication
2013 Fordham Competition Law Institute: International Antitrust Law & Policy
Source Editors/Authors
Barry E. Hawk
Publication Date
2014
Recommended Citation
Fox, Eleanor M., "The Future of the Law of the Abuse of Dominance" (2014). Faculty Chapters. 1222.
https://gretchen.law.nyu.edu/fac-chapt/1222
