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Speaker: Dr Oles Andriychuk, Senior Lecturer in Competition and Internet Law, University of Strathclyde
Dr Oles Andriychuk, University of Strathclyde will discuss his latest paper on Digital Competition Law.
Digital competition law is an emerging and rapidly evolving field. It combines harmoniously and in a unique way the elements of traditional competition law and sector specific regulation. The need for such a new field is explained by the inability of the established mechanisms of competition law (regulating anticompetitive agreements; unilateral abuses of dominant position; and mergers) to deliver for digital markets effective protection and promotion. Supposedly, the traditional understanding of the role and function of the law regulating economic competition does not capture all the specificities of the digital economy. A situation, in which any regulatory interference into market processes is fully dependent on establishing an infringement (preventative mode of competition law) can only remedy digital markets’ imperfections sporadically and in a fragmentary way. The normative notion of digital markets’ self-correction, justifying non-intervention, is at best illusory. The paramount importance of these markets for the entire economy, requires a more systemic, coordinated and strategic regulatory engagement (proactive mode of competition law). Remarkably, the new area of digital competition law is emerging simultaneously in various jurisdictions. This explains the objective nature of the process, a noticeable coherence in understanding the specificities of digital platform regulation, and a global consensus about its unavoidability.
The new regulatory reality is attracting a lot of attention in both academic and policymaking literature. The field is on the brink of an unprecedented reconfiguration. The reforms, initiated in the UK, EU and US as well as in other trendsetting jurisdictions will have a global spillover effect. While each of the proposals has its own specific features, priorities and instruments, they all are united by several paradigmatic elements.
Among the most important elements, characterising all of the proposals, are the following three:
1) The asymmetric (in the EU) or bespoke (in the UK) scope of the addressees of the new rules. The new rules will be applied only to the biggest undertakings, the digital power of which channels competition downstream as well as horizontally. Those undertakings will be designated with the status of ‘gatekeepers’ (in the EU) and undertakings with ‘strategic market status’ (in the UK).
2) In addition to the scope of the addressees, the rules are characterised by a quite interventionist nature. The general objective of these rules is to recalibrate competition in the digital economy. It is consensually agreed that the current condition of competition is systemically weak, and it deteriorates quickly. It appears that the only meaningful method for restoring systemic imbalances in digital markets and shaping competition is to introduce a disproportionate regulatory model, imposing strict obligations on the systemic market players which (the obligations) are expected to provide the markets with a new dynamism.
3) Finally, in addition to the asymmetric scope of the addressees and a long list of demanding requirements, the new regulatory approach is characterised by its ‘opacity by design’. The obligations are drafted in either all-inclusive or vague language, full of adjectives, inherently open to contextual interpretation: ‘fair’, ‘contestable’, ‘proportionate’, ‘reasonable’ etc. One of the most plausible explanations for this format is that it may allow the rule enforcers a necessary flexibility in which the focus of intervention would be more targeted, with some practices receiving higher attention than the others. The ‘opacity by design’ format may become precisely the new ‘experimental’ regulatory approach, which could be more successful than previous ‘symmetric’ approaches.
The main purpose of this paper is to systematise these and the concomitant elements of the new regulatory paradigm for digital markets into a socio-legal theory of digital competition law.
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