In this article, Keith N. Hylton challenges the idea that simplicity in competition policy can be achieved through rigid statutory rules or per se prohibitions. Instead, he advocates for a flexible, common law-based approach that relies on judicial balancing and evolving precedent. Hylton argues that complexity in legal interpretation is inevitable (even under seemingly simple...Read More
Artificial Intelligence (“AI”) has transformative economic potential across all sectors. This article explores how to harness AI’s potential while maintaining an open and competitive economy. It outlines the benefits of effective diffusion of AI, the structure and economics of the AI value chain, the role of investment and partnerships in fostering innovation and competition, and...Read More
European antitrust policy, designed for the industrial era, is inadequate for digital markets driven by innovation and differentiation. Against this background, Lars Kjølbye proposes replacing standardized tests with contextual analysis focused on companies’ capabilities (their talent and skills) rather than static market positions. Using Microsoft’s Nuance acquisition as an example, he argues that his approach...Read More
This article analyzes Brazil's approach to digital market mergers, examining 2024 Ministry of Finance proposals to reform competition policy. Despite CADE's historically non-interventionist stance (84% of digital mergers used fast-track review), new proposals suggest creating specialized digital market units, updating merger notification thresholds unchanged since 2012, and enhancing inter-agency cooperation. Expected 2025 changes include adjusted...Read More
Christopher S. Yoo argues that ecosystem-based theories have had limited impact on U.S. antitrust law due to conceptual vagueness and overlap with existing doctrines. Without clear definitions or theories of harm, using ecosystem dominance or firm size as a basis for liability risks penalizing competitive success and discouraging innovation. Yoo cautions that premature regulatory intervention...Read More
This article examines why traditional antitrust approaches fail to address digital market power effectively. Analyzing U.S. enforcement data from 1995-2023, it reveals that static competition models focused on price effects are misaligned with digital ecosystems’ rapid innovation and complex multi-sided platforms. Despite major tech firms completing nearly 900 acquisitions, merger challenges were four times lower...Read More
This paper examines the proposed use of “dynamic capabilities” analysis in European merger control as authorities increasingly focus on innovation effects. While supporting greater emphasis on innovation, the authors warn that capabilities analysis may lack sufficient evidentiary rigor and grant competition authorities excessive discretion. Analyzing recent cases, they argue such analysis must be supported by...Read More
This article examines whether merger enforcement in high-technology industries has systematically failed to account for innovation effects and assesses the potential value of incorporating a dynamic capabilities framework into antitrust analysis. Despite claims that antitrust authorities ignore innovation, evidence suggests US agencies have routinely cited innovation concerns in tech merger challenges since 2000, though typically...Read More
Ariel Pakes surveys advances in dynamic market analysis since the mid-1990s, highlighting how empirical tools have evolved beyond static frameworks. Using telecommunications deregulation and Intel’s Core 2 Duo launch, he shows that productivity reallocation and rapid product repositioning (often ignored in merger analysis) can dramatically alter market outcomes. Traditional dynamic models assuming perfect information became...Read More
Google's activities in the Ad Tech Industry have come under intense fire as the company stands accused, in several jurisdictions, of ma-nipulating the sale of online display advertising space. Instrumental is a set of services that Google did not develop organically but ac-quired through its 2007 acquisition of DoubleClick. This has led some to question...Read More
The GenAI genie is out of the bottle. AI, and its vanguard GenAI, is a change agent that profoundly impacts the global transition to a digital economy. GenAI is already percolating through businesses and tasks, transforming how we create, innovate, and consume content (information), products, and services. Being deployed more widely across all layers and...Read More
Merger control has been traditionally focused on the impact of the structural changes induced by the mergers examinedon the incentives of the merging parties. Agencies have also long considered the risks that increased market power for the merging parties could lead directly or indirectly to a weakening of price competition. However, recently, competition authorities dealing...Read More
