As in previous years (see 2015, 2016, 2017, 2018, 2019, 2020, 2021, and 2022), here are the world’s most downloaded antitrust and competition law articles posted on SSRN during the course of 2023.
************
1. Venture Predation
by Matthew Wansley & Samuel Weinstein
Journal of Corporation Law (3,537 downloads)
Predatory pricing is a strategy firms use to suppress competition. The predator prices below its own costs to force its rivals out of the market. After they exit, the predator raises its prices to supracompetitive levels and recoups the cost of predation. The Supreme Court has described predatory pricing as “rarely tried” and “rarely successful” and has established a liability standard that is nearly impossible for plaintiffs to satisfy. We argue that one kind of company thinks predatory pricing is worth trying and at least potentially successful—venture-backed startups.
*******
2. Competition between AI Foundation Models: Dynamics and Policy Recommendations
by Thibault Schrepel & Alex Pentland
MIT Connection Science Working Paper (1,714 downloads)
Generative AI is set to become a critical technology for our modern economies. If we are currently experiencing a strong, dynamic competition between the underlying foundation models, legal institutions have an important role to play in ensuring that the spring of foundation models does not turn into a winter with an ecosystem frozen by a handful of players.
*******
3. Decoding the AI Act: A Critical Guide for Competition Experts
by Thibault Schrepel
Amsterdam Law & Technology Institute (ALTI) Working Paper (1,575 downloads)
The AI Act is poised to become a pillar of modern competition law. The present article seeks to provide competition practitioners with a practical yet critical guide to its key provisions. It concludes with suggestions for making the AI Act more competition friendly.
*******
4. The EU Digital Markets Act (DMA): A Competition Hand in a Regulatory Glove
by Natalia Moreno Belloso & Nicolas Petit
European Law Review (1,362 downloads)
The newly enacted Digital Markets Act (DMA) finds itself at a crossroads. The DMA can develop into a specialist field of competition law for digital platforms or it can evolve into a new field of EU law, detached from competition law. The DMA’s ultimate trajectory will depend on the legal characterization given to the DMA. Is it a special competition law regime or an original instrument distinct from competition law? This paper lays the groundwork for characterizing the DMA by offering a complete descriptive analysis of the instrument. Among the elements discussed are the twin concepts of “gatekeepers” and “core platform services”, which together condition the DMA’s scope of application, as well as the legal obligations imposed on gatekeepers. The paper proposes a novel categorisation of the obligations, showing that each obligation can be associated with at least one of two conventional competition law concerns (exclusion or exploitation). The discussion shows the difficulty of pinpointing the exact nature of the DMA. We argue that this ambiguity creates challenges for the practical implementation of the DMA.
*******
5. ChatGPT, Bard & Co.: An Introduction to AI for Competition and Regulatory Lawyers
by Thomas Hoppner & Luke Streatfeild
Hausfeld Competition Bulletin (1,250 downloads)
Having its first commercial breakthrough with ChatGPT, in 2023 artificial intelligence (AI) has rung in the fourth industrial revolution. This article outlines the technicalities and economics underlying generative AI, and what they mean for competition in digital markets and for antitrust and regulatory lawyers working in this field. It concludes that due to the high barriers to entry at the (i) computing, (ii) data creation, and (iii) foundation modelling layers, the rise of AI is likely to make incumbent tech conglomerates even more powerful and less contestable, which will have to be considered in any future economic regulation of AI.
*******
6. The Role of Behavioural Economics in Competition Policy
by Amelia Fletcher
Cambridge Handbook (1,065 downloads)
Behavioural economics is affecting many areas of economics and law, and antitrust is no exception. Competition in markets can be weakened or distorted when consumers face cognitive limitations and exhibit systematic behavioural biases. Firms can also act strategically to exploit or exacerbate these consumers biases, and so worsen the situation further. Such conduct has already formed the basis of several antitrust cases and is likely to have more extensive implications in the future. Behavioural insights are also critically relevant for the effective design of competition law remedies. Meanwhile, firms are themselves made up of individuals who may themselves exhibit cognitive limitations, and this too may have important implications.
*******
7. A Systematic Content Analysis of Innovation in European Competition Law
by Thibault Schrepel
Amsterdam Law & Technology Institute (ALTI) Working Paper (988 downloads)
Innovation plays a crucial role in defining competitive dynamics. Given this fact, one might expect ‘innovation’ to play a consistent role in antitrust law. The present article conducts a systematic content analysis of the case law of the Court of Justice of the European Union to test this hypothesis. The results suggest that EU courts assign a fragmented role to innovation in competition law cases. We end with suggestions to remedy this situation.
*******
8. Enforcing the Digital Markets Act: Institutional Choices, Compliance, and Antitrust
by Jacques Crémer et al.
Journal of Antitrust Enforcement (976 downloads)
The European Commission is charged with implementing the Digital Markets Act (DMA) which will impose a list of 22 do and don’t to Big Tech platforms in March 2024. Based on economic and legal reasoning, this paper asks how the Commission can fulfil this challenging task effectively. The paper make recommendations about how the Commission might prioritize cases, design optimal internal work structures, maximize the compliance mechanism’s effectiveness, avoid reinventing at least some wheels by leaning on antitrust tools and knowledge, and leveraging the Commission’s concurrent antitrust and regulatory powers to ensure the speedy and effective resolution of current and future investigations.
*******
9. The Complex Relationship between Web2 Giants and Web3 Projects
by Thibault Schrepel
Computer Law & Security Review (884 downloads)
Web2 giants and Web3 projects entertain a complex relationship. They cooperate to maximize their chances of survival, yet they also compete through a combination of dynamic factors and anti-competitive strategies. The present contribution untangles Web2 and Web3’s relationship, explores their distinct value propositions, and outlines what may be one of tomorrow’s enforcement priorities for antitrust agencies.
*******
10. The Adoption of Computational Antitrust by Agencies: 2nd Annual Report
by Thibault Schrepel & Teodora Groza
Stanford Computational Antitrust (836 downloads)
In the first quarter of 2023, the Stanford Computational Antitrust project team invited the partnering antitrust agencies to share their advances in implementing computational tools. Here are the 26 contributions we received.
*******
