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Stephen Dnes: Competition Law Research Update

NCH London | September 24, 2019

Over the summer, Stephen Dnes (law) presented current research projects at two academic conferences.

On 28 June, he presented a paper Technological Tying: Unbundling the assumptions at the Academic Society of Competition Lawyers’ Annual Conference, held at the University of Provence, Aix-en-Provence, France. The paper addressed the topical question of the rules applicable to technological innovations which bundle formerly separate products. In such circumstances, when do effects on the related market raise concerns? Contemporary examples include Google’s bundling of formerly separate services with search, like integrated maps and shopping searches. Depending on context, and perspective, these can be seen to increase efficiency in delivery of products to consumers, but can also sometimes affect competition in the market for the product which is integrated into the other, dominant product. In some cases, the law intervenes to attempt to maintain competition where there are concerns about anti-competitive effects from the bundling, yet must avoid chilling beneficial innovation in doing so.

Stephen’s paper drew on expert opinions he rendered in Streetmap v Google, a High Court case from 2016, and the subsequent development of those reports to consider whether the rules applicable to technological tying are suitable and, critically, the theoretical assumptions underpinning the rules. Others on the panel included specialists from the Universities of Reading, the Hebrew University of Jerusalem, and Twente University, Netherlands.

On 5 September, Stephen presented at the 110th Society of Legal Scholars Annual Conference held at the University of Central Lancashire, whose theme this year was “Central Questions About Law”. Stephen presented on Efficiency Modelling in Competition Law: Whether to do it, and if so, how? The paper drew on a debate as to whether competition law analysis should be based more on formal rules, or actual assessment of evidence in context. Within that theme, some rules could be reframed to consider efficiency in the wide market, rather than as between parties.

Despite a significant aim of competition law being to achieve efficiency for the benefit of consumers, surprisingly little attention is given to the direct articulation of the concept itself, with a continuing preference for formal rules to capture the idea indirectly instead. The paper surveyed this trend, and considered international practice relating to efficiency modelling, drawing parallels with the world of regulated industries where more developed concepts have been developed. The paper concluded with a number of suggestions for the clarification of the doctrine, especially related to more detailed assessment of whether successive monopoly is permissible where arguably efficient, or whether rivalry for its own sake is an independent value under the applicable law. The matter is current as it affects the identification of competitive harm, if any, across platforms like Facebook and Google, where arguments from efficiency collide with a desire to preserve, and sometimes to promote, market access and rivalry.

The papers will inform the new competition law course launched by the College this year.