Barak Orbach (University of Arizona) has posted “Mandated Neutrality, Platforms, and Ecosystems” (Pinar Akman et al., Research Handbook on Abuse of Dominance and Monopolization (Edward Elgar, forthcoming 2022)) on SSRN. Here is the abstract:
This chapter explores and assesses the conceptual foundations of mandated neutrality standards (MNS) prescriptions, such as ‘platform neutrality’ and bans on ‘self-preferencing’. MNS prescriptions require dominant digital intermediaries to deal with all interested parties on fair and equal terms. Specifically, MNS prescriptions require dominant digital ecosystems to treat rivals as they treat their own subsidiaries and units, and treat all trade partners alike, regardless of the attributes of the trade relations. Extreme forms of MNS prescriptions seek to break up digital ecosystems and outlaw business models that integrate platforms and other lines of business. The stated rationale of MNS prescriptions is that antitrust enforcement must preserve fairness in the marketplace. Inquiries into the intellectual foundations of MNS prescriptions, however, tend to frustrate serious antitrust thinkers. They conflate basic concepts, such as ‘fairness’ and ‘competition’, and ‘opportunism’ and ‘anticompetitive conduct’. They perceive low prices, convenience, and efficiencies as predatory tactics, and fail to articulate practical neutrality standards.
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