A Preliminary Assessment of The European Commission's Google Search Decision

This article provides some initial thoughts on the European Commission’s infringement decision in Google Search. Pending a review of the full decision, the article briefly discusses three critical issues that go to the heart of the decision. The article offers thoughts on the abuse, the theory of harm and the remedy underlying the Commission’s decision. It finds that, as of yet, important questions about these three aspects still remain and irrespective of how the Commission deals with these in the full decision, the Google Search case raises important questions about the correct application of the European prohibition of abuse of a dominant position

A Competition Law Assessment of Platform Most-Favoured-Customer Clauses

Most-favoured-customer (MFC) clauses adopted by online platforms in their relevant contractual relationships guarantee to an online platform that a supplier will treat the platform as favourably as the supplier’s most-favoured-customer concerning price, availability and similar terms of a given transaction. These clauses are a fundamental aspect of the business models of some of the world’s leading companies such as Apple, Amazon, Expedia, etc. The competition law implications of these clauses have been one of the key concerns of over a dozen competition authorities around the world in recent years. The competition authorities involved have adopted different approaches and reached different substantive and procedural outcomes, sometimes in proceedings that concern the application of the same legal rule to the same practice of the same company. This is best demonstrated by the line of investigations against certain online travel agents in Europe. This article posits that such diverging approaches lead to legal and business uncertainty, as well as to procedurally unfair and substantively incorrect assessments. In an effort to rectify this suboptimal situation, the article provides a comprehensive, principled approach for the assessment of platform MFC clauses under competition law – in particular, under EU competition law

Online Platforms, Agency, and Competition Law: Mind the Gap

Many of the world’s most valuable companies adopt the online platform business model to bring together different groups of customers – suppliers and customers – seeking to transact with one another. This article aims to establish the correct legal characterisation of these platforms and the implications thereof for competition law purposes. To do so, it explores two related questions: first, whether platforms are agents of their suppliers; and, second, whether the competition law prohibition of anticompetitive agreements should apply to agreements between platforms and suppliers, which restrict competition on the relevant market for the products/services regarding which the platform facilitates a transaction. The first question arises because the platform business model resembles an agency arrangement more than any other, and many platforms self-proclaim to be agents of their suppliers. Yet, the decisional practice and commentary have developed on the premise that they are not agents. The second question arises due to the “agency rule” under the “single economic entity doctrine”, according to which restrictive agreements between an agent and a principal take place within the same “undertaking” and are consequently immune from the competition law prohibition of anticompetitive agreements between separate undertakings. After applying concepts of agency and similar delegation models found in different areas of law to the standard contracts of six major platforms – Amazon Marketplace, Apple App Store, Uber, eBay, Booking.com, and, Airbnb – this article finds that, as a matter of positive law, all of these platforms are agents of their suppliers. Consequently, platforms’ agreements with their suppliers that restrict competition on the relevant products/services market cannot be scrutinised due to the agency rule under the “single economic entity doctrine” as currently conceived. This represents a significant “platform gap” in the application of competition law in digital markets. Following these findings, the article conducts a normative assessment to demonstrate that in the context of platforms that not only intermediate transactions for, but also compete with their suppliers on the relevant market, the “single economic entity doctrine” should be (re)interpreted. The “agency rule” should not apply to agreements of such platforms and suppliers that contain restrictions of competition on the relevant market. This is because the conflict of commercial and competitive interests between a “principal” (supplier) and an “agent” (platform) that competes with its principal fundamentally violates the principles of agency and the reasoning underlying the single economic entity doctrine. The article develops a “competitive neutrality” principle to inform and underlie this proposed (re)interpretation of the “single economic entity doctrine”. This (re)interpretation fills the “platform gap” identified in the article by subjecting the agreements of platforms that are not in a competitively neutral position with regard to their suppliers to the full application of the prohibition of anticompetitive agreements

The Theory of Abuse in Google Search: A Positive and Normative Assessment Under EU Competition Law

In its investigation into Google’s search practices, Google Search, the Commission alleges that Google abuses its dominant position on the web search market by giving systematic favourable treatment to its “comparison shopping product” (namely, “Google Shopping”) in its general search results pages. This Article analyses whether the conduct in question in Google Search can be an abuse under Article 102TFEU (prohibiting the abuse of a dominant position in the EU) and, if so, under what conditions. This Article proceeds by first providing a positive assessment of the application of Article 102TFEU and the relevant case law to the issues involved in Google Search on the assumption that the Commission may seek to place the facts under an existing category of abuse. Three categories of abuse are analysed to this end: refusal to deal (including the essential facilities doctrine), discrimination, and tying. The article then proceeds to a normative assessment of the circumstances under which Article 102TFEU should be applied in Google Search under a principled conceptualisation of “abuse,” one which requires exploitation, exclusion, and a lack of an increase in efficiency. The Article finds that the facts in Google Search do not meet the requirements of the existing law to be found abusive unless the established frameworks for the types of abuse examined are unjustifiably disrupted. It also finds that under the principled conceptualisation of abuse adopted in this Article, the facts in Google Search do not represent the type of conduct that should be found abusive either

The Tests of Illegality under Articles 101 and 102 TFEU

This article aims to assess one of the many contributions of 'Economics and the Interpretation and Application of U.S. and E.U. Antitrust Law' by Richard Markovits to our understanding of U.S. and EU antitrust laws. That specific contribution is the tests of illegality adopted in Markovits’s study to interpret Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). This article also examines the claim that none of these tests is an economic-inefficiency test of illegality. In order to achieve its aim, the article first comments on the “specific-anticompetitive-intent test” that is proposed to be the test of illegality under the object branch of the prohibition of Article 101 TFEU and under the abuse prohibition of Article 102 TFEU, before moving on to separate discussions of the tests of illegality in the specific contexts of Article 101 TFEU and subsequently of Article 102 TFEU. The article finds that there is still considerable ambiguity concerning some of the most fundamental concepts of antitrust law such as “competition on the merits” at least in the EU but perhaps also in the U.S. The article reaches the conclusion that there is significant scope for discussion and disagreement on what makes a conduct anticompetitive, irrespective of whether such conduct is of the type prohibited under Article 101 TFEU or of the type prohibited under Article 102 TFEU

A Preliminary Assessment of the European Commission's Google Android Decision

This article offers a preliminary overview of some of the pertinent aspects of the European Commission’s Google Android decision. It discusses the definition of the relevant market and competitive constraints in the case, including the potential constraint from Apple. It also offers thoughts on the theory of harm in the case and suggests that Google Android may be better perceived as a case concerning refusal to deal than tying. Finally, the article discusses some of the implications of the decision and notes the growing importance of objective, commercial justifications in the context of technology markets where services are monetized in very different ways by different providers

Online RPM and MFN under Antitrust Law and Economics

The legal framing of a firm’s pricing strategy can determine whether it constitutes online resale price maintenance (RPM) or online most favored nation (MFN). Together, cases that involve online RPM and MFN can be viewed as a natural experiment of how antitrust economics and law may adapt to an online world. Thus far, legal theories that have been inconsistent with economic theories have dictated enforcement across jurisdictions, which has led to confusion that thwarts potentially efficient business practices. This paper distinguishes issues of online RPM from traditional RPM and online RPM from online MFN. We apply the economics learning to RPM and analyze the antitrust cases of online RPM and MFN to date in the United States, Europe, and Australia. Finally, we offer policy recommendations that reduce the confusion in current legal doctrine

Shock tunnel studies of scramjet phenomena, supplement 5

A series of reports are presented on SCRAMjet studies, shock tunnel studies, and expansion tube studies. The SCRAMjet studies include: (1) Investigation of a Supersonic Combustion Layer; (2) Wall Injected SCRAMjet Experiments; (3) Supersonic Combustion with Transvers, Circular, Wall Jets; (4) Dissociated Test Gas Effects on SCRAMjet Combustors; (5) Use of Silane as a Fuel Additive for Hypersonic Thrust Production, (6) Pressure-length Correlations in Supersonic Combustion; (7) Hot Hydrogen Injection Technique for Shock Tunnels; (8) Heat Release - Wave Interaction Phenomena in Hypersonic Flows; (9) A Study of the Wave Drag in Hypersonic SCRAMjets; (10) Parametric Study of Thrust Production in the Two Dimensional SCRAMjet; (11) The Design of a Mass Spectrometer for use in Hypersonic Impulse Facilities; and (12) Development of a Skin Friction Gauge for use in an Impulse Facility. The shock tunnel studies include: (1) Hypervelocity flow in Axisymmetric Nozzles; (2) Shock Tunnel Development; and (3) Real Gas Efects in Hypervelocity Flows over an Inclined Cone. The expansion tube studies include: (1) Investigation of Flow Characteristics in TQ Expansion Tube; and (2) Disturbances in the Driver Gas of a Shock Tube

The interplay between consumer protection and competition law in India

The protection of the interests of consumers is a central aspect of all modern competition laws as well as a direct aim of consumer protection laws. However, despite being complementary in many ways, competition and consumer protection laws cover different issues and employ different methods to achieve their goals. While consumer protection rules are built upon the premise that consumers are the weaker party to transactions and should be directly protected for this reason in their dealings with traders through certain consumer rights, competition law only indirectly protects the consumers’ economic well-being by ensuring that the markets are subject to effective competition. This article explores the interplay between consumer protection and competition law in the Indian context with some comparison with the EU position, where relevant. After an examination of the relevant legislation and case law, the article finds that given that the mandate of the Competition Commission of India is to prevent practices having an adverse effect on competition, in cases of overlap between consumer protection and competition laws, the Authority should act only on the basis of adverse effects on competition. The treatment of ‘unfair trade practices’ is used to demonstrate the appropriateness of this approach

Role of the amino terminal RHAU-specific motif in the recognition and resolution of guanine quadruplex-RNA by the DEAH-box RNA helicase RHAU

Under physiological conditions, guanine-rich sequences of DNA and RNA can adopt stable and atypical four-stranded helical structures called G-quadruplexes (G4). Such G4 structures have been shown to occur in vivo and to play a role in various processes such as transcription, translation and telomere maintenance. Owing to their high-thermodynamic stability, resolution of G4 structures in vivo requires specialized enzymes. RHAU is a human RNA helicase of the DEAH-box family that exhibits a unique ATP-dependent G4-resolvase activity with a high affinity and specificity for its substrate in vitro. How RHAU recognizes G4-RNAs has not yet been established. Here, we show that the amino-terminal region of RHAU is essential for RHAU to bind G4 structures and further identify within this region the evolutionary conserved RSM (RHAU-specific motif) domain as a major affinity and specificity determinant. G4-resolvase activity and strict RSM dependency are also observed with CG9323, the Drosophila orthologue of RHAU, in the amino terminal region of which the RSM is the only conserved motif. Thus, these results reveal a novel motif in RHAU protein that plays an important role in recognizing and resolving G4-RNA structures, properties unique to RHAU among many known RNA helicase