The Evolution of the Law and Policy on Tying: A European Perspective from Classic Leveraging to the Challenges of Online Platforms

The abuse of market power by dominant firms continues to be one of the most controversial areas of EU competition law and tying is perhaps the most complex and intractable abuse. The European Commission investigation into suspected infringements of EU competition law by Google in relation to alleged tying practices concerning the Android open source operating system brings once again this abuse into sharp focus. In the Android case, the European Commission has a unique opportunity to clarify the test for tying. The EU case law is still, formally, adhering to a pre-Chicago understanding of tying resting on the simplistic idea that an undertaking dominant in market A can exclude competitors in market B if it forces customers buying A to buy also B. The weakness of this framework is that it lacks a robust assessment of the anti-competitive effects of tying and a realistic approach to the legitimate objectives that tying may pursue. This article demonstrates that the practice of the European Commission has moved on from such an approach and that even the EU Courts have never rejected a more sophisticated analysis of tying. Contrary to what the vast majority of commentators believe, in the assessment of tying under EU competition law, the European Commission has systematically taken into account the structural features of the tied market that make anti-competitive tying plausible and has carried out a thorough analysis of the anti-competitive effects of tying, which is two-fold: (1) first, tying must be likely to exclude equally efficient competitors from the tied market and, (2) second, it must be likely to lead to the acquisition, maintenance, or strengthening of market power on an affected market (the tying market, the tied market, or a related market). Finally, dominant undertakings are always permitted to plead in their defence that tying pursues a legitimate objective, is suitable to achieving such an objective, is the least restrictive way of doing so, and that the pro-competitive effects of tying outweigh its anti-competitive effects. Provided that the dominant undertaking adduces sufficient evidence to substantiate its defence, it is for the competition authority or claimant to prove that the tying under review is, on balance, anti-competitive. This analysis is fully consistent with the post-Chicago economic theories of tying and with the case law of the EU Courts on tying and on exclusionary abuses more generally

The Evolution of the Law and Policy on Tying: A European Perspective from Classic Leveraging to the Challenges of Online Platforms

The abuse of market power by dominant firms continues to be one of the most controversial areas of EU competition law and tying is perhaps the most complex and intractable abuse. The European Commission investigation into suspected infringements of EU competition law by Google in relation to alleged tying practices concerning the Android open source operating system brings once again this abuse into sharp focus. In the Android case, the European Commission has a unique opportunity to clarify the test for tying. The EU case law is still, formally, adhering to a pre-Chicago understanding of tying resting on the simplistic idea that an undertaking dominant in market A can exclude competitors in market B if it forces customers buying A to buy also B. The weakness of this framework is that it lacks a robust assessment of the anti-competitive effects of tying and a realistic approach to the legitimate objectives that tying may pursue. This article demonstrates that the practice of the European Commission has moved on from such an approach and that even the EU Courts have never rejected a more sophisticated analysis of tying. Contrary to what the vast majority of commentators believe, in the assessment of tying under EU competition law, the European Commission has systematically taken into account the structural features of the tied market that make anti-competitive tying plausible and has carried out a thorough analysis of the anti-competitive effects of tying, which is two-fold: (1) first, tying must be likely to exclude equally efficient competitors from the tied market and, (2) second, it must be likely to lead to the acquisition, maintenance, or strengthening of market power on an affected market (the tying market, the tied market, or a related market). Finally, dominant undertakings are always permitted to plead in their defence that tying pursues a legitimate objective, is suitable to achieving such an objective, is the least restrictive way of doing so, and that the pro-competitive effects of tying outweigh its anti-competitive effects. Provided that the dominant undertaking adduces sufficient evidence to substantiate its defence, it is for the competition authority or claimant to prove that the tying under review is, on balance, anti-competitive. This analysis is fully consistent with the post-Chicago economic theories of tying and with the case law of the EU Courts on tying and on exclusionary abuses more generally

Level discrimination and FRAND commitments under EU competition law

Standards are of fundamental importance in our economy and competition law has an important role to play in ensuring that standard setting procedures are not distorted so as to result in negative effects on technological progress and social welfare. This article examines the practice of level discrimination, which occurs when the holder of a standard essential patent (SEP), having made a commitment to license the SEP on fair, reasonable and non-discriminatory (FRAND) terms, decides to license only undertakings at a given level of the supply chain, typically, the endproduct manufacturers, rather than the component manufacturers. Level discrimination is significant in practice and raises novel questions in the interpretation and application of Article 102. This article examines the economic and policy arguments for and against level discrimination and discusses whether the practice may amount to an abuse of a dominant position under Article 102 TFEU, distinguishing the position of practising and non-practising entities.</p

Enforcement of international arbitral awards:Res judicata, issue estoppel, and abuse of process in a transnational context

Beyond the effect of a judgment of the court of the seat setting aside the award, the relationship between a challenge of the award at the seat and enforcement under Article V of the New York Convention is unclear, as is the relationship between two or more sets of enforcement proceedings in different jurisdictions. The Article explores whether a judgment rejecting a challenge of the award at the seat of the arbitration or granting or refusing enforcement gives rise to an estoppel in further enforcement proceedings. An estoppel would preclude the party opposing enforcement from relitigating issues that have been decided in the previous judgment as well as issues that could have been raised, and ultimately decided, in the previous proceedings. Furthermore, this Article examines whether a party who does not challenge an arbitral award at the seat of the arbitration or does not oppose an application for enforcement of the award can raise, in further enforcement proceedings, a defense that could have been a ground for challenging the award at the seat or opposing its enforcement in previous proceedings. Broadly, the answer to these questions has been that a judgment rejecting a challenge of the award at the seat or granting or refusing its enforcement does not prevent the unsuccessful party from opposing the enforcement of the award in a foreign country and that the unsuccessful party can elect whether to challenge the award at the seat or to wait and raise any ground of invalidity of the award in enforcement proceedings. The Article challenges this general assumption and demonstrates how the doctrines of issue estoppel and abuse of process may prevent a party from opposing enforcement on grounds that have been, or could have been, raised at the seat of the arbitration or in previous enforcement proceedings. Consistency and finality are well served by a structured and predictable application of these doctrines on a transnational basis.</p

Internationalising Adjudication:Towards an Incremental and Polycentric Harmonisation

The paper focuses on internationalising adjudication, a fast ADR mechanism using a third-party adjudicator to make a decision, a timely issue in light of the recent UNCITRAL model clause on adjudication, and the ISAF draft model adjudication law. This authors discuss how harmonisation can be achieved, arguing that, given the discrepancies in adjudication across jurisdictions, harmonisation should be progressively incremental, and should build shared principles and standards rather than imposing a straitjacket on diverse legal systems. Harmonisation should be polycentric, working at different levels to achieve the intended purpose. The paper examines three ways to achieve it – model clauses, a model law and an international convention