The Rise and Limits of Self-Regulation
New Horizons in Competition Law and Economics series
Chapter 8: Conclusion
We need to develop 'antitrust rules and doctrines for the New Economy'. However, proposing regulations or guidelines for standard setting or coopetition is a challenge. It is clear that competition law alone is not sufficient to handle the whole bundle of agreements and collaborations set in place by the enactment of IP Banks and IP Banks' collaborations, given the set of public interest objectives which might be triggered. In particular, the horizontal effects of these collaborations, i.e. standardization agreements and patent pools, are not regulated sufficiently under competition law. IP Banks' origins are in the transfer of the power to regulate product and technology standards from the political sector to the markets. SSOs and their members today retain the expertize and the ability to create global standards, which governments do not have. This is the main reason why competition agencies or courts should not intervene in the selection of technology in a standard or a pool. On a more philosophical level, it implies that society has limited competition law so that it regulates only private power and not public power. Or, are the indirect rules referred to above exactly the nascent rules for also regulating the public power gained by SSOs? Or, should they instead be regulated under free trade rules and dormant commerce clauses? Perhaps, at least the infrastructure standards should be regulated under other rules then competition law.
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