Thieves at the Dinner Table
Chapter 4: Abuse of dominance
How to characterise practices variously referred to as ‘abuse of dominance’ or ‘monopolisation’, or, in the anodyne and purposely neutral language of international debate, simply as ‘unilateral conduct’? ‘Complex’ and ‘controversial’ are the first descriptors that come to mind, with ‘intellectually challenging’ and – a consequence of the obstructive legal stratagems inevitably employed by a well-resourced, determined respondent – ‘downright tedious’ as close seconds. All that is certain is that, in all but the most straightforward transgressions, there will be as many views as there are economists and lawyers contesting and commenting upon the case at hand, and that those views will change, sometimes diametrically, over time and between cases. But equally certain is that, as with all law enforcement, those who enter the world of competition enforcement are, by and large, driven by a notion of justice that has a likely set of miscreants firmly in sight. In competition law enforcement, the ‘bad guy’ is inevitably represented by a large powerful firm, acting either on its own or in combination with other large firms to compromise the interests of those – consumers, or actual or potential new entrants – less powerful than themselves. Certainly, the lived experience of antitrust enforcement will refine that approach; it will prove many of those a priori suspicions unwarranted, and will, indeed, engender respect for those large firms that reproduce their success by renewed investment, by innovation, by penetrating new markets. And experience will also expose that much abusive conduct is rooted in public action, past and present
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