Competition Law as Regulation
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Competition Law as Regulation

Edited by Josef Drexl and Fabiana Di Porto

To what extent should competition agencies act as market regulators? Competition Law as Regulation provides numerous insights from competition scholars on new trends at the interface of competition law and sector-specific regulation. By relying on the experiences of a considerable number of different jurisdictions, and applying a comparative approach to the topic, this book constitutes an important addition to international research on the interface of competition and regulation. It addresses the fundamental issues of the subject, and contributes to legal theory and practice. Topics discussed include foundations of the complex relationship of competition law and regulation, new forms of advocacy powers of competition agencies, competition law enforcement in regulated industries in general, information and telecommunications markets, and competition law as regulation in IP-related markets.
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Chapter 2: Anti-anti regulation: the supplanting of industry regulators with competition agencies and how antitrust suffers as a result

Adi Ayal


Sector-specific regulation has a long history and wide application. Despite this (and perhaps because of it), in recent years much regulation has been curtailed or criticized, with competition agencies taking the place of regulators in limiting industry giants and preventing abuse. This trend stems both from the disrepute affecting regulatory capture and the increasing belief in market forces and competition as sufficient constraints on problematic behaviour. While practitioners and scholars of competition law may applaud the increase of their purview, what often escapes attention is the price competition law pays in the process. Specialization and context-specific knowledge are being overlooked, while the broad rules of competition law are applied well beyond their true effectiveness. This chapter outlines the main justifications for preventing the expansion of competition law beyond its core domain, and the prices both policy and agencies pay as a result of this expansion. It is not merely the industry-specific application which suffers, but core concerns about the framework of competition policy and the rules and standards applied. Especially in today’s networked world, over-extending competition law might cause agency failure and dilution of expertise in a way that is harmful to core concerns.

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