The inefficiency of quasi-per se rules: Regulating information exchange in EU and U.S. antitrust law
Alternative Title
Regulating Information Exchange in EU and U.S. Antitrust Law
Publication Type
Journal Article
Version
acceptedVersion
Publication Date
3-2020
Abstract
It is well understood that the exchange of information between horizontal competitors can violate competition law provisions in both the European Union (EU) and the United States, namely, article 101 of the Treaty on the Functioning of the European Union and section 1 of the Sherman Act. However, despite ostensible similarities between EU and U.S. antitrust law concerning interfirm information exchange, substantial differences remain. In this article, we make a normative argument for the U.S. antitrust regime's approach, on the basis that the United States’ approach to information exchange is likely to be more efficient than the relevant approach under the EU competition regime. Using economic theories of harm concerning information exchange to understand the imposition of liability in relation to “stand‐alone” instances of information exchange, we argue that such liability must be grounded on the conception of a prophylactic rule. We characterize this rule as a form of ex ante regulation and explain why it has no ex post counterpart in antitrust law. In contrast to the U.S. antitrust regime, we argue that the implementation of such a rule pursuant to EU competition law leads to higher error costs without a significant reduction in regulatory costs. As a majority of jurisdictions have competition law regimes that resemble EU competition law more closely than U.S. antitrust law, our thesis has important implications for competition regimes around the world.
Keywords
Antitrust Law, Comparative Law, Law and Economics
Discipline
Antitrust and Trade Regulation | Law and Economics
Research Areas
Corporate, Finance and Securities Law
Publication
American Business Law Journal
Volume
57
Issue
1
First Page
45
Last Page
111
ISSN
0002-7766
Identifier
10.1111/ablj.12155
Publisher
Wiley
Citation
KHOO, Kenneth and SOH, Jerrold Tsin Howe.
The inefficiency of quasi-per se rules: Regulating information exchange in EU and U.S. antitrust law. (2020). American Business Law Journal. 57, (1), 45-111.
Available at: https://ink.library.smu.edu.sg/sol_research/3151
Copyright Owner and License
Authors
Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial-No Derivative Works 4.0 International License.
Additional URL
https://doi.org/10.1111/ablj.12155