Competition Law for the Digital Era: A Complex Systems’ Perspective

Abstract

As the global economy incurs a process of transformation by the ongoing ‘fourth industrial revolution’, competition law is traversing a ‘liminal’ moment, a period of transition during which the normal limits to thought, self-understanding and behaviour are relaxed, opening the way to novelty and imagination, construction and destruction. There is need for the discussion over the role of competition law in the digital era to be integrated to the broader debate over the new processes of value generation and capture in the era of digital capitalism and the complex economy to which it has given rise to. This complex digital economy is formed by a spider web of economic links, but also their underpinning societal relations, between different agents. However, competition law still lives in the simple world of neo-classical price theory (NPT) economics, which may not provide adequate tools in order to fully comprehend the various dimensions of the competition game. The emphasis put recently by competition authorities on multi-sided markets in order to analyse restrictions of competition in the data economy illustrates the agents’ changing roles and the complexity of their interactions, as the same agents can be at the same time consumers and producers while their personal data raw material for the value generation process.

It becomes therefore essential to uncover the new value capture and value generation processes in operation in the digital economy, and draw lessons for the optimal design and enforcement of competition law, rather than take the established competition law framework as a given and try to stretch within it a quite complex reality that may not fit this Procrustean iron bed. These approaches should engage with the complex economics of digital capitalism, and in particular the role of futurity and financialisation, personalisation and cybernetics.

These new developments, first, call for a re-conceptualisation of the goals of competition law in the digital era, as competition law moves from the calm and predictable waters of ‘consumer welfare’, narrowly defined, to integrate considerations of income/wealth distribution, privacy and complex equality.

Second, it also requires a revision of the current understanding of the nature of the competitive game, which only focuses on horizontal rivalry in product and eventually technology markets. This is of course an important dimension of competition, but hardly the most significant one in the current process of value generation and capture in the digital economy. Firms do not only compete on the product market dimension, but in the today’s financialised economy, probably the most important locus of competition is capital markets. The process of financialisation has important implications for the development of digital capitalism, an issue that the paper explores in detail for the first time in competition law and economics scholarship. Financial markets evaluate companies in view of expected returns in the not so near future, often linked to the emergence of bottlenecks or the perception that a firm holds important assets and resources (e.g. data, algorithms, specialised labour). The role of financial markets’ evaluation in driving business strategies in the era of digital and financialised capitalism is linked to the ‘subtle shift of mindset’ in digital capitalism ‘from profit (and isolating mechanisms) to wealth creation (and the potential for asset appreciation)’ as value is created by investing in assets that will appreciate.

Third, this calls for a consideration, not only of horizontal competition, but also of vertical competition, the competition for a higher percentage of the surplus value brought by innovation, and competition from complementary technologies that may challenge the lead position in the value chain of the incumbents (vertical innovation competition). Fairness considerations, among other reasons, may also lead competition authorities to not only focus on inter-platform/ecosystem competition but to also promote intra-platform/ecosystem competition, as this may be a significant element of the competitive game.

To implement this broader focus of competition law, we need to develop adequate conceptual tools and methodologies. A recurrent problem is the narrow definition of market power in competition law, whose presence often triggers the competition law assessment, and which is also intrinsically linked to the step of market definition. This currently ignores possible restrictions of vertical competition, personalisation and the predictive role of digital platforms, which may become source of harm for consumers, the competitive process, or the public at large.

It is important to engage with concepts of vertical power and the paper develops a typology of vertical power, combining in an overall conceptual framework the various concepts of non-structural power that have been used so far in competition law literature and some new ones (positional and architectural power). This conceptualisation offers an overall theoretical framework for vertical power that is necessary for sound competition law enforcement, and which has been lacking so far. The paper also explores specific metrics for vertical power, although this is still work in progress.

Another important tool that competition authorities may employ in order to map the complex competitive interactions (horizontal and vertical) in the digital economy is the value chain approach. Although competition authorities have already used this tool in sector/industry inquiries, they have not in competition law adjudication. A value chain approach enables competition authorities to better assess the bargaining asymmetries across the various segments of the value chain that may result either from the lack of competition on the markets affected or from the central position of some actors in the specific network and their positioning in the value chain. This tool may complete the market definition tool.

The effectiveness of competition law in the digital age may be curtailed by the cross-side network effects linked to positive feedback loops, increasing returns to scope and scale, the intense learning effects linked to AI, and the propensity of digital markets to tip. Hence, competition law on its own may not be sufficient to address the market failures in the digital economy. One therefore needs to take a toolkit approach that would combine different fields of law and regulation, competition law playing a primordial role in this new regulatory compass. This toolkit approach may rely on different combinations in each jurisdiction, on the basis of the institutional capabilities and the relative efficiency of the various regulatory alternatives, any choice being between imperfect, if perceived in isolation, institutional alternatives.

Keywords: digital platforms, ecosystems, vertical competition, financialisation, personalised markets, complex systems, Big Data, smart data, digital value chains, vertical power

JEL Classification: K21, K23, L4, L40, L41, L43, L5