Convergence in the Treatment of Dominant Firm Conduct: The United States, the European Union, and the Institutional Embeddedness of Economics

Abstract

Discussions of the competition law treatment of dominant firms often center on the issue of whether EU and U.S. law in this area are likely to converge and thereby provide a more uniform legal terrain for the activities of such firms. Curiously, however, discussions of convergence seldom pay careful attention to key issues such as “What are the differences in the role of economics in the respective legal systems and which factors are likely to affect significantly the likelihood of convergence?”. They often hover in a somewhat mystical realm in which convergence is just expected to “happen”.

In this essay, I explore the role of economics in the convergence scenario. Economics plays a central role in convergence discussions, because it is a key element in the conception and operation of competition law. Yet there has been little exploration in the literature of the ways in which economics is used in the legal institutions that apply the law and how its roles can influence the process of convergence.

Keywords: competition law, convergence, economics, dominant firms, embeddedness, antitrust law