The Antitrust F Word: Fairness Considerations in Competition Law

Abstract

This paper explores value of fairness as a goal of competition law. It contrasts the developments in the US, where non-economic goals are largely discarded by the prevailing antitrust thinking, with those in the EU and China, where the pursuit of fair competition has been explicitly acknowledged and attempted according to different strategies, with mixed results. The main argument put forward is that a fairness-deprived antitrust policy which focuses solely on narrow interpretations of the concept of economic efficiency tends to perish, and is not sufficient to control the nefarious consequences of unrestrained market power. At the same time, there is a risk of unpredictability attached to fairness considerations which must be addressed to ensure legal certainty and to avoid the misuse of antitrust, an intricate yet very valuable piece of the legal system which, if used to its full potential, could serve to allow efficient firms to flourish protected from the risks inherent to unfair distortions of competition.

Keywords: Competition Law, Antitrust, Fairness, Competition Policy, New Brandeis Movement, Chicago School of Economics, Hipster Antitrust, Business Law

JEL Classification: K21, K22, K10, K00, L4, L40, L41, L42