Is Blockchain the Death of Antitrust Law? The Blockchain Antitrust Paradox
3 Geo. L. Tech. Rev. (Forthcoming)
55 Pages Posted: 25 Jun 2018 Last revised: 6 Oct 2018
Date Written: June 11, 2018
To this day, the legal system has been very useful in providing trust and reducing uncertainty, or at least, in eliminating the need to worry about trust by providing an alternate remedy. But some costs remain so to represent ourselves as reliable and blockchain may reduce them to a smaller level.
In the meantime, the very nature of this technology raises fundamental questions for competition law. With this paper, our first ambition is to contribute to the literature by portraying the challenges on unilateral practices. Because blockchain is decentralized, anonymous and immutable, multiple questions do in fact arise regarding the detection of practices as well as the identification of perpetrators. We show that some practices are de facto more likely to be implemented, but they are yet to be identifiable.
This article further aims to contribute to the literature by questioning our current rules and how the law can fit into the technology. And indeed, for technical reasons, some remedies cannot be used to prevent the development of anti-competitive practices implemented through the blockchain. We will address what should be the focus for competition authorities and regulators in this regard. Meanwhile, they must observe a strict regulatory humility so as not to prevent the emergence of blockchain and to use it as an excuse for regulating all the practices that are perpetrated on it despite having a real competitive effect — what we call the “blockchain excuse.”
But in the end, one question arises as follows: is blockchain the death of antitrust law? Should it be? Answering them today is not easy as blockchain is still prone to drastic evolution, but some initial answers are to be provided nonetheless. In order to do so, this paper proceeds in three parts. The first details how unilateral practices can be implemented on blockchain and further establish a risk map. The second part focuses on the challenges for enforcers and presents a new theory entitled “regulatory infiltration.” The last part questions the legitimacy of competition law in the face of this technology - the “blockchain antitrust paradox” - and the need to decentralize competition authorities.
Keywords: antitrust, competition law, blockchain, algorithms, artificial intelligence
JEL Classification: K21, K20, L12, L40, L41, L42, L43, L44, L51, O31, O33, O34
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