Mandated Neutrality, Platforms, and Ecosystems

Pinar Akman et al., Research Handbook on Abuse of Dominance and Monopolization (Edward Elgar, forthcoming 2022)

Arizona Legal Studies Discussion Paper No. 21-28

18 Pages Posted: 13 Dec 2021

Date Written: December 12, 2021

Abstract

This chapter explores and assesses the conceptual foundations of mandated neutrality standards (MNS) prescriptions, such as ‘platform neutrality’ and bans on ‘self-preferencing’. MNS prescriptions require dominant digital intermediaries to deal with all interested parties on fair and equal terms. Specifically, MNS prescriptions require dominant digital ecosystems to treat rivals as they treat their own subsidiaries and units, and treat all trade partners alike, regardless of the attributes of the trade relations. Extreme forms of MNS prescriptions seek to break up digital ecosystems and outlaw business models that integrate platforms and other lines of business. The stated rationale of MNS prescriptions is that antitrust enforcement must preserve fairness in the marketplace. Inquiries into the intellectual foundations of MNS prescriptions, however, tend to frustrate serious antitrust thinkers. They conflate basic concepts, such as ‘fairness’ and ‘competition’, and ‘opportunism’ and ‘anticompetitive conduct’. They perceive low prices, convenience, and efficiencies as predatory tactics, and fail to articulate practical neutrality standards.

Keywords: Digital intermediaries, digital platforms, digital ecosystems, gatekeepers, stakeholder capitalism, duties to deal, mandated neutrality standards, MNS

Suggested Citation

Orbach, Barak, Mandated Neutrality, Platforms, and Ecosystems (December 12, 2021). Pinar Akman et al., Research Handbook on Abuse of Dominance and Monopolization (Edward Elgar, forthcoming 2022), Arizona Legal Studies Discussion Paper No. 21-28, Available at SSRN: https://ssrn.com/abstract=3984398

Barak Orbach (Contact Author)

University of Arizona ( email )

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