Nascent Competition and Transnational Jurisdiction: The Future Markets Model Explains the Authorities’ Actions

Abstract

Because the Future Market is everywhere and nowhere at the same time, competition authorities in many different countries are, increasingly, reviewing transactions involving Future Markets. This is particularly true of nascent competition cases, which are a subset of Future Market cases. For example, although Grail sells no products in Europe, it may in the future. These possible future sales gave the European Commission the right, it claimed, to review (and eventually block) Illumina's purchase of Grail. Similarly, Farelogix may sell the relevant product in the UK in the future, the CMA claimed when it reviewed Sabre's purchase of this nascent competitor. Further, although an American court had approved this transaction, the CMA nevertheless blocked it. The Future Markets Model explains these and similar cases: although firms do not currently sell products in the relevant country, they may in the future. The firms are competing in a Future Market. The Future Market exists to some extent in every country, and thus more and more competition authorities throughout the world are reviewing the same transaction.

Keywords: Future Market, competition to innovate, FTC, DOJ, CMA, European Commission, jurisdiction

JEL Classification: K21