Indian Society of Artificial Intelligence and Law Technical Report Series
The Lackadaisical Position of Competition Law in India and the United States In an economic structure, a state can play numerous roles. The three that can be identified as most essential are: (1) producer of marketable goods and services; (2) supplier of “public goods” and “merit goods” like primary education and public health; and (3) regulator of the system. The diminishing role of the state as a producer of marketable goods and services and the growing role of the market in such areas concurrently boosts the role of the state as a “regulator” and “facilitator.” The regulatory role is essential to ensure competitive conditions in the market are maintained and that everyone follows the elementary rules of the game. The yield and efficacy linked to markets can only be procured if the market remains competitive. Competition laws across the world, therefore, seeks to: a) bar anti-competitive agreements, including associations that tend to regulate prices, bound, govern, or stake markets, or marks bid-rigging; b) bar exploitation gained through dominant position, unfair or biased prices, or conditions, including predatory pricing, restraining or confining production or denying of market access; and c) regulate groupings, i.e., mergers, acquisitions, etc., which may cause a substantial hostile effect on competition. As always, there is a typical debate between the behavioral and structuralist approaches. Market concentration and barriers to entry are two crucial elements of market structure. An action by a firm that increases either of the two will be deemed, under the structuralist approach, as violative of the maintenance of competition. Conversely, the behavioral approach gazes at the conduct of the firm instead of structural infringements. The structuralist approach reduces the cost of enforcement as it eliminates the requirement to demonstrate that an arrangement is harmful. Though, there is no approach through which competition or regulatory authority can get away minus establishing that a specific action has had a hostile effect on competition. Establishment of the fact defining what activities and under what conditions will they constitute abuse of the principles of competition is necessary.
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