Rational Antitrust Analysis. An inquiry into antitrust assessment principles and procedures
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AbstractThe thesis is an inquiry into the rationality of antitrust analysis. Antitrust analysis consists of the determination of antitrust rules and the assessment of antitrust evidence in deciding antitrust cases. The principles of rationality established in modern decision theory are used as a standard for rationality. The thesis is directed at antitrust analysis as such, independently of jurisdiction. However, for practical purposes, US federal antitrust law and EU competition law are used as a basis for the analysis.
The main research objective of the thesis is to determine if the assessments principles and procedures used in the application of antitrust law are likely to yield rational antitrust decisions. The interdependency between the assessment principles and the organization of the procedure in achieving rational antitrust decisions is crucial to the thesis. In particular, the difference between inquisitorial and adversarial procedures is explored. Policy recommendations for improving the rationality of antitrust analyses are provided at all levels of the thesis.
The thesis gives directions for how rationality can guide the determination of antitrust rules. The study reveals that the criteria used to determine rules in both US antitrust law and EU competition law are too narrow to yield rationality. Assessment fallacies, such as wrongful application of analogies, path-dependence, and organizational imperfections are likely to be an obstacle to the evolution of rational antitrust rules.
The thesis provides direction for rational assessment of antitrust evidence. The rational assessment of evidence is compared to how antitrust evidence is actually assessed. Various sources of imperfections in the actual assessment of antitrust assessment are identified. The impact of these imperfections is explored further by economic models of the legal procedure.
It is found that the impact of the imperfections is likely to be dependent on whether the procedure is inquisitorial or adversarial. There are problems and benefits with both procedural forms, but it is found strongest support for the adversarial procedure.
Economic models and expertise are central to antitrust analysis. In the thesis it is asked whether the most informative models are likely to be explored in antitrust analysis and whether the models are likely to be given weight according to their correct informative value. Established theories for model selection are used as a standard for assessing the correct informative value of the models.
The thesis finds that there are likely to be substantial imperfections present in the assessment of economic models in antitrust analysis, which will distort the rationality of antitrust decisions.