Across the globe, competition authorities and legislators are keenly exploring new curbs on powerful, US ‘big tech’ companies – most prominently, Google, Apple, Facebook and Amazon. In the EU, there is a particular focus on developing regulation of “digital platforms” – search engines, social media, app stores, online market places, and price comparison websites that link sellers with customers.

The European Commission, and in particular, the Directorate General for Communications Networks, Content and Technology (DG CNECT) and the Directorate General for the Internal Market, Industry, Entrepreneurship and SMEs (DG GROW) recently put together an informal working document with ideas for extending regulation.

The Commission’s working document can be seen as building on a number of papers that have been written in the last year or so considering whether and how existing laws dealing with competition should be developed to meet the challenges posed by digital platforms. Those papers universally recognise the immense benefits that digital platforms have brought to users. Many also tend to suggest that there is a consensus on the need for regulatory change.

Meredith Pickford QC is a barrister at Monckton Chambers in London who specialises in competition law and economic regulation. He was asked by Google to provide his personal, independent view of the Commission’s proposals, based on his experience in this area of law of over 20 years. He has produced a paper, which seeks to examine the foundations for the so-called consensus for further regulation. He does so by reference to specific examples such as ‘self-preferencing’ – when companies provide themselves with advantages that they withhold from their rivals. He assesses the need for, and appropriate content of, new regulatory rules in the light of established jurisprudence and competition policy.

Meredith concludes that there may be scope for development of competition law and regulation to make it more effective in connection with digital platforms in particular. Measures worth proper consideration include:

• strengthening personal data ownership and portability;
• developing a procedure for designating market power in certain digital markets to allow swifter action to tackle competition problems;
• making greater use of measures that allow action before the conclusion of a full competition law investigation; and
• developing existing case-law that prevents companies from misleading consumers by, for example, presenting search results as more relevant to them than could fairly be claimed.

However, Meredith also concludes that there is no need for a radical departure from established principles enshrined in existing, orthodox competition law in the context of digital platforms. Suggestions that ‘technology is different’ are overstated. There is no evidence that innovation is suffering in the technology sector – far from it: companies such as Google, Apple and Amazon are the world’s biggest innovators and investors in R&D. Moves to develop special rules for digital platforms therefore need particularly careful scrutiny. They threaten to undermine innovation that has led to technology companies bringing immense benefits to people’s lives – benefits made all the more important as a result of the restrictions brought about due to the Covid pandemic.

Meredith’s paper is available here.

Tom Sebastian has published a note in Lloyd’s Maritime and Commercial Law Quarterly on the Commercial Court’s judgment in Reliance Industries Limited v The Union of India [2018] EWHC 822 (Comm). In that case the Commercial Court ruled that the doctrine of act of state applies in London-seated arbitrations. Tom argues that the Court reached the wrong result.

The full note can be accessed here: [2020] L.M.C.L.Q. 359 (subscription required).

We live in extraordinary times. But the decision of the government to ask Parliament to give it express powers to breach an international law agreement that that same government entered into (and not only described as a triumph but secured its endorsement in a general election) is still a shocking turn of events.

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After Brexit, the UK will operate its own system of trade remedies. The essential scheme of the new regime is that a new Trade Remedies Authority will act as the gatekeeper, investigator and first-line decision-maker, while the secretary of state will have general powers of supervision and the ability to block any proposal to impose a trade remedy on broad public interest grounds. Those who wish to challenge the TRA’s or the secretary of state’s decision must do so by way of judicial review application to the Upper Tribunal. The operation of the new trade remedies regime is going to provide significant challenges both for the TRA and for advisers to both UK companies seeking trade remedies and importers and foreign governments seeking to contest them.

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Under the WTO framework (within which the new UK regime will operate post-Brexit), there are broadly three types of trade remedies: anti-dumping duties (on exported products where the export price to the importing country is less than its normal value); ‘countervailing measures’ (to deal with subsidies); and ‘safeguarding measures’ (to deal, essentially, with sudden floods of exports). A subsidy against which countervailing measures could be imposed is a financial contribution (or income or price support) that confers a benefit, and would therefore extend to tax credits and, for example, a low rate of corporation tax confined to a particular region or sector. Trade remedy decisions are open to challenge by way of judicial review or where the exporting member state brings a dispute before the WTO’s dispute resolution mechanism (although the mechanism for doing so has run into serious difficulties in recent years).

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Please click here to read the article published by Prospect.

Please click here to read the article published by Lexxion.

The General Court’s decision in the Apple case (Cases T-778/16 and T-892/16) shows the difficulties the European Commission faces in proving selective tax advantages that may constitute unlawful state aid. As was established in Portugal v Commission, ‘the very existence of an advantage may be established only when compared with “normal” taxation.’ In Apple, the crux of the dispute concerned the application of Irish rules on the profits properly attributable to and taxable on the Irish branches. The Commission’s decision, that a selective advantage had been granted, was not based on the actual activities of the branches. The Commission wrongly adopted the ‘exclusion approach’, attributing to the branches what it considered was not attributable to the US head office.

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Britain faces a fateful decision. If it wants an FTA with the EU, says Carl Baudenbacher (Monckton Chambers/LSE), it will need to either sign up to EFTA/EEA institutions, or accept the Ukraine model – which will mean it is still under the jurisdiction of the ECJ.

Please click here to read the article published by the LSE Blog.