In the first episode of our podcast series Competition Law in Digital Markets in Latin America “Regulation and enforcement – the Competion Law perspective”, experts Elisa Mariscal, Krisztian Katona and D. Daniel Sokol, introduce you to one of the most important issues in today´s public policy debate, competition and antitrust law on Digital Markets.
Daniel Sokol takes you to the regulation concept, its purpose and what has happened in Digital Markets whit this matter.
Moving on, Krisztian Katona explains the purpose of antitrust enforcement in different jurisdictions, and how this relates to the Digital Markets trend.
What about the digitalization of the economy? Elisa Mariscal explains the particularities of Digital Markets and how they vary from jurisdictions such as the EU, North America and Latin America.
If we are focusing on digital regulation, the basic question is: Is the core problem that we are addressing, a competition problem?” D. Daniel Sokol
“My overall punchline is that: unless you ask yourself, why are we regulating? Regulation may not work as intended.” D. Daniel Sokol
“Some recent regulatory proposals seem to address much more potential concerns of actual competitors instead of focusing on what would be good for the broader economy, the consumers, competition and the competitive process.” Krizstian Katona
“From an antitrust perspective, are some enforcers maybe spending their resources in the wrong place, with this heavy focus of digital economy potential concerns?” Krizstian Katona
“In Latin America we struggle with not only monetary resources but also human, whether we have a human capital to actually take on the complexity or specificity that these digital sectors require.” Elisa Mariscal
How do we approach regulation and enforcement in digital markets?
This question makes us understand what regulation is, what is the purpose of regulation and why should we regulate.
Novelty of the dynamics of digital markets, the market agents, the services, customer behavior has raised issues which make regulators, enforcers, practioners, academics and companies. Issues which day to day change as innovation inherent to these markets change market conditions constantly.
This dynamic has moved regulators, enforcers, academics and companies to design novel and innovative ways to perform their duties in this setting. Paramount to this situation lies a common ground and is the globality of digital markets.
The natural open architecture of Internet, basis for digital markets, regards those traditional frontiers (territory) of the state. Law is based essentially on the assumption that there is a territory where to be enforced, and the nature of transactions and business, and how consumers satisfy their needs is nowadays global.
Also, trying to set a frontier on the subject matter leads to the question, what is a digital market? What is the digital economy? How to set a basis to differentiate companies which are digital or not. What if 100 years ago, there had been a difference between electrified companies and non-electrified companies?
These challenges takes us to another question. Are we facing a competition issue? Is it a privacy matter? IP rights? Consumer protection? Democracy and freedom of speech? An innovation policy to promote economic development and growth? Are we looking both at opportunities and risks?
Corporate success and social welfare are not a zero-sum game. And in this journey to analyze the dynamics of digital markets we should keep in mind.
Competition law has been designed to have a flexible framework to address these challenges. We have analyzed agricultural, public utilities, healthcare, retail, steel, pharmaceutical and other industries. And certainly, competition laws have brought innovation and consumer welfare to all countries which have enacted these laws. Do we need specific toolkit for the digital economy if we can set this frontier?
Finally, Latin-American has particularities which need to be addressed. The region faces challenges to make sure that the benefits of digitalization and artificial intelligence reach general population. It is a pending task to prepare individuals and SME´s to insert themselves in this dynamic so the state presents a framework to enable rights, such as education, healthcare, information and enterprise.
Co-Director of the USC Marshall Initiative on Digital Competition
Vice President of Global Competition and Regulatory Policy at the CCIA, Washington D.C
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