The thesis explores the interface between private ordering, regulation and antitrust in the context of collaborative standardisation, with a focus on ICT interoperability standards. Methodologically, it follows a comparative institutional approach, from a positive and normative perspective.
Last Update: 26.09.19
The thesis follows a comparative institutional approach, examining the efficiency of markets and regulation in standardisation. It is divided in three chapters: (a) private ordering, (b) public ordering, and (c) antitrust as a distinct form of public ordering.
Chapter I considers the efficiency of private markets in standardisation. Private ordering entails various formal and informal constraints on stakeholder behaviour that deter opportunism and facilitate cooperation: consensus, voting power, repeat interaction, reputational penalties, and credible commitments. The following challenges can be identified: (a) the ‘outsider problem’, i.e., a failure to attract private actors with potentially important contributions in view of weak appropriability of investment in standardisation; (b) a ‘competitive contribution’ problem, i.e., maintaining vibrant competition in upstream markets for contributed innovations.
Chapter II examines the relationship between private and public ordering in standardisation. Standardisation is not only a form of industry coordination, but it is also self-regulation. Insofar as private standards are incorporated into public regulation, standardisation takes a hybrid character, both private and public. Moreover, standardisation transcends national boundaries, reduces international trade barriers and integrates markets and supply chains. As such, it is a pillar of the international trade system, facilitated by the WTO. The hybrid nature of standardisation raises the issue of how to align private incentives with public interest, within a principal-agent framework, and how to enhance input and output legitimacy.
Chapter III discusses antitrust law in standardisation: the reach of competition law in two major jurisdictions, the EU and US and the safe harbour provisions of the US SDOAA, and the EU Horizontal Guidelines. Moreover, Chapter III includes a review of restraints in standardisation under EU and US law. SSOs are treated as two-sided platforms bringing together technology contributors and implementers in a two-sided market for standards, comprising an upstream market for contribution and a downstream side for implementation, with a focus on the 2015 IPR Policy reform by IEEE. Chapter III further outlines the limitations of antitrust in the context of standardisation: (a) the dissonance between the national scope of antitrust and the international scope of standardisation, (b) the highly political nature of antitrust and the volatility of substantive antitrust doctrine, and (c) public choice issues of regulatory capture. Chapter III concludes with proposing a normative approach to antitrust in standardisation: antitrust standards for standards. The proposed approach comprises an efficiency and consumer welfare standard of review, and some simple filters for market power in the standard-setting context, such as regulatory barriers to entry, sunk costs, and supply substitutability and potential competition.
Haris Tsilikas
Immaterialgüter- und Wettbewerbsrecht zwischen Markt und Regulierung
Rechtliche und ökonomische Rahmenbedingungen von Märkten für Informationsgüter und für Informationstechnologien
