Wrongful competition: a comparative study of private law approaches to competition regulation

Abstract

The thesis seeks to explore the normative foundations of competition regulation beyond the consequentialist or utilitarian approaches typically found in the antitrust laws of any developed legal system. In this regard, it examines non-consequentialist, rights-based private law alternatives. While most academic work on the intersection between antitrust and private law is concerned with ‘competition damages’, or the private enforcement of statutory competition law, this work looks at private law rules and doctrines located outside of said statutory frameworks. Despite an explosion of interest in private law theory in recent years, not much work has been dedicated to the conceptualisation of a private law of competition.

With this purpose in mind, the study puts forward a comparative analysis of the English economic torts and the Spanish regime of unfair competition, primarily because of their markedly diverging attitudes towards the competitive phenomenon. While Spanish law—that espouses a so-called ‘unitary theory’ of competition regulation—attempts the conceptual homogenisation of trade competition rules (including antitrust), the English economic torts remain in a state of utter disconnection with statutory competition law. Where Spanish unfair competition rules are avowedly interventionist, English courts openly pursue a policy of abstentionism. Due to time and space constraints, the focus is placed on extracontractual liability/competition wrongs, but some salient topics of contract law are also explored. The questions that are asked, and then answered, are related to the relationship between antitrust and private law, to the nature and scope of the legally protected interests in each case, to the degree to which competitors ought to be protected from wrongful interference (as opposed to the protection of the ‘competitive process’ or ‘consumer welfare’), and to the direction in which English and Spanish private law rules of competition should evolve. The analysis begins with a review of the theoretical conceptualisation of competition itself, its historical evolution, and the philosophical and economic foundations of its reception into the law (as a legal phenomenon, or as a source of legal rights and duties). This part of the discussion is also concerned with the classification of the various types of competition rules according to their function and nature, an issue of particular importance when trying to ascertain the appropriate place and role of private law institutions in the wider field of competition regulation. The thesis then goes on to examine and critique the current state of each of the national systems under scrutiny, especially on the basis of what are perceived as—rather different—ideological biases that are embedded into the normative structure of the relevant rules of liability. One of the most important features of the study is the explanation of the claim that there certainly is room—particularly in liberal democratic societies—for non-consequentialist private law rules of competition, and that there is an important distinction to be made between the advancement of collective interests via regulatory (i.e. utilitarian, consequentialist) devices, and the protection of individual economic interests from wrongful conduct.