Market Regulation, Competition & Antitrust Law

Course Director: Lars Henriksson

Content

The primary objective of this course is to establish a foundational understanding of market regulation in the context of contemporary international trade and policy. It offers an in-depth examination of the rationale for market intervention, the nature of market failures requiring legislative action, and the design of regulation to enhance welfare, efficiency, and appropriate incentives for incumbent and prospective market participants. A central theme is the definition of a ‘market’, with analysis of diverse perspectives on market delineation—a critical consideration in the application of competition and antitrust law.

The course adopts an explicitly interdisciplinary approach, integrating law and economics to foster a comprehensive grasp of legal requirements alongside substantive economic theory, thereby promoting sound legislation informed by robust economic analysis. Furthermore, it provides a broader perspective on the role of regulation in general, and competition policy in particular, in advancing societal objectives.

The course rests upon two main pillars.

The first pillar comprises approximately 60% of the course and focuses on competition and antitrust law (including market definition), with particular emphasis on anti-competitive agreements, the limits of cooperation, and other concerted practices between companies and undertakings that restrict competition. It also examines unilateral conduct, such as attempts to monopolise markets and abuses of dominance, alongside merger and acquisition regulation. Sector-specific regulation is addressed in these contexts, together with related legal frameworks such as state aid and public procurement regimes across various jurisdictions.

The second pillar (approximately 40% of the course) addresses two principal themes.

1. First, it considers the emerging legal order in a deglobalised environment. Geopolitical tensions, conflicts and the war in Ukraine have significantly disrupted the liberalised trade system envisaged by the GATT/WTO, precipitating more restrictive and protectionist trade and investment regimes that profoundly affect global business and signal a retreat from established free trade norms. This includes, inter alia, the newly introduced frameworks for foreign direct investment screening and foreign subsidy regulation.

2. Second, it analyses the accelerating trend towards highly detailed regulation in key markets and sectors. Given the difficulties of litigating complex legal and economic issues, legislation is increasingly designed to overcome such challenges through comprehensive ex ante regulation. Recent developments include the rapid introduction of legislation governing digital markets and digital services, which has had a substantial impact on the technology and e-commerce sectors. Entire industries may now be subject to bespoke regulation via sector inquiries, with severe consequences for non-compliant undertakings. Following a determination of ‘disruption of competition’, authorities are empowered to impose far-reaching obligations, including – as a last resort – divestment from the market.

Format & Structure

This course will be taught using as much as possible the dialectic method (i.e., the classic back-and-forth argumentative questioning where an instructor or peer probes assumptions to test consistency). This means students will be on call to discuss the assigned reading. Therefore, it is crucial that students read the articles and cases on the reading list and think about them. It is highly recommended that students create study groups in which they discuss the assigned materials.

The reading list and the material for each class will be posted online. The fact that most of the students do not have any legal background will be taken into consideration. This should keep the workload of students manageable.

The course consists of two distinct phases, each consisting of two parts:

Phase 1: The first covers a series of lectures and/or webcasts on key concepts, the legal and economic framework. It is designed to provide the students with the necessary toolbox and knowledge to make more advanced assessments of market behaviour. The first part is closely related to the second part, literature studies, which runs in parallel to the lectures/webcasts. Also, teaching will be suspended after the introductory lectures to make room for adequate literature studies, followed by a literature test.

Phase 2: The third- and fourth-part run in parallel to one another. The third part consists of a series of colloquia designed to address key areas of the course such as different perspectives of markets and how they can be demarcated; how restrictive agreements should be scrutinised; where to draw the line the line for illegal, and predatory behaviour as opposed to benevolent fierce price competition; how do companies assess and deal with the massively increased regulation and whether there are the viable alternatives; and in what way does regulation support, promote and give proper incentives to a sustainable development in markets? The fourth course component consists of a moot court competition running for about four weeks. It will simulate a court proceeding, in which the students will analyse a legal-economical problem, research the relevant sources, prepare written submissions based upon their finding, and present convincing oral arguments before a panel of experienced lawyers/judges at the end of the course.

Course administrator: hanna.morian@hhs.se

The overall objective of the course is to examine the legal rules and their economic underpinnings of market regulations taking into account the wider policy issues. The course concentrates on the foundations for the system of rules and economic theories designed to address market failures and disruption or distortion of the competitive market process.

Upon completion of the course, students are expected to be able to:

1. Broadly and independently understand and apply rules of competition law in a broad and be able to use the principles and prevailing legal tests, and demonstrate an understanding of economic and other social effects of different market regulations;
2. demonstrate a deeper methodological knowledge of market regulation, including apply economic theory in practice;
3. Assess, write and present legal-economic arguments pro and contra certain market behaviour;
4. demonstrate in-depth ability to critically evaluate the impact of different views on what constitutes a market.

Throughout the course, students will use and develop the following skills:

• Critical thinking,
• Analytical skills,
• Strategic skills,
• Negotiation skills,
• Relationship-building skills,
• Team working skills

No prerequisites. However, it is highly recommended that the students have a basic understanding of microeconomics and are reasonably acquainted with the basic legal concepts, although the latter is not necessary. Bearing in mind the workload and literature to be read, it is recommended that BSc students take this course after at least one years of study at university level.

**Required reading:

**

Main text book

B. Sufrin, N. Dunne and A. Jones, Jones & Sufrin’s EU Competition Law, 8th ed. (Oxford: Oxford University Press, 2023), 1 424 pages, ISBN: 9780192855015 (reading instructions of relevant chapters to be provided)

Articles

D. C. North, Institutions, Journal of Economic Perspectives, vol. 5, No 1, winter 1991, pp. 97–112.

I. M. Kirzner, Entrepreneurial Discovery and the Competitive Market Process: An Austrian Approach, Journal of Economic Literature, Vol. XXXV (March 1997), pp. 60–85.

M. Granovetter, Economic Action and Social Structure: The Problem of Embeddedness, American Journal of Sociology, vol. 91, No. 3 (Nov. 1985) pp. 481–510.

J. A. Rosa, J. F. Porac, J. Rusner-Spanjol, M. S. Saxon, Sociocognitive Dynamics in a Product Market, Journal of Marketing, vol. 63, Fundamental Issues and Directions for Marketing, 1999, pp. 64–77.

M. C. Callon, An essay on framing and overflowing: economic externalities revisited by sociology, The Sociological Review, vol. 46, May 1998, iss. 1, pp. 244–269.

Other texts and miscellaneous (not required reading):

Articles, statutes and EUR-Lex documents, and cases will be distributed throughout the course. These will be made available electronically free of charge.

Electronic materials from pre-recorded webcasts as introduction to the topics to be covered in seminars and moot court.

Other recommended literature (Reference literature - not required reading, but suitable reading for solving seminar assignments and moot court competition):

R. Whish and D. Bailey, Competition Law, 11th ed. (Oxford: Oxford University Press, 2024) 1 272 pages, ISBN: 9780198906032 (alternative book to the main textbook).

R. O’Donoghue KC, J. Padilla, The Law and Economics of Article 102 TFEU, 3rd ed., Bloomsbury Publishing (publisher) Hart Publishing (imprint), 2020, 1 368 pages, ISBN 9781509940868

The examination of course consists of several components:

1. The literature test will assess the first ILO and comprise of an individual single-choice digital quiz;
2. The second ILO will be assessed by participation in discussions at the colloquia;
3. The third ILO will be assessed by several written submissions in group to the moot court:
4. The first and fourth ILO will be assessed by the written exam (2 hours) at the end of the Course comprising of two essay questions designed to incorporate key aspects of the course contents.

It is acknowledged that although each ILO is assessed separately, the ILOs are, in part, overlapping, allowing for an overall assessment of the combined efforts by the examinees in case of shortcomings on individual examination, depending on the gravity and nature of the failing in the individual case.

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