Enforcing Corporate Opportunity Rules : Antitrust Risks and Antitrust Failures
(2023) In European Business Law Review 34(2). p.293-324- Abstract
This paper identifies the potential competitive harm in the enforcement of corporate opportunity rules and shows that antitrust intervention cannot sufficiently address such harm. It suggests that the current antitrust framework is ill-suited to tackle the anticompetitive risks, in particular, regarding effects on innovation. The paper first explains corporate opportunity rules in EU member States and in USA corporate law and their strategic use in a business context, highlighting also why they may be effi-cient. Then, it highlights possible negative effects of a strategic use of these rules on competition in terms of static and dynamic efficiency. Having stressed the above-mentioned competitive implications, the paper engages in an... (More)
This paper identifies the potential competitive harm in the enforcement of corporate opportunity rules and shows that antitrust intervention cannot sufficiently address such harm. It suggests that the current antitrust framework is ill-suited to tackle the anticompetitive risks, in particular, regarding effects on innovation. The paper first explains corporate opportunity rules in EU member States and in USA corporate law and their strategic use in a business context, highlighting also why they may be effi-cient. Then, it highlights possible negative effects of a strategic use of these rules on competition in terms of static and dynamic efficiency. Having stressed the above-mentioned competitive implications, the paper engages in an analysis of the current framework of competition law to show how competition law provisions are, in most cases, ill-suited to address the potential anticompetitive harm of corporate opportunity rules. Finally, it recommends a way forward based on corporate law reform.
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- author
- Corradi, Marco LU and Nowag, Julian LU
- organization
- publishing date
- 2023
- type
- Contribution to journal
- publication status
- published
- subject
- keywords
- antitrust, competition law, Corporate opportunity rules, disruptive innovation, EU competition law, innovation, market foreclosure
- in
- European Business Law Review
- volume
- 34
- issue
- 2
- pages
- 32 pages
- publisher
- Kluwer Law International
- external identifiers
-
- scopus:85163100662
- ISSN
- 0959-6941
- language
- English
- LU publication?
- yes
- id
- 4ff17285-5034-4f15-b407-0aef98f6ad5e
- alternative location
- https://kluwerlawonline.com/journalarticle/European+Business+Law+Review/34.2/EULR2023020
- date added to LUP
- 2024-01-12 14:13:18
- date last changed
- 2024-01-12 14:14:11
@article{4ff17285-5034-4f15-b407-0aef98f6ad5e,
abstract = {{<p>This paper identifies the potential competitive harm in the enforcement of corporate opportunity rules and shows that antitrust intervention cannot sufficiently address such harm. It suggests that the current antitrust framework is ill-suited to tackle the anticompetitive risks, in particular, regarding effects on innovation. The paper first explains corporate opportunity rules in EU member States and in USA corporate law and their strategic use in a business context, highlighting also why they may be effi-cient. Then, it highlights possible negative effects of a strategic use of these rules on competition in terms of static and dynamic efficiency. Having stressed the above-mentioned competitive implications, the paper engages in an analysis of the current framework of competition law to show how competition law provisions are, in most cases, ill-suited to address the potential anticompetitive harm of corporate opportunity rules. Finally, it recommends a way forward based on corporate law reform.</p>}},
author = {{Corradi, Marco and Nowag, Julian}},
issn = {{0959-6941}},
keywords = {{antitrust; competition law; Corporate opportunity rules; disruptive innovation; EU competition law; innovation; market foreclosure}},
language = {{eng}},
number = {{2}},
pages = {{293--324}},
publisher = {{Kluwer Law International}},
series = {{European Business Law Review}},
title = {{Enforcing Corporate Opportunity Rules : Antitrust Risks and Antitrust Failures}},
url = {{https://kluwerlawonline.com/journalarticle/European+Business+Law+Review/34.2/EULR2023020}},
volume = {{34}},
year = {{2023}},
}