This document discusses how blockchain technology could impact antitrust enforcement and compliance. It notes that competition matters require collecting, analyzing, and drawing inferences from data. Blockchain could allow for faster information gathering, more robust competition assessments using granular and reliable data, and help resolve information asymmetries. However, several hurdles remain, such as the nascent nature of the technology and procedural issues regarding rules of evidence and reliability of permissioned blockchains. The impact on private competition enforcement also remains uncertain.

1. Antitrust Enforcement & Compliance
in a Blockchain(ed) World
Ajinkya M Tulpule
8 June 2018
Credit:Getty Images

2. 2
It is not the type of evidence that is decisive. It is the solidity of the evidence that counts.
- Laitenberger, December 2017
“Need more information”
- almost every case team

3. Importance of Data
• Competition matters are fact intensive and involve:
ocollecting data,
oanalyzing data, and
odrawing inferences from data.
• Right data at the right time
• Vigour v Rigour (Laitenberger)
3
&

4. Utility in Enforcement

5. Key Elements
• Faster information gathering and better target datasets
• More informed, robust and accurate competition assessment
• Granularity coupled with reliability
• Resolving information asymmetry
5

6. Faster Procedures & Decisions?
6
Time span between beginning of investigation and decision (2000-2011)
Hüschelrath, Laitenberger & Smuda (2013)
• Cases where cartels were detected before termination
took 20 months longer on average
• Cases with a chief witness were shorter by 9.71 months
on average
• More collaboration had a positive (but insignificant)
effect on duration

7. Better Information & Analysis
Imperial Tobacco (2010)
• OFT evidence was limited to one expert report, some key correspondence, corporate leniency statements and one
witness statement
• ITL’s evidence included empirical analysis based on 36 million price data points, 12 witness statements and several
expert reports.
• Empirical evidence helped prove lower price increases during the cartel period than afterwards
Olympic/Aegean Airlines (2011)
• Poor quality, incomplete and/or inaccurate market data available from Parties
• Ferry operators’ database are not as developed as the sophisticated systems/ databases used by airlines
• Decision states three preconditions for data:
o All necessary data must be available to implement the chosen empirical methodology and the available data must be of
adequate quality
o data needs to be a good indicator of the likely impact on future competition, and
o sufficient variability in the data to identify references for comparison.
7

8. More Complex Theories of Harm
Tetra Laval (2005)
• “[where] the claims of cause and effect are dimly discernible, uncertain and difficult to establish…the quality of the
evidence…is particularly important.”
• Evidence required to show existence of an infringement should be directly proportional to complexity of the proposed
theory of harm.
US, China and Europe
• Merger control is experiencing longer investigations driven by more complex theories of harm
• Merger decisions took on average 50% to 90% longer between 2011 and 2017
Singapore, Indonesia and India
• Emerging competition regimes are taking on more complex and sophisticated theories of harm

9. Monitoring Commitments & Undertakings
Microsoft (2013)
• Did not offer a “choice screen” allowing consumers “to choose in an informed and unbiased manner which web
browser(s) they wanted to install.”
• Penalty of €561 million
Bosch / IpCom (2009)
• Standard Essential Patents for GSM and WCDMA standards
• Committments to granting irrevocable licenses on FRAND basis
• Commission engaged IPCom more than two years after transfer of patents
Several countries are adding undertakings and binding commitments to their arsenal (New Zealand)
9

10. Other Possibilities
• Market Definition?
• Presumptions?
• Leniency Applications?
• Live data feed?
10

11. Utility in Compliance

12. Key Elements & Examples
• Pricing Control across jurisdictions
• Trade Associations: Information gathering and aggregation without direct involvement
• Reduced time/costs for responding to RFIs (?)
12

13. Key Elements & Examples
• Compliance Programs: Governance and Control
• Live Monitoring of market shares
• Deeper engagement of In-House Counsel
13

14. Concluding Remarks

15. Summary
• Harder
• Better
• Faster
• Stronger
15
and More Complex Theories of Harm
Information Gathering & Analysis
Internal Procedures & Decision Making
Compliance Protocols

16. A Road Not Easy
16
• Several hurdles to be crossed:
‒ Nascent Technology
‒ Various procedural issues (rules of evidence)
‒ Reliability of Permissioned Blockchains
‒ Impact on private competition enforcement?