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Unpublished Paper
THE IMPORTATION OF THE RULE OF REASON IN EUROPEAN COMPETITION LAW: THE IMPLICATIONS OF ECONOMIC AND BEHAVIORAL THEORIES AND THE CASE OF PORT SERVICES
ExpressO (2012)
  • Davide Maresca, Boston University
Abstract
The regulation of international markets is nowadays faced with an important debate emerging from the study that started long ago at the Chicago School, passed through behavioral theories, and arrived in the European Union model. Two main theories set against each other concerning the market and antitrust regulation. The first one, law and economics theory, is based on the economic analysis of the costs and benefits of restraint of trade, and justifies a restraint only for economic reasons. The second, behavioral law and economics theory, is based on the empirical analysis of the regulation through instruments taken from social sciences. The application of both economic and behavioral theories to the antitrust sector requires a careful analysis of the effects of restraints of trade in order to arrive at a correct interpretation of the Sherman Act. This analysis is presently guided by the Supreme Court’s reasonableness standard, which is the product of an evolution over two hundred years of judgments by the Supreme Court judgment according to the rule of reason. The problem that needs to be analyzed, through a comparison of the United States legal system and European competition law, is whether European parameters of the rule of reason can be the same as those held by the Supreme Court in Chicago Board of Trade. From this point of view, the evolution of the judgments of the European Court of Justice has allowed scholars and public regulators to fix a kind of regulation with goals different from the Supreme Court experience. The European Court of Justice introduced a model of regulation that allows public intervention in the market and punishes anti-competitive agreements and behaviors, whereas the economic disadvantage brought by the restraint of trade is necessary to pursue a different imperative public objective according to the proportionality principle. The article finishes with a concrete example of the application of these standards to a the ports services industry where, thanks to the special structure of the market, the application of the rule of reason seems to conciliate the economic and behavioral theories of law.
Keywords
  • rule of reason,
  • regulation,
  • european law,
  • law and economics
Disciplines
Publication Date
August 30, 2012
Citation Information
Davide Maresca. "THE IMPORTATION OF THE RULE OF REASON IN EUROPEAN COMPETITION LAW: THE IMPLICATIONS OF ECONOMIC AND BEHAVIORAL THEORIES AND THE CASE OF PORT SERVICES" ExpressO (2012)
Available at: http://works.bepress.com/davide_maresca/1/