This year, two competing academic worldviews are stepping up to help train the next generation of economic, legal and policy personnel. The stakes are high. As we know, personnel is policy and the battle over economic policy is increasingly a battle over institutional talent pipelines.

The first is the Institute for Consumer Financial Choice (ICFC) at the Law and Economics Center, at George Mason University’s Antonin Scalia Law School. The ICFC will champion rigorous empirical academic research on issues related to consumer choice. No one understands consumers better than consumers themselves.

The first rule of holes is supposed to be: stop digging. The sunk-cost fallacy is realized when we keep digging anyway—and then call it resolve.

We—people—often have a hard time letting a bad thing go. That’s true even for those who are well acquainted with the sunk-cost fallacy and should know better. I’ve been there. I’ve felt that misguided determination, and I’ve felt the consequences.

The same is true of the people who run federal agencies, including the two with which I’m most familiar: the Federal Trade Commission (FTC) and the Antitrust Division of the U.S. Department of Justice (DOJ).

Which brings me to . . .

Read the full piece here.

Introduction

The International Center for Law & Economics (ICLE) welcomes the opportunity to respond to the Competition Commission’s review of regulatory barriers to competition and to the entry or expansion of firms, particularly small and medium enterprises, launched on 22 April 2026.[1] ICLE is a nonprofit, nonpartisan global research and policy centre founded to build the intellectual foundations for sensible, economically grounded policy. We have engaged extensively with competition agencies and policymakers in the European Union, the United Kingdom, Australia, India, Brazil, and Latin America on digital-market regulation, and we offer these comments in that comparative spirit.

At its core, the review asks the right question: which regulations—including sector policies and licensing frameworks—restrict firm entry or expansion, and are they “necessary to achieve their stated purpose” or “overly restrictive in design or application”?[2] We commend the Commission for asking that question.

The premise of the review is well-founded. International benchmarks indicate that South Africa’s regulatory framework continues to impose meaningful constraints on entry, investment, and economic dynamism. South Africa ranks 60th of 143 jurisdictions on the World Justice Project’s overall Rule of Law Index and 66th on its regulatory-enforcement sub-indicator.[3] It also ranks 84th of 190 economies on ease of doing business.[4]

Other international benchmarks reinforce this diagnosis. The Organisation for Economic Co-operation and Development’s 2023-24 Product Market Regulation indicators rank South Africa last among the 50 jurisdictions covered on the overall economy-wide indicator—that is, as having the most restrictive economy-wide regulatory environment among the countries and economies assessed.[5] The OECD explains that competitive product markets can boost productivity, employment, and living standards, and that its indicators measure how closely a country’s regulatory framework aligns with internationally accepted best practices. The economy-wide indicator captures distortions to competition arising from barriers to firm entry and expansion and from the design of state involvement in markets. On this measure, South Africa performs “rather worse than the OECD average.”[6] The OECD further notes “significant potential” to make South Africa’s regulatory framework more conducive to competition, particularly by removing barriers to entry and competition in energy, transport, and e-communications; improving competition-impact assessments; and strengthening stakeholder-consultation requirements.

Against that background, the policy aims the Commission identifies for this review—supporting inclusive growth, improving the ease of doing business, and strengthening the competitiveness of the economy[7] —are legitimate and pressing. They make serious reform of South Africa’s regulatory environment both timely and necessary.

Our submission makes a single constructive point that follows directly from the Commission’s framing: the most consequential barriers to competition, entry, and investment are not always found in licensing queues, authorisation backlogs, or sector-specific rules. They can also arise from well-intentioned competition interventions that restrict rivalry, deter investment, and make entry more costly than they make markets more contestable.

South Africa’s emerging framework for digital-platform regulation is, we respectfully submit, a candidate for exactly the kind of scrutiny this review invites. We do not suggest that South Africa lacks the institutional capacity to administer complex digital rules. To the contrary, South Africa’s competition authorities are among the most capable and active on the continent. Our concern is that the very sophistication of the regime makes discipline more important: digital-platform remedies may be unnecessary to their stated purposes, overly restrictive in design or application, and costly to the entry, investment, innovation, and dynamic rivalry that the review seeks to protect.

We develop this argument in four steps. Part I acknowledges South Africa’s standing as a regional leader in competition enforcement and explains why that capability raises, rather than lowers, the stakes. Part II shows how digital-platform regulation can itself become a barrier to competition, drawing lessons from Europe’s experience, the opportunity costs of bespoke platform intervention, the administrability problems created by multiple objectives, and the risk that platform remedies restrict the very rivalry they seek to promote. Part III explains why South Africa should prefer evidence-led enforcement under the Competition Act to broad ex ante rules. Part IV offers recommendations.

I. South Africa’s Capability Raises the Stakes

South Africa’s competition authorities are among the most capable and active on the continent. The Competition Commission’s market-inquiry apparatus is well-resourced and technically sophisticated. Its recent digital-platform inquiries—the Online Intermediation Platforms Market Inquiry, concluded in 2023,[8] and the Media and Digital Platforms Market Inquiry, concluded in November 2025[9]—demonstrate that capacity.

This matters because the error-cost profile of a capable, ambitious agency differs from that of an under-resourced one. The danger is not that South Africa lacks the capacity to enforce complex digital rules. The danger is that it has that capacity and may therefore be tempted to expand competition policy to pursue an ever-broader set of objectives, at the expense of the entry, investment, and rivalry that this review seeks to promote.

A sophisticated regulator is, almost by definition, capable of constructing ambitious regulatory frameworks whose costs are difficult to observe and whose benefits are often assumed rather than demonstrated. Regulatory overreach is not limited to weak institutions. It can also arise from strong institutions that possess both the expertise and authority to intervene extensively in market processes.

This review is the appropriate vehicle for that reflection. It asks whether regulations are overly restrictive in their design or application and whether each rule is necessary to achieve its stated purpose. Those questions apply no less forcefully to competition regulation than to the licensing and permitting regimes the review primarily contemplates.

Regulation does not cease to be a potential barrier to competition simply because the competition authority administers it.

II. Digital-Platform Regulation Itself Warrants Scrutiny

Over the past three years, South Africa has created one of the most interventionist digital-platform regimes outside the European Union. The Online Intermediation Platforms Market Inquiry imposed substantive remedies, including the internal organisational separation of Takealot’s retail and marketplace operations, limits on Takealot retail buyers’ access to marketplace-seller data, prohibitions on wide and narrow price-parity provisions, measures to improve the visibility of smaller and historically disadvantaged sellers, and a recommendation that the Commission seek a Tribunal order requiring the EAPPCC estate-agency group to divest its 12.78 per cent minority shareholding in Private Property.[10]

The Media and Digital Platforms Market Inquiry followed in November 2025. It secured a package of negotiated remedies from Google, including a Digital News Transformation Fund of R152 million over five years, the launch of Google News Showcase for mainstream media with R355 million over five years, and a R135 million AI Innovation Fund. It also obtained related commitments from YouTube, Meta Platforms, X Corp., and TikTok; recommended a ministerial block exemption to permit collective bargaining by news media with search, social-media, and AI companies over monetisation tools and joint-selling of content; and proposed extending South Africa’s limited-liability regime to social-media platforms, conditional on industry self-regulation.[11]

Most recently, the Commission published a Guidance Note on Online Intermediation Platforms identifying six practices across three categories of potentially harmful conduct:[12] practices said to harm platform-level competition, including price-parity clauses and interoperability restrictions; practices said to distort competition among business users on vertically integrated platforms, including self-preferencing and misuse of seller data; and practices said to impede the participation of SMEs and historically disadvantaged persons, including differentiated trading terms and unfair treatment of business users.

Taken together, these measures resemble the ex ante digital-competition regulations that have proliferated globally in the wake of the EU’s Digital Markets Act. They also raise the central concern of this section: digital-platform regulation can itself become a barrier to competition. Before extending this model further, South Africa should ask whether Europe’s experience supports imitation, whether scarce enforcement resources are better spent on more direct barriers to entry and growth, whether multiple statutory objectives can be administered predictably in digital markets, and whether the remedies imposed in the name of competition risk restricting the very rivalry, investment, and experimentation that competition law should protect.

A. Europe’s Experience Counsels Caution

South Africa’s digital-platform framework reflects a broader trend in which competition authorities seek to emulate Europe’s most ambitious regulatory interventions without first asking whether those interventions are achieving their stated objectives. The evidence suggests caution.

When the Draghi Report was released in 2024,[13] it gave official recognition to a concern that had been building for years: Europe’s relative economic decline is due, in part, to excessive regulation. Europe’s technology sector has been particularly affected. In 2024, U.S.-based institutions produced 40 large AI foundation models, China produced 15, and the European Union produced just three.[14] While no single metric tells the whole story, the disparity points to a significant innovation gap.

The pattern extends beyond artificial intelligence. Europe’s startup ecosystem is increasingly losing founders to more attractive jurisdictions. A European Investment Bank study of startup and scaleup relocation found widespread dissatisfaction with Europe’s regulatory environment, which many founders viewed as overly restrictive.[15] These frameworks often impose compliance burdens that sit uneasily with the realities of developing and scaling innovative technologies.

Innovation ecosystems depend on speed, experimentation, and flexibility. Europe increasingly offers less of each.

European policymakers themselves appear increasingly aware of these concerns. The Draghi Report is one example. Growing geopolitical tensions have also heightened concerns about Europe’s technological resilience and competitiveness.

More recently, the European Commission’s draft merger guidelines have renewed their emphasis on innovation, investment incentives, and dynamic competition.[16] That shift reflects a broader reassessment of regulatory policies that may have weakened Europe’s capacity to innovate and grow.

South Africa should therefore proceed cautiously before importing European-style digital regulation. It should first assess not only the promised benefits, but also the unintended consequences that Europe is increasingly confronting.

B. Competition Regulation Carries Opportunity Costs

An enforcement agency’s capacity is finite. Every analyst-hour, public hearing, and Tribunal proceeding devoted to designing, imposing, monitoring, and defending bespoke platform remedies is one not spent addressing the administrative and licensing barriers that this review seeks to identify.

The Commission’s digital-platform programme has been exceptionally resource-intensive. The Online Intermediation Platforms Market Inquiry and the Media and Digital Platforms Market Inquiry together consumed much of a decade through evidence gathering, hearings, consultation, and negotiation.[17]

This is a point about prioritisation, not effort. If the Commission’s objective is to promote inclusive growth and SME entry, the marginal enforcement rand is likely better spent addressing the licensing thickets, authorisation backlogs, exclusive-rights regimes, and price and non-price restrictions that the review itself identifies as barriers to competition.

ICLE has advanced similar arguments elsewhere. In Latin America, for example, we have argued that insufficiently competitive digital markets are not among the region’s most pressing public-policy concerns and that scarce institutional resources are better directed toward genuine constraints on growth.[18]

There is also a normative opportunity cost that resource considerations alone do not capture. When remedies seek to equalise outcomes rather than ensure equitable opportunity, they introduce a standard that competition law cannot consistently administer.

Section 2 of the Competition Act refers to “equitable opportunity” for small and medium enterprises, not equal outcomes. Equal opportunity means competitors operate under the same rules. It does not require identical starting positions, nor does it require dominant firms to subsidise less-efficient rivals.

Once remedies aim to engineer distributional outcomes rather than restore competitive conditions, competition policy begins to resemble industrial policy, even where the statutory framework permits such an approach.

C. Multiple Objectives Undermine Administrability

A third concern follows directly from the opportunity costs of South Africa’s competition regime: the Competition Act is unusually broad in its stated purposes.[19]

Section 2 directs enforcement not only toward “competitive prices and product choices” for consumers and “efficiency, adaptability and development of the economy,” but also toward employment, social and economic welfare, equitable opportunity for small and medium enterprises, and a broader spread of ownership, “in particular to increase the ownership stakes of historically disadvantaged persons.” The Preamble situates these objectives within the post-apartheid project of ensuring that “all South Africans” can “participate fairly in the national economy.” Each goal is legitimate and constitutionally weighty. We do not question them.

Our concern is analytical and administrative. When pursued simultaneously through a single body of competition rules, plural objectives confront enforcers with trade-offs they have no objective method to resolve. As Robert Bork put the point:

Antitrust policy cannot be made rational until we are able to give a firm answer to one question: What is the point of the law—what are its goals? . . . Is the antitrust judge to be guided by one value or by several? If by several, how is he to decide cases where a conflict in value arises? Only when the issue of goals has been settled is it possible to frame a coherent body of substantive rules.[20]

Recent economic work reinforces this concern. Brian Albrecht and Erik Hovenkamp show that “welfare dashboard” approaches—which seek to weigh competition alongside a long list of additional social values—are not merely controversial, but unworkable. Resolving trade-offs across incommensurable variables requires assigning “welfare weights” that no one knows how to specify. The result, they conclude, “inevitably collapses into subjective speculation.”[21]

The risk is not theoretical. Section 12A of the Act requires the Commission and Tribunal to assess every merger under both a competition test and, after the 2018 amendments, a mandatory freestanding public-interest test. That test includes effects on a “particular industrial sector or region,” employment, small and medium enterprise and historically disadvantaged person participation, the international competitiveness of national industries, and the spread of ownership. Section 18 separately gives the minister a right to participate as a party on public-interest grounds.

In practice, this framework has significantly widened the scope of substantive antitrust analysis and invited contestation by reference to objectives that resist quantification. Public interest, in this institutional setting, functions less as an analytical factor than as a vehicle for political and policy preferences whose weight cannot be specified ex ante. The accompanying risks—discretionary enforcement, reduced predictability for investors, and politicised intervention—are inherent in multi-goal statutes administered without a clear, workable anchor.

Jacques Boshoff, Michael Dingley, and Warren Dingley illustrate the pattern through Wal-Mart/Massmart, Kansai/Freeworld, and Momentum/Metropolitan.[22] In the first two cases, they explain, the relevant minister conducted parallel negotiations with the merging parties outside the statutory process. The resulting conditions—including employment moratoria, Black Economic Empowerment and research-and-development commitments, and local-procurement obligations—rested not on an identified competition concern, but on a broader industrial-policy agenda. Whatever the merits of those objectives, conditions imposed this way blur the line between competition enforcement and industrial policy and weaken the institutional independence of the Commission and Tribunal.

These risks are especially acute in digital markets. Continuous innovation, scale-dependent product design, rapid entry and displacement, and competition for new business models all require a predictable, evidence-based regulatory environment with disciplined objectives. Layering open-ended redistributive and industrial-policy goals onto digital-competition enforcement compresses the space for the experimentation that drives consumer-facing improvements and constrains the dynamic rivalry on which entry and innovation depend.

The current Guidance Note sits on precisely this fault line. It identifies six suspect practices, several framed by reference to “the participation of SMEs and historically disadvantaged persons.”[23]

Rather than expand the regulatory mandate further, the Commission should anchor digital-market interventions in objective technical criteria and demonstrated competitive effects. Distributional and developmental objectives should be left to instruments designed for those purposes and democratically accountable in their use.

D. Digital-Platform Remedies Can Become Regulatory Barriers

The deeper concern is not merely cost, but direction. Several of the measures emerging from South Africa’s digital-platform programme closely resemble the very categories of regulatory barrier that this review seeks to identify.

The review highlights rules that restrict entry, entrench limited supply through exclusive rights or long-term contractual arrangements, limit who may operate in a market, or constrain competition on price and non-price dimensions.[24] Many digital-platform remedies operate in similar ways.

Price-parity prohibitions and mandated contractual terms constrain how platforms compete on both price and non-price dimensions. Mandatory internal separation and forced divestiture intervene directly in firm structure, even absent any finding of prohibited conduct. Under South African law, divestiture may be ordered to remedy an “adverse effect on competition” arising from market features without any contravention of the Act.[25] Such interventions create uncertainty, raise the cost of capital, and discourage investment.

Other measures raise similar concerns. “Fair share”-style transfers, such as the negotiated media-support package, and mandated collective-bargaining exemptions operate, in economic substance, as transfers from successful firms to preferred beneficiaries.[26] By reducing the returns to investment and innovation, they risk discouraging both.

The Google remedies imposed in the Online Intermediation Platforms Market Inquiry illustrate the problem. The Commission concluded that Google Search held a dominant position and that aspects of its conduct harmed competition. Those findings are not unusual in the global competition-policy landscape. The remedies, however, rest on a different rationale.

The OIPMI required Google to provide R180 million in advertising credits and R150 million in training and support for SMEs and historically disadvantaged firms. It also required Google to introduce a new platform-sites unit and other changes intended to increase the visibility of smaller South African platforms.[27]

Yet smaller South African platforms generally struggle for visibility because of structural features of digital markets, including scale advantages, data accumulation, and advertising-auction dynamics. The Commission did not establish that Google’s conduct caused the specific disadvantages these measures sought to remedy. The resulting obligations therefore resemble subsidies directed at broader developmental objectives rather than remedies tailored to a demonstrated competitive harm.

The requirement to introduce an identifier distinguishing South African firms from foreign firms raises similar concerns.[28] It is difficult to identify a competition theory under which a nationality-based visibility mechanism remedies harm to competition. A consumer’s preference for a global platform over a local one because it offers a superior product is not evidence of market failure. It is often evidence of competition working as intended.

Requiring a platform to modify its interface to steer users toward domestic providers is better understood as an industrial-policy intervention than as a competition remedy. It does not answer the central competition question: whether conduct has harmed the competitive process.[29]

The broader economic concern is familiar. Ex ante platform rules that prohibit categories of conduct cannot easily account for the trade-offs inherent in dynamic markets. They often end up protecting less-efficient competitors and redistributing rents rather than protecting competition itself. Many of the practices these regimes target—including self-preferencing, vertical integration, data use, and product integration—are common and often procompetitive forms of business conduct.[30]

Treating such conduct as presumptively suspect increases the risk of false-positive (Type I) error. In innovative markets, those errors are especially costly because they deter not only the conduct at issue, but also the investment, experimentation, and product development that drive competition.

The review expresses concern about the effects of vertical integration on non-integrated firms and about meaningful participation by historically disadvantaged persons. These are legitimate objectives, and we do not question them. The economic literature nevertheless provides little basis for presuming that vertical integration harms competition. More often, it reduces costs, eliminates double marginalisation, and improves the quality and coordination of complementary products.[31]

Where integration or self-preferencing is used to exclude rivals without a valid efficiency justification, existing abuse-of-dominance rules already provide a mechanism for intervention.[32] Broad ex ante restrictions therefore risk sacrificing procompetitive efficiencies while producing only uncertain gains for the intended beneficiaries.

These costs are not hypothetical. The Digital Markets Act—the template for many of these measures—was promoted as a means of increasing contestability without compromising security, raising costs, or degrading services. The emerging evidence points in the opposite direction, with documented costs to security, user experience, fees, and the very European SMEs and innovators the regime was intended to assist.[33] South Africa risks importing those costs alongside the model itself.

There is also a distributional irony. The firms best positioned to benefit from mandated access, data-sharing requirements, and “fair share” transfers are often well-resourced incumbents, not the SMEs these policies are intended to help. Even where smaller firms are the intended beneficiaries, the counterfactual is notoriously difficult to verify. Contestability pursued as an end in itself risks becoming tautological, with every unsuccessful entrant able to point to unrealised opportunities and attribute them to platform conduct.[34]

III. South Africa Should Prefer Evidence-Led Enforcement

South Africa does not regulate in a vacuum. It is part of a broader global trend toward DMA-inspired digital-competition regulation. ICLE has examined these regimes in the European Union,[35] Australia,[36] India,[37] Brazil,[38] and elsewhere. The recurring lesson is that ex ante platform regulation is often justified by assertion rather than evidence and that existing competition law is generally capable of addressing genuine anticompetitive conduct.

That lesson is especially important in emerging markets, where digital markets are often reasonably competitive and where the principal constraints on growth are conventional barriers to entry rather than platform power.[39] The African enforcement landscape illustrates the risks of stretching novel theories of harm to fit digital platforms. The Common Market for Eastern and Southern Africa Competition Commission, for example, recently opened an abuse-of-dominance investigation into Meta’s WhatsApp Business policy, even though the threshold question remains unresolved: what theory of competitive harm, if any, fits the facts?[40]

South Africa’s own framework should be assessed against the same baseline question. Before creating new regulatory obligations, policymakers should ask whether existing competition law, applied on a case-by-case basis, could address the conduct at lower cost and with fewer unintended consequences.

None of this is to deny that digital platforms can engage in anticompetitive conduct or that South Africa may confront genuine competition problems in these markets. It is to recognise that the appropriate response is targeted, evidence-led enforcement under the Competition Act, rather than a standing ex ante regime whose costs this review is expressly designed to identify.

South Africa is also unusually well positioned to learn from international experience. As a late mover, it can draw on a growing body of evidence about how DMA-style frameworks operate in practice. Although the Online Intermediation Platforms Guidance Note reviews the steps some jurisdictions have taken with respect to the six identified practices, it does not assess the competitive effects of those interventions.

The DMA itself illustrates the value of such an assessment. It was promoted as a means of increasing contestability without compromising security, raising costs, or degrading services. The emerging evidence points in the opposite direction, with documented costs to security, user experience, and fees charged to both developers and consumers.[41]

A late mover can learn from those outcomes. Rather than replicate broad regulatory models developed elsewhere, South Africa can adopt a more targeted approach—one grounded in evidence, attentive to investment and innovation incentives, and focused on demonstrable harms rather than speculative concerns. The Commission is well positioned to undertake that task.

IV. Conclusion and Recommendations

The Commission’s review is welcome and timely. Its central insight—that regulation itself can be a barrier to competition—is exactly right. We respectfully urge the Commission to apply that insight even-handedly.

South Africa’s institutional sophistication is real, but it cuts both ways. A capable agency can identify and remedy genuine restraints on entry and growth. It can also extend competition policy beyond administrable limits, increasing uncertainty, raising the cost of investment, and weakening the dynamic rivalry that benefits consumers and SMEs alike.

The documents launching this review identify many genuine barriers to competition in South Africa. We agree. Administrative burdens, licensing restrictions, exclusive-rights regimes, and price and non-price restrictions are precisely the kinds of obstacles that directly impede SME entry, expansion, and inclusive growth. They should remain the Commission’s priority.

In the constructive spirit of the consultation, we respectfully recommend that the Commission:

1. Apply the review’s own test to competition regulation itself. In assessing rules that are “overly restrictive in design or application,” the Commission should bring digital-platform measures—including the OIPMI and MDPMI remedies and any successor ex ante framework—within scope. For each, it should ask whether the measure is necessary to its stated purpose or whether the same objective could be achieved through case-by-case enforcement under the existing Competition Act.
2. Prioritise conventional barriers to entry and growth. The Commission should direct scarce enforcement and institutional resources toward the administrative, licensing, exclusive-rights, and price and non-price barriers that the review identifies and that bear most directly on SME entry and expansion.
3. Subject standing platform remedies to counterfactual and proportionality review. Any such remedy should be assessed against its likely effects on investment, innovation, and dynamic competition; the distribution of its benefits between SMEs and larger incumbents; and the availability of less-restrictive enforcement alternatives.
4. Favour evidence over assertion. Where intervention is warranted, the Commission should ground it in demonstrated harm to the competitive process, not in contestability as an end in itself. The experience of DMA-style regimes elsewhere shows how easily broad ex ante obligations can protect less-efficient rivals, redistribute rents, and chill the experimentation on which digital competition depends.

These principles would not prevent the Commission from acting where digital platforms genuinely harm competition. They would ensure that intervention remains targeted, evidence-led, proportionate, and consistent with the review’s core objective: removing barriers to competition rather than creating new ones.

[1] Competition Comm’n of S. Afr., Press Release, Commission Launches Review of Regulatory Barriers to Competition and SME Participation (22 Apr. 2026), https://www.compcom.co.za/wp-content/uploads/2026/04/Media-Statement-Commission-launches-review-of-regulatory-barriers-to-competition-and-SME-participation-22-April-2026.pdf [hereinafter Review Media Statement] (noting President Cyril Ramaphosa’s call in the 2026 State of the Nation Address to reduce red tape and improve the ease of doing business, and inviting submissions by close of business on 5 June 2026).

[2] Review Media Statement, supra note 1 (inviting submissions assessing whether regulations are necessary to achieve their stated objectives or are unduly restrictive in their design or application).

[3] See WJP Rule of Law Index 2025: South Africa, World Just. Project, https://worldjusticeproject.org/rule-of-law-index/country/2025/South%20Africa (last visited 3 June 2026).

[4] See World Bank, Doing Business 2020: Comparing Business Regulation in 190 Economies (2020), https://openknowledge.worldbank.org/server/api/core/bitstreams/75ea67f9-4bcb-5766-ada6-6963a992d64c/content. South Africa ranked 84th out of 190 economies. The World Bank discontinued the Doing Business project in 2020 following a methodological review and replaced it with the Business Ready (B-READY) initiative. South Africa has not been assessed in any B-READY edition to date. See also World Bank, Business Ready 2025 (2025), https://openknowledge.worldbank.org/entities/publication/a35eb0e7-328a-46a3-8713-ce8ef8a7c9e3.

[5] Org. for Econ. Co-operation & Dev. (OECD), Key Takeaways from the 2023–2024 Update of the OECD Product Market Regulation Indicators, https://www.oecd.org/en/topics/product-market-regulation.html (last visited 3 June 2026).

[6] See Org. for Econ. Co-operation & Dev. (OECD), OECD Product Market Regulation (PMR) Indicators: How Does South Africa Compare? (2024), https://www.oecd.org/content/dam/oecd/en/topics/policy-sub-issues/product-market-regulation/South%20Africa_PMR%20country%20note.pdf.

[7] See Review Media Statement, supra note 1.

[8] Competition Comm’n of S. Afr., Online Intermediation Platforms Market Inquiry: Final Report and Recommendations (31 July 2023), https://www.compcom.co.za/wp-content/uploads/2023/07/CC_OIPMI-Final-Report.pdf [hereinafter OIPMI Final Report].

[9] Competition Comm’n of S. Afr., Media and Digital Platforms Market Inquiry: Final Report (13 Nov. 2025), https://www.compcom.co.za/wp-content/uploads/2025/11/CC_MDPMI-Final-Report_Non-Confidential-1.pdf [hereinafter MDPMI Final Report].

[10] See OIPMI Final Report, supra note 8.

[11] See MDPMI Final Report, supra note 9.

[12] Competition Comm’n of S. Afr., Online Intermediation Platforms Guidance Note (2025), https://www.compcom.co.za/wp-content/uploads/2026/02/Online-Intermediation-Platforms-Guidance-Note.pdf.

[13] Mario Draghi, The Future of European Competitiveness: Part A: A Competitiveness Strategy for Europe, Eur. Comm’n (Sept. 2024), https://commission.europa.eu/document/download/97e481fd-2dc3-412d-be4c-f152a8232961_en.

[14] Nestor Maslej et al., The AI Index Annual Report (Inst. for Hum.-Centered AI, Stanford Univ. 2025), https://hai.stanford.edu/assets/files/hai_ai_index_report_2025.pdf.

[15] Eur. Inv. Bank, Drivers of Relocation by Innovative EU Startups and Scaleups (2025), https://www.eib.org/files/publications/20250217-120126-drivers-of-relocation-by-innovative-eu-startups-and-scaleups-en.pdf.

[16] Eur. Comm’n, Draft Communication of the European Commission: Guidelines on the Assessment of Mergers Under Council Regulation (EC) No. 139/2004 on the Control of Concentrations Between Undertakings (30 Apr. 2026), https://competition-policy.ec.europa.eu/document/download/46dde10f-85c1-4590-a3f4-2b71f85685ef_en?filename=Merger%20Guidelines%20-%20final%20for%20public%20consultation.pdf.

[17] See OIPMI Final Report, supra note 8; MDPMI Final Report, supra note 9 (both inquiries spanned several years of evidence gathering, public hearings, and stakeholder engagement).

[18] See Mario A. Zúñiga, Regulatory Reconquista: Ex-Ante Regulation of Digital Platforms in Latin America (Int’l Ctr. for L. & Econ. Working Paper, 2025), https://ssrn.com/abstract=5011229 (concluding that insufficiently competitive digital markets are not among Latin America’s most pressing public-policy priorities).

[19] See Competition Act 89 of 1998 §§ 43A–43D, 60(2)(c) (S. Afr.) (as amended by Competition Amendment Act 18 of 2018), https://www.compcom.co.za/wp-content/uploads/2021/03/Competition-Act-A6.pdf.

[20] See Robert H. Bork, The Antitrust Paradox: A Policy at War with Itself 47 (2021 ed.).

[21] See Brian C. Albrecht & Erik Hovenkamp, Should Antitrust Pursue Multiple Policy Goals?, Geo. Mason L. Rev. (forthcoming 2026), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6556681.

[22] See Willen Boshoff, Daryl Dingley & Janine Dingley, The Economics of Public Interest Provisions in South African Competition Policy (paper presented at the 6th Annual Conference on Competition Law, Economics and Policy, Johannesburg, S. Afr. Sept. 2012), https://www.compcom.co.za/wp-content/uploads/2014/09/The-economics-of-public-interest-provisions-in-South-African-competition-policy.pdf.

[23] Online Intermediation Platforms Guidance Note, supra note 12.

[24] See Review Media Statement, supra note 1.

[25] See OIPMI Final Report, supra note 8; see also Competition Act 89 of 1998 §§ 43A–43D, 60(2)(c) (S. Afr.), supra note 19 (authorising the Competition Tribunal, on the Commission’s recommendation following a Chapter 4A market inquiry, to order divestiture to remedy an adverse effect on competition arising from market features without any finding of prohibited conduct).

[26] See MDPMI Final Report, supra note 9.

[27] OIPMI Final Report, supra note 8.

[28] Id.

[29] See Geoffrey Manne, Lazar Radic & Dirk Auer, Regulate for What? A Closer Look at the Rationale and Goals of Digital Competition Regulations, 22 Berkeley Bus. L.J. 201 (2025), https://lawcat.berkeley.edu/record/1312409?v=pdf (arguing that digital competition regulations often protect less-efficient competitors and redistribute rents rather than protect the competitive process).

[30] Geoffrey A. Manne, Error Costs in Digital Markets (Int’l Ctr. for L. & Econ. Working Paper, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3733662 (explaining that innovative markets amplify both the likelihood and social costs of false positives). See also Darcy Allen et al., Comments of RMIT and ICLE Scholars to the Australian Treasury Consultation on a New Digital Competition Regime (Int’l Ctr. for L. & Econ., 13 Feb. 2025), https://laweconcenter.org/comments-of-rmit-and-icle-scholars-to-the-australian-treasury-consultation-on-a-new-digital-competition-regime (observing that self-preferencing is a common and often procompetitive business practice).

[31] See Joseph J. Spengler, Vertical Integration and Antitrust Policy, 58 J. Pol. Econ. 281 (1950).

[32] Geoffrey A. Manne, Dirk Auer, Eric Crampton & Oliver Hartwich, ICLE Comments to the Australian Government’s Consultation on the Proposed Digital Competition Regime, Int’l Ctr. for L. & Econ. (13 Feb. 2025), https://laweconcenter.org/resources/icle-comments-to-the-australian-governments-consultation-on-the-proposed-digital-competition-regime (addressing the costs of restricting product integration); Allen et al., supra note 30 (explaining that vertical integration and self-preferencing are common and often procompetitive).

[33] Manne et al., supra note 32; Dirk Auer, The Broken Promises of Europe’s Digital Regulation, Truth on the Mkt. (12 Mar. 2024), https://truthonthemarket.com/2024/03/12/the-broken-promises-of-europes-digital-regulation.

[34] Geoffrey A. Manne, Dirk Auer, Lazar Radic, Selçukhan Ünekba? & Mario A. Zúñiga, ICLE Response to the First Review of the Digital Markets Act, Int’l Ctr. for L. & Econ. (24 Sept. 2025), https://laweconcenter.org/resources/icle-response-to-first-review-of-the-digital-markets-act (noting that treating contestability as an end in itself risks tautology, as every unsuccessful entrant can point to opportunities it failed to realise).

[35] See, e.g., Dirk Auer, The Commission’s Seven Claims, Tested, LawEconCenter.org (27 May 2026), https://laweconcenter.org/resources/the-commissions-seven-claims-tested.

[36] See, e.g., Geoffrey A. Manne, Dirk Auer, Eric Crampton, Oliver Hartwich, R. Ian McEwin & Lazar Radic, ICLE Comments to the Australian Government’s Consultation on the Proposed Digital Competition Regime, Int’l Ctr. for L. & Econ. (2025), https://laweconcenter.org/resources/icle-comments-to-the-australian-governments-consultation-on-the-proposed-digital-competition-regime.

[37] See, e.g., Dirk Auer, Geoffrey A. Manne, Viswanath Pingali, Lazar Radic & Mario A. Zúñiga, ICLE Comments on India’s Draft Digital Competition Act, Int’l Ctr. for L. & Econ. (2025), https://laweconcenter.org/resources/icle-comments-on-indias-draft-digital-competition-act.

[38] See, e.g., Geoffrey A. Manne, Dario Oliveira Neto & Dirk Auer, Digital Overreach: A Premature Turn to Ex Ante Regulation in Brazil (Int’l Ctr. for L. & Econ. Working Paper, 2026), https://laweconcenter.org/resources/digital-overreach-a-premature-turn-to-ex-ante-regulation-in-brazil.

[39] Zúñiga, supra note 18.

[40] See Onyeka Aralu, COMESA, WhatsApp Business, and Antitrust in Search of a Theory, Truth on the Mkt. (9 Mar. 2026), https://laweconcenter.org/resources/comesa-whatsapp-business-and-antitrust-in-search-of-a-theory.

[41] Selçukhan Ünekbas & Lazar Radic, Implementing the EU’s Digital Markets Act: The Seen and the Unseen, Truth on the Mkt. (25 June 2025), https://laweconcenter.org/resources/implementing-the-eus-digital-markets-act-the-seen-and-the-unseen; see also Auer, supra note 35.

For the rapidly growing number of Americans earning income independently, work doesn’t come with a benefits department. That’s one reason why “portable benefits” reforms have been sweeping through statehouses and are beginning to attract serious attention on Capitol Hill.

At their core, portable benefits mirror worker-owned flexible or health savings accounts, but can pay for a broader range of products and services. Generally speaking, a business (or other client) can decide — voluntarily — to offer contributions as part of an independent worker’s compensation package.

Read the full piece here.

Antitrust law does not hand out damages just because someone got hurt in the general vicinity of an antitrust violation. A plaintiff must show more than bad conduct, more than lost money, and more than a plausible violation of the Sherman Act. The loss must come from the thing antitrust law exists to protect: competition.

That is where antitrust standing does its work. In ordinary litigation, standing asks whether a plaintiff has enough of a stake in the dispute to be in court at all. Antitrust standing asks a more pointed question: Is this the kind of plaintiff, and the kind of injury, the antitrust laws allow to recover damages?

That inquiry often gets treated as a threshold pleading hurdle—a box plaintiffs satisfy almost automatically once they allege anticompetitive conduct and economic harm. But modern antitrust doctrine demands more. The question is not merely whether a plaintiff lost money. It is whether that loss reflects diminished competition in the allegedly restrained market.

Section 4 of the Clayton Act provides that any person injured in their business or property “by reason of anything forbidden in the antitrust laws” may sue and recover treble damages—three times the damages proved. Read literally, that language sounds expansive. Courts have never read it that way.

Instead, plaintiffs must show, as the Supreme Court put it in Brunswick Corp. v. Pueblo Bowl-O-Mat (1977), that their injury is “of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful.”

The reason is straightforward: antitrust law protects competition, not competitors. A business harmed by rivals acting badly has not necessarily suffered an antitrust injury. The harm must reflect damage to the competitive process in a relevant market. Antitrust standing also serves a practical purpose: limiting exposure to treble damages in private enforcement actions before liability sprawls beyond any administrable boundary.

Two recent proceedings show how much work this doctrine still does. The first is X Corp. v. World Federation of Advertisers, in which Judge Jane Boyle dismissed Elon Musk’s lawsuit against an advertising-industry coalition, holding that X Corp. failed to plead antitrust injury despite extensive allegations of coordinated advertiser boycotts. The second is the Live Nation-Ticketmaster litigation, where a federal jury found Live Nation and Ticketmaster liable for antitrust violations in a venue-facing ticketing market. That verdict raises a harder follow-on question: Can downstream consumers—and states suing on their behalf—recover federal damages for harm that began upstream?

The cases arise in very different settings. But they expose the same doctrinal tension: antitrust liability and antitrust recovery are not the same thing. Conduct may violate the Sherman Act while a particular plaintiff’s injury remains too remote to support damages under Section 4 of the Clayton Act. In both X Corp. and Live Nation, the central question became whether the plaintiffs’ losses flowed from harm to competition, or merely from conduct alleged to be anticompetitive.

Read the full piece here.

Sometimes the most important thing about a gatekeeper case is that there was no gatekeeper after all. That is the quiet lesson of the European Union General Court’s judgment in Meta Platforms v. Commission, which annulled in part the European Commission’s decision to designate Meta as a gatekeeper under the Digital Markets Act (DMA).

The ruling is narrow. It concerns only Facebook Marketplace, and it turns largely on procedural rather than substantive grounds. But narrow rulings can still cast long shadows, and this one does. The court’s reasoning reaches beyond Marketplace to questions that will shape future DMA enforcement.

This post argues that the decision’s greatest importance lies not in what it says about Facebook Marketplace, but in what it signals for the DMA’s future application. After outlining the case’s background, it explores three implications: for qualitative gatekeeper designations, for the DMA’s “gateway” logic, and for the wisdom of applying the DMA to challengers rather than incumbents.

Read the full piece here.

Washington keeps looking for the AI equivalent of a locked vault: control the chips, control the models, control the danger. But artificial intelligence is starting to look less like uranium and more like malware—hard to contain, easy to adapt, and most dangerous where people actually use it.

The White House’s new AI executive order is framed around innovation and security. Its clearest signal, however, is concern about frontier AI capabilities themselves: how they are benchmarked, who gets early access to them, and how their release should be coordinated with the federal government. That focus lands squarely in the middle of a growing debate over whether AI policy should target chips, models, or what Anthropic recently described as the “capability layer”—the environment where models are deployed, monitored, secured, and used.

Recent arguments within parts of the AI-policy community—most notably from Anthropic—have emphasized export controls, compute restrictions, and centralized governance as the primary tools for preserving U.S. leadership in frontier artificial intelligence. The concern is understandable. AI systems are likely to accelerate innovation across strategically important sectors, including semiconductors, cybersecurity, biotechnology, advanced manufacturing, and military systems. Maintaining American leadership in those areas is a legitimate national objective.

Much of the current debate, however, still views the strategic landscape primarily through the lens of chip denial and hardware restrictions. That perspective risks overstating the long-term importance of compute controls, while understating the significance of where AI systems actually meet the world: through cloud services, application programming interfaces (APIs), identity systems, monitoring tools, and security controls.

As models proliferate, open-weight ecosystems mature, and agentic orchestration techniques improve—that is, as systems become better at coordinating multiple tools and models to complete tasks—the core strategic challenge increasingly shifts. The question is less whether adversaries can ever obtain compute and more whether deployed systems can be hardened against misuse, monitored effectively, and integrated into resilient defensive architectures.

In practice, the emerging equilibrium looks far more like cybersecurity or fraud prevention than a traditional nonproliferation regime. Overindexing on the latter risks weakening both American national security and the ability of U.S. firms to remain at the technological frontier.

Put differently, current AI policy discussions too often blur the line between national security and incumbent protection. A sustainable strategy should preserve U.S. ecosystem leadership, focus governance on the places where models are actually accessed and abused, and encourage defensive open-source proliferation. Treating blunt hardware denial as the master key to AI security is unlikely to achieve any of those goals.

Read the full piece here.

Brazil’s WhatsApp case began as a fight over access to an application programming interface, or API—the technical doorway that lets outside services connect to WhatsApp. It has quickly become a test of how antitrust law should treat AI distribution.

The Federal Court of São Paulo has now suspended the R$250,000, or about $50,000, daily fine that Brazil’s Administrative Council for Economic Defense (CADE) imposed on Meta in its WhatsApp AI-chatbots case, sending the parties into conciliation instead. The judicial decision remains under seal, but it marks the latest turn in a remarkable four-month saga.

CADE opened an administrative inquiry and imposed an interim measure. A federal court initially suspended that measure, then reinstated it after a closer look. CADE then imposed a daily fine after concluding that Meta had not adequately complied. Now, that fine has been paused, too.

The merits remain unresolved, making this a useful moment to ask what the dispute is really about—and where the harder questions lie.

The short version is that CADE’s dominance theory rests on relatively firm ground. Its theory of harm, by contrast, depends on assumptions about AI markets that the available evidence is unlikely to support. In that sense, the court’s decision to pause the fine and require conciliation may create a useful off-ramp in an important antitrust dispute.

Read the full piece here.

SpaceX may soon ask public investors to buy a piece of the future. The fine print may ask them to buy something else, too: a theory of corporate governance.

The company’s reported initial public offering (IPO) has already drawn significant concern from institutional investors and corporate-governance observers. That concern is understandable. SpaceX reportedly seeks to raise as much as $75 billion at a valuation exceeding $2 trillion, potentially making it the largest IPO in history.

SpaceX is also no ordinary issuer. It is one of the most influential companies in the space industry, with billions of dollars in government contracts, considerable political influence, and a central role in both national-security and commercial-space infrastructure.

A May 13 letter from the New York State Comptroller, the New York City Comptroller, and the California Public Employees’ Retirement System (CalPERS) criticizes the reported governance package as “novel and extreme.” The letter highlights several concerns: perpetual super-voting shares, restrictions on removing Elon Musk, mandatory arbitration of shareholder claims, controlled-company status, Texas-law barriers to derivative litigation, and the concentration of the chief executive officer, chief technology officer, and chair roles in Musk, even as he simultaneously leads several other major companies.

Those objections are serious. But the SpaceX controversy is not merely about Musk, founder control, or the outer boundaries of shareholder rights. It also highlights a deeper shift in corporate law. Companies are no longer simply choosing where to incorporate. Increasingly, they are choosing among competing governance philosophies.

My forthcoming article, “New Corporate Geography,” argues that incorporation decisions increasingly reflect more than a preference for a particular chartering state. They also reflect a firm’s operational risks, litigation exposure, regulatory environment, investor base, and governance strategy. SpaceX offers a real-time example of that shift. The reported offering is not simply a test of whether investors will buy a founder-controlled company. It is a test of whether public markets will accept a governance structure built around Texas statutory ordering, federal securities disclosure, and investor choice, rather than the more familiar model of Delaware-style fiduciary review.

Read the full piece here.