Acity does not need to hang a “no cell towers allowed” sign to keep wireless service out. It can get there the quieter way: deny one permit, then another, each for reasons that sound local, particular, and perfectly ordinary. The question at the heart of the Telecommunications Act of 1996 is whether federal law cares about the difference.

The Act was designed to speed wireless deployment while preserving local control over routine land-use decisions. Section 332(c)(7) reflects that compromise. It preserves state and local authority over the “placement, construction, and modification” of wireless facilities, while imposing a handful of federal constraints to ensure Americans receive the benefits of timely wireless-service deployment.

The most important of those constraints is the effective-prohibition clause, which provides that local regulation “shall not prohibit or have the effect of prohibiting the provision of personal wireless services.” The key words are “or have the effect of prohibiting.” That language extends beyond outright bans to government actions that, whatever their form, leave an area without wireless service. For nearly 30 years, courts have wrestled with a recurring question: How far does that functional phrase reach?

Faced with a statute that condemned effects without defining them, the federal courts of appeals developed a framework to fill the gap. Beginning with the 2nd U.S. Circuit Court of Appeals in Sprint Spectrum, L.P. v. Willoth (1999), and eventually adopted by nearly every circuit to consider the issue, courts converged on the “significant gap” test. Under that approach, a denial has the effect of prohibiting service when it leaves a significant gap in a carrier’s coverage and the carrier’s proposal is the least intrusive means of closing it. The test gave concrete meaning to the statute’s “effect of” language, tied liability to real-world coverage rather than the label a locality attached to its decision, and used the no-alternatives requirement to supply the causal connection implied by the word “effect.”

Last month, the 11th U.S. Circuit Court of Appeals broke from that consensus. In T-Mobile South, LLC v. City of Roswell, the court held that the effective-prohibition clause governs only the regulation of siting—that is, control through generally applicable rules—and therefore cannot be invoked to challenge the denial of a single permit application.

That reading is difficult to square with the statutory text. The phrase “effect of prohibiting” is at least as naturally read to reach functional prohibitions as formal ones. The court’s narrower interpretation also carries consequences that cut against the deployment Congress sought to accelerate. Under the 11th Circuit’s approach, a locality can keep wireless facilities out indefinitely by denying applications one at a time, each on seemingly site-specific grounds, without ever adopting a rule that a court could invalidate. The result is a moratorium in all but name—effectively insulated from challenge because no one put it in writing.

Read the full piece here.

AICOA is back from the dead, and this time it has learned a few new tricks—mostly how to lower liability thresholds, raise defense burdens, and keep treating “Big Tech” as if capitalization were a theory of harm. The American Innovation and Choice Online Act has failed twice before. Its latest incarnation is not so much a fresh start as a sequel nobody ordered.

Sen. Chuck Grassley (R-Iowa) and Sen. Amy Klobuchar (D-Minn.) “introduced” AICOA last week. Co-sponsors include Sens. Dick Durbin (D-Ill.), Josh Hawley (R-Mo.), Sheldon Whitehouse (D-R.I.), and Cory Booker (D-N.J.). Here is the bill’s text, at least as introduced.

“Introduced” is technically correct as a matter of process. And, as far as I know, this precise text string has not been introduced before. But we have seen pretty darn similar bills, under the same title, from Klobuchar before. AICOA appeared as S. 2992 in the 117th Congress (we’ll call that AICOA 1.0) and S. 2033 in the 118th Congress (AICOA 1.1). There have been changes along the way, but the essentially bad idea remains, in essence, bad.

I don’t know whether AICOA 1.2’s bite at the apple will lead to anything more than the others did. There’s rather a lot going on, and I think I read something about an election to be held in November of this year. My best guess is that this version, too, will not pass.

Then again, I lack a crystal ball. And there is bipartisan interest—not least among populists on the right and the left—in doing something to the sector. So I’m less sanguine about all this than I’d like to be. Is the third time the curse?

Read the full piece here.

The global antitrust wave over Big Tech’s artificial intelligence deals has reached Brazil. The question is whether Brazil’s competition authority is paddling into a real breaker—or mistaking regulatory chop for a swell.

Last month, Brazil’s antitrust authority, the Administrative Council for Economic Defense (CADE), entered that debate. It issued part of its long-awaited decisions on a batch of AI partnership agreements and “acqui-hire” deals between Big Tech firms and AI startups. The practical result was modest. The doctrinal signal was not.

CADE dismissed three cases: NVIDIA/Run, Microsoft/Mistral, and Google/Character.AI. It ordered ex post notification in one case, Microsoft/Inflection, and opened two new administrative proceedings involving Google/Windsurf and Google/Hume AI. One final case, Amazon/Anthropic, had been scheduled for decision at the same May Tribunal session, but Commissioner-Rapporteur José Levi Mello do Amaral Júnior withdrew it from the agenda, citing “notorious facts” that warranted further investigation.

The headline result was prudent. Three cases escaped formal notification, and the one that did not—Microsoft/Inflection—had already been cleared on the merits by the United Kingdom’s Competition and Markets Authority (CMA). But beneath that restrained bottom line, the Tribunal opened two doctrinal doors that deserve careful scrutiny.

The first is substantive. CADE held that “reverse acqui-hires”—bundles of nonexclusive licensing, key-team hiring, and substantial payments—can qualify as “concentration acts” under Article 90, II of Brazil’s Competition Law, even when no shares or direct assets change hands. In plain English, CADE signaled that a deal need not look like a conventional merger to be treated like one.

The second is procedural. CADE invoked its “call-in” power under Article 88, §7º to require ex post notification of a below-threshold deal, even though the agency still lacks clear, predictable criteria for when it will exercise that exceptional authority.

Both moves echo the July 2024 joint statement by the U.S. Justice Department (DOJ), Federal Trade Commission (FTC), European Commission, and the CMA on competition in generative-AI foundation models and AI products. CADE has, in effect, decided to surf the same wave.

This post explains how it got there. It starts with the basics of Brazil’s merger-notification regime, then examines how the Tribunal characterized “acqui-hire” and “reverse acqui-hire” arrangements as “concentration acts.” It then asks what distinguished Microsoft/Inflection from Google/Character.AI on the “call-in” question, summarizes the outcome of each case, and closes with a substantive critique of the killer-acquisition theory CADE has imported.

The question, in the end, is whether Brazil’s Competition Law has the doctrinal board to ride that wave safely.

Read the full piece here.

The AI talent wars have produced a steady stream of stories that seem tailor-made to confirm everyone’s worst suspicions about Big Tech: nine-figure pay packages for star researchers, entire startup teams absorbed without a formal acquisition, and—most strikingly—reports of elite AI scientists paid handsomely to do nothing for a year under “garden leave” arrangements rather than join a rival—“hoard[ed] like Pokémon cards.”

To many observers, this looks wasteful at best and sinister at worst. Why would a profit-maximizing firm pay enormous sums for talent it seemingly has no intention of using?

Ronald Coase had a wry answer for moments like this. “[I]f an economist finds something—a business practice of one sort or other—that he does not understand,” he observed in 1972, “he looks for a monopoly explanation. And as in this field we are very ignorant, the number of ununderstandable practices tends to be rather large, and the reliance on a monopoly explanation, frequent.”

A new working paper by Shaolong Wu of Harvard Business School and Zefan Qian of Georgetown, “Talent Hoarding and Upstream Innovation: Labor Market Distortions by Large Incumbents,” supplies precisely that monopoly explanation, complete with a formal model and an empirical test. Large incumbents, the authors argue, sometimes hire and retain frontier researchers not to put them to work, but to keep rivals from doing so. Because top AI-research talent is scarce, every researcher a dominant firm keeps “on the bench” is one a challenger can’t hire. The incumbent protects its existing profits, and society loses the discoveries that researchers would have produced elsewhere.

The paper closes with policy recommendations to match: limits on garden leave, narrower noncompete agreements for publicly funded researchers, and institutional pressure to keep frontier talent “actively deployed.”

The policy audience is already primed for this argument. The Federal Trade Commission (FTC) has announced its intention to scrutinize acquihires—transactions structured around hiring a startup’s employees rather than acquiring the company outright—to ensure they aren’t used to evade merger review. Talent-centered theories of competitive harm are rapidly becoming the next front in the broader campaign against large technology firms. All the more reason to get the economics right.

It’s a clever paper, and perhaps a more careful one than many in this genre. Its headline claim, however, substantially outpaces its evidence. What the data actually show is that one group of software firms retained more skilled employees after the Supreme Court weakened their patent protections. Everything beyond that—the “idle benches,” the foreclosed rivals, the lost innovation, and the social harm—comes not from the data but from assumptions built into the model.

More importantly, nearly every one of those assumptions rules out, by construction, a far more ordinary explanation: that the same behavior reflects good management rather than anticompetitive conduct.

Read the full piece here.

The first review of the Digital Markets Act (DMA) reads less like an evaluation than a wellness check performed by the patient’s proud parent. The pulse is strong. The color is good. Any lingering symptoms? Too early to tell.

On April 28, 2026, the European Commission published the review required under Article 53 and declared the DMA “fit for purpose.” The report credits the law with “a tangible positive impact” and sees no need to revise the list of core platform services. In the Commission’s telling, the machinery is working; where the evidence remains thin, time will supposedly fill the gaps.

I do not doubt the Commission’s sincerity. I doubt that the exercise could ever have produced a different result.

The DMA’s evaluative architecture is designed in a way that makes failure effectively impossible to demonstrate. Not because the Commission is uniquely stubborn or populated by self-serving sycophants. Rather, the regime’s foundational premises determine what counts as evidence in the first place. In a  new white paper, I describe this phenomenon as autopoietic regulation: a system that reproduces its own assumptions rather than testing them. The DMA’s first review confirms that diagnosis precisely because it passes.

Read the full piece here.

Competition enforcers appear to have discovered their own version of artificial intelligence: act first, learn later. In the span of a week, agencies across four continents moved to reshape how AI products are built, distributed, and integrated—mostly before anyone has shown, in a final appealable decision, that the challenged conduct harms competition.

Last week, a federal court in São Paulo suspended the daily fine that Brazil’s Administrative Council for Economic Defense (CADE) had imposed on Meta for refusing to open WhatsApp to rival AI chatbots. On June 5, Turkey’s competition authority announced both an abuse-of-dominance investigation into the same conduct and an interim measure giving Meta one month to admit third-party AI assistants. Three days later, the Italian Competition Authority (AGCM)—the first agency anywhere to order interim relief against the WhatsApp restrictions—closed its case in deference to the European Commission, which had expanded its own proceedings to cover Italy. Then, on June 9, the Commission adopted interim measures of its own, giving Meta five working days to restore rival assistants’ access across the European Economic Area (EEA). Africa’s Common Market for Eastern and Southern Africa (COMESA) Competition Commission, for good measure, is investigating, too.

Meta is not the only company in regulators’ crosshairs. At its developer conference on June 8, Apple announced that its new Siri AI features will not launch in the European Union with iOS 27, citing the Digital Markets Act’s (DMA) interoperability requirements. The next day, the Commission reportedly rejected Apple’s request for an 18-month exemption, characterizing the company’s decision as a business choice. Earlier this month, meanwhile, the UK Competition and Markets Authority (CMA) imposed its first AI-related conduct requirement on Google under Britain’s new digital-markets regime, governing how publisher content may be used in AI Overviews.

One week. A half-dozen authorities. Four continents.

And a common thread: nearly all of this activity is occurring before any agency has demonstrated, in a final appealable decision, that the challenged conduct actually harms competition. Interim measures, preventive suspensions, and ex ante mandates have become the enforcement tools of choice in AI markets. Whatever else one makes of these interventions, they share a defining feature: they front-load the costs of being wrong.

Read the full piece here.

California is once again testing how much punishment capital will tolerate before it packs a bag. The state’s impending ballot proposition imposing a “billionaire’s tax” has drawn plenty of attention for precisely that reason: If the tax drives enough wealth elsewhere, it could lose more revenue than it raises. But a quieter proposal now moving through Sacramento could impose an effective tax on a much broader segment of the economy.

Late last month, the California Assembly passed the COMPETE Act, based on recommendations from the California Law Revision Commission. The bill is now under consideration in the California Senate. The act would significantly expand liability under the Cartwright Act, California’s antitrust statute, to such an extent that it would likely become the most interventionist state antitrust law in the country.

As currently drafted, the statute could place a wide range of common business practices at legal risk. That would make California an antitrust outlier and could discourage investment and economic growth. At the same time, there is no assurance the statute would benefit consumers and, in some circumstances, it could even leave them worse off.

Read the full piece here.

The Senate HELP Committee will consider legislation this week that supporters claim will lower prescription drug costs. The proposal’s title — the Medication Affordability and Patent Integrity Act — sounds unobjectionable enough.

But behind that appealing label is a policy that could undermine the research ecosystem responsible for many of the medical breakthroughs Americans depend on.

Read the full piece here.

A Vietnamese-language  version of these comments is available here.

I.   Introduction

The International Center for Law & Economics (ICLE) welcomes the opportunity to comment on the public consultation initiated by the Ministry of Industry and Trade (MOIT) of the Socialist Republic of Vietnam on the Draft Law amending and supplementing several articles of the Commercial Law, the Competition Law, the Foreign Trade Management Law, and the Consumer Protection Law.^[1] These comments build on—and should be read together with—ICLE’s Feb. 2, 2026, submission on the policy dossier for the Competition Law amendments.^[2]

We focus here on Article 2 of the Draft Law, which would amend the Competition Law (Law No. 23/2018/QH14). The current text translates the earlier policy proposals into concrete statutory language and, in several respects, goes further than the dossier we reviewed in February.

Two features warrant particular attention. First, the Draft Law would introduce, for the first time in Vietnamese law, prescriptive ex ante prohibitions on digital-platform conduct through new points (g) through (n) of Article 27(1). Second, it would recast market-power analysis under Articles 10 and 26 by treating ordinary features of digital competition—scale, users, data, network effects, and integration—as presumptive evidence of market power.

Vietnam has emerged as one of Southeast Asia’s most dynamic digital economies, supported by a regulatory approach that has balanced legal certainty with the flexibility needed for technological experimentation. The Party’s guidance on lawmaking, particularly Resolution No. 66-NQ/TW, emphasizes that legal frameworks should reflect real-world conditions and remain grounded in Vietnam’s specific economic context.^[3]

The Draft Law’s platform provisions sit uneasily with that instruction. They draw heavily from the European Union’s Digital Markets Act (DMA) and the United Kingdom’s Digital Markets, Competition and Consumers Act (DMCCA). Those regimes reflect political and institutional priorities specific to the EU and the United Kingdom, not neutral economic principles. They also have already produced significant shortcomings and unintended consequences.

A law & economics perspective, grounded in the error-cost framework, counsels caution. The error-cost framework seeks to minimize the combined costs of false positives, false negatives, and regulatory administration. In digital markets, where firms often compete to displace one another through innovation rather than merely defend static positions, those costs can be especially high.

On the present evidence, prohibitions on practices such as self-preferencing and tying, along with mandates for data access, are likely to reduce consumer welfare, deter innovation, and weaken the security of Vietnamese users. We set out below where the Draft Law advances sound competition policy and where it risks importing the costs of an untested and contested regulatory model.

II.   The Draft Law’s Burden-Reducing Reforms Should Be Preserved

We begin by recognizing that much of the Draft Law aligns with sound, error-cost-minimizing competition policy. The Ministry of Industry and Trade should preserve these elements. Several amendments to the Competition Law would reduce administrative burdens and legal uncertainty without weakening substantive protections.

First, the merger-control amendments are sensible. Article 29(6) directs the government to specify categories of reorganization, acquisition, and joint venture that do not count as economic concentrations, including transactions with no effect on the Vietnamese market. Article 34 also simplifies notification dossiers. Both changes would reduce deadweight compliance costs for benign transactions.

Second, the exemption procedures would become more efficient. The Draft Law would reduce the decision period from 60 to 45 days (Article 20), remove the appraisal fee (Article 16), and expressly allow electronic submission (Article 18). These are proportionate, welcome simplifications.

Third, the sanctions provisions would become more predictable and proportionate. Article 111 would cap the maximum fine for economic-concentration violations at “not exceeding VND 2 billion or 5% of turnover.” New Article 94a would establish a five-year limitation period, while new Article 113a would clarify sanctioning authority. Together, these changes would improve legal certainty and administrative efficiency.

These provisions reflect evidence-based, burden-reducing reform that supports a competitive economy. Our concern is narrower: the platform-specific provisions depart from this logic, sometimes in ways that may not be immediately apparent.

One structural caveat is warranted. Several amendments would delegate core substantive questions to government decrees, including the criteria for defining the relevant market (Article 9), the methodology for calculating market share (Article 10), and the elements of the platform abuses themselves (Article 27).

Procedural simplification is valuable. But delegating the standards that define liability trades legislative certainty for executive discretion. The Ministry of Industry and Trade should ensure that the standards determining whether conduct is lawful—especially for the platform provisions—remain in primary legislation, where they can receive full deliberation and remain stable enough for firms to plan around.

III.   Prescriptive Platform Rules Risk Suppressing Competition

The case for ex ante platform rules rests on a static view of competition. Conventional antitrust analysis often treats stable market shares as evidence of durable market power. In digital ecosystems, stable shares often reflect the temporary rewards of successful innovation, not insulation from competitive pressure.^[4]

Leading firms face a constant risk of displacement by better technologies or business models. That pressure pushes them to invest continuously in research and development. In such markets, rigid rules can lock business models in place and suppress the dynamic rivalry that allows new entrants to challenge incumbents.

The Ministry of Industry and Trade’s emphasis on platforms’ “intermediary” role appears to reflect concern about bottleneck or gatekeeper power. But that framing overlooks the Host’s Dilemma: platforms must balance openness to third-party complementors against the control needed to preserve security, quality, and commercial viability.^[5]

When platforms succeed by offering integrated features, user demand typically reflects the value of that integration. Mandated unbundling or enforced neutrality can therefore force firms to degrade products consumers value—harming the users the regulation seeks to protect.

The European Union’s Digital Markets Act and the United Kingdom’s Digital Markets, Competition and Consumers Act mark a decisive departure from effects-based analysis toward a more formalistic, fairness-oriented approach. That approach often prioritizes protecting competitors over protecting competition itself. Vietnam need not import that choice.

The remainder of these comments explains, provision by provision, why an effects-based standard would better serve Vietnamese consumers.

IV.   Market Power Should Turn on Competitive Effects

Before reaching the new abuses, the Draft Law lowers the threshold for finding that a platform has market power. Article 10(1) adds market-share metrics based on the number of users or customers, the number of suppliers on a platform, and the number of transactions or platform visits. Article 26(1) adds several indicia of “significant market power,” including a platform’s user and supplier scale, ability to collect and control user and transaction data, direct and indirect network effects, switching barriers, ecosystem integration, control over rivals’ market access, and use of algorithms or artificial intelligence to coordinate transactions or prices.

We offer two cautions.

First, these features are the ordinary furniture of digital competition. They often signal success won through innovation, not durable market power. A large user base in a zero-price, multihoming market may reflect consumer choice that can erode quickly. Network effects and data advantages often remain contestable and procompetitive. The decisive competitive asset is typically a firm’s dynamic capability to turn data into valued products, not the raw accumulation of data itself.^[6]

Treating these characteristics as markers of power risks penalizing the firms that have served consumers best.

Second, using these factors as standalone indicia—especially when combined with Article 27’s expanded abuse provisions—creates a near-automatic path from “large platform” to “presumptively liable.” That inversion maximizes false positives (Type I errors) in the markets where deterring beneficial conduct is most costly.^[7] Put simply, it penalizes success.

The Ministry of Industry and Trade should therefore treat the digital factors in Articles 10 and 26 as evidence relevant to an effects-based inquiry, not as presumptions of market power. These factors should matter only insofar as they show a demonstrated ability to raise quality-adjusted prices, reduce output, or foreclose efficient entry.

V.   Article 27 Requires Effects-Based Limits

New points (g) through (n) of Article 27(1) would regulate the conduct of dominant digital platforms. Each warrants scrutiny under the error-cost framework because several would prohibit conduct that lacks clear evidence of harm and, in some cases, has demonstrated procompetitive effects.

Most of the listed practices are vertical restraints—restrictions imposed between firms at different levels of distribution or production. Economic analysis and enforcement experience counsel evaluating such restraints under a rule-of-reason standard, not a per se prohibition. The list also has grown since the February dossier, from five clauses to seven substantive prohibitions, including a new ban on obstructing the removal of pre-installed applications under point (l).

A.      Point (g): Self-Preferencing Through Rankings, Algorithms, or Technical Specifications

A prohibition on prioritizing a platform’s own products or services through rankings, algorithms, or technical design overlooks that product design is itself a central dimension of competition. When a search engine displays a map directly in response to a restaurant query, it favors its own mapping service—but it also delivers a faster, more useful result than a list of links.^[8]

Framed as a near-automatic prohibition, point (g) adopts what ICLE scholars call a vertical-discrimination presumption: the view that vertical integration and related conduct are inherently suspect.^[9] That presumption conflicts with established insights from industrial-organization economics.

The empirical record does not support a presumption of harm. Studies of platform integration find that first-party entry or preferential placement often expands the market and benefits complementors. Facebook’s integration of Instagram increased demand for photography apps generally;^[10] Google’s entry with Google Photos raised attention and demand across the category;^[11] and strong first-party console titles expanded the installed base available to third-party developers.^[12]

A recent field experiment found that removing Amazon’s private-label brands reduced short-run consumer surplus by 5.5%, mostly through lost variety, and that demoting private labels in rankings produced no consumer-surplus gain.^[13] Economists reviewing the algorithmic literature find no consensus that self-preferencing algorithms are anticompetitive. They conclude that net effects require individualized, context-specific analysis.^[14]

The reference to “technical specifications” raises a further risk: it could compel levels of interoperability that undermine system integrity and security.^[15] Apple’s decision to keep iMessage proprietary is a form of self-preferencing, yet it supports a secure, integrated experience that many consumers deliberately choose.^[16]

We recommend deleting point (g) or recasting it as an effects-based provision requiring proof that the conduct raises quality-adjusted prices, reduces output, or forecloses efficient rivals.

B.       Point (h): ‘Unreasonable’ Terms and Transaction Conditions

The prohibition on imposing “unreasonable” terms relating to price, payment methods, warranties, or other conditions lacks clear economic grounding and creates significant legal uncertainty. Standards built on “fairness” or “reasonableness” resist principled definition and risk becoming open-ended licenses for discretionary intervention.^[17]

A platform may charge a 30% commission to fund app-store security, curation, and infrastructure because it views that price as efficient and pro-consumer. A regulator could nonetheless deem the same price “unreasonable” under an undefined standard. Requiring firms to defend routine commercial terms against a regulator’s subjective view of fairness would effectively turn Vietnam’s competition authority into a price-setting body. It also could deter foreign platforms from introducing new features in Vietnam for fear of retrospective findings of unreasonableness.

We recommend deleting point (h) or, at minimum, tying it to a concrete, effects-based test of reasonableness.

C.      Point (i): Tying and Forced Service Registration

The prohibition on requiring users to register, use, or maintain additional services targets tying and bundling. But firms frequently compete through bundles, and consumers often benefit from integrated offerings that reduce transaction costs and friction.

The Draft Law does not distinguish coercive tying that can foreclose rivals from efficiency-enhancing bundling that benefits consumers. Integration often serves technical and security functions. For example, allowing third-party applications to run in the background without native operating-system controls can reduce battery life and weaken privacy protections. Mandated unbundling could therefore degrade device performance and the user experience.

We recommend evaluating point (i) under a rule-of-reason standard that distinguishes exclusionary conduct from efficiency-enhancing integration.

D.      Point (k): Multi-Homing and Switching Barriers

Point (k) seeks to prevent practices that limit business users’ access to alternative platforms. Yet evidence from global markets shows that multihoming is the norm, not the exception. Enterprises routinely operate across Amazon Web Services, Microsoft Azure, and Google Cloud, while developers commonly build for both iOS and Android.^[18]

Tools that facilitate data portability and switching signal active competition, not monopoly power. Firms with durable power rarely invest in mechanisms that make exit easier; their challengers do. Interoperability mandates that push platforms toward a single, homogenized model risk eliminating the diversity of approaches—Apple’s curated ecosystem alongside Google’s more open one—that gives Vietnamese consumers meaningful choice.

E.       Point (l): Obstructing Removal of Pre-Installed Applications

Point (l), modeled on Article 6(3) of the European Union’s Digital Markets Act, would bar platforms from preventing or unreasonably hindering users from removing or replacing pre-installed applications, except where necessary to ensure network information safety or essential operation.

We offer three cautions. First, pre-installation and sensible defaults often reduce consumer search costs, improve the out-of-the-box experience, and protect users who never alter default settings.

Second, consumers on every major operating system can already change defaults and remove or disable most pre-installed applications. The marginal consumer benefit of a statutory mandate is therefore modest, while the design constraint it imposes is not.

Third, the security-and-functionality carve-out is too narrow. It leaves a broad range of integrated design presumptively unlawful, even where forced uninstallability would degrade the integrated experiences users chose.

If retained, point (l) should at minimum include a broader security, privacy, and functionality justification and require a showing of consumer harm, not mere obstruction.

F.       Point (m): Mandatory Data Access and Fees

Point (m) would prohibit a dominant platform from refusing to provide, or imposing “unreasonable” conditions or fees on, business users’ access to data generated through their activity on the platform. This provision intersects directly with data protection, intellectual-property rights, and cybersecurity, and raises the most serious concerns in the list.

We address point (m) together with the duty-to-deal and overlap problems in Section VI.

G.      Point (n): The Catch-All

Point (n) prohibits “other” abuses of dominance “prohibited under other laws.” This open-ended residual clause compounds the predictability problems already discussed. It also risks importing, by reference, the very overlap with the Law on Digital Transformation that we caution against below.

We recommend specifying any prohibited conduct directly and subjecting it to an effects-based standard, rather than incorporating liability through an indeterminate cross-reference.

VI.   Mandatory Data Access Creates Serious Risks

Point (m) (m) of Article 27(1) would, in effect, impose a duty to deal in data.[19] It rests on the assumption that data generated on a platform is a public good, rather than a proprietary asset created through substantial investment.

In practice, the value of business-user data often derives from the platform’s own aggregation, analytics, and security capabilities. When a user enters payment information for an in-app purchase, that data reflects the platform’s payment infrastructure as much as the developer’s activity. Forcing platforms to share such data for free—or at regulated “reasonable” fees—would institutionalize free riding.^[20] Business users could rely on the platform’s infrastructure instead of investing in their own data capabilities, while platforms would have weaker incentives to invest in data collection, cleaning, and security if competitors could immediately appropriate the results.^[21]

Mandated access also threatens privacy and security. ICLE’s analysis of the Digital Markets Act shows that compelled data access can operate as a persistent “live wire” into user accounts, enabling third parties—including malicious actors—to extract communications, media, or location data without further user involvement.^[22] The Draft Law contains no adequate safeguard against these risks.

Recent experience underscores the stakes. A faulty CrowdStrike update in July 2024 triggered one of the largest Windows outages on record after long-standing European Union requirements compelled Microsoft to grant third-party security vendors privileged system access. That episode illustrates how competition intervention can increase access while amplifying systemic risk.^[23] Courts likewise have recognized that security and privacy are decisive product features consumers actively choose, not pretexts for exclusion.^[24]

These concerns are compounded by a serious risk of regulatory duplication. The Law on Digital Transformation (Law No. 148/2025/QH15), enacted in December 2025 and effective July 1, 2026, already establishes a sector-specific framework governing data access and portability for designated “dominant platforms.”^[25]

If the Ministry of Industry and Trade adopts point (m), a platform could face parallel investigations and sanctions for the same conduct under two regimes administered by different authorities. Overlapping enforcement without clear boundaries breeds fragmentation and legal uncertainty.^[26] A firm could comply fully with the Law on Digital Transformation’s data-access rules and still face competition-law liability for allegedly “unreasonable” conditions.

We recommend removing the platform-specific data provisions from the Competition Law. Demonstrable exclusionary conduct should instead be addressed case by case under existing refusal-to-deal doctrine. The data-access provisions of the Law on Digital Transformation should also be subjected to a regulatory impact assessment after implementation.^[27]

VII.   Foreign Experience Counsels Caution

International experience with ex ante platform regulation is instructive, and largely cautionary. To comply with the Digital Markets Act, Google replaced the interactive Google Maps panel in Search with a static thumbnail and added counterintuitive steps to flight and hotel results, degrading usability for European consumers.^[28]

Regulatory uncertainty also has delayed advanced features. Apple paused the EU rollout of Apple Intelligence over interoperability-driven security concerns;^[29] Meta delayed Threads in the EU; and Google has reported Digital Markets Act-related delays of up to a year for artificial intelligence-driven search features.^[30] Most recently, Apple delayed the rollout of Siri Intelligence in the EU due to the Digital Markets Act.[31] The Draghi Report attributes much of the EU-U.S. productivity gap to the technology sector and to Europe’s dense regulatory layering.^[32]

The United Kingdom’s Digital Markets, Competition and Consumers Act, often described as a more flexible model, illustrates a different risk: political fragility. In 2025, the United Kingdom government pressed regulators to adopt an explicit pro-growth mandate, and the Competition and Markets Authority recalibrated toward “pace, predictability, proportionality, and process.”^[33]

Even in a jurisdiction with strong administrative institutions, discretionary digital regimes proved subject to rapid recalibration. Vietnam’s institutional environment is less insulated from such pressures, heightening the risk of unintended consequences from broad, discretionary platform rules.

These regimes also carry real geopolitical exposure. Of the seven gatekeepers designated under the Digital Markets Act, five are U.S. companies, and the compliance burden of ex ante digital rules falls disproportionately on American firms. The United States has signaled that it now treats such measures as discriminatory: a February 2025 executive order directed the U.S. trade representative to consider responsive measures, including tariffs, against foreign penalties deemed discriminatory;^[34] the vice president publicly criticized European-style digital regulation as an innovation deterrent;^[35] and in December 2025, the U.S. State Department imposed visa restrictions on European officials linked to digital-content enforcement.^[36]

A sound cost-benefit assessment of the platform provisions should weigh these macroeconomic and diplomatic risks alongside their speculative domestic benefits.

VIII.   Conclusion

Vietnam has strong reasons to foster its digital economy through targeted, agile measures, rather than by importing an untested regulatory model whose costs are already visible in other jurisdictions. We commend the Draft Law’s deregulatory and procedural simplifications and urge the Ministry of Industry and Trade to preserve them.

With respect to the platform provisions, Vietnam should maintain an effects-based competition policy grounded in the following principles:

First, prioritize consumer welfare. Competition law should distinguish conduct that disadvantages rivals because a firm offers superior products from conduct that harms consumers by restricting choice, reducing output, or raising quality-adjusted prices.

Second, respect platform autonomy. Firms design their platforms and have strong incentives to deliver services users value. Integration and product-design choices should be treated as competition, not as presumptive abuse.

Third, adopt evidence-based standards. The law should avoid open-ended concepts such as “unreasonable” or “fair” and instead base enforcement on economic analysis, empirical evidence, and industry-specific conditions.

Fourth, favor light-touch remedies. Targeted cease-and-desist orders are preferable to prescriptive mandates that force product redesign and risk stifling innovation.

Fifth, protect privacy and security. Competition interventions—especially mandated data access—should not weaken data protection or create new “live wire” vulnerabilities for users.

Sixth, avoid duplicative regimes. Vietnam should not layer competition-law liability on top of the Law on Digital Transformation for the same conduct.

We offer six concrete recommendations. First, preserve the merger, exemption, and sanctioning simplifications. Second, delete or recast new points (g) through (n) of Article 27(1) as effects-based provisions requiring proof of consumer harm. Third, treat the digital factors in Articles 10 and 26 as evidence within an effects inquiry, not as standalone presumptions of market power. Fourth, narrow the “aiding” limb of Article 8 with a knowledge-and-materiality threshold. Fifth, remove the platform-specific data provisions that duplicate the Law on Digital Transformation. Sixth, keep core liability standards in primary legislation rather than delegating them to decree.

Regulation should remain a measure of last resort, applied only where markets demonstrably fail. By maintaining a clear, predictable, and proportionate framework, Vietnam can continue to attract investment and promote the dynamic competition that supports long-term growth and digital transformation.

That approach reflects sound economics and strategic foresight. Innovation flourishes when rules provide clarity and restraint—not when regulation becomes a blunt tool for market engineering.

[1] Ministry of Industry & Trade (Viet.), Draft Law Amending and Supplementing a Number of Articles of the Commercial Law, the Competition Law, the Foreign Trade Management Law, and the Consumer Protection Law (public consultation opened May 30, 2026), https://moit.gov.vn [hereinafter Draft Law]. References below are to the proposed statutory text of Article 2, which would amend the Competition Law.

[2] Dirk Auer, Dario Oliveira Neto, Lazar Radic, Selcukhan Ünekbas & Mario A. Zúñiga, Comments of the International Center for Law & Economics: Vietnam Ministry of Industry and Trade Proposed Amendments to Law No. 23/2018/QH14 (Competition Law) (Int’l Ctr. for L. & Econ., Feb. 2, 2026).

[3] See Resolution No. 66-NQ/TW (Apr. 30, 2025).

[4] See generally Nicolas Petit, Big Tech and the Digital Economy: The Moligopoly Scenario (2020).

[5] Jonathan M. Barnett, The Host’s Dilemma: Strategic Forfeiture in Platform Markets for Informational Goods, 124 Harv. L. Rev. 1861 (2011).

[6] Geoffrey A. Manne & Dirk Auer, Antitrust Dystopia and Antitrust Nostalgia: Alarmist Theories of Harm in Digital Markets and Their Origins, 28 Geo. Mason L. Rev. 1279, 1351 (2021) (arguing that firms’ competitive advantages often derive from dynamic capabilities, rather than merely from accumulated data).

[7] Geoffrey A. Manne, Error Costs in Digital Markets, in The GAI Report on the Digital Economy 34 (2020). The error-cost framework seeks to minimize the combined costs of false positives (Type I errors), false negatives (Type II errors), and enforcement administration.

 [8] Brian Albrecht & Geoffrey A. Manne, Self-Preferencing Isn’t a Sin. It’s Often the Way Competition Works., Truth on the Mkt. (Aug. 20, 2025).

[9] Geoffrey A. Manne, Against the Vertical Discrimination Presumption, Concurrences No. 2-2020, art. no. 94267 (May 1, 2020).

[10] Zhuoxin Li & Ashish Agarwal, Platform Integration and Demand Spillovers in Complementary Markets: Evidence from Facebook’s Integration of Instagram, 63 Mgmt. Sci. 3438 (2017).

[11] Jens Foerderer et al., Does Platform Owner’s Entry Crowd Out Innovation? Evidence from Google Photos, 29 Info. Sys. Res. 444 (2018).

[12] Carmelo Cennamo, Hakan Ozalp & Tobias Kretschmer, Platform Architecture and Quality Trade-offs of Multihoming Complements, 29 Info. Sys. Res. 461 (2018).

[13] Chiara Farronato, Andrey Fradkin & Alexander MacKay, Vertical Integration and Consumer Choice: Evidence from a Field Experiment, Nat’l Bureau of Econ. Rsch., Working Paper No. 34135 (Aug. 2025) (finding that removing Amazon private-label brands reduced short-run consumer surplus by 5.5% and that demoting private-label brands in search rankings produced no consumer-surplus gains).

[14] Emilie Feyler & Veronica Postal, Can Self-Preferencing Algorithms Be Pro-Competitive?, CPI Antitrust Chron. 5 (June 2023).

[15] Miko?aj Barczentewicz, The Digital Markets Act Shouldn’t Mandate Radical Interoperability, Truth on the Mkt. (May 19, 2021).

[16] Geoffrey A. Manne, Dirk Auer & Mário A. Zúñiga, Comments of the International Center for Law & Economics on the CMA’s Proposal to Designate Apple and Google with Strategic Market Status (Int’l Ctr. for L. & Econ., Aug. 20, 2025).

[17] Giuseppe Colangelo, Fairness and Ambiguity in EU Competition Policy, Int’l Ctr. for l. & Econ. (Feb. 5, 2023).

[18] Sami Hyrynsalmi, Arho Suominen & Matti Mäntymäki, The Influence of Developer Multi-Homing on Competition Between Software Ecosystems, 111 J. Sys. & Software 119 (2016).

[19] Draft Law, supra note 1.

[20] Brian Albrecht & Dirk Auer, Free Riding in Mobile Ecosystems, Int’l Ctr. for L. & Econ. (Dec. 2, 2025).

[21] Nathalie Jorzik, Paula J. Kirchhof & Frank Mueller-Langer, Industrial Data Sharing and Data Readiness: A Law and Economics Perspective, 57 Eur. J. L. & Econ. 181 (2024).

[22] Miko?aj Barczentewicz, ICLE Comments on the Interplay Between the DMA and GDPR (Int’l Ctr. for L. & Econ., Dec. 4, 2025) (arguing that mandated data access can function as a persistent “live wire” into user accounts).

[23] Bobby Allyn et al., What We Know About the Computer Update Glitch Disrupting Systems Around the World, Nat’l Pub. Radio (July 19, 2024); see also Jowi Morales, Microsoft’s EU Agreement Means It Will Be Hard to Avoid CrowdStrike-Like Calamities in the Future, Tom’s Hardware (July 22, 2024).

[24] Epic Games, Inc. v. Apple Inc., No. 25-2935 (9th Cir. 2025) (recognizing that security and privacy considerations play a significant role in consumer device choice).

[25] Law on Digital Transformation, Law No. 148/2025/QH15 (Dec. 11, 2025) (Viet.) (effective July 1, 2026) (establishing a sector-specific framework governing data access and portability for designated dominant platforms).

[26] Giuseppe Colangelo, The Digital Markets Act and EU Antitrust Enforcement: Double & Triple Jeopardy, Int’l Ctr. for L. & Econ. (Mar. 23, 2022) (arguing that overlapping enforcement regimes without clear boundaries create fragmentation and legal uncertainty).

[27] See Org. for Econ. Co-operation & Dev. (OECD), Regulatory Impact Assessment 29 (2020) (identifying ongoing monitoring and evaluation as core elements of sound regulatory practice).

[28] Nextrade Grp., Impact of the Digital Markets Act (DMA) on Consumers Across the European Union: Results from a Survey with 5,000 Consumers (Sept. 2025) (documenting degraded Google Maps, flight, and hotel search results in the European Union).

[29] Akshaya Asokan, Apple to Delay AI Rollout in Europe, BankInfoSecurity (June 21, 2024).

[30] Egle Markeviciute, Consumer Waiting Game: Why Do Tech Products Launch Later in Europe?, Euronews (Sept. 26, 2025) (reporting on Meta’s delayed European Union launch of Threads); see also Cynthia Kroet, Google’s AI Feature on Hold in Most EU Member States Due to “Strict Rules”, Euronews (Apr. 1, 2025).

[31] Anupriya Datta, Apple Blames EU’s Big Tech Rulebook for Delaying Siri AI in the EU, Euractiv (June 9, 2026), https://www.euractiv.com/news/apple-blames-eus-big-tech-rulebook-for-delaying-siri-ai.

[32] Mario Draghi, The Future of European Competitiveness—Part A 5–6 (Eur. Comm’n Sept. 2024) (“the productivity gap between the U.S. and the EU is largely explained by the tech sector”).

[33] HM Treasury, New Approach to Ensure Regulators and Regulation Support Growth (Oct. 22, 2025); see also Dario Oliveira Neto, Lessons from the UK for Brazil’s Digital Market Strategy, Truth on the Mkt. (July 22, 2025) (describing the Competition and Markets Authority’s “4 Ps” of pace, predictability, proportionality, and process).

[34] The White House, Defending American Companies and Innovators from Overseas Extortion and Unfair Fines and Penalties (Feb. 21, 2025).

[35] Siladitya Ray, JD Vance Knocks EU’s Regulation of U.S. Tech Giants: ‘America Cannot Accept That’, Forbes (Feb. 11, 2025).

[36] Kim Mackrael, U.S. Sanctions Former EU Official Over Digital-Content Law, Wall St. J. (Dec. 24, 2025).