This paper, published in the American Business Law Journal and available at https://onlinelibrary.wiley.com/doi/full/10.1111/ablj.12073, argues that efforts by companies to engage in socially beneficial activities (in human rights, environmental issues, labour standards, etc.) may infringe antitrust provisions.
Part I sets forth the economic and business justifications for collaborating across businesses, including those between and among competitors, and provides examples of key types of these collaborations. Part II considers the application of antitrust laws and examines the struggle to determine to what extent courts may find the collaborative practices described in Part I acceptable. Based on this analysis, Part III then examines the chilling effect of antitrust law on socially responsible collaborations and considers changes necessary to facilitate these types of transactions.
While the article focuses on the Sherman Act, which language is indeed more open than that of subsequent competition acts, the problem the paper discusses is common to most jurisdictions: how is antitrust to respond to these potentially beneficial cooperative efforts, the benefits of which are not necessarily measured in terms of economic efficiency? This naturally requires a discussion of the goals of antitrust – which we usually avoid discussing. This makes sense, since it allows everyone to sit around the table and talk about common problems while ignoring the deeper disagreements that our common vocabulary conceals. Taking this approach does have consequences for analytical depth, though. In any event, Part II provides a good overview of the various goals of competition law, and I think this is very useful and should be mandatory reading for anyone who is not familiar with these problems.
As to the relationship between antitrust and socially responsible practices, the author seems to argue that courts can get around the per se prohibition by manipulating standards, and around the rule of reason by playing with the various goals of antitrust, but that competition law nonetheless inevitably opposes and chills a number of these socially beneficial practices. The argument is not unfamiliar – it is usually set forth as: “there are values more important than economic efficiency, and antitrust should accommodate them (more than it already does)”.
One may or may not be sympathetic to the argument – but it strikes me as being one for the legislatures to consider. Apart from all the issues arising from the absence of commensurability between economic considerations and other valuable societal goals – which means courts and agencies may be unsuited to the task of coordinating competition and other social values – there is a reason why the State is allowed to engage or promote in these anti-competitive practices: they are the result of democratic choices that can exempt certain types of conduct from antitrust even if they are anticompetitive. To act otherwise, to have courts and regulatory agencies engaging in such balancing by taking advantage of vague legal standards without being granted legislative authority to do so is arguably antidemocratic, and not a sound institutional choice. Granted, such arguments may be wrong, but I would have liked to see the author engage with them.