Krithik Shobhan

Contemporary and Emerging Issues in Competition Law and Policy

Modern competition law Competition law stands at a critical juncture, marked by unprecedented technological acceleration, requiring a sharper analytical framework to evaluate market power, innovation incentives, and regulatory intervention. Traditionally enforced paradigms, developed for industrial economies characterized by physical markets and readily identifiable competitors, increasingly struggle to address the new complexities of digital markets, online platforms and players, artificial intelligence, and algorithmic decision-making.¹ The past two years have witnessed an unprecedented acceleration in regulatory innovation, with jurisdictions worldwide implementing novel legal frameworks specifically designed to address Big Tech dominance whilst simultaneously grappling with emerging challenges posed by generative artificial intelligence and algorithmic collusion. This article examines the most pressing contemporary issues confronting competition law and policy, focusing particularly on digital market regulation, artificial intelligence and algorithmic pricing, labor market antitrust, and the evolving approach to merger control. These developments collectively represent not merely incremental adjustments to existing doctrine, but rather a fundamental reconceptualization of competition law's role in the modern economy. To understand how competition law has adapted to platform dominance, it is essential to first examine the emergence of ex ante regulatory frameworks designed specifically for digital ecosystems.

Also Read: Criminalising Adolescence: POCSO, Consensual Teenage Relationships, and the Supreme Court’s call for a ‘Romeo-Juliet’ Clause

Digital Markets Regulation: The Advent of Ex Ante Frameworks

Perhaps the most significant development in contemporary competition law has been the emergence of ex ante regulatory regimes specifically targeting digital platforms with substantial market power. The European Union's Digital Markets Act, which became fully enforceable in March 2024, represents a paradigmatic shift from traditional ex post enforcement toward preventive regulation.² The DMA designates certain platforms as 'gatekeepers' based on quantitative thresholds relating to market capitalization, user numbers, and cross-border operations, subjecting them to specific behavioral obligations without requiring proof of abuse.³ This approach fundamentally challenges the abuse of dominance framework established under Article 102 TFEU, which historically required demonstration of both dominance and exploitative or exclusionary conduct before intervention.

The United Kingdom's parallel Digital Markets, Competition and Consumers Act 2024, which entered into force on 1 January 2025, adopts a notably different methodology whilst pursuing similar objectives.⁴ Rather than applying uniform obligations to all designated platforms, the DMCC Act empowers the Competition and Markets Authority to designate firms with 'Strategic Market Status' and subsequently impose bespoke conduct requirements tailored to specific competitive concerns in particular digital activities.⁵ This flexibility potentially offers superior adaptability to rapidly evolving markets, though it inevitably generates greater legal uncertainty for designated undertakings. The CMA's designation process, which may extend up to nine months with possible extensions, contrasts sharply with the DMA's more formulaic approach.⁶

These ex ante regimes raise profound questions regarding the appropriate balance between regulatory intervention and market dynamism. Critics contend that such preventive regulation risks stifling innovation by imposing compliance burdens on precisely those firms whose technological prowess enabled them to achieve market leadership.⁷ The countervailing perspective emphasizes that network effects, data advantages, and ecosystem lock-in generate self-reinforcing dominance that ex post enforcement cannot adequately address.⁸ The empirical evidence from early DMA enforcement, showing significant increases in browser competition following implementation, provides preliminary support for the interventionist position, though definitive assessment remains premature.⁹ As digital platforms consolidate their structural position, the next frontier of concern lies in artificial intelligence and algorithms, which challenge foundational concepts such as agreement, intent, and foreseeability.

However, the shift toward ex ante obligations raises the unresolved question of whether regulators can accurately anticipate anticompetitive risks without simultaneously constraining business models that depend on rapid iteration and ecosystem integration. This predictive challenge underscores a deeper tension between regulatory certainty and technological dynamism.

Artificial Intelligence and Algorithmic Competition

Artificial intelligence presents competition law with challenges of unprecedented complexity. The rapid proliferation of pricing algorithms has generated substantial concern regarding potential facilitating practices and algorithmic collusion, whilst questions surrounding access to training data and computational infrastructure implicate merger control and essential facilities doctrine.¹⁰ Competition authorities globally have signaled that AI-related issues will constitute enforcement priorities throughout 2025 and beyond.¹¹

The algorithmic pricing problem manifests most acutely in markets characterized by price transparency and limited product differentiation. Multiple class action lawsuits have alleged that defendants utilized common pricing algorithms incorporating competitors' confidential data to achieve tacit coordination on pricing, potentially constituting per se violations of Section 1 of the Sherman Act.¹² The RealPage litigation, concerning revenue management software in rental housing markets, exemplifies these concerns. Plaintiffs alleged that RealPage's software enabled algorithmic price-fixing by aggregating non-public pricing information from competing landlords and generating pricing recommendations that effectively coordinated rental rates.¹³ The United States Department of Justice filed a Statement of Interest supporting application of per se condemnation, arguing that competitors' use of common algorithmic tools incorporating confidential data should be analyzed under the same framework as traditional price-fixing cartels.¹⁴

This enforcement approach encounters significant doctrinal difficulties. Traditional price-fixing requires demonstration of an agreement or concerted practice among competitors. Yet algorithmic pricing potentially generates parallel pricing behavior absent any human communication or subjective meeting of minds.¹⁵ If algorithms independently learn, through machine learning techniques, that matching competitors' prices maximizes profit, does this constitute actionable collusion? The question becomes particularly vexing with generative AI models that may produce coordination neither anticipated nor fully comprehended by their programmers. Some competition authorities have asserted that firms remain liable for algorithmic outputs regardless of whether specific outcomes were foreseen, on grounds that algorithms remain under corporate direction and control.¹⁶  This strict liability approach appears pragmatically necessary to prevent circumvention of competition law through algorithmic delegation, yet raises questions regarding proportionality and predictability.

The European Commission's September 2024 Competition Policy Brief emphasized the need for enhanced international cooperation on AI-related enforcement, recognizing that algorithmic practices frequently transcend jurisdictional boundaries.¹⁷ The Korean Fair Trade Commission's December 2024 policy report similarly identified AI-facilitated collusion as a priority concern requiring comprehensive regulatory response.¹⁸ These coordinated pronouncements suggest emerging consensus that existing analytical frameworks require substantial adaptation to address AI-specific challenges effectively. Beyond digital platforms and AI, competition authorities have increasingly turned their attention to labor markets, reflecting a broader shift in enforcement priorities and underlying welfare objectives.

A further difficulty arises from the epistemic opacity of machine-learning systems, which makes it increasingly challenging to distinguish intentional coordination from emergent algorithmic behaviour. This blurring of categories suggests that traditional antitrust concepts may require fundamental reconceptualization rather than incremental adaptation.

Labor Market Antitrust: An Emerging Frontier

Competition law's application to labor markets represents a rapidly expanding frontier, challenging the traditional exclusive focus on consumer welfare. The Federal Trade Commission's proposed rule categorically prohibiting most non-compete clauses in employment contracts, finalized in April 2024, exemplifies this expanded conception of competition law's remit.¹⁹ The rule generated substantial controversy regarding both the FTC's statutory authority to engage in substantive rulemaking and the economic merits of broad prohibition rather than case-by-case assessment.²⁰

Recent merger litigation has incorporated labor market analysis with increasing frequency. In United States v. Penguin Random House LLC, the Department of Justice successfully blocked a publishing merger based primarily on anticipated harm to author compensation rather than consumer prices, with the court accepting that authors constitute a relevant antitrust market warranting protection.²¹ Similarly, in Federal Trade Commission v. Kroger Co., the FTC argued that the proposed merger would substantially lessen competition in labor markets for unionized grocery workers, though the court ultimately granted preliminary relief based on consumer market concerns rather than labor market harm.²² These cases illustrate growing willingness to consider employment market effects in merger review, though evidentiary requirements and analytical frameworks remain underdeveloped compared to traditional consumer-focused analysis.

The labor market turn reflects broader normative debates regarding competition law's ultimate objectives. Neo-Brandeis scholarship argues that concentration of economic power threatens democratic governance and individual liberty regardless of short-term price effects, necessitating broader enforcement protecting workers and suppliers alongside consumers.²³ The countervailing Chicago School tradition maintains that consumer welfare should remain competition law's exclusive concern, with labor market issues addressed through employment law and regulatory mechanisms rather than antitrust intervention.²⁴ The incoming Trump administration's competitive philosophy, emphasizing deregulation whilst maintaining aggressive enforcement against Big Tech for allegedly suppressing conservative speech, suggests that labor market antitrust may face political headwinds despite its recent ascendancy.²⁵ Parallel to these doctrinal  developments, merger control has undergone profound transformation as regulators seek to address competitive harm in dynamic and innovation-driven markets.

Evolution in Merger Control: Killer Acquisitions and Jurisdictional Expansion

Merger control has undergone significant evolution as authorities grapple with 'killer acquisitions' whereby dominant firms acquire nascent competitors before they achieve sufficient scale to trigger conventional notification thresholds. The United Kingdom's new 'hybrid threshold' under the DMCC Act exemplifies regulatory responses to this challenge.²⁶ This threshold permits CMA jurisdiction where one party possesses at least 33% share of supply of any goods or services in the UK with £350 million UK turnover, and the target has a UK nexus, regardless of whether the transaction creates any increment in market share.²⁷ This extraordinarily broad formulation potentially captures vertical and conglomerate mergers presenting minimal competitive concerns, particularly given the 33% threshold's application at the group level and the absence of any requirement for market overlap.²⁸

The European Commission's controversial expansion of Article 22 EUMR to permit Member State referrals of below-threshold transactions has generated substantial legal uncertainty.²⁹ The Commission's October 2024 acceptance of Italy's referral concerning NVIDIA's acquisition of Run:ai, an AI software provider, signals continued commitment to this expansive jurisdictional approach despite ongoing legal challenges.³⁰ This development particularly implicates artificial intelligence markets, where Commission policy explicitly aims to prevent elimination of potential competitors in strategic technology sectors.³¹

These jurisdictional expansions reflect legitimate concerns regarding gaps in merger control frameworks that permitted anti-competitive acquisitions to escape scrutiny. Facebook's acquisitions of Instagram and WhatsApp, neither of which triggered mandatory notification requirements at the time, have been retrospectively identified as paradigmatic killer acquisitions that eliminated nascent competitive threats.³² Meta's current litigation challenging these acquisitions, with trial scheduled for April 2025, may produce groundbreaking precedent regarding divestitures of previously approved transactions.³³ However, aggressive jurisdictional expansion generates corresponding costs through increased transaction uncertainty, compliance burdens, and potential deterrence of efficiency-enhancing transactions. The optimal balance remains contested, with political economy considerations inevitably influencing enforcement philosophy.

Remedial Approaches and Structural Intervention

The remedial landscape has witnessed renewed enthusiasm for structural remedies and behavioral modifications of unprecedented scope. The Department of Justice's proposed final judgment in United States v. Google LLC, concerning Google's monopolization of search and advertising markets, includes potential divestiture of the Chrome browser, restrictions on Android ecosystem integration, and mandatory sharing of search index data with competitors.³⁴ These proposed remedies represent the most aggressive structural intervention in U.S. antitrust enforcement since the breakup of AT&T in 1984, reflecting a determination to fundamentally restructure markets rather than merely constraining specific practices.

The United Kingdom's Competition and Markets Authority has signaled a significant departure from its traditional reluctance to accept behavioral remedies in merger cases. CMA Chief Executive Sarah Cardell's November 2024 announcement of a comprehensive review of remedial approaches, including reassessment of circumstances warranting behavioral undertakings, suggests greater flexibility in remedy design aimed at facilitating economically beneficial transactions whilst addressing competitive concerns.³⁵ This evolution potentially reflects recognition that categorical rejection of behavioral remedies may generate excessive prohibition of welfare-enhancing mergers, particularly in dynamic markets where structural separation proves impractical.

As structural remedies regain prominence, the real test will lie in whether such interventions produce sustained competitive outcomes or merely reconfigure market architecture without altering underlying power dynamics.

Conclusion: Competition Law's Trajectory in an Age of Technological Transformation

Contemporary competition law confronts challenges of unprecedented complexity arising from technological transformation, market concentration, and evolving normative commitments. The emergence of ex ante digital markets regulation represents fundamental reimagination of competition law's institutional architecture, substituting preventive obligations for traditional ex post enforcement in markets characterized by network effects and tipping dynamics. Artificial intelligence, particularly algorithmic pricing and generative AI, challenges foundational doctrinal categories including the agreement requirement and foreseeability standards for liability. Labor market antitrust, whilst still developing, signals potential expansion of competition law beyond traditional consumer welfare metrics toward broader consideration of economic power's distributional consequences.

Also Read: OVERSEAS TESTIMONY MADE EASIER BUT SAFE: KARNATAKA HC’s PRAGMATIC RULING ON DIGITAL HEARINGS

These developments collectively suggest that competition law's next decade will witness continued experimentation with novel regulatory instruments, expanded substantive scope, and vigorous debate regarding appropriate enforcement philosophy. The incoming political transition in the United States introduces additional uncertainty regarding enforcement priorities, though bipartisan consensus on Big Tech regulation suggests certain enforcement trends may transcend partisan divides. International coordination, whilst improving through initiatives such as the International Competition Network and bilateral cooperation agreements, remains insufficient given the global nature of digital markets and AI development.

The ultimate assessment of contemporary competition law reforms must await empirical evaluation of their effects on innovation, market entry, and consumer welfare. Early indicators from digital markets regulation suggest measurable competitive effects, though comprehensive assessment requires longer time horizons. What appears certain is that competition law cannot simply maintain traditional approaches in the face of fundamental economic transformation. The question is not whether competition law must evolve, but rather how that evolution can best balance the competing imperatives of preserving innovation incentives, preventing anticompetitive exclusion, and maintaining democratic accountability over concentrated private power. The contemporary moment represents a critical juncture in competition law's development, with choices made today potentially shaping competitive dynamics for decades to come.

About the Author

Krithik Shobhan is a first-year law student at Tamil Nadu National Law University 

• NB.: The author certifies that the work is original. Views expressed are personal.

Footnotes

¹ Ariel Ezrachi and Maurice E Stucke, Virtual Competition: The Promise and Perils of the Algorithm-Driven Economy (Harvard University Press 2016) 3-15.

² Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector (Digital Markets Act) [2022] OJ L265/1, art 3.

³ ibid arts 2(1), 3(2).

⁴ Digital Markets, Competition and Consumers Act 2024, s 1.

⁵ ibid ss 2-6.

⁶ Competition and Markets Authority, Digital Markets Competition Regime: Strategic Market Status Designation Process (CMA, May 2024) paras 4.12-4.15.

⁷ Geoffrey A Manne and Kristian Stout, 'The Fatal Attraction of Economic Regulation Over Competition Law' (2023) 19 Journal of Competition Law & Economics 1, 15-28.

⁸ Jason Furman and others, Unlocking Digital Competition: Report of the Digital Competition Expert Panel (HM Treasury, March 2019) 32-47.

⁹ 'Digital Markets Act: Independent Browsers See User Surge After EU Implementation' Reuters (15 April 2024).

¹⁰ European Commission, 'Competition Policy and Artificial Intelligence' (Competition Policy Brief, September 2024) 2-8.

¹¹ Federal Trade Commission and Department of Justice, 'Joint Statement on Artificial Intelligence and Competition' (FTC, April 2024); Korean Fair Trade Commission, 'AI and Competition Policy Report' (KFTC, December 2024).

¹² In re RealPage Inc Rental Software Antitrust Litigation, No 3:23-cv-00939-M (ND Tex filed 23 October 2023).

¹³ ibid ¶¶ 45-67 (Consolidated Amended Complaint).

¹⁴ United States' Statement of Interest, In re RealPage Inc Rental Software Antitrust Litigation, No 3:23-cv-00939-M (ND Tex, 2 November 2023) 12-18.

¹⁵ Salil K Mehra, 'Antitrust and the Robo-Seller: Competition in the Time of Algorithms' (2016) 100 Minnesota Law Review 1323, 1362-75.

¹⁶ European Commission (n 10) 6

¹⁷ ibid 8.

¹⁸ Korean Fair Trade Commission (n 11) 15-22

¹⁹ Federal Trade Commission, 'Non-Compete Clause Rule' 16 CFR Part 910 (final rule 23 April 2024).

²⁰ Ryan LLC v FTC, No 3:24-cv-00986-E (ND Tex, 20 August 2024) (granting nationwide preliminary injunction)

²¹ United States v Penguin Random House LLC, 663 F Supp 3d 410, 445-52 (DDC 2023).

²² Federal Trade Commission v Kroger Co, No 3:24-cv-00347 (D Or, 27 February 2024) (order granting preliminary injunction)

²³ Lina M Khan, 'The New Brandeis Movement: America's Antimonopoly Debate' (2018) 9 Journal of European Competition Law & Practice 131, 135-38.

²⁴ Robert H Bork, The Antitrust Paradox: A Policy at War with Itself (2nd edn, Free Press 1993) 51-71.

²⁵ Jonathan Kanter (Assistant Attorney General), resignation letter to President Biden (16 December 2024); 'Trump Antitrust Enforcement Likely to Shift Focus' Financial Times (6 November 2024).

²⁶ Digital Markets, Competition and Consumers Act 2024, s 103 (inserting Enterprise Act 2002, s 23A).

²⁷ ibid.

²⁸ Competition and Markets Authority, Mergers: Guidance on the CMA's Jurisdiction and Procedure (CMA, December 2024) paras 4.58-4.73.

²⁹ European Commission, Guidance on the Application of the Referral Mechanism set out in Article 22 of the Merger Regulation (26 March 2021) C(2021) 1959 final.

³⁰ Case M.11766 - NVIDIA/Run:ai (Commission decision of 30 October 2024 accepting Article 22 EUMR referral).

³¹ European Commission (n 10) 5.

³² Federal Trade Commission v Meta Platforms Inc, No 1:20-cv-03590-JEB (DDC, complaint filed 9 December 2020) ¶¶ 3-7.

³³ Federal Trade Commission v Meta Platforms Inc, 690 F Supp 3d 26 (DDC 2024) (denying Meta's motion for summary judgment).

³⁴ Plaintiffs' Proposed Final Judgment, United States v Google LLC, No 1:20-cv-03010-APM (DDC, 20 November 2024) 1-32.

³⁵ Sarah Cardell, 'Rising to the Challenge of Delivering Growth to the UK Economy' (Speech at the CMA Annual Conference, London, 21 November 2024).