Drawing The Lines In The Digital Sand: Ex-Ante Rules For A Borderless World
- IJLLR Journal
- 3 days ago
- 2 min read
Shirin Suri, National Law Institute University, Bhopal
ABSTRACT
The term ex-ante, signifying actions or evaluations undertaken prior to the occurrence of a specific event, has recently gained prominence in the realm of digital competition regulation. With the rapidly evolving dynamics of the digital marketplace, where tech entities can ascend to dominant positions within remarkably short timeframes, conventional ex-post enforcement mechanisms have often proven inadequate. These swift market shifts have enabled several digital conglomerates to elude the oversight of traditional competition law enforcement. In response, a wave of regulatory innovation has swept across prominent jurisdictions. The European Union has been at the forefront of this movement with the enactment of the Digital Markets Act (DMA), a legislative framework meticulously crafted to govern and curtail the anti-competitive conduct of Big Tech enterprises. Mirroring this approach, nations such as the United Kingdom, Germany, Australia, and Japan are concurrently advancing their own ex-ante regulatory frameworks tailored to address the nuances of their respective digital economies.
This paper undertakes a comprehensive analysis of these emerging legislative paradigms within the aforementioned mature competition law jurisdictions, evaluating both their structural underpinnings and anticipated implications. Special attention has been accorded to the evolving legislative discourse in jurisdictions where the ex-ante regime is still in its developmental stages, including an in-depth examination of key committee reports and recent policy deliberations. Within the Indian context, the study scrutinises the sufficiency of the extant competition law apparatus in curbing the monopolistic tendencies of digital giants. Furthermore, it closely examines the jurisprudential trajectory of the Competition Commission of India (CCI), specifically through landmark cases involving allegations against e-commerce platforms and smartphone manufacturers. A discernible pattern has emerged—one wherein the CCI appears reticent to impose sanctions or pursue in-depth inquiries against dominant e-commerce entities, while adopting a markedly stricter stance vis-à-vis smartphone manufacturing firms.
