Tremolada, Riccardo (2017) REGULATION OF STANDARDS IN TECHNOLOGY MARKETS: TRACING CONNECTIONS BETWEEN COMPETITION LAW AND INTERNATIONAL TRADE. [Tesi di dottorato]

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The implications of standardization cannot be overstated: today, the global economy relies heavily on technical standards because they foster technology diffusion and economic growth. Yet little is known about their implications for global competition policy, innovation and trade. This absence in legal analysis is particularly critical in the context of disruptive technological advancements featured in information and communication technology and other innovation-intensive sectors, characterized by strong network effects, inter-operability and compatibility of consumer products and processes. In this respect, standards are constitutive of development and pivotal market enablers, as they represent a decisive instrument for gauging and capitalizing on technological advances. Nevertheless, technical standards can also serve the strategic interests of incumbents, which derive notable benefits from having their patented technologies selected as part of the standard. The concern is mainly due to the need to ensure that market power exerted by holding patents which are deemed essential to the implementation of technical standards – i.e. standard-essential patents – is not abused, hampering effective competition. However, the competition law outlook is only one side of the problem. To the extent that dissimilarities in laws and public policies concerning standardization pose significant hindrances for cross-border trade, this has pressed latecomers in the international economy to call for more penetrating government intervention, supporting the development and adoption of competing homegrown complementary standards as a source of economic catch-up, which, in return, could gain ground as a novel type of substantial, protectionist, non-tariff barrier to trade. My study adopts the following methodological approach: it addresses the international dimension of tension between IP rights in standards and competition law, investigating the role of international trade law – and the WTO in particular – (a) in enabling a status quo advantageous to incumbent IP holders in deterring new entrants and reaping monopoly rents, and (b) in addressing latecomers’ efforts to create new technical barriers to trade. An enlightening example is China’s standardization policy: Beijing’s authorities are inclined to rely on standards as a public policy regulatory tool for a variety of purposes, including promoting indigenous’ industries. My purpose is to develop a conceptual framework for addressing international competition and trade issues raised by standardization in innovation markets, with an emphasis on practical, policy-oriented research. Building on comparative, science and technology literature and theories of government regulation, I am interested in how diverging regulatory philosophies – especially in late-comer economies such as China – affect innovation. Drawing from different models of government intervention, my study investigates the advisability of establishing a coherent global competition framework integrated within international economic law so as to prevent global market distortions and foster welfare-enhancing trading policies to be deployed in the consumer – and public – interest.

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