Managing Nascent Digital Competition: An Assessment of Australian Merger Law under Conditions of Radical Uncertainty

Abstract

The Australian Competition and Consumer Commission is among several national competition regulators that have recently expressed concerns about the inability of existing merger law to address competition issues that arise from acquisitions of digital start-ups. The unique characteristics of rapidly evolving digital markets present unprecedented challenges for traditional merger regimes that rely on predictions of future market conditions to justify intervention. This article argues that Australian merger law is unable to adequately address the uncertain risks presented by acquisitions of nascent competitors in digital markets. It further argues that traditional rule-based merger regimes are unable to properly navigate conditions of extreme uncertainty. An alternative regulatory model that is explored in detail is experimentalist governance, which promises to allow regulators and firms to respond to radical uncertainty by recursively crafting solutions to problems that emerge in dynamic digital markets over time.