Creating duty on dominant firm: a case for alternative economic analysis

Abstract

The desirability of creating norms within the framework of law has been a challenging process in a free market economy. The principles of antitrust law enunciated by courts in abuse of dominant cases has led to 'refusal to deal' as a contested doctrine. When dominance is treated as legitimate aspiration and free market choices are the medium to achieve the aspirations of free market enterprises, any duty or obligation cast on the firm is considered antithetical to the spirit of free market unless it eclipses the anticompetitive effect. Where an economic analysis of antitrust law has noneconomic impacts with ethical and moral issues, it calls for an alternative economic thought which also considers plural values of society. This also reflects a conflict arising out of lack of norms and respect for property rights. This paper attempts to analyze the cases and framework which is currently employed by the courts and the challenges it puts forth in creating a norm that is universal. The author by drawing on the principles of Gandhian economic thought and its essential features of trusteeship, non-possession and non-violence creates space for resolution of conflicts promoting ethical and moral considerations. Resolution of conflict through ethical and moral norms also assimilates the varied goals of antitrust regulation, including noneconomic goals when the goals of antitrust require a broader consideration that accommodates the wider spectrum of market participants.