The Multifaceted Nature of Fairness in Competition Policy

A resurgence of arguments for incorporating fairness considerations within domestic competition policies parallels the reemergence of free trade versus fair trade debates at the international level. Where the latter debate can be seen as the result of increasing discontent with globalization reflected in the rise of economic nationalism, the former is a response to a widespread decrease in the levels of competition in various industries, in the United States in particular. The question of what role fairness considerations should play in domestic competition policy, however, still remains largely unexplored and unclear. In this article, we disentangle the scope of fairness in competition policy by disaggregating and evaluating distinct notions of fairness that are pertinent to domestic markets, noting that both critics and supporters of fairness have generally failed to clarify the type of fairness concerns that should be pertinent to the competition policy domain. As a result, arguments in favor of more equity-oriented competition laws risk being based on extremely vague notions of fairness, and arguments dismissing any scope for fairness risk neglecting legitimate notions that we believe are in fact pertinent to this area of law.