Scroll Top

INTERSECTION OF COMPETITION LAW AND BLOCKCHAIN TECHNOLOGY

INTRODUCTION

In recent years, economic structures have experienced a significant upsurge due to blockchain technology. It is commonly predicted that blockchain will store around 10% of the global GDP by 2025–2027, one of the most revolutionary effects of the development of digital commerce.[1] Blockchain technology, also called Distributed Ledger Technology (DLT), makes the history of any digital asset transparent and unalterable by using a decentralized network and cryptographic hashing.[2] In addition to using blockchain for bitcoin transfers, it is also becoming a significant player in a number of other sectors, such as insurance, banking, voting records, education, healthcare, asset registries, and government-led data.

DLT can have inherently no effect on the competition proving it to be either pro-competitive or anti-competitive and the paucity of legislations and judicial precedents gives rise to the scope of adopting blockchain technology into markets by sustaining competition in the economy. Blockchain technologies have the potential to add significant value to transactions by enabling the use of a secure, shareable, indelible decentralized ledger for interacting with third parties. Though blockchain is considered to be a secured network with no interference from third parties, contrary to public notion, the third parties’ presence can also be pervasive in a decentralized form. There are numerous businesses in the market, all of which are vying to provide the best products possible at the most competitive prices. As a result, businesses that have DLT would have an advantage over rival businesses and be able to influence market trends in their favour.

ANTITRUST PERSPECTIVE ON BLOCKCHAIN

Cartelisation

Blockchain might be used to electronically organize a cartel of market participants. A cartel is an association among various levels of people in the supply chain to alter, limit or restrict production or fix prices to induce anticompetitive effects in the market.[3] Blockchain enables information about a transaction made using the chain to be viewed by all network nodes.[4] Since users can more quickly and accurately monitor price changes or any other material information contained within a blockchain, this may make it easier for chain participants or market parties to coordinate prices or engage in price-fixing. Though such an attempt at price fixing and speculation in the market trigger the purview of anti-competitive agreements, with the exchange of information being concealed, collecting circumstantial evidence for proving the existence of cartels would also be hampered.

As one of its key characteristics, blockchain technology is decentralized in that all participants are equally active and can access the same information. Due to the decentralised nature of the technology, the regulatory authorities would also have a difficult time enforcing its rules due to the lack of a single identifiable body to hold them accountable. A DLT system allows every node to access commercially sensitive information, such as prices, discounts, production, sales, cost, turnover, price, management-related plans and strategies, and investments, among other information. Thus, it may be inferred that there is always a significant chance that the participants will collude, leading to the adoption of cartel-like behaviour.

The “Mobility Open Blockchain Initiative” is a blockchain partnership made up of several significant automakers, startups, technology companies, and other businesses.[5] The initiative’s goal was to investigate blockchain’s potential application in a new digital mobility ecosystem that could increase transportation accessibility, affordability, and safety. It cannot be overlooked that such a blockchain consortium founded to ensure quality services in the market as cited in the above example would adhere to the antitrust rules and cannot engage in collusive or cartel offences.[6]

Anti-competitive Agreements

Section 3 of the Competition Act, 2002 outrightly prohibits all kinds of arrangements legal or illegal explicitly written or impliedly consented, that may have an appreciable adverse effect on the competition. The blockchains will be separate for each company, and each company will have its own dedicated server. In a consortium network, ledger records can provide evidence of businesses conspiring to benefit from market instabilities, and smart contracts can specify automated monetary penalties. Tie-in agreements in the vertical market can be implemented by enterprises in private blockchain networks[7]. Therefore, to conduct a competitive study of the impact of blockchain technology, it may be necessary to look at both upstream input markets and downstream retail markets in addition to the market in which the blockchain platform itself competes.

Thus, in addition to the market in which the blockchain platform itself competes, it may be necessary to survey both the upstream input markets and the downstream retail markets to conduct a competitive study on blockchain technology, and their connections with one another. There may be restrictions on pricing, technological advancement, and innovation, as well as entry barriers as a result of such agreements. Standard specifications defining specific technical requirements for a product can stifle innovation.[8]

Common technical standards for the use of emerging technology will need to be established. Defining these requirements may take into account anticompetitive factors. Competitors may engage in anticompetitive behavior by working together to set standards in their favor by unreasonably restricting consortium participation. For instance, effective compliance will be required as undertaken in the case of Standard Setting Organisations which establishes criteria for Standard Essential Patents based on Fair, Reasonable and Non Discriminatory Pricing.

The first blockchain antitrust lawsuit of its kind, United American v. Bitmain,[9] had its complaint rejected in 2021. Several prominent Bitcoin mining pools, including Bitmain, the biggest, have been sued by United Corp for conspiring against it. The conspiring parties allegedly centralized what was supposed to be a decentralised transaction system and manipulated the Bitcoin Cash cryptocurrency market to corrupt the democratic principles of the Bitcoin Cash network.

Financial hardship resulted from the collaboration. In the end, Bitmain got away with its anti-competitive behavior due to the lack of factual evidence. Even if the issue involves bitcoins, there is always a chance that a similar incident may happen on a different blockchain network.[10]

Abuse of Dominance

If any enterprise has a blockchain technology that enables it to hold a substantial amount of hold over the market thus enjoying a dominant position can abuse the status as outlined under Section 4 of the Competition Act, 2002. Refusal to access blockchains, if such access is required to participate in the market, may result in abuse of dominance. When current consortia members jointly restrict access, this control may be leveraged to exclude new competitors from entering the market.[11] Developers can use predatory pricing to drive away rivals, effectively pushing miners to leave or relocate, giving them the opportunity to profit from the resulting monopoly and raise rates.

CONCLUSION

These monopolistic businesses that dominate the internet can no longer be controlled by competition rules. The fines are excessive, but given how much money the companies make from anti-competitive behavior, they are nothing but a prick on their profits. In addition to the fines, the capital investment is only a portion; the fines do not prevent future incidents. The opaque characteristics of a blockchain will provide extreme challenges for the Competition Commission of India. First off, due to the possibility of information regarding any actual or potential anti-competitive conduct not reaching the CCI and its incapacity to extract such information, such aspects of a blockchain will prevent the competition authority from conducting suo moto steps.

Unlike blockchain technology, which uses algorithms for practically all transactions, the usage of algorithms raises worries about competition. The technology of blockchain is fascinating and has a lot of potential in varied areas. This technology has the potential to lead to large efficiency improvements. As it appears that CCI is not able to handle the various issues that could arise from the deployment of blockchain technologies, it is imperative that it exercise extraordinary diligence in creating policies and compliance manuals, to check the availability of information along with ensuring its discovery and regulating the the enterprises in intersection with the blockchain technology.

Author(s) Name: Aathira Pillai (Maharashtra National Law University, Mumbai)

References:

[1] Ernesto Rengifo Garcia, ‘Blockchain and Competition law’ (2021) 70(2) GRUR International  <https://academic.oup.com/grurint/article-abstract/70/2/113/6032580?redirectedFrom=fulltext.> accessed 16 December 2022

[2] ‘Blockchain’ (BuiltIn) <https://builtin.com/blockchain>  accessed 27 December 2022

[3] Competition Act 2002, 2(c)

[4] Ben Lutkevich & Kate Gerwig, ‘What Is a Network Node?’ (Tecj Target) <https://www.techtarget.com/searchnetworking/definition/node>  accessed 27 December 2022

[5] Tabish Faraz, ‘Top Automakers, Startups, Tech Firms, Others Form Blockchain Consortium Mobi’ (Coin Report, 06 May 2018) <https://coinreport.net/top-firms-form-mobi>  accessed 27 December 2022

[6] Swati Gupta , ‘Blockchain and Competition Law: New Technology, Old Challenges’ (India Corp Law, 03 October 2018) <https://indiacorplaw.in/2018/10/blockchain-competition-law-new-technology-old-challenges.html> accessed 16 December 2022

[7] Syed Mohammad Yawar and Rahul Shaw, ‘Augmenting Blockchain with Competition Law for a Sustainable Economic Evolution’ (Frontiers, 14 June 2022) <https://www.frontiersin.org/articles/10.3389/fbloc.2022.931246/full> accessed 17 December 2022

[8] ‘Antitrust and the Trust Machine’ (OECD) <https://www.oecd.org/daf/competition/antitrust-and-the-trust-machine> accessed 16 December 2022

[9] United Am. Corp. v Bitmain Inc (2021) 530 F. Supp. 3d 1241 (S.D. Fla. 2021)

[10] ‘Bitmain Obtains Dismissal of All Claims in Antitrust Suit Alleging Bitcoin Cash Cryptocurrency Market Manipulation: Experience’  (Jones Day, March 2021) <https://www.jonesday.com/en/practices/experience/2021/03/bitmain-obtains-dismissal-of-all-claims-in-antitrust-suit-alleging-bitcoin-cash-cryptocurrency-market-manipulation>  accessed 17 December 2022

[11] Aman Shankar , ‘The Curious Case of Blockchain and Competition Law – Exploring the Unprecedented Pathway’ (IJLT, 15 December 2020) <https://www.ijlt.in/post/the-curious-case-of-blockchain-and-competition-law-exploring-the-unprecedented-pathway>  accessed 17 December 2022.