SUPERIOR BARGAINING POWER, ANTITRUST, AND DIGITAL MARKETS: A TRANSACTION COST ECONOMICS PERSPECTIVE

ABSTRACT The abuse of economic dependence is undergoing a revival, driven by the growing policy emphasis on restoring fairness in digital markets. Legal provisions that were originally intended to address bargaining power imbalances in traditional, brick-and-mortar settings are now being repurposed as part of the digital enforcement toolkit. Yet the scope and antitrust character of these rules remain contested. Indeed, a central paradox persists. Because antitrust law aims to protect competition rather than individual competitors, it is unclear why those abuses of economic dependence belong under its purview rather than contract law. Conversely, if such abuses do affect market dynamics, the distinction from abuses of dominant position becomes blurred. Drawing on the insights of transaction cost economics, this paper offers a critical analysis of national provisions on the abuse of economic dependence and outlines a framework for defining the scope and criteria of such abuse as a standalone antitrust offense.