We've been here before – New and old in anti-trust regulation for global web platforms and future regulatory policy

The global scale web platforms coming to dominate key parts of the world economy seem to be a phenomenon that is less than a decade old, or perhaps slightly more, really starting from 2000-2005. In reality their origins in terms of their business models can be traced to the evolution of the software and computing industries more generally, over the three preceding decades1 2 3. But it does not stop there. Going further back to the late 1890's, useful regulatory models can be drawn today from the prior anti-trust regulation against what was "big tech" then - and was used throughout the first parts of the twentieth century. For example, the concept of reversing acquisitions in the past has been standard practice under the USA's original anti-trust law and has been proposed in the USA Senate recently, by Senator Elizabeth Warren. The paper briefly sketches the relevant directions in anti-trust regulation today, today with the return to the earlier views of terminating abuses of significant market power (SMP) in oligopoly and monopoly. It contrasts today's perspective with the regulatory climate that the "digital tech giants" grew up in, shaped by the monetarist Chicago School (of Friedman's 1970 paper and Judge Bork's 1978 thesis) that USA anti-trust principles should consider large (dominant) enterprises as beneficial for consumer price protection. Essentially it is a regulatory theory which argues for preserving monopolies. Combined with corporate lobbying and its politics, it has reduced anti-trust use over 1998 - 2018 to effectively screen the USA's web platform owners from regulatory oversight, preserving global market dominance. So the new problems are to some extent old problems often with some new malpractices for an online marketplace. However, unfortunately regulators and especially governments have been slow to recognise this and so shape effective action. This raises two key research questions in this area. The first question is practical - what do recent major tech platform anti-trust cases indicate on which legal arguments and approaches are successful and what fails today in recent judgements. Many cases have not been successful and so reasons and context for any positive results are of vital interest. If there is a failure, where does the problem lie - is it with the regulation itself, confusion over the defendant's market position or infringement of consumer or competitor rights and /or with the relevant court's interpretation of that, including a flawed presentation of arguments. Key areas in forming a successful action need to be identified, especially for the more recent cases over the last year or so, to provide guidance in the current climate in which much uncertainty reigns. Analysis here would also anticipate the possible impacts of new legislation, especially that from the EU in the DMA and DSA and the possibilities presented by six different proposals before the USA Congress. The second key question draws on how to form a reasonable solution for reducing SMP abuse through spin-offs, and/or demergers, both vertically and horizontally - ie just how to shape future regulation today. However there are some significant new factors with the march of globalisation since 2000 that were not present in previous decades. They are especially challenging for the effectiveness of the current and proposed regulation in the EU and the USA. Thus, the latest crop of dominant firms harvest and depend on success from what may be termed a 'trialogue' of more novel economic factors. These feed the phenomenal financial and market success for the half dozen main players across today's major economic vertical sectors, leading to Apple's breakthrough to the level of a US$3 Trillion market capitalisation in early 2022. How these platforms may be treated in terms of regulatory ex ante, or ex post, legislation is of key interest. It is in this direction that solutions for SMP abuse lie, with the new generation of European antitrust Acts. Hopefully the paper will offer practical inputs on the fundamental question of the comparative chances of long term success for a regulatory action at all and thus in increasing competition in the subject market. The methodology used is based on drawing together evidence from the markets and judicial procedures to produce the analysis for the two research questions, with insights, including those economic factors in reconfiguration of the firm for increasing digital markets competition.