Enforcing Corporate Opportunity Rules: Antitrust Risks and Antitrust Failures

Abstract

This paper identifies the potential competitive harm in the enforcement of corporate opportunity rules and shows that antitrust intervention cannot sufficiently address such harm. It suggests that the current antitrust framework is ill-suited to tackle the anticompetitive risks, in particular, regarding effects on innovation. The paper first explains corporate opportunity rules in EU member States and in USA corporate law and their strategic use in a business context, highlighting also why they may be effi-cient. Then, it highlights possible negative effects of a strategic use of these rules on competition in terms of static and dynamic efficiency. Having stressed the above-mentioned competitive implications, the paper engages in an analysis of the current framework of competition law to show how competition law provisions are, in most cases, ill-suited to address the potential anticompetitive harm of corporate opportunity rules. Finally, it recommends a way forward based on corporate law reform.