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43 Fordham Int'l L.J. 209 (2019-2020)
Online Platforms, Agency, and Competition Law: Mind the Gap

handle is hein.journals/frdint43 and id is 217 raw text is: ARTICLE ONLINE PLATFORMS, AGENCY, AND COMPETITION LAW: MIND THE GAP PmarAkman* ABSTRACT Many of the world's most valuable companies adopt the online platform business model to bring together different groups of customers-suppliers and customers-seeking to transact with one another. This Article aims to establish the correct legal characterization of these platfonns and the implications thereof for competition law purposes. To do so, it explores two related questions: first, whether platforms are agents of their suppliers; and, second, whether the competition law prohibition ofanticompetitive agreements should apply to agreements between platforms and suppliers, which restrict competition on the relevant market for the products/services regarding which the platform facilitates a transaction. The first question arises because the platform business model resembles an agency arrangement more than any other, and many platforms self- proclaim to be agents of their suppliers. Yet, the decisional practice and commentary have developed on the premise that they are not agents. The second question arises due to the agency rule under the single economic entity doctrine, according to which restrictive agreements between an agent and a principal take place within the same undertaking and are consequently immune from the competition law prohibition of anticompetitive agreements between separate undertakings. After applying concepts of agency and similar * Professor of Law, Director, Centre for Business Law and Practice, and Jean Monnet Centre of Excellence in Digital Governance, School of Law, University of Leeds, p.akman@leeds.ac.uk. The author gratefully acknowledges support by the Leverhulme Trust Philip Leverhulme Prize. The author would like to thank Peter Whelan, Duncan Sheehan, D. Daniel Sokol, Roger Halson, Julian Nowag, Konstantinos Stylianou, and participants at the Levy Workshop at George Mason University (Apr. 2, 2019) and at the 13th Annual ASCOLA Conference, New York University (June 22, 2018) for comments and suggestions. The usual disclaimer applies. 209

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