Under the “essential facilities” doctrine, dominant firms may have a duty to deal with competitors. A principal objection to imposing a duty to deal is uncertainty as to whether a firm can recoup its investments in the facility that the competitor seeks access to. This article discusses the role of investments in essential facility cases. The purpose of this article is twofold. First, it observes that many “essential facility” cases seem to originate from allocation of rights rather than from anticompetitive conduct. Second, it proposes that courts attribute a more significant role to the analysis of investments underlying these facilities. It is expected that greater emphasis on the investments at stake can limit the chilling effects caused by mandatory sharing. This article has been shortlisted for the 3rd Young Writer’s Competition Award.
World Competition