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Academic Articles Awards > Unilateral Conduct

“Vexatious/“Sham” Litigation in EU and US Antitrust Law: A Mechanism in Design Approach

Ioannis Lianos and Pierre Regibeau, Antitrust Bulletin, Vol. 62, No. 4, 2017

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Readers’ vote will close on February 9, 2018. Readers’ vote will allow you to nominate 1 article for each of the Awards, i.e., 10 Academic articles, 10 Business articles, and the best Soft Laws. The readers’ short-list of Academic and Business Articles will be communicated to the Board together with the 20 articles nominated by the Steering Committees. The Board will decide on the award-winning articles. Results will be announced at the Awards ceremony to take place in Washington DC on the eve of the ABA Antitrust Spring Meeting on April 10, 2018.

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In both the US and the EU, the antitrust category of “sham litigation” (in the US) or “vexatious litigation” (in the EU) enables a plaintiff, or a defendant in case this action forms part of a counterclaim, to argue that the introduction of litigation may constitute, under certain conditions, an infringement of competition law. This naturally leads to the question of what is a workable standard for establishing the existence of sham litigation, and how it is possible to distinguish between the legitimate use of the regulatory/litigation process and strategic attempts to use the process in order to restrict competition. Legal and economic literature, as well as the courts, have struggled to define operational tests enabling them to determine the boundaries of the “sham”/“vexatious” litigation antitrust category. The paper examines the intellectual underpinnings of this form of abusive/anticompetitive conduct and puts forward a “mechanism design approach” with the aim to reduce the occurrence of sham litigation.

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