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Credit Cards, Counterfactuals and Antitrust Damages: The UK MasterCard litigations

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This article examines the differences and tensions that are building up in the UK MasterCard (and Visa) litigations. The discussion identifies the key differences between the High Court’s and Tribunal’s judgments together with the limitation of the counterfactual approach which lies at the heart of the legal assessment of Article 101 infringements. The main thesis of this article is that the counterfactual approach forced the respective courts to consider an artificial commercial setting determined by procedural rules. This was compounded by two very different theories of competition, and different approaches to calculating counterfactual interchange fees which bore no relationship to the ‘restrictions counterfactual’ used by the respective courts.

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