Regulating US Big Tech Companies beyond Local Markets: Building African Digital Markets: (a Theoretical Perspective)

Abstract

This paper is the first – theory-setting – building block of a broader project on the challenges the transition to an algorithmic society poses in a developmental context. The aim of the overall project is to unearth the day-to-day enforcement hurdles algorithmic and data-driven business models create for developing countries and their economic regulators in particular. To that end, we focus on competition and sectoral regulators in Africa as the units for an upcoming empirical analysis. An initial inventory of existing literature shows that challenges exist at several levels in a spatial sense – the lack of experience with big tech at national level, the lack of coordination between budding Regional Competition Regimes (RCR) in Africa and the lack of a world competition regulator in the aftermath of the failed attempt to designate the WTO as such. Additionally, there is a temporal mismatch between the levels of advancement in enforcement against big tech, with the EU being far ahead from the US, and Africa still lagging even further behind. Given the above context, the current paper discusses several theoretical approaches for the study, contextualization and normative interpretation of the above and further developments that subsequent empirical work will reveal. The main problem we explore in this paper is the issue of divergence, which we then approach through several legal tools allowing for coherence. More specifically, we theoretically explore the opportunities and limitations for cohering by legal means through 1) legal emulation from the most experienced enforcer (the EU or US) or 2) through ‘home-grown’ digital-competition-building exercise within the auspices of African RCRs.