Applying Two-Sided Markets Theory: The Mastercard And American Express Decisions

Since the seminal papers by Rochet and Tirole, the payment card industry has represented an elected field of study for the economic features of multisided markets and their effects on both regulation and antitrust analysis. The recent judgements of the UK High Court of Justice in MasterCard and of the US Court of Appeals for the Second Circuit in American Express are particularly relevant because they are the first to concretely apply the economic theory of multisided markets to the payment card industry. In particular, given the nature of multisided markets, the coexistence of different business models, and the dualistic competitive interpretation of the conduct, courts have emphasised the need to articulate a judgement around counterfactual hypotheses. This is a way to measure the actual impact on competition, testing the realistic scenario that would occur if the investigated conduct was absent, so as to give appropriate consideration to the business model of the single platform. The same reasoning that makes us consider advantageous a flexible antitrust approach forces us to be critical of the current US and EU regulation of payment systems.