Luton Buses : Refusal to Supply and the Difficult Path to Economic Tests in Litigation

As appears in this case decided in the UK, refusal to supply cases are subject to a trade-off between short-term benefits from increased competitive rivalry and long-term detriment from reduced incentives to invest in innovation. To frame an alleged abuse of dominance as an exclusionary conduct should not be taken as a shortcut to bypass the demanding standard of proof normally required for an allegation of exploitative abuse in the form of excessive prices. Judges in stand-alone private actions should treat economic evidence produced by a party's expert witness with caution and circumspection