Saturday, December 20, 2014
Jean Bensaid and Frederic Marty ask What Makes Public-Private Partnerships Work? An Economic Analysis.
ABSTRACT: Public-private partnerships are long-term, global, administrative contracts by which a public authority entrusts a private contractor with some or all of the missions of design, construction, funding, operation and maintenance of an infrastructure or the provision of a public service. The private contractor recovers its initial investment and collects revenue for the service provided by means of tolls paid by users (depending on the traffic) or rent paid by the public authority (depending on the availability of the required service and the satisfaction of criteria of quality and performance).
Criticized for their cost, rigidity and lack of transparency, condemned on the basis of a number of failures or difficulties in their implementation, public-private partnerships are nevertheless an appropriate instrument for the realization of certain projects and for the efficient exploitation of public assets and infrastructures. This Prisme presents a dispassionate analysis of these contracts, highlighting the economic and financial parameters that can lead public authorities to choose this solution within the context of the search for transparency and the need to make efficient use of public moneys.
Private funding may prove to be indispensable, given the constraints currently imposed on public finances, to meet the needs for infrastructure investment. Likewise, the public-private partnership may create an efficient incentive framework to protect the public authority from spiralling costs or delays and to guarantee a service of quality throughout the duration of the contract.
Having said that, these contracts are no magic solution that can be applied to every project or in every situation. This Prisme explains how far and under what conditions the public-private partnership can fulfil its promise. It places particular emphasis on the financial dimension, which is the cornerstone of these contracts in terms of both efficiency and budgetary sustainability. And lastly, it examines the changes undergone by this model, especially those related to funding conditions.
Friday, December 19, 2014
Who Does What in Competition Law: Harmonizing the Rules on Damages for Infringements of the EU Competition Rules?
Caroline Cauffman, Maastricht University; University of Antwerp and Niels J. Philipsen, Maastricht University - Faculty of Law, Metro ask Who Does What in Competition Law: Harmonizing the Rules on Damages for Infringements of the EU Competition Rules?
ABSTRACT: After a long preparatory process, a Directive harmonizing certain national rules on private enforcement of competition law has been adopted by the European Parliament. In this contribution it is investigated whether harmonization of these rules was desirable and whether the main objectives of the directive, the improvement of the possibilities for victims to obtain damages and of the interaction between public and private competition, are likely to be achieved. With regard to the aim of increasing the possibilities for victims of antitrust infringements to obtain compensation, we can conclude that the Directive indeed increases this possibility, although various obstacles to private action are likely to remain. This includes obstacles in relation to (lacking) possibilities for collective action, the requirement to prove negligence or intent, and rules on disclosure of evidence. With regard to the interaction of public and private enforcement of competition law a crucial issue is finding the right balance between using the leniency program (which the European Commission needs in order to be able to effectively trace cartels) in the public enforcement of competition law and compensating victims via enforcement of private law. Whether the Directive has chosen the most desirable option to achieve this balance is debatable.
The Real Miracles of Chanukah and Christmas plus Chinese Restaurant Recommendations for Christmas Day
I discovered that the real miracle of Channukah is that this week all of the fried foods are calorie free. I understand from Catholic, Protestant and Orthodox friends that a similar miracle occurs December 24-26 for Christmas related foods.
For those interested for recommendations of the best Chinese restaurants to visit on Christmas Day (typically the only restaurants open), see my previous post here that includes top picks by a number of antitrust experts. For a more recent antitrust related take on a particular Chinese restaurant by a Harvard Business School professor, see news coverage here.
The EU Concessions Directive: Building (Toll) Bridges between Competition Law and Public Procurement?
Martin Farley (Kings College) and Nicolas Pourbaix (Hogan) ask The EU Concessions Directive: Building (Toll) Bridges between Competition Law and Public Procurement?
ABSTRACT: The nature of concession markets and the type of entities which will be caught by the Concessions Directive increase the possibility that procuring entities will be caught by competition law when awarding concession contracts. A number of specific provisions of the Concessions Directive have the potential to affect—both positively and not so positively—the enforcement of competition law, by seeking to regulate the duration of concession contracts, excluding bidders from participation in tendering procedures on grounds of violation of competition law, and allowing modifications of concession contracts post-award. The complexity and nature of concession contracts offer greater scope for undertakings to form bidding consortia than in traditional public contracts, thereby giving rise to an increased risk that such consortia could be found to infringe competition law.
Tihamer Toth Competition Law Research Centre, Hungary; Peter Pazmany Catholic University - Faculty of Law describes The Reception and Application of EU Competition Rules in Hungary: An Organic Evolution.
ABSTRACT: I will present how Hungarian competition rules and the practice of the Hungarian Competition Authority were influenced by the EU acquis. The Constitutional Court's decision will be presented that paved the way for a decision of the Association Council adopting new Implementing Rules of the Europe Agreement, mirroring the approach of the European Economic Area’s competition rules. The legally binding obligation to bring domestic competition rules in line with Community standards turned later into a process of drawing inspiration not only from EU hard law but also from soft law instruments in cases where Hungarian competition rules were applied. The paper recalls how the authority GVH prepared both itself and the business sphere during the pre-accession period for the EU membership era. The most important changes in legislation following EU accession and also the most important features of law enforcement are analyzed to show how autonomous the legislative and enforcement activity of a new Member State can be. The functioning and the leading role of the European Competition Network (ECN) in promoting a soft form of harmonization, known as ‘convergence’, will be presented. The paper discusses how the Hungarian Competition Authority applied and sometimes disregarded EU competition law provisions. Finally, a couple of actual competition law issues are discussed, like the harmonization of fining and leniency policies, recent development in private enforcement legislation and the problems with parallel investigations by several European competition authorities.
Thursday, December 18, 2014
Marie-Laure Allain (Ecole Polytechnique), Claire Chambolle (INRA) and Patrick Rey (Toulouse) discuss Vertical Integration as a Source of Hold-up.
ABSTRACT: While vertical integration is traditionally seen as a solution to the hold-up problem, this paper highlights instead that it can generate hold-up problems — for rivals. We first consider a successive duopoly where competition among suppliers eliminates any risk of hold-up; downstream firms thus obtain the full return from their investments. We then show that vertical integration creates hold-up concerns for the downstream rival, by affecting the integrated supplier’s incentives from both ex ante and ex post standpoints. We also provide illustrations in terms of standard industrial organization models and of antitrust cases, and discuss the robustness of the insights.
The Qantas/Emirates Decision: How the Competition Commission of Singapore Used the Net Economic Benefits Exclusion to Regulate the Air Passenger Market
Knut Fournier, City University of Hong Kong describes The Qantas/Emirates Decision: How the Competition Commission of Singapore Used the Net Economic Benefits Exclusion to Regulate the Air Passenger Market.
Abstract: The Competition Commission of Singapore (“CCS”) did not properly assess the Net Economic Benefits (“NEB”) created by the co-operation agreement between Qantas Airways Ltd and Emirates. In particular, the high market shares of the two companies should have excluded the NEB defence under the Competition Act (Cap 50B, 2006 Rev Ed), even more so as the remedies proposed by the parties are likely to increase their market share further. The CCS appears to have failed to follow the letter of the Competition Act and instead effectively regulated the airlines sector through the use of competition tools, undermining the enforcement of competition rules and restricting competition in the airlines sector. The more recent decision on the Qantas/Jetstar co-operation shows an improvement in the assessment of economic benefits. The CCS must continue to improve its competitive assessment, must restrict the use of the NEB defence and possibly adopt the more internationally accepted slot divestment remedy as a way of solving competition concerns in airline agreements, or it will hurt competition and consumers in Singapore.
Miguel Cuerdo Mir, Universidad Rey Juan Carlos and Pilar Grau-Carles, Universidad Rey Juan Carlos de Madrid discusss Networks, Cartels, and Antitrust Policy.
ABSTRACT: Despite multiple applications of network theory in different fields of social and legal sciences in general, the possibility of applying this theory to the economic analysis of the antitrust law and, more specifically, to the study of cartels has not yet been considered. This paper develops a set of distances, clustering and centrality measures, taken from network theory, and applies them to the specific case of a cartel sanctioned as such by the European Commission. This approach has enabled us to quantify some characteristic elements of the cartel, such as, for instance, a remarkable asymmetry between operators (nodes in the network), its different degree of influence (study of links), as well as the critical importance of some operators versus other cartelized agents, such that their elimination from the organization would not enable them to create their own cartel. This leads the authors to reconsider the antitrust policy based on leniency programmes.
Justin Pierce, Lund University - Faculty of Law and Megi Medzmariashvili, Lund University ask Standards: Competition and Innovation?
ABSTRACT: In the European Union, the Commission has identified the use of standards as a mechanism of innovation sharing, European competitiveness and further economic integration within the Union. Additionally, the Union has developed and promoted a dynamic approach to research and development, largely supported by a robust intellectual property and antitrust exemption regime. The underlying purpose of which is to provide protection for inventions, facilitate cost recovery and enhance the exploitation of profits from the developed invention. Nonetheless, innovators face a continuous struggle not only to stay ahead of the pack but also to develop strategies to secure capital to continue research and development. The difficulties associated with technological advancement in standardised areas is exasperated given that the lack of guarantee the developed technology will be included within the standard, alongside other associated difficulties arising as a result of the existing standard. This paper explores whether driving standardisation in innovation markets is potentially counter effective and ultimately, an impediment to innovation and development.
Wednesday, December 17, 2014
Thursday, February 19, 2015
|8:00 AM - 8:45 AM||
Founders Hall Multipurpose Room
|8:45 AM - 9:15 AM||
Opening Keynote Address
Founders Hall Auditorium
|9:15 AM - 10:30 AM||
Panel One: Class Actions and Private Actions
Founders Hall Auditorium
|10:45 AM - 12:00 PM||
Panel Two: Economics and Economic Evidence across Regimes
Founders Hall Auditorium
|12:00 PM - 1:45 PM||
Luncheon with Keynote Speaker
Founders Hall Multipurpose Room
|2:00 PM - 3:15 PM||
Panel Three: Non-competition Goals in Global Antitrust
Founders Hall Auditorium
|3:30 PM - 4:45 PM||
Panel Four: Remedies and Commitments across Regimes
Founders Hall Auditorium
|4:45 PM - 5:30 PM||
Founders Hall Multipurpose Room
Douglas H. Ginsburg, U.S. Court of Appeals for the District of Columbia Circuit; George Mason University School of Law examines Bork's 'Legislative Intent' and the Courts.
ABSTRACT: Robert H. Bork’s influence upon modern antitrust law is difficult to overstate. One of his lasting legacies is his analysis of the legislative history, text, and structure of the Sherman Act, which led him to conclude the intent of the Congress passing it was to maximize consumer welfare and economic efficiency. That conclusion was adopted by the Supreme Court in 1979 and has formed the foundation for antitrust policy and enforcement ever since. This article explains the rationale for Bork’s “consumer welfare” thesis, recounts the history of its rise and the objections it engendered from other academics, and summarizes its salutary effect upon antitrust law and business practices.
Jan Boone, Tilburg University - Center for Economic Research (CentER); Centre for Economic Policy Research (CEPR); Institute for the Study of Labor (IZA); TILEC and Rudy Douven, CPB Netherlands Bureau for Economic Policy Analysis; CPB Netherlands Bureau for Economic Policy Analysis discuss Provider Competition and Over-Utilization in Health Care.
ABSTRACT: This paper compares the welfare effects of three ways in which health care can be organized: no competition (NC), competition for the market (CfM) and competition on the market (CoM) where the payer offers the optimal contract to providers in each case. We argue that each of these can be optimal depending on the contracting environment of a speciality. In particular, CfM is optimal in a clinical situation where the payer either has contractible information on provider quality or can enforce cost efficient protocols. If such contractible information is not available NC or CoM can be optimal depending on whether patients react to decentralized information on quality differences between providers and whether payer’s and patients’ preferences are aligned.
Marina Lao of Seton Hall will join the FTC as the Director of the Office of Policy Planning. See the press release here. Marina is a smart and analytical sharp scholar. She is also very easy to work with professionally (we served on the AALS Antitrust Section leadership together). This is a brilliant move by the FTC. Congrats to both Marina and the FTC. She replaces Andy Gavil, who returns to Howard. Any did a great job at OPP. I also want to note that the OPP staff is really wonderful.
Tihamer Toth, Competition Law Research Centre, Hungary; Peter Pazmany Catholic University - Faculty of Law asks Is There a Vatican School for Competition Policy?
ABSTRACT: This paper examines whether the Catholic Church’s social teaching has something to tell to antitrust scholars and masters of competition policy. Although papal encyclical letters and other documents are not meant to provide an analytical framework giving clear answers to complex competition questions, this does not mean that these thoughts cannot benefit businessmen, scholars and policy makers. The Vatican teaching helps us remember that business and morality do not belong to two different worlds and that markets should serve the whole Man. It acknowledges the positive role of free markets, the exercise of economic freedom being an important part of human dignity, yet warns that competition can be preserved only if it is curbed both by moral and statutory rules. It is certainly not easy to find a balance between the commandments to ‘love your neighbor’ and ‘you shall not collect treasure on earth.’ I argue that market conduct that undermines business virtues should be prohibited, either by antitrust or other forms of self- or government-regulation.
Tuesday, December 16, 2014
The Most SSRN Downloaded Tenure Stream (i.e., full time) Antitrust Law Professors of 2014.
Let me provide some caveats: I am counting the total number of downloads for the past 12 months only, not lifetime downloads. This means that not only antitrust articles but rather all articles get included. For a number of professors, many of the articles downloaded are not specifically in antitrust. Further, some of these professors write in antitrust but do not teach it.
- Mark Lemley (Stanford) 14,831
- Tim Wu (Columbia) 7,011
- Herb Hovenkamp (Iowa) 6,610
- Katheryn Spier (Harvard) 4,048
- Josh Wright (George Mason) 3,781
- Robin Feldman (Hastings) 2,993
- Christopher Yoo (Penn) 2,983
- Michael Carrier (Rutgers Camden) 2,947
- Maurice Stucke (Tennessee) 2,771
- Daniel Sokol (Florida) 2,556
- David Hyman (Illinois) 2,510
- Jorge Contreras (Utah) 2,492
- Scott Hemphill (Columbia) 1,973
- Robert Lande (Baltimore) 1,931
- Doug Ginsburg (George Mason) 1,764
- Spencer Waller (Chicago Loyola) 1,673
- Keith Hylton (Boston University) 1,477
- Louis Kaplow (Harvard) 1,389
- Jonathan Baker (American) 1,329
- Barak Orbach (Arizona) 1,219
- Michael Trebilcock (Toronto) 1,1,98
12/16/14 10pm: This is my first attempt. Invariably in scrolling down the long list of names I accidentally miss someone. I promise that it is really an accident. Please email me with any oversights and I will update the list.
12/17/14 9:50am: caveats added to the beginning of the post and the list has been updated.
D. Daniel Sokol (University of Florida) explores The Broader Implications of Merger Remedies in High Technology Markets.
In this issue:
The subject of merger remedies dramatically demonstrates the increasing complexity of antitrust regulation. In this issue, organized by Danny Sokol, we look at problems with conditions imposed on proposed mergers, including dealing with ever-changing high tech markets, conflicts across multiple regimens, competition laws that deal with more than maintaining competitive markets, asking whether authorities or companies should design solutions, and minority ownership. Plus we have two Of Special Interest articles—defining relevant markets, and the new Greek method of identifying collusion. Happy holidays, everyone!
- Merger Remedies
- Daniel Sokol, Dec 16, 2014
A number of cases suggest that competition authorities should undertake a more nuanced view of how technology markets work in their merger remedies. D. Daniel Sokol (Univ. of Florida)
- Scott Sher, Kellie Kemp, Dec 16, 2014
Technology mergers present issues not often present in combinations occurring in more traditional industries, and jurisdictions around the globe are dealing with such challenges differently. Scott Sher & Kellie Kemp (Wilson Sonsini)
- Adam DiVincenzo, Dec 16, 2014
So which divergence problems relating to remedies pose the greatest challenge to the international merger control system? Adam J. Di Vincenzo (Gibson, Dunn)
- Ana Paula Martinez, Mariana Tavares de Araujo, Dec 16, 2014
In practice, creativity in devising merger remedies can very easily lead to conflicting decisions in global deals. Ana Paula Martinez & Mariana Tavares de Araujo (Levy & Salomão Advogados)
- Nicholas Levy, Dec 16, 2014
Expanding EU Merger Control to Non-Controlling Minority Shareholdings: A Sledgehammer to Crack a Nut?
Although there is theoretical support for the notion that structural links may in certain circumstances raise antitrust concerns, the available evidence is insufficient to justify the EUMR’s expansion. Nicholas Levy (Cleary Gottlieb)
- Christine Wilson, Keith Klovers, Dec 16, 2014
Some agency remedies, such as compulsory innovation, compulsory licensing, and detailed conduct remedies that border on industrial engineering, risk exactly the kind of “costly government entanglement in the market” that the 2004 Policy Guide sought to avoid. Christine Wilson & Keith Klovers (Kirkland & Ellis)
- Daniel Sokol, Dec 16, 2014
- Of Special Interest
- David Balto, Matthew Lane, Dec 16, 2014
It is far from unreasonable to require that qualitative evidence of a separate market be supported by an accepted economic test when the data required to perform such a test is readily available. David Balto & Matthew Lane (Law Offices of David A. Balto)
- Lia Vitzilaiou, Dec 16, 2014
The guide may be used by tenderers not only to self regulate, but also to scrutinize and denounce the behavior of other candidates and thus assist competition authorities in detecting cartel activity. Lia Vitzilaiou (Lambadarios Law Firm)
- David Balto, Matthew Lane, Dec 16, 2014
Flavio Delbono, University of Bologna - School of Economics, Management, and Statistics and Luca Lambertini, University of Bologna - Department of Economics theorize on Nationalization as Credible Threat Against Tacit Collusion.
ABSTRACT: Within a simple model of differentiated oligopoly, we show that tacit collusion may be prevented by the threat of nationalising a private firm coupled with the appropriate choice of the weight given to private profits in the maximand of the nationalised company. We characterise the properties of such a threat and prove that it may allow to credibly deter tacit collusion.
Yong Chao University of Louisville - College of Business - Department of Economics and Guofu Tan University of Southern California - Department of Economics have an interesting paper on All-Units Discounts as a Partial Foreclosure Device.
ABSTRACT: We investigate the strategic effects of volume-threshold based all-units discounts (AUDs) used by a dominant firm in the presence of a capacity-constrained rival. As compared to linear pricing, AUDs adopted by a dominant firm are shown to lead to “partial foreclosure” of an equally or more efficient rival, in the sense that the rival’s profits, sales volume, and market share are strictly reduced. When the rival’s capacity level is in the range of low values relative to the demand size, AUDs reduce the buyer’s surplus and increase total surplus. When the rival becomes more efficient, AUDs may reduce total surplus.
The intuition for our findings is that, due to the limited capacity of the rival, the dominant firm that has a “captive” portion of the buyer’s demand for a single product is able to use the AUD to leverage its market power from the “captive” portion to the “competitive” portion of the demand, much like the tied-in selling strategy in the context of multiple products. Our analysis applies to other similar settings, in which the dominant firm has some captive market when it offers “must-carry” brands or a wider range of products.
Institutions and Mechanisms to Facilitate Competition Law Private Enforcement Across the EU: Specialist Courts and Follow-on Actions
Barry Rodger, University of Strathclyde has a new paper on Institutions and Mechanisms to Facilitate Competition Law Private Enforcement Across the EU: Specialist Courts and Follow-on Actions.
ABSTRACT: This article outlines a key aspect of a recent AHRC funded project concerning the application of competition law in the national courts of the European Union Member States. This was an empirical project with rapporteurs for 27 Member States entrusted with the task of identifying competition case-law judgments in their national courts in the period between 1 May 1999 and 1 May 2012. Each national report also outlined key aspects of the wider legal context within which private enforcement of competition law operates in that jurisdiction. The general hypothesis that underlies the dual approach to the project is that private enforcement practice across the legal systems of the EU Member States may at least partly be explained by the existence or availability of particular institutions, mechanisms and cultural factors in relation to the particular legal system. In this article we considered two particular institutions or mechanisms: the specialist court/tribunal and the competition litigation follow-on action mechanism.