Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

Sunday, May 17, 2009

UCL / IMEDIPA Santorini Competition Policy Workshop

Posted by D. Daniel Sokol

If anyone were to receive an Olympic gold medal for conference organization, it would go to Ioannis Lianos of University College London - Law for organizing a spectacular conference of antitrust experts from four continents to present papers at a conference on the beautiful island of Santorini, Greece.


Conference organiser: Dr. Ioannis Lianos, UCL

TUESDAY 26h May 2009
Arrival at the hotel. Check in is possible after 2 pm. Free day to visit the volcano, or Oia and watch the amazing sunset from the hill of the caldera.
DAY ONE: 27th May 2009
09:00 Introduction of all participants

Integrating public policy concerns in competition law analysis: limit or a necessary extension?

Chair: Valentine Korah

  • Ioannis Kokkoris & Rodrigo Olivares Caminal:
    Competition law in the wake of financial crises (20 min)
  • Maurice Stucke:
    Concentrated Media Is Something We Can't Ignore: The Challenge of Developing Antitrust Policies that Support the Media Sector's Unique Role in Our Democracy (15 min)
  • Assimakis Komninos:
    Integration of non competition concerns within Article 81 EC (15 min)

Commentator: Laurence Idot (15 min)

Discussion: 40 min
Some questions for discussion

  • Should we oppose “non-competition” and competition concerns?
  • Should competition law be perceived as public policy or should we perceive public policy as a separate category than competition law?
  • Are the methods of public policy analysis different from those of competition law? Should they be?
  • How does the debate over competition and public policy connect/relate with that on the objectives of competition law?
11:00 Coffee Break

Are the limits of economic analysis and/or methodology the real limits of competition law?

Chair: Wolfgang Kerber

  • Anne-Lise Sibony:
    Limits imported from economics (15 min)
  • Pinar Akman:
    ‘Consumer’ versus ‘Customer’: the Devil is in the Detail (15 min)
  • Ioannis Lianos:
    Translation wars: on economic experts, lawyers and other sources of wisdom for competition law (15 min)

Commentator: Andrew Gavil (20 min)

Discussion: 40 min
Some questions for discussion

  • Has the recourse to economics as the primary source of wisdom for competition law affected the scope of competition law, as this is usually perceived by competition law and economics scholars?
  • Is the scope of the “antitrust enterprise” related to the scope and limits of economics as a discipline?
  • Are there any limits to the introduction of economic analysis in competition law?  Is or should competition law become a branch of economics?
  • How does the evolution of economic methodology affect the evolution of competition law doctrine?
  • Is there a time lag between the evolution of economics and the evolution of competition law? Why? Should we overcome it? What is the way to do so?
13:00 Lunch and free time

The internationalization of the competition law idea and the limits imposed by specific market circumstances and social norms

Chair: William Kovacic

  • Abel Mateus:
    Competition and Development: Towards an Institutional Foundation for Competition Enforcement (15 min)

  • Thomas Cheng:
    The limitations of convergence of competition law (15 min)

  • Julian Pena:
    The limits to competition law in Latin America (15 min)

  • Andreas Stephan:
    Beyond the Cartel Law Handbook: How Corruption, Social Norms and Collectivist Business Cultures can Undermine Conventional Enforcement Tools (15 min)

Commentator: William Kovacic (10 min), Daniel Sokol (10 min)

Discussion: 40 min
Some questions for discussion

  • How much does the degree of development affect the expansion and integration of competition law in different jurisdictions?
  • Is market size important? Small market economies and competition law
  • Should market characteristics affect the design of competition law enforcement? For example one could advance the point that closed economies (with former state monopolies) should perceive false negatives as more costly than false positives. Open economies may perceive the social cost of errors differently.
  • The inherent risk of the discretion of competition authorities for corruption.
17:00 Coffee Break

Fundamental rights and the rule of law stricto sensu as a limit to competition law (Roundtable discussion)

Chair: Wouter Wils

  • Arianna Andreangeli:
    Competition law and human rights: striking a balance between business freedom and regulatory intervention (15 min)

Commentators: Wouter Wils (10 min), Maurice Stucke (10 min)

Discussion: 40 min
Some questions for discussion

  • Reflect on the content of the rule of law as a starting point of the discussion (Ioannis will circulate a paper by NYU Emile Noel fellow Laurent Pech which could serve as the basis for the discussion of this principle in the European context). Could the claims for better administrability and predictability of competition law be considered as a rule of law issue?
  • What is the impact of the rule of law and fundamental rights in delimiting the scope of the antitrust intervention (property rights, Ip as a property right, freedom to contract, freedom of competition?)
  • What is the impact of the rule of law in designing antitrust rules: rule of reason versus per se (I guess Maurice would like to introduce this aspect)
  • What is the impact of the rule of law and fundamental rights in designing procedural rules for antitrust enforcement (rights of defense, impartiality): specific implications for the institutional architecture of the system of European enforcement: breaking up the DG Comp (investigation, prosecution), creation of an independent cartel office, establishing a specialized tribunal, the role of court-appointed experts/assessors and the case law of the European Court of Human rights, the design of merger enforcement in Europe and in the US)
20:30 Dinner at the taverna
DAY TWO: 28th May 2009

The reform of Article 82 as a case study of the limits of competition law

Chair: Nick Economides

  • Lisa Lovdahl Gormsen:
    The legitimacy of consumer welfare in Article 82 (15 min)
  • Ekaterina Rousseva:
    Objective justifications in Article 82 (15 min)
  • Ariel Ezrachi:
    Can they fix it? Maybe they can –The way in which institutional limitations affect the reform of Article 82 EC (15 min)

Commentators: Jorge Padilla (10 min), John Kallaugher (10 min)

Discussion: 45 min
Some Questions for discussion:

  • An assessment of the recent Commission’s Guidance on Article 82 and issues of transatlantic divergence
  • Is the concept of ‘consumer welfare’ clear and uncontroversial enough to serve as a canon for the competition law enforcement in the context of Article 82 EC?
  • What is the part of institutional factors rather than prior beliefs on markets and competition law intervention that explain differences between jurisdictions?
  • Would different dominant economic paradigms explain the differences? What would be the limits of competition law intervention under an ordo-liberal, Austrian, Chicago, post-Chicago, behavioral law and economics paradigm…?
11:00 Coffee Break

The limits of the administrative and/or judicial process (institutional limitations, administrability, decision theory)

Chair: John Kallaugher

  • Yannis Katsoulacos:
    Legal uncertainty: A red herring? (15 min)
  • Jorge Padilla:
    Error Costs as a limit to competition law enforcement (15 min)
  • Yannis Stamoulis:
    EU administrative law: a limit to a full-scale judicial review of Commission’s decisions  (15 min)

Commentators: Eric Barbier de la Serre (10 min), Wolfgang Kerber (10 min)

Discussion:  40 min
Some questions for discussion

  1. Does the decision theoretic approach provide a useful framework for designing rules of substantive competition law and/or competition law enforcement?
  2. How does the nature and specific characteristics of the judicial review affect competition law assessment and consequently the content of substantive competition rules?
  3. Can we establish a link between the greater recourse to economic analysis in competition law and the development of distrust to the judicial process to handle issues of antitrust? It is frequently advanced that courts should not behave as regulators: is this an issue of expertise only? Or, is it something different? (regulation versus antitrust)? Would these arguments work in Europe where public enforcement (through the Commission and national competition authorities) is the most important part of competition law enforcement? Are regulators better suited than courts to deal with competition law? Would things change if we move towards specialized tribunals in competition law?
13:00 Lunch and free time

The interaction of competition law with other areas of law: limits and extensions

Chair: Laurence Idot

  • Francesco Salerno:
    Competition law or regulation? An institutional perspective on a false dichotomy (15 min)
  • Daniel Sokol:
    Competition Policy and Corporate Governance of State Owned Enterprises (15 min)
  • Paolisa Nebbia:
    Crossing parallels: competition law and unfair commercial practices (15 min)
  • Florian Wagner von Papp:
    Suing the suits –Derivative Shareholder Actions To Bring Home the Message of Antitrust (15 min)

Commentators: Abel Mateus (10 min), William Kovacic (10 min)

Discussion : 40 min

  • The topics presented in this session are touching different areas. I would suggest to structure the discussion as following:
    • The first paper raises the issue of the characterization of competition law as a separate area than regulation. Indeed, this is something that we will also touch in the session on the limits of the administrative and judicial process. In Europe, sector-specific regulation is often perceived as a way to introduce competition in a market. In the US, there may be a different perception of what are the objectives of sector-specific regulation. Another issue is the difference that exists between Europe and the US in dealing with the interaction between competition law and regulation, which I suggest to discuss briefly
    • The second paper provides an example of understanding competition law in the context of other areas of law and perceives competition law as an alternative tool to achieve specific objectives. The area of corporate governance constitutes an excellent example, which in my knowledge has never been examined in depth before.
    • The third paper raises the issue of remedies. A number of competition authorities deal with both issues of consumer protection and competition law. Would this co-habitation lead to the emergence of innovative remedies? One could also extend the discussion to the broader issue of remedies and how other areas of law may be used in order to increase the effectiveness of antitrust law enforcement. For example, some have suggested to distinguish between the liability and the remedy phase in antitrust enforcement and delegate the authority of designing or enforcing remedies to regulatory authorities (The AT&T and the Otter Tail precedents in the US could provide useful examples).
    • One could also envision tools of corporate governance as effective means of antitrust enforcement: for example, the use of derivative actions from shareholders as an additional tool to deter antitrust law violations from the company’s management, which is the topic of the fourth paper.
    • A possibility to raise final points and questions on issues that have not been dealt during the last two days.
18:00 End of Workshop

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