Antitrust & Competition Policy Blog

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

Tuesday, July 21, 2009

Institutional Issues in Antitrust

Posted by D. Daniel Sokol

I spent part of today at the Chilean Competition Tribunal.  It hears all antitruscases and has direct appeal to the Chilean Supreme Court.  By law it must have 3 lawyers and two PhD economists.  I am thinking about institutional issues as I prepapre a paper for the ABA Antitrust Section Loyola Conference, which will be held September 11, 2009.  This is very much worth attending.

The ABA Section of Antitrust Law, in conjunction with the Institute for Consumer Antitrust Studies at Loyola University Chicago School of Law, is assembling a first-rate group of leading scholars, current and former enforcement officials, and practitioners to examine the different institutional frameworks for implementing competition law and policy. The institutional frameworks applied by each jurisdiction may be of even greater significance than the substance of the rules they apply, but has received far less attention. The discussion to date of the institutions of antitrust and competition policy has been far less robust than the discussion of the liability rules and other topics in the competition law field.

This conference signals a renewed focus on institutional concerns and seeks to approach this critical issue from a comparative perspective, drawing on the wisdom of key enforcers, observers, and participants from the principal competition jurisdictions from around the world including the United States, the European Union, Canada, Japan, Australia, and others. Among other things, the conference will:

  • Identify and offer a comparative analysis of the frameworks adopted in different jurisdictions for the investigation, review, and adjudication of antitrust issues
  • Analyze the causes and consequences of these differences
  • Consider how the different frameworks operate in theory and practice in reaching sound decisions in an fair and efficient manner
  • Evaluate the need and nature for improvements including both incremental change and sweeping overhauls of the institutions and procedures now in place

The conference will begin with a keynote talk from FTC Commissioner William Kovacic, followed by a series of panels, tentatively scheduled as follows:

Panel 1: Analyzing Competition Regimes

The first panel will focus on the principal models for competition enforcement that have been adopted in various jurisdictions and will discuss the origins of the different approaches to decision-making. Questions to be addressed include: Who makes the ultimate decisions regarding liability and remedy: specialized decision-makers or courts of general jurisdiction? Who decides the facts: specialist courts, generalist courts, sectoral regulators, or competition enforcement agencies? How does the law on the books differ from the law in action in terms of competition law enforcement and institutional arrangements? Are the differences between the principal competition jurisdictions a function of deliberate policy decisions, cultural mores, historical events, or other factors? How do the different approaches reflect other concerns and values such as market integration, protection of domestic producers, empowerment of minority populations, protection of privacy, safety, and the environmental, and other concerns?

Panel 2: Analyzing Competition Law Outcomes

The second panel will focus on the outputs of the different frameworks and enforcement regimes under study. Among other things, the panel will consider whether the various decision-making processes are fair, transparent, predictable, and contribute to an appropriate range of rulings and remedies. Are the regimes appropriate models for other jurisdictions or are they unsuited for jurisdictions that have different substantive objectives? Are differing enforcement regimes necessary for merger and non-merger matters or private versus governmental enforcement?

Panel 3: Comparative Institutional Analysis and Competition Law

In the final panel the panelists will focus on the insights of comparative institutional analysis as applied to the enforcement of competition law. What combination of markets, politics, courts, and bureaucracies are appropriate for the principal competition jurisdictions around the world and what are the common ground, trends, and limitations to aligning those interests in the future?

Each of the panels will be focused on the papers presented by their authors. The other panel participants and conference speakers will offer comments and insights on those papers based on their experience in their own systems and interactions with other jurisdictions. The conference will be structured as a roundtable event with ample opportunity for participants to share ideas and perspectives.

The conference will begin at 9:30 a.m. on Friday September 11, 2009 in the ceremonial courtroom on the 10th floor of the Loyola University Chicago Law Center which is located at 25 E. Pearson, Chicago, IL (corner of Wabash and Pearson). The papers from the conference will be published in a special symposium issue of the Loyola University Chicago Law Journal to be published in early 2010.

We look forward to welcoming you to Chicago, home of the ABA, the Institute for Consumer Antitrust Studies, and Loyola University Chicago School of Law, and engaging with you and your peers in a productive and enjoyable exploration of these challenging issues.

Melanie L. Aitken
Competition Bureau Canada
Gatineau, Quebec, Canada
Conference Co-Chair

Spencer Weber Waller
Loyola University Chicago School of Law
Chicago, IL
Conference Co-Chair

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