Antitrust & Competition Policy Blog

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

A Member of the Law Professor Blogs Network

Saturday, June 6, 2009

4th Annual ForoCompetencia Colloquium

Posted by D. Daniel Sokol

En nombre del Comité Organizador quería anticiparles que el viernes 16 de octubre de 2009 se realizará el 4° Coloquio ForoCompetencia en el Sheraton Pilar, en las afueras de Buenos Aires.

Este año el temario será el siguiente:

- Panel 1: Defensa de la competencia e intervención del Estado.
- Panel 2: Medidas preventivas.
- Panel 3: Acuerdos de clemencia.
- Panel 4: Control de fusiones en la nueva economía: Convergencia e innovación.

En los próximos días estaremos enviando el programa completo.

Al igual que en la vez pasada, el precio de la inscripción será de U$S 150 (sector privado) y U$S 75 (sector público). Se recuerda asimismo que los cupos son limitados.

Para inscribirse hay que contactarse con Marina Bidart (marinabidart@yahoo.com.ar), Bernardo Cassagne (bcassagne@ebv.com.ar) o Viviana Guadagni (vguada@fibertel.com.ar). En Brasil, enviar pargo y formulario a Ricardo Inglez de Souza (rsouza@demarest.com.br). Se considerará inscripto quien efectivice el correspondiente pago.


4to. COLOQUIO FOROCOMPETENCIA
Pilar, Buenos Aires - 16 de octubre de 2009
Programa

8:30 - 9:00 - Acreditación y desayuno.
9:00 - 9:10 - Palabras de bienvenida:Miguel del Pino, Miembro del Comité Organizador del 4° Coloquio.
9:10 – 9:30 – Palabras de apertura: Dr. Ricardo Napolitani, Presidente de la CNDC (a confirmar).

9:30 - 11:00 - Panel 1: Defensa de la competencia e intervención del Estado en tiempos de crisis.
Panelista: Ignacio de León (Econlex, Venezuela).
Comentaristas:

Hugo Miguens (ex Secretario de Competencia y Def. del Consumidor, Arg.).
José Tavara (Universidad Católica, Perú).
Moderador: Julián Peña

11:00 - 11:30 - Café.

11:30 - 13:00 - Panel 2: Medidas preventivas.
Panelista: Antonio Creus (Bird & Bird, España) (A confirmar).
Comentaristas: Alfredo Gusmán (Cámara Apel. Civil y Comercial Federal, Argentina).
Ismael Malis (ex Presidente CNDC, Argentina).
René Medrado (Pinheiro Neto, Brasil).
Moderador: Marcelo D’Amore

13:00 - 14:30 - Almuerzo buffet
14:30 - 16:00 - Panel 3: Acuerdos de clemencia.
Integrantes: Mariana Tavares (Secretaria de Derecho Económico, Brasil).
Diego Póvolo (vocal de la CNDC, Argentina).
Karine Faden (Freshfields, EE.UU.).
Javier González-Magaz (Steptoe & Johnson, EE.UU.).
Moderador: Viviana Guadagni

16:00 - 16:30 - Café.

16:30 - 18:00 - Panel 4: Control de fusiones en la nueva economía: Convergencia e innovación
Panelista: Santiago Urbiztondo (FIEL, Argentina).
Comentaristas: Antonio Guerra Fernández (Uría & Menéndez, España).
Felipe Irarrázabal (Philippi, Yrarrázabal, Pulido & Brunner, Chile).
Humberto Guardia Mendonça (Vocal de la CNDC, Argentina).
Moderador: Walter Cont

18:00 - Palabras de cierre, Marcelo den Toom, Miembro del Comité Organizador del 4° Coloquio.

June 6, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, June 5, 2009

More Common Ground for International Competition Law?


The 4th ASCOLA Conference

More Common Ground for International Competition Law?
June 16-17, 2009
George Washington University Law School
Washington, D.C.


Registration is free
 
Day 1: Tuesday, June 16

8.45 a.m. Welcome and Opening
Edward Swaine, Competition Law Center at George Washington University
Law School

9.00 a.m. PART I: Economic Foundations of Competition Law
Chair: Warren Grimes
How Consumer Choice is the Best Way to Model Competition Law
Robert Lande, University of Baltimore Law School
A Unified Theory of Competition and Consumer Protection Law: Consumer Choice
Neal Averitt, Federal Trade Commission
Goals of Competition Policy and the Role of Behavioral Economics
Maurice Stucke, University of Tennessee College of Law

10:30 – 11:30 a.m.: Coffee Break
Comments
Jonathan Baker, American University Law School
Wolfgang Kerber, University of Marburg
Paul Nihoul, University of Louvain-la-Neuve, Belgium
Discussion

12:30 p.m. Lunch

2:00 p.m. PART II: Institutional Hot Topics
Chair: Eleanor Fox
The Role of NGOs in the Development of Competition Law
Albert Foer, American Antitrust Institute
Developments in U.S. Enforcement
Stephen Calkins, Wayne State University Law School
Discussion

3:15 – 3:45 p.m.: Coffee Break

3:45 p.m. PART III: International Antitrust
Chair: Eleanor Fox
Rethinking of Extraterritorial Application of Competition Law in Japan
Yoshizumi Tojo, Rikkyo University (Japan)
Regional Agreements as the Next Step in International Antitrust
Michal Gal, Haifa University
Comments
Clifford Jones, University of Florida Law School
Discussion

5:00 p.m. General Assembly (ASCOLA Members Only)

Day 1: Wednesday, June 17

9:00 a.m. PART IV: International Perspectives of Hot Topics
Chair: Rudolph J.R. Peritz
The Anti-competitive Effect of Resale Price Maintenance
Marina Lao, Seton Hall University Law School
Australia’s criminalization of cartels: Should it be contagious?
Caron Beaton-Wells, University of Melbourne
Comments
Josef Bejček, Brno University (Czech Republic)
Discussion

10:30 – 11:30 a.m.: Coffee Break
A Comparative Look at the Control of State Enterprises in China
Deborah Healey, University of New South Wales
Discussion

1:00 p.m. Lunch
Lunch Speech
Diane P. Wood, Federal Judge at the Court of Appeals for the
7th Circuit; University of Chicago Law School

2:30 p.m. PART V: Abuse of Dominance and Monopolization
Chair: Clifford Jones
Prospects for Narrowing the US-EC Gap on Dominant Firm Conduct
Andrew Gavil, Howard University School of Law
Abuse of Market Power in Related Markets
Thomas Eilmansberger, Salzburg University
Comments

Discussion

3:45 – 4:15 p.m.: Coffee Break

4:15 p.m. PART VI: Intellectual Property in Competition
Chair: Clifford Jones
Patent Ambush Strategies and Article 82 EC Treaty
Andreas Fuchs, Osnabrück University
Reverse Payment in Patent Litigation Settlements
Rudolph J.R. Peritz, New York Law School
Comments
Josef Drexl, Max Planck Institute for Intellectual Property, Competition and Tax Law (Munich)
Steven Anderman, University of Essex (UK)
Gustavo Ghidini, LUISS Guido Carli (Rome), Milan University
Discussion

5:45 p.m. Farewell
Josef Drexl, Chair of ASCOLA

Registrants should send inquiries to lduche@law.gwu.edu.

June 5, 2009 | Permalink | Comments (0) | TrackBack (0)

Intellectual Oligopoly: A Cautious Defense of Intellectual Oligopoly with Fringe Competition

Posted by D. Daniel Sokol

Mark Lemley (Stanford Law) challenges Michele Boldrin and David Levine in Intellectual Oligopoly: A Cautious Defense of Intellectual Oligopoly with Fringe Competition.

ABSTRACT: Michele Boldrin and David Levine offer a strong attack on intellectual property (IP), which they call “intellectual monopoly.” In their view, IP is not necessary to encourage invention or creation. Quite the contrary, they argue that we get innovation from competition, not monopoly. Further, because monopoly imposes well-recognized social costs, we are better off without it if it doesn’t in fact spur new innovation.

Boldrin and Levine make a plausible case on their own terms. Nonetheless, I think their terms are misleading. IP rights are rarely if ever “intellectual monopolies.” Most patents, to say nothing of most copyrights, create no economic rents. What this means is that we can’t assume that IP rights generally impose deadweight losses on society. They cause deviation from atomistic, perfect competition, but they don’t cause monopoly pricing. With a small number of exceptions, therefore, they don’t cause the social harms Boldrin and Levine correctly associate with monopoly pricing.

June 5, 2009 | Permalink | Comments (0) | TrackBack (0)

Antitrust and 'Free Movement' Risks of Expanding U.S. Professional Sports Leagues into Europe

Posted by D. Daniel Sokol

Marc Edelman, Rutgers School of Law-Camden and Brian Doyle, Seton Hall Law explain Antitrust and 'Free Movement' Risks of Expanding U.S. Professional Sports Leagues into Europe.

ABSTRACT: This article discusses the legal risks that would emerge if the National Basketball Association ("NBA") and National Football League ("NFL") decide to expand into Europe. Part I of this article explains the differences in operating structure between U.S. and European professional sports leagues. Part II discusses the differences in competition law between the United States and European Community. Part III explains why the legal status of age and education requirements (age/education requirements) is more favorable to professional sports leagues under U.S. law than under EC law. Part IV explains why the legal status of league drafts and reserve systems also might be more favorable to professional sports leagues under U.S. law.

June 5, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 4, 2009

Economic Effects of State Bans on Direct Manufacturer Sales to Car Buyers

Posted by D. Daniel Sokol

Gerald R. Bodisch (DOJ) examines the Economic Effects of State Bans on Direct Manufacturer Sales to Car Buyers.  I think that this is an important paper.  The reason that the franchise rules work the way they do is because of public choice concerns.  There are lots of local dealers (although the number will be shrinking soon thanks to GM and Chrysler bankruptcies) with lots of political power at the state level that make sure to protect themselves from competition.  Hopefully this paper will move the debate forward by shedding light on how laws can be changed to reflect pro-competitive concerns and to protect consumers from special interests that missuse government regulation for anti-competitive ends.  This is a must read for state legislators and consumer groups. 

ABSTRACT:
State franchise laws prohibit auto manufacturers from making sales directly to consumers. This paper advocates eliminating state bans on direct manufacturer sales in order to provide automakers with an opportunity to reduce inventories and distribution costs by better matching production with consumer preferences.

June 4, 2009 | Permalink | Comments (0) | TrackBack (0)

Antitrust, Patents and Developing Nations

Posted by D. Daniel Sokol

John Barton (Stanford Law) writes on Antitrust, Patents and Developing Nations.

ABSTRACT: In the developed world, antitrust policy has traditionally been a foil to intellectual property (IP). There are now serious concerns that the world's IP system, including both rules created by national legislation and those created by international agreements, is stronger than is the economic interests of developing nations. A stronger antitrust law might be a valuable response.

This article, therefore, examines the actions that developing nations might take in the antitrust area, looking both at national legislation and at international analysis and explores how to pursue such approaches consistently with current law in the area. The article concentrates on patents but considers copyright law where that law affects technological innovation, as in the case of software. The article does not explore other areas of antitrust laws such as the general treatment of Intellectual Property rights, which noted the possible role of antitrust law but did not explore it in depth because antitrust law proved less relevant to the poorest nations than did the basic access issues explored in that analysis. Nor, except in passing, does the article consider compulsory licensing based on broad principles, such as those included in TRIPS Article 3I3 of the Doha Declaration.

The Article avoids emphasizing specific technical doctrines, emphasizing instead the various economic standards that permeate antitrust practices. It considers three important contexts: the response to a (generally foreign) monopolist, the response to a (generally primarily foreign) global oligopoly or cartel, and the management of relations between a major (generally foreign) firm and a local licensee.

June 4, 2009 | Permalink | Comments (0) | TrackBack (0)

Sports Leagues and the Rule of Reason: How to Assess Internal Venture Restraints

Posted by D. Daniel Sokol

James Keyte & Paul Eckles (both Skadden) address Sports Leagues and the Rule of Reason: How to Assess Internal Venture Restraints.

ABSTRACT: ...The question, then, is whether there is an alternative analytical framework the Court could adopt that could cut short or streamline these wasteful litigations but without a finding that sports leagues are a single entity? For many years, in addition to pressing its "single entity" defense, sports leagues have argued for a particular variant of the "ancillary restraints doctrine" that would find a League's internal decisions, rules, and practices are "ancillary" to the joint venture itself and, hence, reasonable as a matter of law.

As discussed below, the sports leagues have not had much success in the lower courts with this argument; moreover, the jurisprudence regarding the ancillary restraints doctrine in general has a muddled history and has largely been subsumed within the broader rule of reason. Professor Gary R. Roberts, who has been writing on this subject for decades, once framed the question this way: "The ultimate issue here is not whether leagues are single entities or a collection of independent firms; rather, it is whether or not the internal rules and decisions of leagues ought to be immune from case-by-case rule of reason review under section 1."

American Needle could provide the Supreme Court the opportunity to cut through that confusion over the rule of reason's application to sports leagues and adopt an analytical framework recognizing that legitimate joint ventures should have the discretion to run their businesses based on their own business judgment without being second-guessed by federal courts. For far too long, there has been a schism in the rule of reason framework as applied to sports leagues and other legitimate ventures. Thus, while certain types of restraints can be challenged without any economic analysis at all under the per se rule, there has been no analytic device at the other end of the spectrum to immunize from antitrust challenge under Section 1 the types of fundamental decisions that legitimate business collaborations must be allowed to make without continual second-guessing under the guise of Section 1.

June 4, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 3, 2009

Entry in the ADHD Drugs Market: Welfare Impact of Generics and Me-toos

Posted by D. Daniel Sokol

Farasat A.S. Bokhari (FSU - Econ) and Gary M. Fournier (FSU - Econ) explain Entry in the ADHD Drugs Market: Welfare Impact of Generics and Me-toos.

ABSTRACT: In this paper, we exploit a novel approach for instrumenting a di fferentiated products demand system for therapeutically equivalent drugs. Using unusually detailed sales data on psychostimulant drugs, used to treat Attention De cit Hyperactivity Disorder (ADHD), we are able to identify and measure substitution patterns across a range of drugs. We find that the demand for ADHD drugs is quite elastic and there are significant substitution possibilities among these drugs, both within the molecule and form, as well as across the segments. In addition, the first-time introduction of a generic drug shows large welfare gains due to expansion of the market to price sensitive consumers. Further, the welfare gains due to the introduction of me-too drugs vary by the novelty of the drug, and for significantly new varieties can be as large as those of the introduction of a generic. Our results bear policy implications for both, the speed with which new drugs are approved for marketing, as well as for actions among pharmaceutical firms that may delay the
entry of a generic drug.

June 3, 2009 | Permalink | Comments (0) | TrackBack (0)

Horizontal Mergers, Involuntary Unemployment, and Welfare

Posted by D. Daniel Sokol

Oliver Budzinski (Environmental and Business Economics - University of Southern Denmark) and Jürgen-Peter Kretschmer (Economic Policy Unit - Philipps-University of Marburg) analyze Horizontal Mergers, Involuntary Unemployment, and Welfare.

Standard welfare analysis of horizontal mergers usually refers to two effects: the anticompetitive market power effect reduces welfare by enabling firms to charge prices above marginal costs, whereas the procompetitive efficiency effect increases welfare by reducing the costs of production (synergies). However, demand-side effects of synergies are usually neglected. We introduce them into a standard oligopoly model of horizontal merger by assuming an (empirically supported) decrease in labour demand due to merger-specific synergies and derive welfare effects. We find that efficiency benefits from horizontal mergers are substantially decreased, if involuntary unemployment exists. However, in full employment economies, demand-side effects remain negligible. Eventually, policy conclusions for merger control are discussed

June 3, 2009 | Permalink | Comments (0) | TrackBack (0)

The world turn’d upside down

Posted by D. Daniel Sokol

Peter Freeman (Chairman, Competition Commission) delivered a speech The world turn’d upside down.

ABSTRACT: The line from which the title phrase is taken is from a ballad sung in protest against the abolition by Oliver Cromwell of Christmas festivities at the time of the English Civil War. We are not facing civil strife today, but we are facing economic strife on a scale not seen since the 1930s. In that sense, our world has indeed turned upside down.

This is a critical time for both competition policy and competition enforcement. These of course are different things, and we should be clear what we mean by them. Policy is the overall framework which provides the objectives and justification for what we do. Enforce-ment means the actions taken by authorities in pursuit of those objectives. I have always thought that the idea of ‘enforcing’ competition is rather heroic. Enforcing the law that prohibits infringements as in the case of Articles 81 and 82, yes; but in the CC’s case, with our job of investigating mergers and markets, as well as our regulatory role, we are better described as acting to maintain, restore or promote competition, depending on the circum-stances.

June 3, 2009 | Permalink | Comments (0) | TrackBack (0)

The Overcharge as a Measure for Antitrust Damages

Posted by D. Daniel Sokol

Martijn A. Han, University of Amsterdam - Amsterdam Center for Law & Economics, Maarten Pieter Schinkel, University of Amsterdam - Amsterdam Center for Law & Economics, and Jan Tuinstra, University of Amsterdam - Department of Quantitative Economics discuss The Overcharge as a Measure for Antitrust Damages.

ABSTRACT: Victims of antitrust violations can recover damages in court. Yet, the quantification of antitrust damages and to whom they accrue is often complex. An illegal price increase somewhere in the chain of production percolates through to the other layers in a sequence of partial pass-ons. The resulting reductions in sales and input demands lead to additional harm to downstream (in)direct purchasers and upstream suppliers to the cartel, respectively. Nevertheless, U.S. civil antitrust litigation is almost exclusively concerned with direct purchaser claims for (treble) damages calculated on the basis of the overcharge. Similar best practice rules are emerging in Europe. In this paper, we show that the direct purchaser overcharge bears no structural relation to the true harm inflicted by a cartel on all of its direct and indirect purchasers and sellers in the chain of production.

June 3, 2009 | Permalink | Comments (0) | TrackBack (0)

Alitalia—Government Interventionism, The Road to Recovery?

Posted by D. Daniel Sokol

Philippe Noguès (O'Melveny & Myers) & Giovanni Cifelli (O'Melveny & Myers) asks Alitalia—Government Interventionism, The Road to Recovery?

ABSTRACT: On December 3, 2008, the Italian competition authority (the “ICA”) authorized the merger between Compagnia Aerea Italiana (“CAI”), a new Italian company incorporated in order to acquire most of the passenger-related assets of Alitalia, and AirOne, the second largest Italian carrier. According to the decision, the transaction led to overlaps on 22 domestic and seven international routes where the combined entity would have a market share ranging from 50 to 100 percent. More importantly, the decision also outlined that the merged entity would be the only carrier to offer passenger air transport on numerous routes, including some of the most relevant routes in terms of traffic and revenue, whereas elsewhere the presence of competing operators, with a few exceptions, would be strongly reduced.

Confronted with that analysis—which concluded that a transaction would impede effective competition by creating dominant positions on several markets—many, if not all, competition regulators in the world would have either prohibited the transaction or approved it further to significant structural remedies in order to ensure that the consumer would not be harmed. In fact, quite the contrary happened in this case!

June 3, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 2, 2009

Avoidance and Denial of Liability for Cartel Offences: Proactive Lawful Escape Routes Left Open by the Cartel Legislation

Posted by D. Daniel Sokol

Brent Fisse (Melbourne Law) discusses Avoidance and Denial of Liability for Cartel Offences: Proactive Lawful Escape Routes Left Open by the Cartel Legislation.  Download Fisse_Avoidance_&_Denial_of_Liability_for_Cartel_Offences

ABSTRACT: Cartel litigation and cartel investigation are likely to be shaped to a significant extent by what corporations and managers do proactively in response to the threat of criminal sanctions, civil penalties and liability for damages. It would be a mistake to assume that the prime targets of the new cartel legislation1 – those competitors who cause multi-million dollar losses to consumer welfare by co-ordinating their conduct instead of competing against each other – will be sitting ducks waiting to be shot.

The new cartel offences and civil penalty prohibitions are intended to electrify the deterrence of cartel conduct. However, discussion of the implications for corporate and individual behaviour has been superficial and not always realistic. It is entirely possible that a direct effect will be to induce the more widespread use of anti-competitive methods of doing business that do not involve breaking the law. Corporations and their advisers are adept at managing the law in ways they believe will achieve their perceived interests as distinct from the interests of legislators and enforcement agencies.2 This paper outlines some of the avenues open to corporations and their managers to avoid or deny liability by revising their liability control strategies and doing some re-engineering or personal training to implement those strategies.

Many lawful escape routes are open to those in the corporate sector who do not share the noble aspirations of those responsible for Australian anti-cartel laws. The escape routes are not riskfree
but some conceivably can be made to work.

June 2, 2009 | Permalink | Comments (0) | TrackBack (0)

Asia-Pacific Antitrust Review 2009

Posted by D. Daniel Sokol

The Global Competition Review has published the The Asia-Pacific Antitrust Review.


June 2, 2009 | Permalink | Comments (0) | TrackBack (0)

A Plea for Greater Antitrust Transparency

Posted by D. Daniel Sokol

Comments over breakfast one morning last week at a great antitrust conference in Santorini organized by Ioannis Lianos and UCL got me thinking about the lack of transparency among antitrust practitioners and academics -- at least in the United States though I suspect elsewhere as well.  Oftentimes, academics and private practitioners (many with former agency experience) are asked to present at various hearings and workshops because of their expertise on a topic.  Oftentimes they include written submissions along with their oral testimony.  It is very rare that such practitioners and academics include who has paid for their testimony.

Going forward, I hope that DOJ and FTC begin the introduction to every speaker with the following question. "Have you or will you be billing a client for work in connection with this testimony and if so, who is it?"

Similarly for law reviews and peer review journals, I hope that going forward they mandate disclosure the way that the Antitrust Law Journal does for these purposes.

June 2, 2009 | Permalink | Comments (0) | TrackBack (0)

The unfulfilled promise of New Zealand’s monopolisation law: Sources, symptoms and solutions

Posted by D. Daniel Sokol

Rex Ahdar (Law, University of Otago) has an interesting piece on The unfulfilled promise of New Zealand’s monopolisation law: Sources, symptoms and solutions. Download Monopolization.CCLJ

ABSTRACT: New Zealand’s monopolisation prohibition — s 36 of the Commerce Act 1986 — is not an effective weapon in the antitrust armoury. Proving a violation of s 36 is most difficult as the paucity of successful cases illustrates. Based on a laudable concern that efficient, innovative conduct might be curtailed, the New Zealand courts have overcompensated by promulgating a strict counterfactual test for ‘taking advantage of’ that thwarts effective prosecution of monopolising conduct. This article traces the reasons for this unduly lenient approach and puts forward several suggested solutions — including a multi-stage, burden-shifting, composite test — aimed at reviving s 36 as an effective enforcement tool against single-firm conduct that curtails effective competition.

June 2, 2009 | Permalink | Comments (0) | TrackBack (0)

ICN 8th Annual Conference

Posted by D. Daniel Sokol

The annual conference is this week.  Movers and shakers from around the world will gather in Zurich.

AGENDA

Tuesday, June 2, 2009
09:00 - 16:30
Competition Principles under Threat
Pre-ICN Competition and Development Forum
Co-sponsored by IDRC and the Swiss Competition Commission
Side Entrance, Kongresshaus Zurich
16:30 - 20:30
Registration to the ICN Conference
Main Entrance, Kongresshaus Zurich
19:00 - 21:00
Welcome Reception
Hosted by the Chairman of the Swiss Competition Commission and
co-sponsored by the International Chamber of Commerce
At Festsaal, Kaufleuten, Zurich

Wednesday, June 3, 2009
08:00 - 08:30
Registration and Welcome Coffee
Main Entrance, Kongresshaus Zurich
08:30 - 08:35
Opening of the Conference
Walter A. Stoffel, Chairman, Swiss Competition Commision
Plenary, Kongresshaus Zurich
08:35 - 09:30
Welcoming Addresses
Plenary, Kongresshaus Zurich Doris Leuthard, Head, Federal Department of Economic Affairs / Federal Councilor
Regine Aeppli, President, Government of the Canton of Zurich
David Lewis, Interim Chair, Steering Group, International Competition Network
Walter A. Stoffel, Chairman, Swiss Competition Commision
09:30 - 11:00
Advocacy Working Group, Plenary Session
Plenary, Kongresshaus Zurich
Moderator:   John Fingleton, CEO, U.K. Office of Fair Trading
09:30 - 10:20
Market Studies Subgroup: Reviewing experience and learning for the future
Market Studies Showcase
Moderators:   René Jansen, Board Member, Netherlands Competition Authority
   David Miller, Executive Director, Jamaica Fair Trading Commission
   Kim Sparlund, Deputy Director General, Danish Competition Authority
Panel Discussion
Panelists:   Melanie L. Aitken, Interim Commissioner of Competition, Competition Bureau Canada
   Thula Kaira, Executive Director, Zambia Competition Commission
   Dhanendra Kumar, Chairman, Competition Commission of India
   Anne Perrot, Vice-Chair, Autorité de la Concurrence, France
10:20 - 11:00
Competition Advocacy Review and Update Subgroup
Panelists:   Eduardo Pérez Motta, President, Federal Competition Commission, Mexico
   HackHyun Kim, Director General, Korea Fair Trade Commission
   David Anderson, Partner, Berwin Leighton Paisner LLP, Brussels
   Vladimir Kachalin, Advisor to the Chairman, Federal Antimonopoly Service of Russia
11:00 - 11:30
Coffee/Tea Break
Networking, Coffee Break & Lunch, Kongresshaus Zurich
11:30 - 12:15
Advocacy Working Group, Breakout Session (6 sessions)
Session 1: Institutional directions of competition advocacy
Working Group Room 1, Kongresshaus Zurich
Moderator:   Małgorzata Krasnodębska-Tomkiel, President, Office of Competition and Consumer Protection, Poland
Resource Persons:   Nancy Olson, Attorney, U.S. Department of Justice

Mirna Pavletic Zupic, Member, Croatian Competition Council

Session 2: Sectoral dimension of competition advocacy
Working Group Room 2, Kongresshaus Zurich
Moderator:   Markus Lange, Head, Bundeskartellamt, Germany
Resource Persons:   Shuichi Sugahisa, Director, Japan Fair Trade Commission

Nigel Caesar, Competition Law Officer, Competition Bureau Canada

Clara Guzman, Director, National Competition Commission, Spain

Session 3: Competition advocacy: ICN Members experience and recommendations for further ICN work
Working Group Room 3, Kongresshaus Zurich
Moderator:   Andrea Appella, Director, U.K. Office of Fair Trading
Resource Persons:   Maria Coppola Tineo, Counsel, U.S. Federal Trade Commission

Duane Schippers, Deputy Commissioner, Competition Bureau Canada

Session 4: Market Studies: Definition, Purpose and Powers
Working Group Room 4, Kongresshaus Zurich
Moderator:   René Jansen, Board Member, Netherlands Competition Authority
Resource Person:   Hannah Priest, Attorney, U.K. Office of Fair Trading

Session 5: Market Studies: Process
Working Group Room 5, Kongresshaus Zurich
Moderator:   Philip Lowe, Director General, European Commission, DG Competition
Resource Person:   Graham Winton, Director, U.K. Office of Fair Trading

Session 6: Market Studies: Evaluation
Working Group Room 6, Kongresshaus Zurich
Moderator:   Declan Purcell, Member and Director, Irish Competition Authority
Resource Person:   Gianluca Sepe, Senior Lawyer, Italian Competition Authority

12:15 - 13:30
Lunch
Networking, Coffee Break & Lunch, Kongresshaus Zurich
13:30 - 14:45
Merger Working Group, Plenary Session
Plenary, Kongresshaus Zurich
13:30 - 13:45
Remarks on Recommended Practices for Merger Analysis
J. Robert Kramer II, Director, U.S. Department of Justice
13:45 - 14:45
Panel: Merger Analysis in Troubled Times
Moderator:   Christine A. Varney, Assistant Attorney General, U.S. Department of Justice
Panelists:   Ali İhsan Çağlayan, Acting Director, Turkish Competition Authority
   Nadia Calviño, Deputy Director General, European Commission, DG Competition
   Yuji Kimura, Chief Investigator, Japan Fair Trade Commission
   Alastair Mordaunt, Director, U.K. Office of Fair Trading
   Stanley Wong, Member and Director, Irish Competition Authority
14:45 - 15:45
Merger Working Group, Breakout Session (6 sessions)
Session 1: Merger Analysis in Troubled Times and new Merger Analysis RPs
Working Group Room 1, Kongresshaus Zurich
Moderators:   Michele Pacillo, Economist, Irish Competition Authority

Adam Fanaki, Acting Senior Deputy Commissioner of Competition, Competition Bureau Canada

Mateusz Blachucki, Chief Expert, Office of Competition and Consumer Protection, Poland
Resource Person:   Ted Henneberry, Orrick, Herrington & Sutcliffe LLP, USA

Session 2: Merger Analysis in Troubled Times and new Merger Analysis RPs
Working Group Room 2, Kongresshaus Zurich
Moderators:   Kai Hooghoff, Lawyer, Bundeskartellamt, Germany

Nadine Mouy, Deputy General, Autorité de la Concurrence, France
Resource Persons:   Randall Hofley, Stikeman Elliott LLP, Canada

John Taladay, Howrey LLP, USA

Session 3: Merger Analysis in Troubled Times and new Merger Analysis RPs
Working Group Room 3, Kongresshaus Zurich
Moderators:   Peter Freeman, Chairman, U.K. Competition Commission

Eric Tu, International Affairs Officer, Taiwan Fair Trade Commission

Nancy Olson, Attorney, U.S. Department of Justice
Resource Person:   Jérôme Philippe, Freshfields Bruckhaus Deringer, France

Session 4: Merger Analysis in Troubled Times and new Merger Analysis RPs
Working Group Room 4, Kongresshaus Zurich
Moderators:   J. Robert Kramer II, Director, U.S. Department of Justice

Olavo Chinaglia, Commissioner, Administrative Council for Economic Defence, Brazil
Resource Person:   Paul Gorecki, Economic & Social Research Council, Ireland

Session 5: Notification & Procedures
Working Group Room 5, Kongresshaus Zurich
Moderators:   Cynthia Lewis Lagdameo, Counsel, U.S. Federal Trade Commission

Paul O'Brien, Attorney, U.S. Department of Justice
Resource Persons:   Juergen Schindler, Allen & Overy

Dave Poddar, Mallesons Stephen Jaques

Omar Wakil, Torys LLP

Session 6: Notification & Procedures
Working Group Room 6, Kongresshaus Zurich
Moderators:   Tim Grimwade, Executive General Manager, Mergers Group, Australian Competition & Consumer Commission

Daniela Trampert-Paparella, Case Handler, Austrian Competition Authority
Resource Persons:   Robert Schlossberg, Freshfields Bruckhaus Deringer

Hendrik Bourgeois, General Electric

15:45 - 16:15
Coffee/Tea Break
Networking, Coffee Break & Lunch, Kongresshaus Zurich
16:15 - 18:00
Special Project (Competition Law in Small Economies), Plenary Session
Plenary, Kongresshaus Zurich
Moderator:   Walter A. Stoffel, Chairman, Swiss Competition Commission
Panelists:   Ronit Kan, Director General, Israel Antitrust Agency

Charles Webb, Executive Director, Jersey Competition Regulatory Authority

Philip Marsden, Director, British Institute of International and Comparative Law

Michal Gal, University of Haifa, NYU Center for Law and Business

Alberto Heimler, Advisor, Italian Competition Authority
18:00 - 20:30
Standing Reception
Hosted by the Swiss Competition Commission and the City of Zurich &
the Canton of Zurich, co-sponsored by the Studienvereinigung Kartellrecht
At Lake Side, Zurich

Thursday, June 4, 2009
08:30 - 09:00
Coffee/Tea Break
Networking, Coffee Break & Lunch, Kongresshaus Zurich
09:00 - 10:00
Cartel Working Group, Plenary Session
09:00 - 09:30
Cartel Subgroup 1: Transitioning from an Administrative to a Criminal Regime
Plenary, Kongresshaus Zurich
Moderator:   Scott D. Hammond, Deputy Assistant Attorney General, U.S. Department of Justice
Panelists:   Ana Paula Martinez, Director, Secretariat of Economic Law of the Ministry of Justice, Brazil
   Graeme Samuel, Chairman, Australian Competition and Consumer Commission
09:30 - 10:00
Cartel Subgroup 2: Investigative Techniques
Plenary, Kongresshaus Zurich
Moderator:   John Pecman, Acting Senior Deputy Commissioner of Competition, Competition Bureau Canada
Panelists:   Kirtikumar Mehta, Principal Advisor, European Commission, DG Competition
   Monique van Oers, Director, Netherlands Competition Authority
   Simon Williams, Senior Director, U.K. Office of Fair Trading
10:00 - 11:15
Cartel Working Group, Breakout Session (6 sessions)
Subgroup 1, Session 1: Transitioning to Criminal Sanctions
Working Group Room 1, Kongresshaus Zurich
Moderators:   Scott D. Hammond, Deputy Assistant Attorney General, U.S. Department of Justice

Ana Paula Martinez, Director, Secretariat of Economic Law of the Ministry of Justice, Brazil

Andrew Christopher, Baker & McKenzie

Subgroup 1, Session 2: Transitioning to Criminal Sanctions
Working Group Room 2, Kongresshaus Zurich
Moderators:   Bruno Lasserre, President, Autorité de la Concurrence, France

Simon Williams, Senior Director, U.K. Office of Fair Trading

Elizabeth Farina, Law and Economics Consulting Group

Subgroup 1, Session 3: Transitioning to Criminal Sanctions
Working Group Room 3, Kongresshaus Zurich
Moderators:   Graeme Samuel, Chairman, Australian Competition and Consumer Commission

Eduardo Pérez Motta, President, Federal Competiton Commission, Mexico

Mario Siragusa, Partner, Cleary Gottlieb

Subgroup 2, Session 1: Leniency: Maximising Incentives for Reporting and Cooperation
Working Group Room 4, Kongresshaus Zurich
Moderators:   Randal T. Hughes, Partner, McCarthy Tétrault

Toshiyuki Nambu, Director, Japan Fair Trade Commission

Mark Pearson, Executive General Manager, Australian Competition and Consumer Commission

Gianluca Sepe, Senior Lawyser, Italian Competition Authority

Subgroup 2, Session 2: International Cooperation and the Cooperation of Searches
Working Group Room 5, Kongresshaus Zurich
Moderators:   Sabrina Carron-Roth, Senior Legal Advisor, Swiss Competition Commission

John Pecman, Acting Senior Deputy Commissioner of Competition, Competition Bureau Canada

Gary Spratling, Gibson, Dunn & Crutcher

Peter Szolnoky, Section Head, Hungarian Competition Authority

Subgroup 2, Session 3: Investigative Tool Boxes in Criminal and Civil Regimes: Ways to Optimise Detection
Working Group Room 6, Kongresshaus Zurich
Moderators:   Olivier Guersent, Director, European Commission, DC Competition

Pieter Kalbfleisch, Chairman, Netherlands Competition Authority

Monique van Oers, Director, Netherlands Competition Authority

11:15 - 11:45
Coffee/Tea Break
Networking, Coffee Break & Lunch, Kongresshaus Zurich
11:45 - 12:45
Unilateral Conduct Working Group, Plenary Session
Distinguishing Pro From Anticompetitive Conduct: The Fine Line Between Aggressive Competition and Anticompetitive Foreclosure in Tying and Discounting Cases
Plenary, Kongresshaus Zurich
11:45 - 11:50
Introductory Remarks
Jon Leibowitz, Chairman, U.S. Federal Trade Commission
11:50 - 12:45
Panel Discussion
Moderator:   Markus Lange, Section Head, Bundeskartellamt, Germany
Panelists:   Damien Neven, Chief Economist, European Commission, DG Competition
   Shlomi Parizat, Chief Economist, Israel Antitrust Authority
   Simon Roberts, Chief Economist, South Africa Competition Commission
   Renata Hesse, Wilson Sonsini Goodrich & Rosati
   Jorge Padilla, Law and Economics Consulting Group
12:45 - 13:45
Lunch
Networking, Coffee Break & Lunch, Kongresshaus Zurich
13:45 - 15:00
Unilateral Conduct Working Group, Breakout Session (6 sessions)
Session 1:
Working Group Room 1, Kongresshaus Zurich
Moderator:   Richie Hutton, New Zealand Commerce Commission
Resource Person:   Kai Hooghoff, Legal Adviser, Bundeskartellamt, Germany

Session 2:
Working Group Room 2, Kongresshaus Zurich
Moderator:   Deborah Platt Majoras, General Counsel, The Procter & Gamble Company
Resource Persons:   Ernst Ferdinandusse, Principal Administrator, European Commission

Stephanie Yon, International Adviser, Autorité de la Concurrence, France

Session 3:
Working Group Room 3, Kongresshaus Zurich
Moderator:   Gianluca Sepe, Senior Lawyser, Italian Competition Authority
Resource Persons:   Charles Webb, Executive Director, Jersey Competition Regulatory Authority

Michael Blechman, Kaye Scholer, LLP

Session 4:
Working Group Room 4, Kongresshaus Zurich
Moderator:   Anne Purcell White, Assistant Chief, U.S. Department of Justice
Resource Persons:   Frank Montag, Freshfields Bruckhaus Deringer

Paolo Palmigiano, BT Group plc

Session 5:
Working Group Room 5, Kongresshaus Zurich
Moderator:   Shuichi Sugahisa, Director, Japan Fair Trade Commission
Resource Persons:   Alden Abbott, Associate Director, U.S. Federal Trade Commission
   Marcel Meinhardt, Lenz & Staehelin

Session 6:
Working Group Room 6, Kongresshaus Zurich
Moderator:   Justus Haucap, University of Erlangen-Nuremberg
Resource Persons:   Martine Dagenais, Assistant Deputy Commissioner, Competition Bureau Canada
   Eleanor M. Fox, New York University School of Law

15:00 - 16:00
15:00 - 15:50
CPI Subgroup 1
Plenary, Kongresshaus Zurich
Moderator:   Olavo Chinaglia, Commissioner, Administrative Council for Economic Defence, Brazil
Panelists   Philip Lowe, Director General, European Commission, DG Competition
   Maria Coppola Tineo, Counsel, U.S. Federal Trade Commission
   Barış Ekdi, Competition Expert, Turkish Competition Authority
15:50 - 16:00
CPI Subgroup 2
Plenary, Kongresshaus Zurich
Speaker:   Russell Damtoft, Associate Director, U.S. Federal Trade Commission
16:00 - 16:25
Coffee/Tea Break
Networking, Coffee Break & Lunch, Kongresshaus Zurich
16:25 - 17:45
Competition Policy Implementation Working Group, Breakout Session (5 sessions)
CPI Subgroup 1, Session 1: Institutional Setting
Working Group Room 1, Kongresshaus Zurich
Moderator:   Jungwon Song, Section Head, Korean Fair Trade Commission
Resource Persons:   Fabien Zivy, Head of Staff of the President, Autorité de la Concurrence, France

Shan Ramburuth, Commissioner, South African Competition Commission

CPI Subgroup 1, Session 2: Compliance with remedies and sanctions – design, monitoring compliance and enforcement of decisions
Working Group Room 2, Kongresshaus Zurich
Moderator:   William Kovacic, Commissioner, U.S. Federal Trade Commission
Resource Persons:   Carlos Esteva Mosso, Acting Director, European Commission, DC Competition

Tsutomu Nakato, Hibiya Sogo Law Office, Japan

CPI Subgroup 1, Session 3: Ex-post evaluation – macro evaluation – broad evaluation; impact in consumers; what are the benefits the agencies’ decision give to society (assessment)
Working Group Room 3, Kongresshaus Zurich
Moderator:   Barış Ekdi, Competition Expert, Turkish Competition Authority
Resource Persons:   Celina Escolan, President, El Salvador Superintendency of Competition

John Fingleton, CEO, U.K. Office of Fair Trading

Kazuhiko Takeshima, Chairman, Japan Fair Trade Commission

CPI Subgroup 2, Session 1: The assessment of technical assistance needs of developing agencies
Working Group Room 5, Kongresshaus Zurich
Moderator:   Joszef Sarai, Section Head, Hungarian Competition Authority
Resource Persons:   Vladimir Kachelin, Assistant to the Head, Federal Antimonopoly Service of the Russian Federation

Hilary Jennings, Organization for Economic Cooperation and Development

George Lipmile, United Nations Commission on Trade and Development

CPI Subgroup 2, Session 2: ICN experience-sharing in cyberspace: the on-line discussion forum
Working Group Room 6, Kongresshaus Zurich
Moderator:   Mariana Tavares, Section Head, Portuguese Competition Authority
Resource Persons:   Kenneth Smith Ramos, Director General, Federal Competition Commission, Mexico

Russel Damtoft, Associate Director, U.S. Federal Trade Commission

Eleanor M. Fox, New York University School of Law

17:45 - 18:00
Confirmation of ICN Steering Group: 2009-2011 (ICN members only)
Plenary, Kongresshaus Zurich
18:00 - 23:00
Dinner on the Mountain (ICN conference attendees and companions)
Hosted by the Swiss Competition Commission
At Uto Kulm, Zurich

Friday, June 5, 2009
08:30 - 09:00
Coffee/Tea Break
Networking, Coffee Break & Lunch, Kongresshaus Zurich
09:00 - 12:15
“Interactive ICN – Maximising Network Effects”
Panel and Plenary Sessions on Vice-Chairs’ present and future work and ideas for assisting and supporting member agencies
Plenary, Kongresshaus Zurich
09:00 - 10:45
“Interactive ICN – Maximising Network Effects”
Panel Discussion
Moderator:   Philip Collins, Chairman, U.K. Office of Fair Trading
Panelists:   William E. Kovacic, ICN Vice-Chair for Outreach; Commissioner, U.S. Federal Trade Commission
   Eduardo Pérez Motta, ICN Vice-Chair of International Coordination; President, Commission on Competition, Mexico
   Kazuhiko Takeshima, ICN Vice-Chair of Advocacy and Implementation; Chairman, Japan Fair Trade Commission
   Eleanor M. Fox, New York University School of Law
   Tommy Deza Sandoval, Legal Adviser, Sala de Defensa de la Competencia, Peru
   Chuan Leong Lam, Chairman, Competition Commission of Singapore
   David Miller, Executive Director, Jamaica Fair Trading Commission
10:45 - 11:15
Coffee/Tea Break
Networking, Coffee Break & Lunch, Kongresshaus Zurich
11:15 - 12:15
“Interactive ICN – Maximising Network Effects”
Plenary Session & Discussion, Continued
Plenary, Kongresshaus Zurich
12:15 - 13:15
Report Back, Adoption of Work and Future Work plans (including presentation from the Egyptian Competition Authority on 2009 Cartel workshop)
Plenary, Kongresshaus Zurich
13:15 - 13:45
Closing Ceremony
Plenary, Kongresshaus Zurich
Walter A. Stoffel, Chairman, Swiss Competition Commission
David Lewis, Interim Chair, Steering Group, International Competition
Fevzi Özkan, Vice President, Turkish Competition Authority
13:45 - 14:45
Lunch
Networking, Coffee Break & Lunch, Kongresshaus Zurich
15:00 - 18:00
Sightseeing Tour Zurich (ICN conference attendees and companions; limited Registration)
Main Entrance, Kongresshaus Zurich

June 2, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, June 1, 2009

Assessing the Antitrust Case Against the Bowl Championship Series

Posted by D. Daniel Sokol

Andrew Zimbalist (Smith College - Econ) writes on Assessing the Antitrust Case Against the Bowl Championship Series.

ABSTRACT: In an uncertain world, one predictable event is that the Bowl Championship Series (“BCS”) perennially engenders widespread skepticism and strident criticism. In 2008-09, Florida (13-1) beat Oklahoma (12-2) to win the putative college football national championship. No one disputes that Florida and Oklahoma were among the nation’s best teams, but Utah (13-0), USC (12-1), and Texas (12-1) all feel they deserved a shot at the title. Indeed, Texas even beat Oklahoma in a regular season game.

This year, the president of the United States is also weighing in. President Obama stated: “If I’m Utah, or if I’m USC or if I’m Texas, I might still have some quibbles. That’s why we need a playoff.”

In place since 1998, the BCS purports to determine the national champion in college football, while preserving the century-old system of postseason bowl games. To make its determination of which teams go to the championship game, the BCS employs the USA Today Coaches Poll, the Harris Interactive College Football Poll, and an average of six computer rankings...

Does the BCS violate U.S. antitrust laws and is it vulnerable to an antitrust challenge?


June 1, 2009 | Permalink | Comments (0) | TrackBack (0)

Economic Theory And Competition Law

Posted by D. Daniel Sokol

Recently out is Economic Theory And Competition Law, edited by Josef Drexl (Max Planck Institute). 

BOOK ABSTRACT: It is a fact that economics matters when it comes to competition law. Yet, the context for this book is the increasingly complex relationship of economic theory and competition law which gives rise to lively political and academic debate about the direction competition law should take in a more global and innovation-oriented market place. Adopting a comparative background, taking into account different situations in the US, Europe, Japan, transition and developing countries, the contributors to the book investigate the impact of economics on the objectives of competition law both in various fields of competition law enforcement – restrictive agreements, unilateral restraints, merger control – and on the effectiveness of enforcement in a given legal and judicial system.


Contents: Preface Part I: The Goals of Competition Law – A Comparative Perspective Part II: The Status of Efficiency Analysis in Competition Law Part III: Economic Analysis and Competition Law in Practice Part IV: Guest Speech Index Contributors: M. Chagny, T. Eilmansberger, H.W. Friederiszick, M.-A. Frison-Roche, M.S. Gal, D.J. Gerber, T.L. Greaney, S. Hayashi, W. Kerber, B. Lasserre, A. Louvaris, G. Parr, A. Perrot, H. Schweitzer, L. Tichý, R. Zäch, D. Zimmer

June 1, 2009 | Permalink | Comments (0) | TrackBack (0)

Two-Sided Market Definition

Posted by D. Daniel Sokol

David S. Evans, University College, London, University of Chicago Law School, LECG explains Two-Sided Market Definition.

ABSTRACT: This paper addresses the analysis of market definition when the parties involved in an antitrust or merger analysis include one or more two-sided platforms. We discuss how standard market definition measures such as SSNIP tests, diversion ratios, and conditional logit demand analyses have to be modified to account for the unique characteristics of two-sided platforms. We also review how market definition of two- sided platforms was treated in recent US and EC case law.

June 1, 2009 | Permalink | Comments (0) | TrackBack (0)