Antitrust & Competition Policy Blog

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

A Member of the Law Professor Blogs Network

Monday, August 2, 2010

Recent Developments in Brazilian Competition Law and Policy

Posted by D. Daniel Sokol

Caio Mário da Silva Pereira Neto & Paulo Leonardo Casagrande, Brasil, Pereira Neto, Galdino, Macedo Advogados discuss Recent Developments in Brazilian Competition Law and Policy.

ABSTRACT: Nowadays, Brazil is considered an increasingly sophisticated jurisdiction in competition law matters. The Brazilian competition authorities are internationally recognized for a strong and creative cartel enforcement program and their efforts to streamline merger review procedures. They are also respected in other parts of the government, by the courts, and by the business community.

More recently, the Brazilian competition agencies have been implementing some very important initiatives to further increment the effectiveness of their enforcement activities. New investigative techniques, increased co-operation with criminal and foreign enforcement agencies, better working methods, and enhanced transparency are just some of these initiatives.

The present article aims at providing a brief summary of such recent developments. In order to do so, it will focus on the following topics: (i) institutional aspects of the Brazilian competition policy; (ii) recent antitrust policy developments; and (iii) summary of conclusions and legislative discussions.

August 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Intellectual Property and Refusal to Deal: 'Ad Hoc' v. 'Categorical' Balancing

Posted by D. Daniel Sokol

Francesco Denozza, University of Milan addresses Intellectual Property and Refusal to Deal: 'Ad Hoc' v. 'Categorical' Balancing.

ABSTRACT: The tension that exists between the goals pursued by antitrust and the intellectual property right laws reaches its peak when refusal to deal by a dominant firm holding an intellectual property right occurs. The paper argues that in such a case as this, a conflict arises between principles and goals neither of which is able to trump the other. It would therefore be necessary to resort to a balancing. The distinction between "ad hoc" and "categorical" balancing, as well as the distinction between balancing of effects and balancing of interests, are theoretically illustrated. The balancing proposed by the European Commission and the balancing mentioned by the Court of First Instance in the Microsoft case are examined. The paper maintains that the assessment of the abusive nature of the refusal implies a balancing not between effects (as in the test proposed by the Commission) but between interests which pertain to different groups of consumers (making the notions of consumer welfare and of consumer detriment constructed by the Commission and the Court on the implied premise that all the consumers can be treated as a single body, inappropriate). The paper also argues that a categorical balancing could ensure a better compromise between the interests of the different groups of consumers which come into conflict, rather than the compromise reached by the "ad hoc" balancing used by the Commission. A parameter for a categorical balancing is then proposed.

August 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Expansion and Contraction in Monopolization Law

Posted by D. Daniel Sokol

Michal S. Gal, University of Haifa - Faculty of Law, New York University, Avishalom Tor, University of Haifa - Faculty of Law, and Spencer Weber Waller, Loyola University Chicago School of Law describe Expansion and Contraction in Monopolization Law.

ABSTRACT: This article introduces a special symposium issue of the Antitrust Law Journal based on a conference on monopolization. It argues that monopolization law has been experiencing simultaneous expansion and contraction processes that are not wholly contradictory but at least partly complementary. Specifically, the authors suggest that the contraction of monopolization law in the United States and the EU might serve to facilitate its expansion and increased importance worldwide, providing other antitrust regimes with more focused and effective tools to address the challenges involved in regulating dominant firms. Moreover, monopolization law's increased reach internationally also has made its refinement and rationalization all the more important for jurisdictions seeking to avoid the harmful chilling effects associated with excessive enforcement in this area. Finally, the contraction of monopolization law might also be motivated by external pressures, resulting from spillover effects. A better understanding and evaluation of these expansion and contraction trends is therefore likely to necessitate their joint rather than separate evaluation in future antitrust scholarship.


 

August 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Most Downloaded Antitrust Papers on SSRN - June 2, 2010 to August 1, 2010

Posted by D. Daniel Sokol

Rank Downloads Paper Title
1 480 Taking a Sack: The NFL and its Undeserved Tax-Exempt Status
Andrew B. Delaney,
Vermont Law Review,
Date posted to database: May 13, 2010
Last Revised: May 26, 2010
2 188 An Antitrust Analysis of the Federal Trade Commission’s Complaint Against Intel
Joshua D. Wright,
George Mason University - School of Law, Faculty,
Date posted to database: June 14, 2010
Last Revised: June 14, 2010
3 164 Explaining the Importance of Public Choice for Law
D. Daniel Sokol,
University of Florida - Levin College of Law,
Date posted to database: June 16, 2010
Last Revised: June 30, 2010
4 137 Antitrust, Institutions, and Merger Control
D. Daniel Sokol,
University of Florida - Levin College of Law,
Date posted to database: June 16, 2010
Last Revised: June 26, 2010
5 124 European Competition Law & Control of Energy Market Restructuring
Michael D. Diathesopoulos,
University of Cambridge - Faculty of Law,
Date posted to database: June 24, 2010
Last Revised: July 19, 2010
6 123 European Energy Market After Deregulation: A Process of Limited Restructuring and the Role of European Competition Law
Michael D. Diathesopoulos,
University of Cambridge - Faculty of Law,
Date posted to database: June 24, 2010
Last Revised: July 20, 2010
7 114 When a Monopolist Deceives
Maurice E. Stucke,
University of Tennessee College of Law,
Date posted to database: July 18, 2010
Last Revised: July 18, 2010
8 100 The Microsoft Case as a Political Trial
William H. Page, John E. Lopatka,
University of Florida - Fredric G. Levin College of Law, Pennsylvania State University - Dickinson School of Law, University Park,
Date posted to database: June 8, 2010
Last Revised: June 8, 2010
9 97 An Evaluation of the Rights of Defense During Antitrust Inspections In the Light of the Case Law of the ECTHR: Would the Accession of the European Union to the ECHR Bring About a Significant Change?
Charlotte Leskinen,
Instituto de Empresa,
Date posted to database: May 29, 2010
Last Revised: May 29, 2010
10 89 The Economics of Payment Card Interchange Fees and the Limits of Regulation
Todd J. Zywicki,
George Mason University - School of Law, Faculty,
Date posted to database: June 14, 2010
Last Revised: July 20, 2010

August 2, 2010 | Permalink | Comments (0) | TrackBack (0)

How Many Markets are Two-Sided?

Posted by D. Daniel Sokol

Lapo Filistrucchi, Tilburg Univ. & Univ. of Florence asks How Many Markets are Two-Sided?

ABSTRACT: There is a lot of talk nowadays, among competition policy practitioners, about two-sided markets and two-sided platforms. It is indeed one of the hot topics. Part of the interest arises from it being a relatively new concept and part is due to the claim from many economists that competition policy for two-sided markets should be different than for traditional one-sided markets.

For instance, a price below marginal cost should not be perceived as a sign of a predatory attempt even if charged by a dominant firm, or a high profit margin should not be considered a sign of market power. Indeed, these are two among the eight fallacies of a one-sided approach to competition policy in two-sided markets identified by Wright. And many other authors, such as Evans and Evans & Noel, have highlighted that results of economic models on which competition policy is traditionally based do not hold in two-sided markets

The reason supporting the claim that competition policy in two-sided markets should be different is, in essence, that a firm in a two-sided market needs both sides to do business or, as it is often put, it is a platform that needs to get "both sides on board." Evans & Schmalensee go as far as reminding their readers that in a two-sided market "it takes two to tango."

I will not discuss here the implications of the two-sided nature of the market for competition policy. Suffice it to say that there is growing recognition that two-sidedness should matter.

But, as the specificity of competition policy in two-sided markets is increasingly recognized, a question is more and more explicitly asked: Exactly, how many markets are two-sided?

Indeed, once one accepts that two-sided markets are different, one wonders whether competition authorities have, so far, been doing everything wrong.

August 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Collective Antitrust Damages Actions in the EU: The Opt-In v. The Opt-Out Model

Posted by D. Daniel Sokol

Charlotte Leskinen, Instituto de Empresa, compares Collective Antitrust Damages Actions in the EU: The Opt-In v. The Opt-Out Model.

ABSTRACT: The European Commission is currently trying to foster private enforcement of the EU antitrust rules since various studies have shown that the number of antitrust damages actions brought in the EU is low. It is, inter alia, proposing the introduction of opt-in collective actions and representative actions in the EU.

This paper aims to demonstrate that the Commission is wrong to completely exclude collective actions based on an opt-out model, which would arguably be necessary in cases involving multiple low value claims. First, the flaws in existing collective actions in a number of EU Member States and the actions proposed by the Commission will be analyzed. Second, the advantages and drawbacks of opt-out collective actions available in several Member States will be assessed. Finally, the paper will assess the feasibility of introducing opt-out collective actions in the EU and recommend what types of collective actions the EU should adopt.

August 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, August 1, 2010

19th Annual Advanced EU Competition Law, Brussels 2010 Review of major developments in the field of EU competition law and policy

Posted by D. Daniel Sokol

IBC Legal's 19th Annual Advanced EU Competition Law, Brussels 2010 Review of major developments in the field of EU competition law and policy

Tuesday 23rd & Wednesday 24th November 2010 - Le Plaza, Brussels, Belgium

Keep up to date with the latest essential developments, find out what you should be doing differently and network with the large number of delegates and high-profile speakers by attending Europe's definitive competition law conference.

Highlights for 2010:

  • Review of case law and policy issues 2009 - 2010
  • The Commission's priorities and future policies
  • Article 101 and Article 102 developments
  • Cartel settlement
  • Cartel enforcement and leniency
  • Cartel investigations
  • Mergers
  • Horizontal agreements
  • Vertical restraints
  • State aid

Download the detailed programme here

Your speaker line-up includes:

  • Ewoud Sakkers, Head of Unit, Directorate G - Cartels, DG Competition, European Commission, Brussels
  • Henning Leupold, Policy Analyst, Antitrust & Mergers Policy & Scrutiny, DG Competition, European Commission, Brussels
  • Eirik Stolt-Nielsen, Director of Investigations, Norwegian Competition Authority, Bergen
  • Christof Vollmer, Rapporteur 11th Decision Division, Bundeskartellamt, Bonn
  • Sheldon Mills, Director of Mergers, OFT, London
  • Antonio Capobianco, Senior Competition Law Expert, Competition Division, OECD, Paris
  • Juliette Enser, Assistant Director, CCEG, OFT, London
  • Frank Govaerts, Vice President & General Counsel, Coca-Cola Enterprise EU Group, Brussels
  • Laurent Geelhand, General Counsel Europe, Michelin Group, Clermont-Ferrand
  • Jean-Yves Art, Professor, College of Europe, Brugge, Associate General Counsel, Microsoft, Brussels
  • Jörn Eickhoff, Senior Counsel, Siemens AG, Munich
  • Lars Peter Munch Larsen, Attorney-at-law, Post Danmark A/S, Copenhagen
  • Cristina Caffarra, Vice President, Charles River Associates, London & Brussels

Plus, senior representatives from these organisations:
WilmerHale,   Linklaters,   Latham & Watkins,   Freshfields Bruckhaus Deringer,   Covington & Burling,   Arnold & Porter,  Clifford Chance,   Lear,   Kings' College London,  Hogan Lovells…  The full speaker list and detailed programme is here.

Accreditation: 12 SRA and Bar Council hours

To benefit from the £200 early bird saving or to find out more:

- Visit the website

- Email IBC Legal

- Call +44 (0) 20 7017 5503

You will need to quote VIP Code: WPRHSHK in all correspondence.

August 1, 2010 | Permalink | Comments (0) | TrackBack (0)