Antitrust & Competition Policy Blog

Recent Judgments Regarding Transparency and Access to Documents in the Field of Competition Law: Where Does the Court of Justice of the EU Strike the Balance?

Posted by D. Daniel Sokol

Gaëtane Goddin (U. Saint Louis and DG Comp) asks Recent Judgments Regarding Transparency and Access to Documents in the Field of Competition Law: Where Does the Court of Justice of the EU Strike the Balance?

ABSTRACT: After a brief overview of the rules applicable to access to the documents under the Transparency Regulation (1049/2001), and those applicable to access to the Commission file under competition law, this article analyses the recent case law of the Court of Justice of the EU concerning the application of the Transparency Regulation in competition cases. It argues that there is tension between the recent case law of the General Court and that of the Court of Justice, as the former appears to interpret the exceptions to the right of access to documents strictly while the latter appears to take a more holistic approach and recognises the need to interpret these exceptions so as not to deprive other rules (such as the rules on access to the file in State aid cases, the data protection rules, the Statute of the Court of Justice and the EU Courts' Rules of Procedure) of their ‘effet utile’.

Competition Law and the State, 18 & 19 March 2011, Hong Kong (New and Larger Venue)

Posted by D. Daniel Sokol

Competition Law and the State, 18 & 19 March 2011, Hong Kong (New and Larger Venue)

NEW CONFERENCE VENUE: We have outgrown our room at the University of Hong Kong but have managed to secure space at the premier HK conference venue, The Hong Kong Convention & Exhibition Centre (HKCEC). We will be in room S221 on the 2nd level.

Conference Schedule
Friday 18 March 2011
08:30	Registration
09.00	Welcome and Introduction Professor Dame Hazel Genn DBE QC (Dean, UCL Faculty of Laws) & Professor Johannes Chan (Dean, The University of Hong Kong Faculty of Law) Dr Ioannis Lianos (UCL, Co-Director, Global Competition Law and Economics Series) Professor Daniel Sokol (University of Florida, Co-Director, Global Competition Law and Economics Series)
09:15	Official Address:
	Mr Gregory So (Under Secretary for Commerce and Economic Development, Hong Kong Special Administrative Region)
09:30	KEYNOTE ADDRESS: Government in Markets Keynote Speaker: John Fingleton (Chairman, UK Office of Fair Trading) Chair: Judge Frederic Jenny (Cour de Cassation and Chairman, OECD Competition Committee) Respondents: Allan Fels (Dean, Australian and New Zealand School of Government (ANZSOG)) William Kovacic (Commissioner, Federal Trade Commission) Eduardo Pérez Motta (President, Federal Competition Committee, Mexico) Followed by discussion
10:45	COFFEE BREAK
11:00	SESSION 1: Controlling anticompetitive action by the State: ex ante approaches (competition advocacy, competitive neutrality, competition law assessment of projected legislation) Chair: William Kovacic (Commissioner, Federal Trade Commission) Panelists: Joseph P Bauer (Professor of Law, The University of Notre Dame Law School) Michiyo Hamada (Commissioner, Japan Fair Trade Commission (JFTC)) Gert-Jan.Koopman (Deputy Director General (State Aids) European Commission - OECD) Simon Milnes (Infrastructure, Competition and Consumer Division, the Australian Treasury) Eduardo Pérez Motta (President, Federal Competition Committee, Mexico)
13:00	The Baker & McKenzie Speakers' Lunch Light Lunch for other attendees
14:00	SESSION 2: Competition law and state regulation: Setting the stage and focus on state-owned companies Chair: Gert-Jan.Koopman (Deputy Director General (State Aids) European Commission - OECD) Panelists: Gregory Leonard (Senior Vice-President, NERA) Yena Lim Hua Yen (Chief executive, Competition Commission of Singapore) Tony Prosser (Professor of Law, University of Bristol, Law School) Huang Yong (Professor of Law, University of International Business and Economics (UIBE) School of Law, Beijing) Georgina Foster (Partner, Baker & McKenzie LLP (Sydney))
15:45	COFFEE BREAK
16:00	SESSION 3: Controlling anticompetitive action by the State: ex post approaches (state aids, state action doctrine, state sponsored cartels and anticompetitive practices) Chair: Dhanendra Kumar (Chairman, Competition Commission of India) Panelists: Thomas Cheng (Assistant Professor of Law, The University of Hong Kong Faculty of Law) Michal Gal (Professor of Law, University of Haifa) Damien Geradin (University of Tilburg & Covington & Burling LLP) Gavin Robert (Partner, Linklaters LLP) Willard Tom (General Counsel, US Federal Trade Commission)
17:30	COFFEE BREAK
17:45	SESSION 4: Authorities Roundtable Exemptions from the application of competition law / the challenge of applying competition law to foreign state activities: comparative and international perspectives Chair: Allan Fels (Dean, Australian and New Zealand School of Government (ANZSOG)) Panelists: Gert-Jan.Koopman (Deputy Director General (State Aids) European Commission - OECD) Dhanedra Kumar (Chairman, Competition Commission of India) Jianhui Yang (Anti-Monopoly Bureau, MOFCOM) Yena Lim Hua Yen, (Chief Executive, Competition Commission of Singapore)
19:30	Close of Day one
Saturday 19 March - Competition law and the challenge of the evolving definition and structure of State activities
09:30	Registration and refreshments
10:00	SESSION 5: Competition law and private regulation: Self-regulation by professional associations, regulation by trade associations or voluntary agreements promoting public interest Chair: Eduardo Pérez Motta (President, Federal Competition Committee, Mexico) Panelists: Assimakis Komninos (Commissioner, Hellenic Competition Commission) Ioannis Lianos (UCL Faculty of Laws) Paul Lugard (TBC) (former Head of Antitrust, Philips; Vice-Chair, Competition Commission BIAC; Lecturer Tilburg University) D. Daniel Sokol, (Professor of Law, Levin College of Law, University of Florida) Mark Williams (Professor of Law, The Hong Kong Polytechnic) Shiying Xu (Institute of Competition Law, East China University of Political Science and Law)
11:30	Coffee Break
11:45	SESSION 6 The interaction between competition law and regulatory alternatives (networks: broadcasting, digital media, infrastructure / energy) Chair: Gert-Jan Koopman (Deputy Director General (State Aids), European Commission) Panelists: Nick Economides (Professor of Economics, Stern Business School, NYU) Geoff Edwards (Vice-President, Charles River Associates) Leigh Hancher (University of Tilburg & Allen & Overy LLP) Clara Ingen-Housz (Partner, Baker & McKenzie LLP (Hong Kong)) Franz Jürgen Säcker (Professor of Law, Freien Universität Berlin)
13:20	LUNCH
14:30	SESSION 7: The interaction between competition law and regulatory alternatives II (credence goods: healthcare and financial services) Chair: Willard Tom (General Counsel, US Federal Trade Commission) Panelists: Alberto Heimler (Professor of Economics, Advanced School of Public Administration, Government of the Italian Republic) Ioannis Kokkoris (University of Reading Law School) William Kovacic (Commissioner, Federal Trade Commission) David Stallibrass (Director, Markets and Projects: Services, UK Office of Fair Trading)
16:15	Break
16:30	DISCUSSION: Extensions - The evolving role of the State and the impact of competition law in a globalized world: institutional solutions for dealing with tragic choices Chair: Emeritus Professor Valentine Korah (UCL Faculty of Laws) Moderator: Judge Frederic Jenny (Cour de Cassation and Chairman, OECD Competition Committee) Open discussion to the floor
17:30	Concluding remarks: Thomas Cheng (HKU), Ioannis Lianos (UCL) & Daniel Sokol (Florida)
17:45	End of conference

EU Antitrust Enforcement Powers and Procedural Rights and Guarantees: The Interplay Between EU Law, National Law, the Charter of Fundamental Rights of the EU and the European Convention on Human Rights

Posted by D. Daniel Sokol

Wouter P. J. Wils, European Commission, King's College London - School of Law has posted EU Antitrust Enforcement Powers and Procedural Rights and Guarantees: The Interplay Between EU Law, National Law, the Charter of Fundamental Rights of the EU and the European Convention on Human Rights.

ABSTRACT: This paper deals with the powers of the European Commission and the competition authorities of the EU Member States to enforce Articles 101 and 102 TFEU, and with the procedural rights and guarantees that circumscribe or limit these powers. It focuses in particular on the interplay between the different sources of law governing these matters: EU and national legislation, the Charter of Fundamental Rights of the EU, the European Convention on Human Rights, and the case-law of the EU Courts and the European Court of Human Rights.

Reality Ignored: How Milton Friedman and Chicago Economics Undermined American Institutions and Endangered the Global Economy

Posted by D. Daniel Sokol

Kenneth Davidson (AAI) has a new book Reality Ignored: How Milton Friedman and Chicago Economics Undermined American Institutions and Endangered the Global Economy.

BOOK ABSTRACT: Since 1962, when Milton Friedman published Capitalism & Freedom, the Chicago School has created one side of modern American political debate. Reality Ignored describes how Friedman’s views have framed policies for every conservative politician from Barry Goldwater to Ronald Reagan to the Tea Party. This book describes how Chicago policies have damaged American society by redefining the role of federal, state, and local government, by persuading American businesses to focus on short term profits rather than on innovation, productive efficiency and creating jobs, and by undermining the credibility of American financial markets. The book translates the technical jargon of economics and the posturing of political parties into an understandable version of the curious story of Chicago Economics. This book is a guide to those who want to understand why our society has declined in economic strength and international influence and how we might start to renew the strength of America.

Joint Ventures Under India’s Competition Act

Posted by D. Daniel Sokol

Kiran S. Desai and Manu Mohan (both Mayer Brown) have written Joint Ventures Under India’s Competition Act.  This is an article on joint venture analysis in India under the Competition Act and lessons that could be learned from Europe.

 

 

Mixed Bundling in Two-Sided Markets: Theory and Evidence

Posted by D. Daniel Sokol

Yong Chao, University of Louisville - College of Business - Department of Economics and Timothy Derdenger, Carnegie Mellon University - David A. Tepper School of Business discuss Mixed Bundling in Two-Sided Markets: Theory and Evidence.

ABSTRACT: We analyze mixed bundling in two-sided markets and find that the pricing structure deviates from traditional bundling as well as the standard two-sided markets literature – we determine prices on both sides fall with bundling. Mixed bundling acts as a price discrimination tool segmenting the market more efficiently and functions as a coordination device helping solve "the chicken or the egg" problem in two-sided markets. After theoretically evaluating the impact mixed bundling has on prices and welfare, we test the model predictions with new data from the portable video game console market. We find empirical support for all theoretical predictions.

Comparing Merger Policies in the European Union and the United States

Posted by D. Daniel Sokol

Mats A. Bergman, Södertörn University College, Stockholm, Uppsala University, Malcolm B. Coate, U.S. Federal Trade Commission (FTC), Maria Jakobsson, Stockholm University - Department of Economics, and Shawn W. Ulrick, U.S. Federal Trade Commission (FTC) take part in Comparing Merger Policies in the European Union and the United States.

ABSTRACT: We collect a sample of EU and US merger investigations, estimate models of the regulatory decisions, and use the models to compare merger policies. Our approach allows us to decompose observed differences into policy effects and case-mix effects. Focusing on dominance mergers, we find that the EU is tougher than the US on average, in particular for mergers resulting in moderate market shares. However, the US appears to be more aggressive for coordinated interaction and nondominance unilateral effects cases.Overall, our analysis detects substantial differences in policies, but it does not classify one regime as being more aggressive than the other.

Upon Further Review: Will The NFL's Trademark Licensing Practices Survive Full Antitrust Scrutiny? The Remand of American Needle v. National Football League

Posted by D. Daniel Sokol

Marc Edelman, Barry Law School asks Upon Further Review: Will The NFL's Trademark Licensing Practices Survive Full Antitrust Scrutiny? The Remand of American Needle v. National Football League.

ABSTRACT: On May 24, 2010, the U.S. Supreme Court ruled in the case American Needle v. Nat’l Football League that the National Football League’s trademark licensing practices are subject to review under Section 1 of the Sherman Act. This ruling reversed an earlier decision by the U.S. Court of Appeals for the Seventh Circuit, which had held that the National Football League’s trademark licensing practices are exempt from Section 1 scrutiny.

In light of the Supreme Court’s recent decision in American Needle, this article explores whether the National Football League’s trademark licensing practices could survive a full antitrust review under Section 1 of the Sherman Act. Part I of this article introduces both the National Football League's trademark licensing practices and Section 1 of the Sherman Act. Part II discusses the pleadings and preliminary arguments made by the parties in American Needle. Part III explains why the Supreme Court recently held that the National Football League’s trademark licensing practices are subject to a full antitrust review under Section 1 of the Sherman Act. Part IV explores the steps that a district court should take to review the National Football League’s trademark licensing arrangement. Finally, Part V concludes that there is a small but reasonable chance that the U.S. District Court for the Northern District of Illinois would find that the National Football League’s trademark licensing practices violate Section 1 of the Sherman Act.

NDRC's Antitrust Enforcement Decisions

Posted by D. Daniel Sokol

Michael Zhengping Gu (Zhong Lun Law Firm) has posted on NDRC's Antitrust Enforcement Decisions.

ABSTRACT: Unlike the Ministry of Commerce ("MOFCOM"), which is in charge of merger control, the National Development and Reform Commission ("NDRC") and the State Administration for Industry and Commerce ("SAIC"), which are respectively responsible for regulating price-related and non-price-related anticompetitive practices, have been regarded as relatively conservative in enforcing the Anti-Monopoly Law ("AML"). At the time of writing, SAIC has yet to announce any antitrust infringement decision or investigation since the AML came into force. In contrast, NDRC has published a few decisions and conducted investigations against enterprises and industry associations engaging in cartels or abusive conducts since early 2010. Although the deterrent effect might be questionable, given that the sanctions imposed in these cases were moderate in terms of the amount of fines, there are clear indications that NDRC is intending to actively exercise its powers. This article will discuss some notable cases announced by NDRC and analyze their underlying legal implications.

Technology Adoption in Standard Setting Organizations: A Model of Exclusion with Complementary Inputs and Hold-Up

Posted by D. Daniel Sokol

Emanuele Tarantino, University of Bologna - Department of Economics, Tilburg Law and Economics Center (TILEC) writes on Technology Adoption in Standard Setting Organizations: A Model of Exclusion with Complementary Inputs and Hold-Up.

ABSTRACT: I analyze technology adoption in a standardization consortium composed by a majority of vertically-integrated firms and a pure innovator, and its implications for social welfare. Like in most certification bodies, parties negotiate over the royalties after manufacturers' technology adoption, and this generates a hold-up problem. Integrated operators can employ a standard with their inputs and circumvent the hold-up problem, or buy from the specialized firm and enjoy the cost-savings produced by its technology. I show that cross-licensing may lead to the inefficient exclusion of the pure innovator and that a policy of early-licensing commitments would result in efficient adoption choices.

Empirical Analysis of Inter-Firm Rivalry between Japanese Full-Service and Low-Cost Carriers

Posted by D. Daniel Sokol

Hideki Murakami, Kobe University undertales an Empirical Analysis of Inter-Firm Rivalry between Japanese Full-Service and Low-Cost Carriers.

ABSTRACT: This paper empirically analyzes dynamic change in inter-firm rivalry between Japanese low-cost carriers (LCC) and full-service carriers, and deduces the dynamic change in consumer surplus after an LCC enters a market. Our findings are that: (i) the conduct parameters of LCC and reacting full-service carriers were extraordinarily low when competition started; (ii) the conduct parameters were restored to, or even exceeded, the pre-entry level in the third year of LCC entry; and (iii) gains in total welfare were recognized for five of the nine markets, whereas in three markets only the airline industry benefited, and in one market, total welfare decreased.

Oligopoly as a Socially Embedded Dilemma: An Experiment

Posted by D. Daniel Sokol

Christoph Engel, Max Planck Institute for Research on Collective Goods and Lilia Zhurakhovska, describe Oligopoly as a Socially Embedded Dilemma: An Experiment.

ABSTRACT: From the perspective of competitors, competition may be modeled as a prisoner’s dilemma. Setting the monopoly price is cooperation, undercutting is defection. Jointly, competitors are better off if both are faithful to a cartel. Individually, profit is highest if only the competitor(s) is (are) loyal to the cartel. Yet collusion inflicts harm on the opposite market side and, through the deadweight loss, on society at large. Moreover, almost all legal orders combat cartels. Through the threat with antitrust intervention, gains from cooperation are uncertain. In the field, both qualifications combine. To prevent participants from using their world knowledge about antitrust, we experimentally test them on a neutral matrix game, with either a negative externality on a third participant, uncertainty about gains from cooperation, or both. Uncertainty dampens cooperation, though only slightly. Surprisingly, externalities are immaterial. If we control for beliefs, they even foster cooperation. If we combine both qualifications and do not control for beliefs, we only find an uncertainty effect. If we add beliefs as a control variable, we only find that externalities enhance cooperation, even if gains from collusion are uncertain. Hence the fact that the dilemma of oligopolists is socially embedded matters less than one might have expected.

Airport Congestion Pricing and its Welfare Implications: The Case of Variable Passenger Time Costs

Posted by D. Daniel Sokol

Andrew Yuen, Chinese University of Hong Kong (CUHK) and Anming Zhang, University of British Columbia - Sauder School of Business explore Airport Congestion Pricing and its Welfare Implications: The Case of Variable Passenger Time Costs.

ABSTRACT: This paper develops an analytical framework for airport congestion pricing by considering variable passenger time costs. We find that, first, congestion delays will not be fully internalized at the carrier level under different market structures, including those airports dominated by a monopoly airline. Therefore, congestion pricing is necessary regardless of the market structures. Second, although congestion pricing is welfare-improving, it may not be Pareto-improving. This might explain why congestion pricing is unpopular in the real world.

Estimation of cost synergies from mergers without cost data: Application to U.S. radio

Posted by D. Daniel Sokol

Przemyslaw Jeziorski (Johns Hopkins) has posted Estimation of cost synergies from mergers without cost data: Application to U.S. radio.

ABSTRACT: This paper develops a new way to estimate cost synergies from mergers without using actual data on cost. The estimator uses a structural model in which companies play a dynamic game with endogenous mergers and product repositioning decisions. Such a formulation has several benefits over the widespread static merger analysis. In particular, it corrects for sample selection of more profitable mergers and captures follow-up mergers and post-merger product repositioning. The framework is applied to estimate cost efficiencies after the deregulation of U.S. radio in 1996. The procedure uses the data on radio station characteristics and numerous acquisitions, without explicit need for cost data. It turns out that between 1996 and 2006 additional ownership concentration generated $2.5b per-year cost savings, which is about 10% of total industry revenue.

Kovacic to Give 2011 Bayard Wickliffe Heath Memorial Lecture at the University of Florida Levin College of Law

Posted by D. Daniel Sokol

I am pleased to announed that Commissioner Bill Kovacic of the FTC will present this spring’s Bayard Wickliffe Heath Memorial Lecture titled “From Dominance to Oligopoly: The United States and the Future Development of Global Competition Policy Standards” at the University of Florida Levin College of Law at noon March 14, 2011 in the new courtroom at the Martin H. Levin Advocacy Center.The lecture is free and open to the public.

Competition Policy Institutional Design in the UK

Posted by D. Daniel Sokol

Laura Carstensen (CC) gave an interesting speech to the Association of Corporate Counsel Europe Seminar that is worth reading.

The Rise of European Competition Policy, 1950-1991: A Cross-Disciplinary Survey of a Contested Policy Sphere

Posted by D. Daniel Sokol

Laurent Warlouzet (European University Institute) examines The Rise of European Competition Policy, 1950-1991: A Cross-Disciplinary Survey of a Contested Policy Sphere.

ABSTRACT: Competition policy is perhaps the field in which the European Commission has the most extensive powers. Born institutionally in 1950, European competition policy now has a sixty year-long history. This paper argues that its history has not been peaceful, and that it has been characterized by heated debates. In a first methodological part, an assessment is made of the growing multidisciplinary academic debates relating to this topic. A claim for a methodology combining historical sources (archives) and a focus on the relationship between ideas and institutions. Then the paper turns to an empirical application of the methodology just described. In particular, it examines the history of European competition policy, using new archival findings in three steps: the institutional basis in 1950-62 (part II); the failure of the neo-functionalist momentum in 1962-81 (part III); and the rise of a powerful policy in 1981-91 (part IV).

Adding Antitrust to NDRC's Arsenal

Posted by D. Daniel Sokol

Nathan Bush & Yue Bo (O'Melveny & Myers) discuss Adding Antitrust to NDRC's Arsenal.

ABSTRACT: On December 29, 2010, the National Development and Reform Commission ("NDRC")
released the Anti-Price Monopoly Regulation and the Regulation on the Anti-Price
Monopoly Administrative Enforcement Procedure ("NDRC Procedural Regulation").
Finalizing these measures signifies a new phase in NDRC's enforcement of the
Anti-Monopoly Law ("AML") with respect to price-related violations of the rules
against "monopoly agreements," "abuse of dominance," and "administrative
monopoly." The new measures, however, are less revolutionary than cautiously
evolutionary.

In an era when Beijing's policymaking climate favors robust industrial policy
and selective adaption of Western regulatory practices, NDRC has now integrated
its new role as an antitrust enforcer with its longstanding roles as a price
regulator and economic planner. NDRC's initial AML enforcement efforts
dovetailed with its standing goals of curbing inflation and its established
enforcement practices. Whether NDRC's future AML enforcement focuses on consumer
welfare and economic efficiency or reinforces NDRC's broader agenda of
industrial policy and socioeconomic stabilization remains to be seen.

Corporate Leniency with Private Information: The Push of Prosecution and the Pull of Pre-emption

Posted by D. Daniel Sokol

Joe Harrington (Johnhs Hopkins - Econ) has posted the very interesting Corporate Leniency with Private Information: The Push of Prosecution and the Pull of Pre-emption.  This adds to Joe's overall impressive set of papers on leniency.

ABSTRACT: A corporate leniency program provides relief from government penalties to the first member of a cartel to come forward and cooperate with the authorities. This study explores the incentives to apply for leniency when each cartel member has private information as to the likelihood that the competition authority will be able to convict them without a cooperating firm. A firm may apply for leniency because it fears being convicted or because it fears another firm will apply. Policies by the competition authority to magnify concerns about pre-emption - and thereby induce greater use of the leniency program - are explored.

Networks of Collaboration in Multi-market Oligopolies

Posted by D. Daniel Sokol

Pascal Billand, Christophe Bravard, Subhadip Chakrabarti, and Sudipta Sarangi describe Networks of Collaboration in Multi-market Oligopolies.

ABSTRACT: The result that firms competing in a Cournot oligopoly with pairwise collaboration form a complete network under zero or negligible link formation costs provided by Goyal and Joshi (2003) no longer hold in multi-market oligopolies. Link formation in one market affects a firm’s profitability in another market in a possibly negative way resulting in the fact that it is no longer always profitable in an unambiguous manner. With non-negative link formation costs, the stable networks have a dominant group architecture and efficient networks are charecterized by at most one non-singleton component with a geodesic distance between players that is less than three.