Antitrust & Competition Policy Blog

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

A Member of the Law Professor Blogs Network

Tuesday, November 15, 2011

ASEAN Competition Conference “Fostering the Promotion of Competition Policy for Regional Development” Bali, 15-16 November 2011

Posted by D. Daniel Sokol

You can get details of the ASEAN Competition Conference “Fostering the Promotion of Competition Policy for Regional Development” Bali, 15-16 November 2011 here.

November 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Covert networks and antitrust policy

Posted by D. Daniel Sokol

Flavia Roldan (IESE Business School) describes Covert networks and antitrust policy.

ABSTRACT: This paper studies the effectiveness of two different antitrust policies by characterizing the network structure of market-sharing agreements that arises under those settings. Market-sharing agreements prevent firms from entering each other's market. The set of these agreements defines a collusive network, which is pursued by antitrust authorities. This article shows that under a constant probability of inspection and a penalty equal to a firm's limited liability, firms form collusive alliances where all of them are interconnected. In contrast, when the antitrust policy reacts to prices in both dimensions - probability of inspection and penalty - firms form collusive cartels where they are not necessarily fully interconnected. This implies that more competitive structures can be sustained in the second case than in the first case. Notwithstanding, antitrust laws may have a pro-competitive effect in both scenarios, as they give firms in large alliances more incentives to cut their agreements at once.

November 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Intellectual Property, Competition Law and Economics in Asia

Posted by D. Daniel Sokol

Ian McEwan (NUS Law) has edited Intellectual Property, Competition Law and Economics in Asia.

BOOK ABSTRACT: This book results from a conference held in Singapore in September 2009 which brought together distinguished lawyers and economists to examine the differences and similarities in the intersection between intellectual property and competition laws in Asia. The prime focus was how best to balance these laws to improve economic welfare. Countries in Asia have different levels of development and experience with intellectual property and competition laws. Japan has the longest experience and now vigorously enforces both competition and intellectual property laws. Most other countries in Asia have only recently introduced intellectual property laws (due to the TRIPS Agreement) and competition laws (sometimes due to the World Bank, IMF or free trade agreements). It would be naive to think that laws, even if similar on the surface, will have the same goals or be enforced similarly. Countries have differing degrees of acceptance of these laws, different economic circumstances and differing legal and political institutions. To set the scene, Judge Doug Ginsberg, Greg Sidak, David Teece and Bill Kovacic look at the intersection of intellectual property and competition laws in the US. Next, country chapters on Asia are written, jointly, by two authors (one a lawyer, the other an economist). The country chapters outline the institutional background to the intersection in each country, discuss the policy underpinnings (theoretically as well as describing actual policy initiatives), analyse the case law in the area, and make policy prescriptions.

Part 1: Setting the Scene ..........................................................................................................

1. Editor’s Introduction ...........................................................................................................

R Ian McEwin

 

2. A Regulator’s Perspective on Getting the Balance Right .................................................23

William E Kovacic

 

3. The Role of Economic Analysis in Competition Law ......................................................35

Douglas H Ginsburg and Eric M Fraser

 

4. Favouring Dynamic Competition over Static Competition in Antitrust Law ...............53

J Gregory Sidak and David Teece

 

Part 2: Country Chapters ......................................................................................................95

 

5. Australia ..............................................................................................................................97

Bob Baxt and Henry Ergas

 

6. China ...............................................................................................................................125

Michael Jacobs and Xinzhu Zhang

 

7. India .................................................................................................................................155

Vinod Dhall and Augustine Peter

 

8. Indonesia ..........................................................................................................................179

Ningrum Sirait and Cento Veljanovski

 

9. Japan ................................................................................................................................197

H Stephen Harris, Jr and Hiroshi Ohashi

 

10. Singapore ........................................................................................................................217

Ashish Lall and Daryl Lim

 

11. South Korea ....................................................................................................................255

Sang-Seung Yi and Seongwook Heo

 

12. Thailand: Medicines, Competition Law and Compulsory Licensing .........................277

R Ian McEwin and Sakda Thanitcul

 

 

13. Vietnam: A Review of the Legal Framework and Enforcement ..................................299

Doan Tich Phuoc and Bui Nguyen Anh Tuan

 

November 15, 2011 | Permalink | Comments (0) | TrackBack (0)

The EU Competition Law Fining System

Posted by D. Daniel Sokol

Damien Geradin, Tilburg University - Tilburg Law and Economics Center (TILEC), University of Michigan Law School, Tilburg Law School describes The EU Competition Law Fining System.

ABSTRACT: The objectives of this report are to: describe the fining policy of the European Commission for breach of EU competition rules; assess this policy in light of the criticisms that have been made by academics, practitioners and other stakeholders; and to the extent these criticisms are justified, make concrete proposals to improve the Commission’s fining policy.

This discussion paper does not suggest that undertakings that have breached EU competition rules should get off the hook lightly. Sanctions should be part of all legal regimes and this is also true for competition law. Because of the severe harm that can be created by competition law infringements, sanctions for such infringements must be sufficiently strict to ensure deterrence. Against this background, the proposals made in this discussion paper seek to improve the efficiency and fairness of such sanctions, and ensure that they are made at the least cost to society. Some of these proposals are easier to implement than others, and it is not suggested that all proposals should be implemented at once.

November 15, 2011 | Permalink | Comments (1) | TrackBack (0)

Monday, November 14, 2011

Recidivism Eliminated: Cartel Enforcement in the United States Since 1999

Posted by D. Daniel Sokol

Gregory J. Werden, Scott D. Hammond, and Belinda A. Barnett (all DOJ Antitrust) have written a very important paper on Recidivism Eliminated: Cartel Enforcement in the United States Since 1999. I highly recommend a download of this paper.

ABSTRACT: John Connor has asserted that recidivism by cartel participants is very common and is symptomatic of serious flaws in cartel enforcement. However, we searched U.S. enforcement records for instances of cartel recidivism and found none at all since July 1999 when the first non-U.S. national was sentenced to a term of imprisonment for participation in international cartel activity. All available evidence indicates U.S. cartel enforcement in the United States is at least achieving the specific deterrence of convicted offenders.

November 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Access to Essential Facilities: A Comparative Competition Law Perspective of Shared Use and Recent Margin Squeeze Cases

Posted by D. Daniel Sokol

Anca Daniela Chirita, Durham Law School, Europa-Institut, Saarland University describes Access to Essential Facilities: A Comparative Competition Law Perspective of Shared Use and Recent Margin Squeeze Cases.

ABSTRACT: This contribution aims to present a brief legal background of access to essential facilities under European, Romanian, and German competition law and comparatively key issues in dealing with facilities cases. It also highlights the most recent developments in the Scadlines case, particularly the exceptional circumstances of granting access, and explains the practical difficulties in order to agree on the setting of an '"adequate remuneration." The contribution concludes with some recent examples of margin squeeze under EU and German competition law.

November 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Guest Post by Herb Hovenkamp: Hovenkamp Discusses His New Open Source Antitrust-IP Casebook

Blog Editor's Note: If you do not know who Herb Hovenkamp is and his impact of antitrust law and scholarship, you should not be reading this blog.

Hovenkamp has finished the “first edition” of his online open source casebook entitled Innovation and Competition Policy

Ch. 1: Competition Policy and the Scope of Intellectual Property Protection

Ch. 2:  Complementary Products and Processes: The Law of Tying

Ch. 3:  Harm to Competition or Innovation; Remedies

Ch. 4:  Competition Policy and the Patent System

Ch. 5:  Competition and Innovation in Copyright and the DMCA

Ch. 6:  Restraints on Innovation

Ch. 7: Intellectual Property Misuse

Ch. 8:  Innovation, Technology, and Anticompetitive Exclusion

Ch. 9: The Innovation Commons

Ch. 10:  Post-Sale and Related Distribution Restraints Involving IP Rights

Posted by Herbert Hovenkamp

Cases and Materials on Innovation and Competition Policy is designed for educational use, mainly as a law school casebook for a three unit course.  It is intended for use as a first year elective, which is how I teach it at the University of Iowa.  The book is free for all to use subject to an open source license agreement, which permits adopters to use all or any part of it and to excerpt it, as long as they do not commercialize it themselves.  My decision to use open source distribution was driven by two things.  First is the unacceptably high cost of law school casebooks; second is the need for frequent updating.  The license agreement permits adopters to pass on the cost of printing if they wish to do so.

This is not an “IP/antitrust” casebook.  There are already excellent books in that field.  Only about half of the principal cases printed in this book are antitrust decisions.  I use this book to present issues of innovation and competition policy to students in a broader context, examining not only antitrust but also the intellectual property laws and including shorter examination of several other topics, such as telecommunications, net neutrality, and competition issues raised by the DMCA.  Brief attention is also given to the industrial organization literature on innovation.

This casebook begins with a chapter on patent scope and its implications for innovation, with brief coverage of the Schumpeter-Arrow literature and the problem of sequential innovation.  Then it looks in some detail at the problem of complementary relationships, addressed in antitrust mainly through the law of tying arrangements.  After that is a chapter on remedies issues, followed by chapters on the patent system, copyright, practices that restrain innovation, and intellectual property misuse.  Another chapter covers exclusionary practices and another a wide variety of collaborative arrangements, including pooling, standard setting, blanket licenses, and the like.  The final chapter focuses on vertical restraints and the post-sale (exhaustion) doctrine.

I hope to keep this book up to date on a regular basis and welcome any suggestions for revision or inclusion.  My overall goal, however, is to hold the book somewhere in the range of its current length.

November 14, 2011 | Permalink | Comments (0) | TrackBack (0)

A Market-Based and Synthesised Approach to Controlling Price Gouging

Posted by D. Daniel Sokol

Andy Chen, Chung Yuan Christian University, provides A Market-Based and Synthesised Approach to Controlling Price Gouging.

ABSTRACT: This paper compares and evaluates the various controlling mechanisms to price gouging after natural or man-made disasters. Events in Taiwan illustrate how contract principles, anti-gouging laws, and competition laws individually affect post-disaster price hikes. Their advantages and limits are discussed. The study purpose argues in favour of a market-based approach under which competition law is central to government-enforcement efforts. This approach allows the inclusion of the market’s self-adjusting force into the review process, which is frequently neglected by the other controlling mechanisms. Furthermore, it also sheds light into how other controlling mechanisms should be implemented. Overall, the market-based approach suggests that both the courts and the regulatory agencies benefit from accommodating the fundamental principles of competition law to maintain the reversibility and flexibility in their decisions.

 

November 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Intellectual Property Law & Competition Law

Posted by D. Daniel Sokol

Aurobinda Panda, KIIT University - KIIT School of Law, Atul Patel, KIIT University - KIIT School of Law, Akshay Deo, Kalinga Institute of Industrial Technology (KIIT University) - KIIT Law School, Siddhartha Khettry, Kalinga Institute of Industrial Technology (KIIT University) - KIIT Law School, Sujith Philip Mathew, have a paper on Intellectual Property Law & Competition Law.

ABSTRACT: Competition law and intellectual property rights (IPRs) have evolved historically as two separate systems of law. There is a considerable overlap in the goals of the two systems of law because both are aimed at promoting innovation and economic growth. Yet there are also potential conflicts owing to the means used by each system to promote those goals. IP laws generally offer a right of exclusive use and exploitation to provide a reward to the innovator, to provide an incentive to other innovators and to bring into the public domain innovative information that might otherwise remain trade secrets. Competition authorities regulate near monopolies, mergers and commercial agreements with the aim of maintaining effective competition in markets. This article introduces the concept of IPRs and Competition law. It highlights important areas of conflict between the two laws and also deals with the Indian antitrust law. It concludes by trying to harmonize the conflicts.

November 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, November 13, 2011

GCR has Published The European Antitrust Review 2012

Posted by D. Daniel Sokol

The European Antitrust Review 2012

November 13, 2011 | Permalink | Comments (0) | TrackBack (0)

Privatizations: Legal and Economic Design, Institutional Implications, Competition Policy

Posted by D. Daniel Sokol

Privatizations

Legal and Economic Design, Institutional Implications, Competition Policy


Friday, November 25, 2011


Grande Bretagne Hotel


With the support of the

European Public Law Organization (EPLO)

the Hellenic State Aid Institute and

the Centre for Law, Economics and Society, UCL Faculty of Laws (CLES)


Programme of the event

 

8.45 Introduction and Welcome: Ioannis Lianos, IMEDIPA, UCL (University College London, Faculty of Laws)

9.00 - 10.30 First Panel: The privatization process: financial, legal and economic design issues
The objective of this panel will be to examine the economics of privatizations and the various methods of privatising state-owned assets, including, the commercial/corporate structures available to transfer assets,  the financial design and risks involved, the forms of the transfer, the role of due diligence. Where appropriate, this session will reflect on the competing interests of key participants in any privatisation (such as the State, the national population, labour groups and investors ).

Chair: George Triantafyllakis, Democritus University of Thrace Law School

Panelists

Abel Mateus, European Bank for Reconstruction and Development (EBRD), UCL

Stephanie Bates, Capital Markets Group, Mayer Brown, London

George Barker, Centre for Law & Economics, Australian National University (ANU)

Christos Hadjiemmanuil, University of Piraeus, Centre for Political Research

 

10.30 – 11.00 Coffee Break


11.00 – 13.00 Second Panel: Competition law implications of the privatization process I
This panel will delve into questions relating to the legal constraints imposed by the EU and national competition law and public procurement framework.

Chair: Dimitris Tzouganatos, University of Athens Law School

Panelists

Kiran Desai, Mayer Brown, Brussels

Dimitris Avgitidis, Democritus University of Thrace; Hellenic Competition Commission

Emmanuel Dryllerakis, Dryllerakis & Associates

Dimitrios Loukas, Commissioner, Hellenic Competition Commission

Greg Pelecanos, Ballas, Pelecanos & Associates L.P.C.

 

13.00 – 14.00 Lunch


14.00 – 16.00  Third Panel: The management of the privatization process
The panel will discuss the management of the privatization process. What are the aims of the privatization and how the current structure of the Privatization Fund might deliver on these objectives? What are the broader institutional and constitutional implications of the privatizations process? The panel will also discuss the experiences of other EU Members States in the design and the management of the privatization process.

Chair: Spyridon Flogaitis, EPLO, University of Athens Law School

Panelists

Luis Morais, University of Lisbon Law School (FDL)

Wernhard Möschel, Eberhard Karls University, Tübingen

Charalampos S. Dimitriou, C & S Dimitriou & Associates

Nikos Kosmidis, Tzouganatos & Partners

Takis Tridimas, Centre for Commercial Law Studies, Queen Mary University of London

 

16.00 – 16.30 Coffee break


16.30 -18.00 Fourth Panel: : Competition law implications of the privatization process II
This panel will focus on the competition law implications of the privatizations process, in particular state aid control. The panel will also discuss specific case studies on the possible application of competition law (not only State aids law but also other provisions) in order to illustrate the various competition law implications of the privatization’s process.

Chair: Assimakis Komninos, IMEDIPA, UCL, White & Case LLP

Panelists

Vassilis Karagiannis, KLC Law Firm

Antonios Metaxas, The Hellenic State Aid Institute & University of Athens

Konstantinos Adamantopoulos, Holman Fenwick Willan LLP, Brussels

Eliza Petritsi, Holman Fenwick Willan LLP, Brussels

 

18.00 -19.15 Fifth Panel: Managing the (political) risks of the privatization process – employment status of personnel, relations with the broader reforms of public utilities regulation and public management
This panel will focus on the main difficulty raised by the Greek privatization process, which is the political risks, in particular because of the opposition of trade unions and other interests. The panel will aim to uncover what the process of privatization means for the employees of the privatized entities in practice, by looking to past experience of privatizations in Greece and abroad. It will also raise the question of consensus building and the management of political risks (the entity that should bear them, mitigating factors etc) and will examine how the privatization process interrelates with the broader reform of utilities’ regulation and public management.

Chair: Ioannis Lianos, IMEDIPA, UCL

Panelists

Kostas Bakopoulos, University of Athens Law School

Ekaterini Iliadou, University of Athens Law School 

Argiris Economou, Public Power Corporation (DEI)

Sponsors of the event: Holman Fenwick Willan, Ballas, Pelecanos & Associates, Mayer Brown, Dryllerakis & Associates, KLC Law Firm, Tzouganatos & Partner

November 13, 2011 | Permalink | Comments (0) | TrackBack (0)