Antitrust & Competition Policy Blog

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

A Member of the Law Professor Blogs Network

Saturday, September 22, 2012

Deterring EU Competition Law Infringements: Are We Using the Right Sanctions? Brussels December 3, 2012

Posted by D. Daniel Sokol

Sanctions are a critical component of any legal regime and competition law should be no exception. Competition law regimes across the world have typically relied on a diverse set of sanctions to deter companies from engaging in anti-competitive behaviour. The EU competition law regime has so far focused on corporate fines, which have risen significantly over the last 20 years. This evolution seems to be in great part due to the Commission’s desire to increase deterrence. However, in recent years, some voices have questioned whether increasing the level of corporate fines is indeed the most appropriate means for increasing deterrence. A number of other criticisms have also been addressed to the European sanctioning regime, ranging from its allegedly high level of uncertainty, its compatibility with international instruments protecting due process, its blindness to corporate compliance programs, or the absence of individual sanctions targeting the individuals who are actually instrumental in the violation of competition law. Are those criticisms founded? Are there major issues with the EU competition law regime? Does it need reform if it wants to achieve its stated goal of higher deterrence?

To take stock of what is known about this question, the Tilburg Law and Economics Center (TILEC) at Tilburg University and the Liège Competition and Innovation Institute (LCII) at the University of Liège organize a whole-day conference in Brussels on 3 December 2012.* Speakers include prominent academics, enforcers, and practitioners. The conference aims at bringing detailed analysis and up-to-date knowledge to at a large audience of practitioners, academics, public officials, and competition policy observers.

 Organizers welcome support from Schindler Holding AG and the Association of Corporate Counsels.

 

Scientific committee

 

Cédric Argenton (TILEC)

Damien Geradin (TILEC)

Nicolas Petit (LCII)

 

 

PROGRAMME

 

 

8:00 - 9:00 Registration and coffee

 

9:00 - 9:15 Sanctioning Competition Law Infringements: An Overview of the EU Approach

Speaker: Damien Geradin, Partner, Covington & Burling; Professor of
Competition Law and Economics, Tilburg University

 

9:15 - 9:45 Importance and Challenges of Antitrust Compliance for Large
Corporations

Speaker: Christoph Klahold, Chief Compliance Officer, Head of Corporate
Center Compliance, ThyssenKrupp AG

9:45 - 10:15 Optimal Deterrence of Competition Law Infringements

Speaker: Joseph E. Harrington, Professor of Economics, Wharton School,
University of Pennsylvania

 

10:15 - 10:30 Coffee break

 

First Panel: Designing Appropriate Sanctions and Incentive Mechanisms

 Moderator: Jacques Steenbergen, Director General, Belgian
Competition Authority

 

10:30 - 10:50 Are Administrative Fines the Best Way to Deter Infringements?

Speaker: Douglas H. Ginsburg, Senior Judge, DC Court of Appeals; Professor of
Law, New York University School of Law

 

10:50 - 11:10 Should Individual Sanctions Be Part of Deterrence Efforts?

 Speaker: Andreas Stephan, Lecturer in Law, University of East Anglia

 

11:10 - 11:30 Contrasting the EU and US Sanctioning Approaches

 Speaker: Thomas O. Barnett, Partner, Covington & Burling; former Assistant
Attorney General, Antitrust Division, US Department of Justice

 

11:30 - 11:50 Ways in Which the System of Sanction in EU Competition Enforcement Can Be
Changed

 Speaker: Luis Ortiz-Blanco, Partner, Garrigues; Professor, Complutense
University Madrid

 

11:50 - 12:40 Panel Discussion / Q&As

 

12:40 - 13:30 Lunch

 

Second Panel: Fines, parental liability and challenges for compliance

 Moderator: Anne Riley, Associate General Counsel, Shell

 

13:30 - 13:50 Optimal Deterrence of Collusion in the Presence of Agency Problems within
Firms

Speaker: Cédric Argenton, Professor of Economics, Tilburg University;
Director, Tilburg Law and Economics Center (TILEC)

 

13:50 - 14:10 Should Parent Companies be Held Liable for the Conduct of their Subsidiaries
when They have not Participated in the Infringement?

 Speaker: Stefan Thomas, Professor of Law, Tubingen University

 

14:10 - 14:30 Compliance Programmes, Codes of Conduct and Social Responsibility Charters –
A Good Idea?

 Speaker: Anny Tubbs, General Counsel, Competition, Unilever

 

14:30 - 15:20 Panel Discussion / Q&As

 

15:20 - 15:35 Coffee break

 

 

Third panel: Addressing the Relationships between EU and National Enforcement
and Public and Private Enforcement, and the Due Process Aspects
Moderator: Marc van der Woude, General Court of the EU

 

15:35 - 15:55 What is the Interplay between EU and National Enforcement and the
Impact on Sanctions?

 Speaker: Christophe Lemaire, Partner, Ashurst

 

15:55 - 16:15 What is the Interplay between Public and Private Enforcement (Actions for
Damages) and the Impact on Sanctions?

Speaker: Eddy de Smijter, Deputy Head of Unit, DG Competition, European
Commission

 

16:15 - 16:35 The Commission’s Fining Policy and the European Convention on Human Rights:
Menarini and its Implications

 Speaker: Eric Morgan de Rivery, Partner, Jones Day

 

16:35 - 17:15 Panel Discussion / Q&As

 


17:15 - 18:00 Conclusions

 

 Final Observations from an Industry Perspective

Speaker: Stefan Gehring, Head of Law and Patents, Chief Compliance Officer,
Bayer MaterialScience AG

 

 Final Observations from a Political Perspective

 Speaker: Andreas Schwab, Member of the European Parliament

 

 Final Observations from an Academic Perspective

Speaker: Nicolas Petit, Professor, University of Liège; Director, GCLC, College
of Europe

 

 

USEFUL INFORMATION

 

Venue

 

Hotel SAS, Brussels

Rue d'Idalie, 35

1050 Brussels

 

Near Brussels-Luxemburg Station

September 22, 2012 | Permalink | Comments (0) | TrackBack (0)

Friday, September 21, 2012

Antitrust Policy in the Information Age: Protecting Innovation and Competition

Posted by D. Daniel Sokol

Joe Wayland (DOJ) gave a speech today at Fordham on Antitrust Policy in the Information Age: Protecting Innovation and Competition.

September 21, 2012 | Permalink | Comments (0) | TrackBack (0)

Non‐Discrimination Clauses in the Retail Energy Sector

Posted by D. Daniel Sokol

Morten Hviid, and Catherine Waddams Price University of East Anglia - Centre for Competition Policy (CCP) discuss Non‐Discrimination Clauses in the Retail Energy Sector.

ABSTRACT: The British energy regulator has recently reviewed a non‐discrimination licence condition imposed to ensure that energy retailers charge the same mark‐up in different regions. Loyalty by many to incumbent firms necessitated heavy discounting by entrants to attract customers, which had led to regional price discrimination. Matching characteristics of the energy market to models of discrimination, we identify the necessary conditions for the licence condition to have a positive effect for consumers, and particularly ‘vulnerable’ consumers. The licence condition is likely to have reduced competition in the mainstream energy markets, which seems confirmed by the regulator's subsequent review of the retail market.

September 21, 2012 | Permalink | Comments (0) | TrackBack (0)

The Design of Competition Law Institutions and the Global Convergence of Process Norms: The GAL Competition Project

Posted by D. Daniel Sokol

Eleanor M. Fox, New York University School of Law and Michael J. Trebilcock, University of Toronto - Faculty of Law describe The Design of Competition Law Institutions and the Global Convergence of Process Norms: The GAL Competition Project.

ABSTRACT: This paper is an account of the institutions of antitrust enforcement and adjudication in nine jurisdictions, across six continents, and the four principal international bodies involved with issues of antitrust. It synthesizes nine studies that illuminate the inner workings of each of systems in the sample studied and it exposes their norms, all in the quest to determine whether there are global norms of procedure and process. The paper reveals that there are indeed common norms across very different institutional arrangements, most of which are currently embedded in the systems and some of which are aspirational.

September 21, 2012 | Permalink | Comments (0) | TrackBack (0)

Sharpe on The Concept of Abuse in EU Competition Law

Posted by Tom Sharpe

This is an important an important and brave book.  Its genesis is a doctoral thesis awarded by
the University of East Anglia, yet another major contribution from the ESRC

Centre for Competition Policy located at UEA. It has all the strengths and none of the weaknesses of a book derived from such research.
Dr. Akman has read widely in several languages and a particular strength of the
book is its willingness to place “competition law” in its theoretical and
historical content and fully 100 pages derive from  archival research into the genesis of Article 102 and the latest economics. 
She is not afraid to grapple with some of the
complexities, and inconsistencies, of welfare
economics and goes well beyond
the usual (it must be said, superficial) treatment
found in many other
texts.  A further strength lies in her very careful analysis of the key cases involving abuse.
There is a lot of loose thinking in relation to “abuse” of dominant position: Article
102 does not express the requirement of “prevent, restriction or distort
competition”;  it does not stipulate either the objectives or the standard of harm of the provision itself.   And the mere
possession of a dominant position is not off itself  prohibited.
But there must be harm to something or something for Article 102 to be applicable.
Her thesis is that “abuse” should be understood as a component of the

prevention or distortion of competition, following Protocol 27.  Of course, it can mean harm to competition, harm to competitors, harm to consumers or a combination of these, and

more.  And, as Dr. Akman points out, Article 102 does not contain any comparable provision to Article 101(3), where the importance of consumers obtaining “a fair share of the benefits” of
an
agreement which does prevent, restrict or distort competition
is
emphasized. 
Dr. Akman analyses the various issues which arise from the vagueness of Article
102: does it relate to “consumer welfare; what is the standard which should be

applied; what relevance does a read across from Article 101(3) have to the

proper construction of Article 102; if there are efficiencies derived from

conduct, must they be demonstrably to the benefit of consumers.  She is notably critical of the European Courts in finding conduct abusive merely on the basis of alleged
anti-competitive object, given that dominance is not prohibited: an undertaking  can only abuse its position if it uses its power abusively.
Dr. Akman’s general conclusions are that after 50 years of enforcement the
application of Article 102 is still controversial and that it is unclear what
makes a practice abusive and what distinguishes abusive from normal commercial practice.  This has resulted in significant legal
uncertainty.
Her policy conclusion is that the three necessary and sufficient conditions for abuse are that there should be exploitation, exclusion and a lack of increase in efficiency. Exploitation is required by Article 102 itself; exclusion means distortion of competition, and lack of any increase
in efficiency excludes
conduct which is no more than normal commercial practice, which should not be proscribed.  She acknowledges, though, that we have a good deal further to go before the Courts catch up with this.
But this is a powerfully argued analysis.

 

September 21, 2012 | Permalink | Comments (0) | TrackBack (0)

Freeman on The Concept of Abuse in EU Competition Law

Posted by Peter Freeman

It is good to see a serious attempt to pull together the
efforts made by competition authorities in the EU to define and apply the law
on abuse of dominant position.  Not only
is this one of the most important issues in competition law, it is also one of
the hardest.

The first Secretary of the UK Monopolies and Restrictive
Practices Commission in 1948 was Dame Alix Meynell.  Before the Commission was set up she had
visited Washington to learn about the US system.  When she came back she advised against
adopting the US approach to “Antitrust”: “They make everyone run a race then
cut off the head of the winner.”

Ms Akman’s book tackles the fundamental questions – how
much market power are you allowed to have? 
And what can you not do with it when you have it?  There is more on the second question than the
first, but the two go hand in hand as there can be no abuse unless there is market
power.

The book describes the long journey to the current “effects-based”
approach.  In many ways the old law (as
in United Brands, Continental Can and Commercial Solvents)
was familiar and easy.  Dominance was
assessed essentially by share of the market, abuse was a matter of items on a
list.  Defining “the market” could
usually be solved by a common sense approach to reasonable substitution.

Familiar and easy it may have been, but it could also risk
being incoherent, with the more substantive definition of dominance developed
by the courts – ability to behave independently of competitors, customers and
suppliers – being particularly curious when examined more closely. After all,
competitors are surely meant to behave independently of each other?  A shift to a more economically literate
approach surely had to come. 

On the face of it, the modern “effects-based” approach
offers an attractive solution.  Indeed
the basic lesson, of examining what happens on the market and whether consumers
are actually harmed, rather than whether a particular form of behavior is
taking place, is sound.  But the book
explores the difficulties in a helpful and illuminating way.  For example, an effects- based test of
dominance requires an element of circularity – its existence is proved only by showing
whether it is possible to abuse it.  Then
there is the problem of assessing the effects of an abusive practice.  Then author rightly points out the issues of administrability
and legitimacy raised by the need to assess the specific facts of each case
before coming to a finding.  Can it be right,
the book asks, to operate a law against the abuse of dominant position when
(apart from vague intuitions about scale and market share) illegality cannot
definitely be pronounced without a detailed analysis of costs and prices and relative
levels of efficiency, not only of the supposed abuser but, in case of
exclusionary conduct, of the excluded would-be competitor?  Viewed in this way, this “as-efficient
competitor” test is merely an artefact, dependent on the data used for its
calculation. 

The author criticizes the over-emphasis of enforcers on
exclusion and their neglect of exploitation – which is in many ways much nearer
to the adverse effect on consumers that the policy claims to want to
lessen.  But even as applied to exclusionary
conduct, the problem remains that the complexities do not lend themselves
easily to simple prohibitions, yet the consequences of breach of the law are
very severe.  Equally intractable are the
problems of information asymmetry (itself an impenetrable term) and how the
authorities are to obtain the cost information needed to make their
judgments.  Finally there is the paradox of
predatory pricing – the remedy actually denies the consumers the benefit of cheap
prices in the short term, something which needs to be explained carefully to
them at the very least.

The author offers a brave formulation of a new approach
that addresses these problems.  But
concentrating more on exploitative abuse and harm to consumers comes up against
some, at least, of the same difficulties, and setting out clear, administrable per se rules for abuse of dominance
remains a difficult task. 

Although this is not what the book suggests, this examination
of the difficulties inherent in applying current abuse of dominance laws makes
this reviewer, at least, look with relief to the market investigation regime in
the UK.  Here, with the same basic intention
of controlling the misuse of market power, a much more flexible legal test is
applied, without the sharp delineation required for the concepts of “dominance”
and “abuse” and without the drastic legal consequences of an adverse finding in
terms of fines and damages.  In this
regime a case by case approach is possible with the Competition Commission or
its successor body doing what competition authorities are (or should be) best
at, finding out how a market works and what is not working well and taking
steps to make it work better.

September 21, 2012 | Permalink | Comments (0) | TrackBack (0)

Book Review symposium on The concept of abuse in EU competition law

Posted by D. Daniel Sokol

We are luck to have two reviews of the excellent The concept of abuse in EU competition law by Pinar Akman (East Anglia). Reviewing the book for us are Peter Freemann (Cleary) and Tom Sharpe, QC.

September 21, 2012 | Permalink | Comments (0) | TrackBack (0)

Exchange of Information and Evidence between Competition Authorities and Entrepreneurs’ Rights

Posted by D. Daniel Sokol

Mateusz Blachucki, Polish Academy of Sciences - Institute of Legal Studies and Sonia Jozwiak, Silesian University of Economics discuss Exchange of Information and Evidence between Competition Authorities and Entrepreneurs' Rights.

ABSTRACT: This article concentrates on the exchange of information and evidence between competition authorities. The issue is analyzed from the perspective of both antitrust and merger cases. The level, scope and intensity of cooperation between competition authorities differs in respect to these two kinds of cases and, to an extent, the applicable legal framework varies as well. Our analysis is based on EU law, national legislation, and relevant case law, with attention also given to other sources of law such as bilateral and multilateral agreements, best practices, recommendations etc. In addition the problem of exchange of information is examined through the prism of the Polish Competition Act. Regulation 1/2003 and the ECN, created upon its provisions, provide detailed rules applicable for the exchange of evidence and information between competition authorities in antitrust cases at the European level. With respect to mergers, the provisions of Regulation 139/2004 do not have the same high degree of influence, hence considerable attention is given to soft law acts, such as recommendations of OECD and ICN, or best practices and informal agreements adopted by national competition authorities.

September 21, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 20, 2012

Entry Bias and Product Substitutability

Posted by D. Daniel Sokol

Lin Liu, University of Southern California - Marshall School of Business and Xinghe Henry Wang, University of Missouri at Columbia - Department of Economics explain Entry Bias and Product Substitutability.

ABSTRACT: The literature has established two kinds of entry bias in imperfectly competitive markets. First, free entry may lead to excessive entry relative to the socially optimal level. Second, free entry may lead to the wrong technology (type of firm) in the market compared to the socially optimal technology. This paper finds a product selection bias, a third kind of entry bias. We show that, in a Cournot market with asymmetric firms and imperfectly substituting goods, free entry may lead to fewer types of goods, more types of goods, or even a different type of good, compared to the social optimum.

September 20, 2012 | Permalink | Comments (0) | TrackBack (0)

Quality Improvement to Meet Competitive Fringe

Posted by D. Daniel Sokol

Noriaki Matsushima, Osaka University - Institute of Social and Economic Research and Ren-Jye Liu, Industrial Engineering and Enterprise Information, Tunghai University explore Quality Improvement to Meet Competitive Fringe.

ABSTRACT: We investigate what kind of competitive pressure induces existing firms to engage in more intensive innovation activities. We examine two types of competitive pressure: a price decrease in competitive fringe firms and a quality improvement therein. We use an oligopoly model with vertical differentiation to investigate this question. We show that a decrease in the exogenous price of competitive firms induces the two existent leading firms (one high-quality firm and one mid-quality firm) to engage in quality investments more if the ex ante quality level of the high quality product is large enough; otherwise, only the mid-quality firm engages more in quality investment. We also show that an increase in the exogenous quality level of competitive firms diminishes the incentive of the mid-quality firm to engage in quality investments.

September 20, 2012 | Permalink | Comments (0) | TrackBack (0)

Competition Law Guidance Under Commissioner Aitken: A Survey

Posted by D. Daniel Sokol

Kevin Ackhurst (Norton Rose) describes Competition Law Guidance Under Commissioner Aitken: A Survey.

ABSTRACT: Canada's Commissioner of Competition announced on June 28, 2012 that she would resign her position on September 21, 2012. Since her appointment as Interim Commissioner in January 2009, Melanie Aitken has overseen profound changes at the Competition Bureau, including adjusting to the passage of the most significant amendments to the Competition Act in the statute's history, as well as implementing a highly visible enforcement program. The Commissioner initiated judicial challenges in all main areas of the Act, including mergers, abuse of dominance, price-fixing, price maintenance, and misleading advertising. In addition to commencing a number of high-profile cases, the Commissioner introduced a number of new or updated policy documents to offer guidance to consumers, businesses, and their advisors.

This paper surveys the policy guidance issued by the Commissioner between January 2009 and July 2012, by topic. It does not include an analysis of the positions adopted by the Commissioner in case-specific contested enforcement proceedings or the settlement of civil or criminal matters, including mergers. That is, the focus is on broad, forward-looking policies issued by the Commissioner in the form of bulletins, enforcement guidelines, and interpretation guidelines.

The Commissioner and her staff are to be commended for quickly issuing guidance documents to assist practitioners in the wake of the passage of Bill C-10, which introduced, among other things, significant changes to the merger review process, the scope and burden of proof of the price-fixing provisions, and the addition of a civil review of competitor collaborations-all of which necessitated the publication of new policy guidance. The hefty increase in the fines and penalties (including the introduction of monetary penalties for abuse of dominance) for criminal and civil breaches of the Act led to various guidance documents being updated. However, certain of those policies, such as the Fees and Service Standards Handbook for Mergers and Merger-Related Matters, were criticized for lacking clarity and being inconsistent with the Act. Other policies, such as the second draft of the revised Enforcement Guidelines on the Abuse of Dominance Provisions

September 20, 2012 | Permalink | Comments (0) | TrackBack (0)

Regulated Input Price, Vertical Separation, and Leadership in Free Entrymarkets

Posted by D. Daniel Sokol

Toshihiro Matsumura, University of Tokyo - Institute of Social Science and Noriaki Matsushima, Osaka University - Institute of Social and Economic Research discuss Regulated Input Price, Vertical Separation, and Leadership in Free Entrymarkets.

ABSTRACT: We examine incentives of bottleneck facility holders to manipulate access charge accounting in free entry downstream markets. We consider the situation wherein one firm holds an upstream bottleneck facility and new entrants use it at the regulated price (access fee) to provide final products. The bottleneck facility holder affects the regulated input price. We investigate how vertical separation affects the incentive for manipulation and the resulting input price. We find that the results depend on whether the incumbent is the Stackelberg leader in the product market. If the incumbent cannot take leadership in the product market and faces Cournot competition, vertical separation reduces the incentive for manipulation and the resulting input price. The opposite result is derived when the incumbent can take leadership in the product market.

September 20, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 19, 2012

American Antitrust Institute's 6th Annual Private Antitrust Enforcement Conference

Posted by D. Daniel Sokol

American Antitrust Institute's 6th Annual Private Antitrust Enforcement Conference
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~


Where:

National Press Club Ballroom

529 14th St. NW, 13th Floor

Washington, DC 20045


When:

Tuesday December 4, 2012 from 8:15 AM to 6:30 PM EST


Tuition:

$250 with a discounted rate of $50 for  government employees, educators, public

interest advocates, and  students.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~


The American Antitrust Institute invites you to attend the 6th Annual Private Antitrust

Enforcement Conference on December 4, 2012 at the National Press Club in Washington

D.C.


Since 2007, this event has served as a vehicle for the antitrust community to come

together to network and obtain an updated and comprehensive profile of  private

enforcement as a business.


This year's program will cover some of the most current and relevant issues in antitrust,

including employment antitrust litigation, trends in use of  truncated or "quick

 look" analysis, litigation in regulated industries, and the most recent developments

in class action.


Our luncheon speaker  is Diane P. Wood, U.S. Court of Appeals Judge and Senior Lecturer

at the University of Chicago Law School, who will discuss the Seventh Circuit's

Minn Chem case and other recent developments.


View the agenda at www.antitrustinstitute.org

September 19, 2012 | Permalink | Comments (1) | TrackBack (0)

Judicial Review in EU Competition Law

Posted by D. Daniel Sokol

Heike Schweitzer, University of Mannheim offers thoughts on Judicial Review in EU Competition Law.

ABSTRACT: A principled and well-functioning regime of judicial review is a fundamental part of the European Union’s commitment to the rule of law, and of particular relevance in the field of EU competition law: The EU Commission has become one of the most powerful competition authorities worldwide, combining investigative, prosecutorial and decision-making powers. The risk of a prosecutorial bias is an obvious corollary of such an institutional design. Apart from procedural guarantees during the administrative proceedings, it must be countered by a strong and efficient regime of judicial review.

This chapter reviews the existing framework of judicial review in EU competition law cases in light of this challenge. It discusses its functions, its legal basis, and the actual practice of judicial review both with a view to regime of legality control of the Commission’s infringement and merger decisions and with a view to the courts’ unlimited jurisdiction regarding fines. In light of recent jurisprudence by the ECJ and the ECtHR, the paper explores whether the standards for effective judicial review established by Art. 6(1) ECHR and Art. 47 of the Charter of Fundamental rights are met. The paper argues that, overall, the ECJ has managed to establish a coherent and stringent regime of judicial review across all areas of substantive competition law that takes full account of the need to protect individual rights. This evolution has not been hindered by the courts’ “margin of appreciation” rhetoric. Yet, this language has become highly imprecise and needs to be reconceptualised: In fact, the Commission does not possess any margin of discretion that is beyond judicial review with regard to the interpretation and application of substantive competition law. In defining markets, measuring market shares or establishing cost standards in the context of price-based abuses, it does have a right to make the initial methodological choices. These choices are, however, subject to full judicial review regarding their adequacy and appropriateness. If this is true, the “more economic approach” has not, and must not lead to a weakening of judicial review. Among the most important challenges still to be met by the European courts is the need to ensure sufficiently intense judicial control also with a view to commitment decisions and soft-law rule-making powers that the Commission de facto assumes.

September 19, 2012 | Permalink | Comments (0) | TrackBack (0)

Litigation in the Antitrust Division

Posted by D. Daniel Sokol

Joe Wayland (DOJ) has posted his remarks on Litigation in the Antitrust Division.

September 19, 2012 | Permalink | Comments (0) | TrackBack (0)

Recent Advances in the Analysis of Competition Policy and Regulation

Posted by D. Daniel Sokol

Joseph E. Harrington Jr., Professor of Economics, Johns Hopkins University, and Yannis Katsoulacos, Professor of Economics, Athens University of Economics and Business have edited a book on Recent Advances in the Analysis of Competition Policy and Regulation.

BOOK ABSTRACT: This state-of-the-art volume highlights important recent research contributions covering all the significant themes surrounding competition policy and regulation, including financial regulation and multisided markets.

Bringing scholars and policymakers to the frontiers of research and addressing the critical issues of the day, the book presents original important new theoretical and empirical results. Contents:

Introduction

Joseph E. Harrington Jr and Yannis Katsoulacos

PART I: COMPETITION POLICY AND RELATED ISSUES

1. Switching Costs and Network Effects in Competition Policy

Jacques Cremer and Gary Biglaiser

2. Corporate Leniency with Private Information: An Exploratory Example

Joseph E. Harrington Jr

3. The Economics of Pending Patents

Johannes Koenen and Martin Peitz

4. Testing for the Presence of a Maverick in the French Audit Industry

Marc Ivaldi, Sebastien Mitraille and Catherine Muller

5. Optimal Decisions in Two-stage Bundling

Xeni Dassiou and Dionysius Glycopantis

6. Competition Policy and Firm’s Damages

Panagiotis N. Fotis

7. Social-Welfare-Enhancing Collusion and Trade

George Deltas, Alberto Salvo and Helder Vasconcelos

PART II: ONLINE SEARCH, ADVERTISING AND TWO-SIDED MARKETS

8. A Note on Vertical Search Engines’ Foreclosure

Emanuele Tarantino

9. Issues in Online Advertising and Competition Policy: A Two-sided Market Perspective

Emilio Calvano and Bruno Jullien

10. Assessing Unilateral Merger Effects in the Dutch Daily Newspaper Market

Lapo Filistrucchi, Tobias J. Klein and Thomas O. Michielsen

11. Leadership in Multi-sided Markets and Dominance in Online Advertising

Federico Etro

PART III: REGULATION

12. Bargaining and Collusion in a Regulatory Model Raffaele Fiocco and Mario Gilli

13. Investment and the Strategic Role of Capital Structure in Regulated Industries: Theory and Evidence

Carlo Cambini, Laura Rondi and Yossi Spiegel

14. Rethinking Regulatory Capture

Per J. Agrell and Axel Gautier

15. Can Structural Models be Useful to Understand the Electricity Wholesale Markets? An Application to Spain

Vitor Marques, Adelino Fortunato and Isabel Soares

PART IV: FINANCIAL REGULATION

16. Rebuilding International Financial Regulation and Basel III

Kern Alexander

17. The Shock of the Old: The First Financial Crisis of the Twenty-first Century

Geoffrey Wood

18. Fixing Finance: Are We There Yet?

Thomas F. Huertas

September 19, 2012 | Permalink | Comments (0) | TrackBack (0)

Private Enforcement of Antitrust Law in Japan: An Empirical Analysis

Posted by D. Daniel Sokol

Simon Vande Walle, University of Tokyo, Graduate School of Law and Politics analyzes Private Enforcement of Antitrust Law in Japan: An Empirical Analysis.

ABSTRACT: This article assesses the role of private antitrust litigation in Japan through an empirical analysis. Based on data concerning actions for damages and injunctive relief in the post-war era, the article gauges how much private antitrust litigation has contributed to the deterrence of antitrust violations, compared to public enforcement by the Japan Fair Trade Commission. It also evaluates to what extent private antitrust litigation has resulted in compensation for those harmed by antitrust violations. Finally, it compares the level of private enforcement in Japan with levels in Europe and the United States.

The article includes findings on (1) the number of private antitrust actions, (2) the types of antitrust infringements invoked (bid-rigging, cartels other than bid-rigging, monopolization and unfair trade practices), (3) the success rate of antitrust litigation, (4) the magnitude of the damages awards and settlements, (5) the proportion of stand-alone versus follow-on cases, and (6) the kind of plaintiffs that have recovered damages.

September 19, 2012 | Permalink | Comments (0) | TrackBack (0)

Impact Evaluation of Merger Decisions

Posted by D. Daniel Sokol

The OECD has just published Impact Evaluation of Merger Decisions.

September 19, 2012 | Permalink | Comments (0) | TrackBack (0)

Consumer Choice as the Best Way to Describe the Goals of Competition Law

Posted by D. Daniel Sokol

Robert H. Lande, University of Baltimore - School of Law describes Consumer Choice as the Best Way to Describe the Goals of Competition Law.

ABSTRACT: This article is both a short introduction to the Consumer Choice explanation for Competition Law or Antitrust Law, and also a short advocacy piece suggesting that Consumer Choice is the best way to articulate the goals of European Competition Law and United States Antitrust Law.

This article briefly: 1. defines the consumer choice approach to antitrust or competition law and shows how it differs from other approaches; 2. shows that the antitrust statutes and theories of violation embody a concern for optimal levels of consumer choice; 3. shows that the United States antitrust case law embodies a concern for optimal levels of consumer choice; 4. presents evidence of the new paradigm: United States v. Microsoft; 5. argues that non-price competition should become a higher priority for he enforcers; 6. Discusses Consumer Choice and the media.

The article shows that the choice framework has many advantages. It takes full account of all the things that are actually important to consumers - price, of course, but also variety, innovation, quality, and other forms of non-price competition. It is also far more transparent, which is an important administrative virtue even where, as in the great majority of cases, it will reach the same result. And in some important real-world situations it will lead to better substantive outcomes. There are a number of variety-valuing industries and circumstances that can be assessed correctly only by including an effective analysis of nonprice factors. We identify these in the article.

September 19, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 18, 2012

Are Anticompetitive Innovation Mergers Privately Profitable? An Exploratory Analysis

Posted by D. Daniel Sokol

Michael Cragg, The Brattle Group Daniel Gaynor, The Brattle Group and John David Simpson, The Brattle Group ask Are Anticompetitive Innovation Mergers Privately Profitable? An Exploratory Analysis.

ABSTRACT: A significant number of proposed mergers involve the combination of two of only a small set of firms capable of the type of drastic innovation that will create new products. A potential anti-competitive concern in such mergers is that the merged firm might terminate the innovative effort at one of the merging partners, thereby reducing competition to innovate. While preliminary, the results of this paper suggest that such an anticompetitive effect is unlikely in three to two mergers or higher.

September 18, 2012 | Permalink | Comments (0) | TrackBack (0)