Friday, January 11, 2013
Forum Shopping and Law Shopping in Competition Law Enforcement : Some Insights from the cases AMD v Intel (2000-2010)
Posted by D. Daniel Sokol
Frederic Marty ((French National Centre of Scientific Research Fellow), Groupe de Recherche en Droit Economie et Gestion (Research Group on Law, Economics and Management) and UMR CNRS 7321 – Universite de Nice Sophia-Antipolis) has posted Forum Shopping and Law Shopping in Competition Law Enforcement : Some Insights from the cases AMD v Intel (2000-2010).
ABSTRACT: A long-term litigation has opposed AMD to Intel, the dominant firm in the chips market. The first reproached the second pricing practices aiming at excluding it from the market on another basis than a competition on the merits. Intel was accused of implemented an anticompetitive strategy through its retroactive loyalty rebates, which incited PC constructors to accept tacit exclusive supply contracts. Our purpose does not consist in assessing the anticompetitive nature of such schemes or in evaluating to what extent they are detrimental to consumer welfare. We propose to consider the judicial strategy implemented by AMD. It lodged several complaints in numerous jurisdictions. Complaints were filled abroad (Japan, Republic of Korea, European Union), in some US States, before the Antitrust Division of the DoJ, before the FTC and through the private enforcement of the Sherman Act. Economic literature, especially the Chicago School, highlights, for ages, the risk of misuses of Antitrust Laws in order to impair competition. Such nuisance suits could take benefit from multiple, parallel of sequential complaints before different courts. Being successful in a first dispute before a more favorable or a less exigent (in terms of standard of proof) judicial arena could favor the plaintiff in a second trial or incite the defendant to accept to settle the dispute. Our paper analyzes the different between AMD and Intel in the perspective of such forum shopping strategies and tries to evaluate their consequences in terms of collective welfare.