Antitrust & Competition Policy Blog

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

A Member of the Law Professor Blogs Network

Saturday, February 23, 2013

Looking Ahead to 2015: Competition Outreach in ASEAN

Posted by D. Daniel Sokol

Simone Warwick (OECD) is Looking Ahead to 2015: Competition Outreach in ASEAN.

ABSTRACT: It is a good time to reflect on competition outreach and capacity building activities in the Association of Southeast Asian Nations ("ASEAN"). The start of 2013 brings ever closer the 2015 deadline for the ten ASEAN Member States to introduce nationwide competition laws and policy. That deadline is an integral part of a broader commitment to establish the ASEAN Economic Community ("AEC") by 2015. The AEC will be a single market with free movement of goods, services, investment, skilled labor, and a freer flow of capital.

The start of the year has also seen a new ASEAN Secretary-General take the helm. Mr. HE Le Luong Minh, the first Vietnamese Secretary-General of ASEAN, will serve a 5-year term. His inaugural speech made specific mention of the need for enhanced technical assistance to help ASEAN Member States meet their 2015 goals.

February 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, February 22, 2013

International Handbook on Unfair Competition

Posted by D. Daniel Sokol

Frauke Henning-Bodewig (Max Planck) has edited the International Handbook on Unfair Competition.

BOOK ABSTRACT: Written by a worldwide team of experts, this new work surveys and comments on the unfair competition laws of the world's leading economic powers. Following a standard pattern, each chapter introduces the reader to the latest developments in each jurisdiction, highlighting the ways in which the basic legislation and case law relates to enforcement issues, and how unfair competition laws fit with wider considerations of consumer protection and within prevailing intellectual property and competition law frameworks.

Each of the country reports follows the same standard structure: I. Background and General Approach to Unfair Competition Law. II. Legal Basis of Unfair Competition Law and Relations to Neighbouring Areas of Law III. General Considerations IV. General Clause Against Unfair Competition V. Marketing V. Protection of Competitors Against Unfair Trade Practices VI. Specific Protection of Consumers Against Unfair Trade Practices VII. Enforcement

The handbook includes country reports from the following countries: Australia, Austria, Brazil, Canada, China, France, Germany, Hungary, India, Italy, Japan, Lithuania, Netherlands, Poland, Spain, South Africa, Sweden, Switzerland, Turkey, UK, USA

February 22, 2013 | Permalink | Comments (0) | TrackBack (0)

IP Foreclosure & Antitrust Foreclosure

Posted by D. Daniel Sokol

Steven Semeraro, Thomas Jefferson School of Law battles over IP Foreclosure & Antitrust Foreclosure.

ABSTRACT: Professor Christina Bohannan’s IP Misuse as Foreclosure enlightens the debate over the patent misuse doctrine’s role in regulating intellectual property owners’ ever-expanding claims. Presently, courts scrutinize licensing restrictions under the antitrust laws only after determining that the IP holder has exceeded what the Federal Circuit has called the “exclusionary zone” of the IP right. Professor Bohannan wisely rejects this question-begging inquiry, explaining that “[e]very licensing agreement contains terms that are not express in the [IP] grant, and the beyond-the-scope test does not provide a meaningful way to determine which of these terms lies ‘within the scope’” To bring coherence to this area, Professor Bohannan would eschew the existing two-step test in favor of an exclusive focus on “the core IP values of promoting innovation and protecting access to the public domain.”

Commenting on her piece, Professor Thomas Cotter points out that antitrust law and IP policy cannot be distinguished so easily. IP holders simultaneously possess both (1) a property right to foreclose competition; and (2) a privilege to compete in an open market. As Professor Cotter recognizes, antitrust law, no less than IP policy, seeks to mediate these rights and privileges. He suggests broadening antitrust doctrine, if necessary, rather than using IP policy to condemn licensing restrictions as misuse that antitrust doctrine would otherwise permit.

The misuse problem, however, is more fundamental than either Professors Bohannan or Cotter suggest. IP policy and antitrust law seek precisely the same objectives — an optimal melding of a property-rights regime that insulates owners from competition, and a competitive regime in which everything that might constitute property is up for grabs. A coherent solution will not come from tweaking either IP or antitrust. Both already serve as syntheses of society’s dual commitment to property rights and competitive markets. Instead, the law must step back and focus directly on how one structures a legal regime that commits itself to these conflicting goals.

Part I summarizes existing law and Professor Bohannan’s proposal. Part II explains that since IP policy and antitrust doctrine share common goals, her approach essentially replicates what modern courts do in misuse cases. Part III suggests a potentially more fruitful path.

February 22, 2013 | Permalink | Comments (0) | TrackBack (0)

Developments in Vietnamese Competition Law and Policy

Posted by D. Daniel Sokol

Trinh Anh Tuan (Vietnam Competition Authority) offers Developments in Vietnamese Competition Law and Policy.

ABSTRACT: Beginning in the early 1990s, Vietnam started to open up its economy, promote external trade, and has received FDI capital. Its admission into ASEAN in 1995 marked the first important step in the process of Vietnam's integration with the international economy. ASEAN has decided to form an ASEAN Economic Community ("AEC") in 2015. According to the commitment among Member States, all ASEAN economies shall promulgate a competition law by 2015 to ensure a healthy and fair competition environment. On that basis, ASEAN member states will establish a mechanism for coordination and cooperation among ASEAN competition authorities to enforce competition laws and policies in ASEAN region.

Also, while in the process of negotiating accession to international trade/economic organizations like APEC or WTO, with respect to the competition area Vietnam was under great pressure to make a strong commitment to build a transparent legal framework, effectively implement competition policies, and establish an independent competition agency to ensure a level playing field for both local and foreign enterprises operating in Vietnam.

Along with reform and an opening-up policy, Vietnam's economy has achieved impressive growth in the late 20th and early 21st centuries. Rapid development of many industries and services has created competition pressure on enterprises and set out a requirement to build a legal framework to facilitate the competition environment. The transition from a centrally planned economy to a market-oriented economy with state management has raised awareness of a number of unfair competition acts or anticompetitive acts that can cause negative effects on economic development. In addition, the economy developed from a low starting point that included the existence of a number of sectors or areas characterized by state monopoly. This led to restrictions in the development of non-state enterprises and a negative impact on the competition environment in general.

Before the promulgation of the Competition Law, anticompetitive acts or monopolies in some specific areas had been regulated by separate and scattered provisions in a number of legislations such as the Ordinance on Price, the Ordinance on Telecommunications, the Law on Credit Institutions, Commercial Law, Electricity Law, etc. However, implementation of this type of legislation was not really effective, partly due to lack of a complete and consistent legal framework, lack of state management competency on competition and monopoly control, lack of sanctions, etc.

In that context, in 2000 the National Assembly and the Government saw the need to put the Competition Law into a legislative program. Vietnam Competition Law was passed by the National Assembly on November 9, 2004, and came into force on July 1, 2005. The Law was a result of a four-year process that saw various drafts circulated for comments from both domestic and international experts. The Competition Law is the first of its kind in Vietnam.

February 22, 2013 | Permalink | Comments (0) | TrackBack (0)

The Effects of Credit Competition on Banks’ Loan Loss Provision Timeliness: A Natural Experiment Across Contiguous State Borders

Posted by D. Daniel Sokol

Yiwei Dou, New York University (NYU) - Department of Accounting, Taxation & Business Law, Stephen G. Ryan, New York University (NYU) - Leonard N. Stern School of Business and Youli Zou, University of Toronto - Rotman School of Management have a paper on The Effects of Credit Competition on Banks’ Loan Loss Provision Timeliness: A Natural Experiment Across Contiguous State Borders.

ABSTRACT: Prior research has documented specific benefits, but not costs, of timelier loan loss provisioning for reporting banks and the overall financial system. We examine one such cost in this paper. We argue that potential entrants into a local loan origination market use incumbent banks’ reported loan loss provisions to assess incumbents’ loan underwriting quality and thus the desirability of market entry. By loan underwriting quality, we mean banks’ ability to evaluate credit risk to determine which loans to grant as well as the interest rates and other contractual terms of granted loans. Incumbents with better loan underwriting quality leave fewer profitable lending opportunities for potential entrants. We use variation in interstate branching deregulation across states from 1994 to 2005 as a natural experiment to investigate how increased threat of entry affects incumbent banks’ loan loss provision timeliness. We predict and find that incumbents more subject to entry reduce the timeliness of their bad news (but not good news) loan loss provisions to increase their perceived loan underwriting quality. Further, we predict and find variation in this behavior across loan origination markets attributable to incumbents’ loan portfolio composition and borrower turnover in those markets.

February 22, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 21, 2013

Information and Learning in Oligopoly: An Experiment

Posted by D. Daniel Sokol

Maria Bigoni, University of Bologna - Department of Economics and Margherita Fort, University of Bologna have an interesting paper on Information and Learning in Oligopoly: An Experiment.

ABSTRACT: This paper presents an experiment on learning in repeated games, which complements the analysis of players' actual choices with data on the information acquisition process they follow. Subjects play a repeated Cournot oligopoly, with limited a priori information. The econometrics hinges on a model built upon Experience Weighted Attraction learning, and the simultaneous analysis of data on the information gathered and on actions taken by the subjects. Results suggest that learning is a composite process, in which different components coexist. Adaptive learning emerges as the leading element, but when subjects look at the strategies individually adopted by their competitors they tend to imitate the most successful behavior, which makes markets more competitive. Reinforcement learning also plays a role, as subjects favor strategies that have yielded higher profits in the past.

February 21, 2013 | Permalink | Comments (0) | TrackBack (0)

Transparency and due process survey (please make time to take this)

Posted by D. Daniel Sokol

Below is a link to a survey on transparency and due process practices followed by competition enforcement agencies worldwide. This survey is being conducted in parallel to the Investigative Process Project (the "Project ") currently undertaken by the Agency Effectiveness Working Group ( "AEWG ") of the International Competition Network.  Through this survey, we are trying to gather information on actual experiences (both good and bad) of practitioners before different competition enforcement agencies.  A goal of this survey would be to assist the AEWG's work with respect to the Project, and to inform potential best practice principles that are developed in the area of transparency and due process.

 

We recognize that this survey may request potentially sensitive information about past or current matters pending before competition enforcement agencies. All of the specific responses gathered by this survey will be kept confidential and will only be seen by the three individuals below.  The results of this survey will be aggregated in a manner that protects both the identities of specific investigations or matters as well as the individual survey respondents, and a summary report will presented to the Project Chairs (the U.S. FTC and DG Comp) to give a meaningful overview of the survey responses.  All respondents will have an opportunity to review this summary report before it is provided to the Project Chairs.

 

We are forwarding this survey to you as an respected international competition law practitioner.  Please feel free to forward it to additional practitioners who may be interested in the Project.  Thanks in advance for participating in the survey, and please contact any of us if you should have questions.  The deadline for response to this survey is March 11

 

James F. Rill, ICN NGA, Baker Botts LLP, james.rill@bakerbotts.com

Chuck Webb ICN NGA, Baker Botts LLP, charles.webb@bakerbotts.com

Sean Heather, ICN, NGA, U.S. Chamber of Commerce, sheather@uschamber.com

 

CLICK HERE TO LAUNCH THE SURVEY

February 21, 2013 | Permalink | Comments (0) | TrackBack (0)

Margin Squeeze in the Telecommunications Sector: A More Economics-Based Approach

Posted by D. Daniel Sokol

Ramin Silvan Gohari, University of Fribourg, Department of Commercial and Business Law, advocates for Margin Squeeze in the Telecommunications Sector: A More Economics-Based Approach.

ABSTRACT: A margin squeeze occurs when a vertically integrated company, dominant in the supply of an indispensable upstream input, pursues a pricing policy which prevents downstream competitors from trading profitably, thereby leading to their ultimate exclusion from the downstream market.

In the telecommunications sector, where large ex-State firms still enjoy considerable market power, margin squeeze has long been frequent. Interestingly, the United States and the European Union have tackled this problem in considerably different ways. Dismayed by the idea of an antitrust court intervening in a company's price setting, the US Supreme Court held that margin squeeze was exclusively the domain of regulation. Conversely, the Court of Justice of the European Union has endorsed a modern economics-based approach enabling competition authorities to engage in a coherent and verifiable antitrust assessment of the price differentials that potentially amount to a margin squeeze.

This paper will argue that (1) the economics-based approach is the right solution in the European context, but that (2) this approach will only lead to convincing results if it includes a rigorous and transparent analysis of the effects on competition and consumers.

February 21, 2013 | Permalink | Comments (0) | TrackBack (0)

Developments in Competition Law and Policy

Posted by D. Daniel Sokol

Teo Wee Guan (Competition Commission of Singapore) explores Developments in Competition Law and Policy.

ABSTRACT: Singapore has consistently been ranked among the world's most competitive economies. Since it was founded, Singapore has relied on a set of sound economic policies focusing on trade openness, human capital development, and infrastructure development.

Singapore started developing a generic competition law following the recommendations of the Economic Review Committee in 2003 to create a pro-competitive business environment that would be more conducive for large and small businesses. This would serve as an extension of existing policies to create an open business and trade regime in Singapore, with an emphasis on continued market innovation and productivity.

February 21, 2013 | Permalink | Comments (0) | TrackBack (0)

Competition, Efficiency, and Stability in Banking

Posted by D. Daniel Sokol

Klaus Schaeck, University of Wales - Bangor Business School and Martin Cihak, World Bank offer thoughts on Competition, Efficiency, and Stability in Banking.

ABSTRACT: We examine the effect of competition on banking stability using a new measure of competition based on the reallocation of profits from inefficient banks to efficient ones (Boone, 2008). Examining a sample of European banks, we show that this measure does capture competition, that competition is stability-enhancing, and that the stability-enhancing effect of competition is greater for healthy banks than for fragile ones. Our results suggest that efficiency is the conduit through which competition contributes to stability and that regulators must condition policy on the health of existing banks.

February 21, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 20, 2013

Margin Squeeze in the Telecommunications Sector: A More Economics-Based Approach

Posted by D. Daniel Sokol

Ramin Silvan Gohari, University of Fribourg, Department of Commercial and Business Law has posted Margin Squeeze in the Telecommunications Sector: A More Economics-Based Approach.

ABSTRACT: A margin squeeze occurs when a vertically integrated company, dominant in the supply of an indispensable upstream input, pursues a pricing policy which prevents downstream competitors from trading profitably, thereby leading to their ultimate exclusion from the downstream market.

In the telecommunications sector, where large ex-State firms still enjoy considerable market power, margin squeeze has long been frequent. Interestingly, the United States and the European Union have tackled this problem in considerably different ways. Dismayed by the idea of an antitrust court intervening in a company's price setting, the US Supreme Court held that margin squeeze was exclusively the domain of regulation. Conversely, the Court of Justice of the European Union has endorsed a modern economics-based approach enabling competition authorities to engage in a coherent and verifiable antitrust assessment of the price differentials that potentially amount to a margin squeeze.

This paper will argue that (1) the economics-based approach is the right solution in the European context, but that (2) this approach will only lead to convincing results if it includes a rigorous and transparent analysis of the effects on competition and consumers.

February 20, 2013 | Permalink | Comments (0) | TrackBack (0)

The Liberalisation of the Postal Service Market in Estonia and Its Effect on Competition

Posted by D. Daniel Sokol

Juri Sepp, University of Tartu and Raigo Ernits, University of Tartu explore The Liberalisation of the Postal Service Market in Estonia and Its Effect on Competition.

ABSTRACT: The liberalisation of infrastructure sectors through opening up markets as a method for increasing the efficiency of infrastructure services is an international tendency. Emerging competition has been seen as an essential element in this process. On the other hand, the liberalisation of the market for universal services can cause several problems in ensuring quality and access to services. In this article we evaluate the results of liberalisation in the Estonian postal sector as an infrastructure specific sector offering a universal service in a decreasing market in a small country.

February 20, 2013 | Permalink | Comments (0) | TrackBack (0)

Protecting Consumers and Small Suppliers from Anticompetitive Conduct: The Goal with the Widest Support

Posted by D. Daniel Sokol

John B. Kirkwood, Seattle University School of Law advocates Protecting Consumers and Small Suppliers from Anticompetitive Conduct: The Goal with the Widest Support.

ABSTRACT: The goals of antitrust law continue to be debated because there is no single goal that is unambiguously correct. There is one goal, however, that now commands wider support than any other: protecting consumers and small suppliers from anticompetitive conduct – conduct that creates market power, transfers wealth from consumers or small suppliers, and fails to provide them with compensating benefits. This goal is the predominant objective in the legislative histories, it is broadly supported by the American people, it is easier to administer than total welfare, and it is now espoused by the majority of courts.

Proponents of total welfare advance two principal arguments, but neither warrants elevating it over consumer and small supplier protection. First, from a normative perspective, total welfare is arguably the superior goal because it considers the welfare of all participants in the economy, including producers and consumers outside the relevant market. It ignores, however, the transfer of wealth that anticompetitive conduct causes, a transfer that many people regard as exploitative and unfair. Second, from a legal perspective, total welfare is arguably the goal of section 2 of the Sherman Act because it allows a firm to gain monopoly power through superior efficiency. But this safe harbor is equally consistent with a consumer protection goal, since it encourages firms to succeed in the marketplace by providing customers with better products, lower prices, and wider choice.

February 20, 2013 | Permalink | Comments (0) | TrackBack (0)

Beyond price discrimination: welfare under differential pricing when costs also differ

Posted by D. Daniel Sokol

Yongmin Chen (University of Colorado) and Marius Schwartz (Georgetown) have written about Beyond price discrimination: welfare under differential pricing when costs also differ.

 ABSTRACT: We extend the analysis of monopoly third-degree price discrimination to the empirically important case where marginal costs also differ between markets. Differential pricing then reallocates output to the lower-cost markets, hence welfare can increase even if total output does not, unlike under pure price discrimination. To induce output reallocation the firm varies its prices but---again, unlike under pure price discrimination---with no upward bias in the average price. Due to this price dispersion, differential pricing motivated solely by cost differences will increase consumer surplus (and total welfare) for a broad class of demand functions. We also provide sufficient conditions for beneficial differential pricing in the hybrid case where both demand elasticities and marginal costs differ.

February 20, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 19, 2013

Aviv Nevo new DAAG for Economics at DOJ Antitrust

Posted by D. Daniel Sokol

I am happy to report that Northwestern's Aviv Nevo will take academic leave to serve the US government as the next chief economist (technically, as Deputy Asssitant Attorney General for Antitrust) at DOJ Antitrust. Aviv's econometrics writing is very good and he has been involved in a number of antitrust cases. This is a high quality choice for Bill Baer and the DOJ Antitrust team. I am sure that Aviv's family has much nachat (very well deserved) from his appointment.

February 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Forward trading and collusion of firms in volatile markets

Posted by D. Daniel Sokol

Markus F. Aichele, Tubingen discusses Forward trading and collusion of firms in volatile markets.

ABSTRACT: Assuming deterministic demand Liski and Montero (2006) show that forward trading is able to facil- itate collusion. We present a more concise model incorporating the main reason for forward trading: Uncertainty. In general, uctuations make collusion harder to sustain (Rotemberg and Saloner, 1986). However, using forward contracts, rms are able to decrease the incentives to deviate from a collusive agreement even in very volatile markets. This makes collusive strategies more sustainable and decreases social welfare.

February 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Do Retail Mergers Affect Competition? Evidence from Grocery Retailing

Posted by D. Dnaiel Sokol

Daniel S. Hosken, Government of the United States of America - Federal Trade Commission, Luke Olson, Government of the United States of America - Federal Trade Commission and Loren Smith, Government of the United States of America - Federal Trade Commission ask Do Retail Mergers Affect Competition? Evidence from Grocery Retailing.

ABSTRACT: This study estimates the price effects of horizontal mergers in the U.S. grocery retailing industry. We examine fourteen regions affected by mergers including both highly concentrated and relatively unconcentrated markets. We identify price effects by comparing markets affected by mergers to unaffected markets using both difference-in-difference estimation and the synthetic control method. Our results are robust to the choice of control group and estimation technique. We find that mergers in highly concentrated markets are most frequently associated with price increases, while mergers in less concentrated markets are most often associated with price decreases.

February 19, 2013 | Permalink | Comments (0) | TrackBack (0)

FTC Triumphs over Phoebe Putney in 9-0 Supreme Court Decision

Posted by D. Daniel Sokol

The Supreme Court decision is out - see here. The Supreme Court ruled against Phoebe Putney in a 9-0 decision by Justice Sotomayor. The Court made the right call. I am not a fan of state action (see here) and the facts in this case were really bad for Phoebe Putney.

February 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Consolidation and Merger Activity in the United States Banking Industry from 2000 Through 2010

Posted by D. Daniel Sokol

Robert M. Adams, Federal Reserve Board has written on Consolidation and Merger Activity in the United States Banking Industry from 2000 Through 2010.

ABSTRACT: This study investigates trends in consolidation and merger activity in the United States banking industry from 2000 through 2010. Over this period, the U.S. banking industry has consistently experienced over 150 mergers annually, with the largest banking organizations holding an increasing share of banking assets. While the industry has undergone considerable consolidation at the national level, local banking markets have not experienced significant increases in concentration. The dynamics of consolidation raise concerns about competition, output, efficiency, and financial stability. This study uses a comprehensive proprietary data set to examine mergers and acquisitions involving banks and thrifts. The methodology in this paper expands the definition of mergers to include more types of transactions than previous studies on bank mergers.

February 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Developments in New Zealand Competition Law and Policy

Posted by D. Daniel Sokol

Mark Berry (New Zealand Commerce Commission) explains Developments in New Zealand Competition Law and Policy.

ABSTRACT: The New Zealand Commerce Commission is an independent statutory body with responsibility for enforcing competition law. The Commerce Act 1986 prohibits anticompetitive behavior and structures in markets. It applies broadly across the economy, including the public sector. The NZCC also enforces consumer legislation and is the industry-specific economic regulator for the electricity lines, gas pipelines, telecommunications, dairy, and airport sectors.

The NZCC functions as both an enforcement agency with sanctions requiring decisions by New Zealand's High Court; and a quasi-judicial body, with power to give clearances and authorizations for business acquisitions, and authorizations for certain restrictive trade practices.

February 19, 2013 | Permalink | Comments (0) | TrackBack (0)