Antitrust & Competition Policy Blog

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

A Member of the Law Professor Blogs Network

Monday, July 14, 2014

The Effectiveness of Competition Policy: An Econometric Assessment in Developed and Developing Countries

Danilo Sama (LUISS) explores The Effectiveness of Competition Policy: An Econometric Assessment in Developed and Developing Countries.

ABSTRACT: The ultimate objective of the present paper is to empirically investigate the effectiveness of competition policy in developed and developing countries. Although its importance is continuously increasing, the effectiveness of competition policy still seems to lack the attention that it would deserve. At the present state of art, the number of academic contributions that attempts to estimate its impact on relevant economic variables appears very limited, in particular for the less developed countries. However, an empirical literature aimed at measuring in objective terms the effect of competition policy on economic growth is emerging, starting from narrow variables of interest, such as Gross Domestic Product and Total Factor Productivity. As a result, the principal aim of the current work is to contribute to this branch of research, focusing on broader indicators of market performance, in order to understand whether the presence of an antitrust authority has a significant impact, thus an effective utility, on the level of competition of a country.

July 14, 2014 | Permalink | Comments (0) | TrackBack (0)

Entry deterring effects of contractual relations in the dairy processing sector

Yvonne Zavelberg, Christine Wieck, Thomas Heckelei, all University of Bonn discuss Entry deterring effects of contractual relations in the dairy processing sector.

ABSTRACT: In 2010, the European (EU) High Level Expert Group on milk proposed the introduction of standard contracts between raw milk producers and processors to improve the bargaining position of producers and to stabilize the market by balancing dairy supply and demand. However, contracts may distort competition and deter market entry of rival dairies. We analyze competitive effects of contracts between dairy producers and processors by constructing a game theoretic model. We show that an incumbent dairy can deter a rival dairy’s market entry by offering an exclusive contract to a risk averse producer.

July 14, 2014 | Permalink | Comments (0) | TrackBack (0)

Competition Law Enforcement in Malaysia: Some Recent Developments

Cassey LEE (University of Wollongong) describes Competition Law Enforcement in Malaysia: Some Recent Developments.

ABSTRACT: The enactment of the Competition Act 2010 represents a significant progress in the implementation of competition policy in Malaysia. The Malaysian Competition Commission has been fairly successful in its enforcement activities especially in price fixing cases involving trade associations. It has also investigated and issued proposed decisions in a number of high profile cases involving Malaysian Airlines, AirAsia, and Megasteel. Future challenges are likely to involve investigation of more complex anti-competitive cases, review of government regulations with impact on competition, possible introduction of merger controls and regional integration.

July 14, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, July 11, 2014

Cartel Detection and Collusion Screening: An Empirical Analysis of the London Metal Exchange

Danilo Sama, LUISS Guido Carli University of Rome discusses Cartel Detection and Collusion Screening: An Empirical Analysis of the London Metal Exchange.

ABSTRACT: In order to fight collusive behaviors, the best scenario for competition authorities would be the possibility to analyze detailed information on firms' costs and prices, being the price-cost margin a robust indicator of market power. However, information on firms' costs is rarely available. In this context, a fascinating technique to detect data manipulation and rigged prices is offered by an odd phenomenon called Benford's Law, otherwise known as First-Digit Law, which has been successfully employed to discover the "Libor Scandal'' much time before the opening of the cartel settlement procedure. Thus, the main objective of the present paper is to apply a such useful instrument to track the price of the aluminium traded on the London Metal Exchange, following the allegations according to which there would be an aluminium cartel behind. As a result, quick tests such as Benford's Law can only be helpful to inspect markets where price patterns show signs of collusion. Given the budget constraints to which antitrust watchdogs are commonly subject to, a such price screen could be set up, just exploiting the data available, as warning system to identify cases that require further investigations.

July 11, 2014 | Permalink | Comments (0) | TrackBack (0)

ABA Journal Blog Awards

The ABA Journal has begun the process of soliciting nominations for the 8th Annual Blawg 100 -- "the 100 best Web sites by lawyers, for lawyers, as chosen by the editors of the ABA Journal."

You may nominate your favorite blawg here.

July 11, 2014 | Permalink | Comments (0) | TrackBack (0)

Russian Competition Law In Light Of The Principles Of Ex Post And Ex Ante

Konstantin Yu. Totyev (National Research University Higher School of Economics) describes Russian Competition Law In Light Of The Principles Of Ex Post And Ex Ante.

ABSTRACT: This article is devoted to the legitimation and application of the standards of ex post and ex ante by courts and the executive authorities in the sphere of competition regulation. The postulates of ex post and ex ante are considered as legal principles. The principle of ex post is intended solely for judicial and administrative application; it has a deontological framework; it assumes that the legality of the activity of economic entities is assessed only on the basis of positive legal criteria in terms of the subjective rights violated; it is limited to a particular case. The traditional approach to the principle of ex post limits the scope of its application on the subjects and excessively expands its objects. The postulate of ex ante has a utilitarian basis which assumes the assessment of the application of relevant rules in the future. One of the main aims of the article is to refute the common view of lawyers and economists that a legislator applies principle of ex ante not being bound by principle of ex post, while it is the other way around for the courts and the executive authorities. The principle of ex ante may be applied not only in the process of the creation of new rules but also at the application stage for existing rules on economic competition. This is justified because the arguments of the courts and the executive authorities about a refusal to take into account the consequences of a decision in a particular case are not convincing.

July 11, 2014 | Permalink | Comments (0) | TrackBack (0)

Effects Of Hostility Tradition In Antitrust: Leniency Programs And Cooperation Agreements

Natalia Pavlova (National Research University Higher School of Economics) and Andrey Shastitko (National Research University Higher School of Economics) explore Effects Of Hostility Tradition In Antitrust: Leniency Programs And Cooperation Agreements.

ABSTRACT: The article focuses on the effects that type I errors can have on the incentives of firms to compete, collude or engage in efficiency promoting socially beneficial cooperation. Our results confirm that in the presence of type I errors the introduction of a leniency program can have ambiguous effects, including the destruction and prevention of welfare enhancing horizontal cooperation agreements. The obtained results help understand the negative impact the hostility tradition resulting in type I enforcement errors can have on social welfare when applied to the regulation of horizontal agreements.

July 11, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 10, 2014

Heterogeneous Price Dynamics, Synchronization, and Retail Chains: Evidence from Scanner Data

Andres Elberg (Universidad Diego Portales) discusses Heterogeneous Price Dynamics, Synchronization, and Retail Chains: Evidence from Scanner Data.

ABSTRACT: This paper uses a novel scanner data set to study price setting decisions of major retailers in an emerging market economy. I find evidence of heterogeneous pricing dynamics across retail chains. Heterogeneity is especially pronounced in the case of posted (as opposed to reference) prices. Furthermore, retail chains appear to set prices in a centralized fashion: most barcode-store level prices coincide with the intra-chain modal price. The relationship between reference and chain-wide prices reveals that deviations from reference prices cannot be solely attributed to shocks to local market conditions. In line with results on retail chain pricing, I find strong evidence of synchronization of price changes across stores within chains but weaker evidence of synchronization across retail chains. The evidence is also consistent with synchronization of price changes within retail stores.

July 10, 2014 | Permalink | Comments (0) | TrackBack (0)

The Essential Facilities Doctrine: The Lost Message of Terminal Railroad

Stephen M. Maurer and Suzanne Scotchmer University of California, Berkeley discuss The Essential Facilities Doctrine: The Lost Message of Terminal Railroad.

ABSTRACT: The growing importance of shared networks, shared platforms and shared standards leads to a renewed discussion of the essential facilities doctrine of antitrust. This is an area where European law and American law have diverged. In Trinko (2007), the U.S. Supreme Court came close to abolishing it. At the same time, it was reinvigorated by the European Commission, which asserted it successfully in E.C. v. Microsoft, and then, facing criticism, clarified the doctrine in a Guidance document. We harmonize the main cases around the doctrine’s original but often forgotten purpose namely, harvesting economic synergies through sharing. We argue that, absent such a doctrine, these synergies could be lost as firms either avoid sharing to avoid antitrust liability, or create sharing arrangements that undermine competition. We show how and why the original purpose of the doctrine has become entangled with other antitrust issues, i! n particular, leveraging. We systematize the sharing rules that have been imposed or allowed, with an emphasis on how to harvest synergies while mitigating any harm to competition.

July 10, 2014 | Permalink | Comments (0) | TrackBack (0)

GCR Live 2nd Annual New York 16 September 2014 at 09:00 to 18:00

GCR Live 2nd Annual New York

16 September 2014 at 09:00 to 18:00

New York, USA

.30: Welcome coffee and registration

9.00: Chairs’ opening remarks

Nick Levy, Cleary Gottlieb Steen & Hamilton Ronan Harty, Davis Polk & Wardwell

9.10: Keynote address and questions:

David Gelfand, Deputy Assistant Attorney General for Litigation, Antitrust Division, US Department of Justice

10.05: Session one: Antitrust enforcement in China – what next?

Moderator: Daniel Sokol, Levin College of Law, University of Florida

Introductory Speaker: Maureen K. Ohlhausen, Commissioner, Federal Trade Commission

Panel: Elizabeth Xiao-Ru Wang, Charles River Associates Mark Whitener, Senior Counsel, Competition Law & Policy, General Electric Company Alex Potter, Freshfields Bruckhaus Deringer

11.20: Coffee break

11.40: Session two: Merger control & minority interests – is the gap worth filling?

Moderator: Ilene Knable Gotts, Wachtell, Lipton, Rosen & Katz

Panel: Todd Miller, Baker & Miller Michael Moiseyev, Assistant Director, Bureau of Competition, Federal Trade Commission John Harkrider, Axinn, Veltrop & Harkrider Janusz A. Ordover, Compass Lexecon

12.55: Lunchtime speaker
Eric Stock, Chief of the Antitrust Bureau, New York State Attorney General

13.30: Networking lunch sponsored by Bennett Jones

14.30: Session three: Challenges in global antitrust enforcement

Moderator: Leon B. Greenfield, Wilmer Cutler Pickering Hale and Dorr

Panel: Melanie Aitken, Bennett Jones Kevin Arquit, Simpson Thacher & Bartlett Rachel Brandenburger, Hogan LovellsWilliam Kovacic, The George Washington University Law School
15.30:
Coffee break

15.45: Session four: Antitrust litigation in the EU – has its time now come?

Moderator: Fiona Schaeffer, Milbank, Tweed, Hadley & McCloy

Panel: Anthony Maton, Hausfeld & Co Nicole Kar, Linklaters Robert O'Donoghue, Brick Court Chambers Jordan Ellison, Slaughter and May

17.15: Chairs’ closing remarks

17.30: All delegates are invited to attend a cocktail reception kindly hosted by Davis Polk & Wardwell.

July 10, 2014 | Permalink | Comments (0) | TrackBack (0)

Competition and the Hold‐Up Problem: a Setting with Non‐exclusive Contracts

Guillem Roig (Toulouse) analyzes Competition and the Hold‐Up Problem: a Setting with Non‐exclusive Contracts.

ABSTRACT: This work studies how the introduction of competition to the side of the market offering trading contracts affects the equilibrium investment profile in a bilateral investment game. By using a common agency framework, where contracts are not exclusive, we find that the equilibrium investment profile depends on the competitiveness of the equilibrium outcome. Full efficiency can only be implemented when the trading outcome is the most competitive. Moreover, lowering the outcome competitiveness is not always Pareto dominant for the parties offering the contracts, and larger social welfare can be obtained with low competitive equilibria.

July 10, 2014 | Permalink | Comments (0) | TrackBack (0)

The Limits of Price Discrimination

Dirk Bergemann (Cowles Foundation, Yale University), Benjamin Brooks (Dept. of Economics, Princeton University) and Stephen Morris (Dept. of Economics, Princeton University) address The Limits of Price Discrimination.

ABSTRACT: We analyze the welfare consequences of a monopolist having additional information about consumers' tastes, beyond the prior distribution; the additional information can be used to charge different prices to different segments of the market, i.e., carry out "third degree price discrimination." We show that the segmentation and pricing induced by the additional information can achieve every combination of consumer and producer surplus such that: (i) consumer surplus is non-negative, (ii) producer surplus is at least as high as profits under the uniform monopoly price, and (iii) total surplus does not exceed the surplus generated by efficient trade.

July 10, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 9, 2014

The Divergent Effects of Long-Term and Short-Term Entry Investments on Home Market Cartels

Daniel Cracau (Faculty of Economics and Management, Otto-von-Guericke University Magdeburg) and Abdolkarim Sadrieh (Faculty of Economics and Management, Otto-von-Guericke University Magdeburg) explore The Divergent Effects of Long-Term and Short-Term Entry Investments on Home Market Cartels.

ABSTRACT:   Positive effects of multimarket activities on cooperation between firms are widely acknowledged. We study these effects in a setting with home market asymmetries as is typical for global competition. In our multimarket duopoly experiment each firm has a home market but may also enter the other firm's market. Without entry barriers, we observe a high level of mutual forbearance with firms serving their home markets exclusively. With short-term entry barriers, the competition rates decrease significantly, as expected. Surprisingly, with long-term entry barriers, firms exhibit higher levels of competition, entering each other's market more often. We conjecture that in the latter case, bearing the cost of entry is perceived as a signal for the intention to compete and has an adverse effect on cooperation.

July 9, 2014 | Permalink | Comments (0) | TrackBack (0)

The "consumer choice" paradigm in German ordoliberalism and its impact upon EU competition law

Peter Behrens (University of Hamburg) describes The "consumer choice" paradigm in German ordoliberalism and its impact upon EU competition law.

ABSTRACT: This paper explores the origin and development of the consumer choice paradigm as the core concept of German ordoliberal thought which has had a strong impact on EU competition policy and law. Outside Germany, ordoliberal thought is often identified exclusively with the learning of the original Freiburg School which represents the formative period of German ordoliberalism after the Second World War. Major developments since then have remained largely unrecognized. This paper sets out the important insights that have markedly changed some of the basic concepts of the Freiburg School so as to bring ordoliberalism into line with modern economic learning. The core tenets, however, remain: the crucial role attributed to consumers' choice as the driving force behind producers' rivalry, the dependence of consumers' freedom of choice upon an open market structure, efficiency (consumer welfare) as the result of competition rather! than of an individual entrepreneurial market strategy. The core elements of this approach are traced back to classical liberalism and it is shown how they have been enriched and developed beyond the Freiburg School toward the contemporary version of ordoliberalism. This approach is still reflected and should continue to be reflected by the jurisprudence of the ECJ, because it avoids the kind of consumer welfare (or consumer harm) fallacy by which the more economic approach risks to be caught.

July 9, 2014 | Permalink | Comments (0) | TrackBack (0)

Are Cartel Fines Optimal? Theory and Evidence from the European Union

Marie-Laure Allain (CNRS), Marcel Boyer (Montreal), Rachidi Kotchoni (Montreal) and Jean-Pierre Ponssard (CNRS) ask Are Cartel Fines Optimal? Theory and Evidence from the European Union.

ABSTRACT: Deterring the formation or continuation of cartels is a major objective of antitrust policy. We develop a dynamic framework to characterize the compensation and deterrence properties of fines, based on the fact that cartel stability depends on the ability to prevent deviation, which itself depends in part on fines imposed in case of detection and conviction. We show that the proper consideration of cartel dynamics plays a major role in determining optimal deterrent fines. Our results suggest that a majority of fines imposed by the European Commission in recent years meet the deterrence objective.

July 9, 2014 | Permalink | Comments (0) | TrackBack (0)

Do Consumers' Preferences Really Matter? - A Note on Spatial Competition with Restricted Strategies

Berno Buechel (University of Hamburg) and Jan Klein (EBS Business School) ask Do Consumers' Preferences Really Matter? - A Note on Spatial Competition with Restricted Strategies.

ABSTRACT: In the framework Hotelling-Downs competition two players can freely choose a position along a one-dimensional market. We introduce restrictions of feasible strategies and analyze the consequences for players and consumers. In equilibrium players may minimally differentiate away from the center of the market and even locate completely independently of consumers' preferences. We provide conditions for these novel cases as well as for the standard result that players locate on the median of the distribution of consumers. In addition to the short run, where restrictions are fixed, we elaborate on the long run by studying the players' choice of restrictions under (potential) market entry. In both settings, we find an inefficient outcome, in which a firm is capable of offering a product at the center of the market, but instead chooses a position that is worse for most of the consumers.

July 9, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 8, 2014

The Smartphone Royalty Stack: Surveying Royalty Demands for the Components within Modern Smartphones

Ann Armstrong (Intel), Joseph J. Mueller (Wilmer), and Timothy D. Syrett (Wilmer)discuss The Smartphone Royalty Stack: Surveying Royalty Demands for the Components within Modern Smartphones.

July 8, 2014 | Permalink | Comments (0) | TrackBack (0)

Does Competition Make Banks More Risk-Seeking?

Stefan Arping, University of Amsterdam - University of Amsterdam Business School; Tinbergen Institute asks Does Competition Make Banks More Risk-Seeking?

ABSTRACT: This article presents a model in which, contrary to conventional wisdom, competition can make banks more reluctant to take excessive risks: As competition intensifies and margins decline, banks face more-binding threats of failure, to which they may respond by reducing their risk-taking. Yet, at the same time, banks become riskier. This is because the direct, destabilizing effect of lower margins outweighs the disciplining effect of competition; moreover, a substantial rise in competition reduces banks’ incentive to build precautionary capital buffers. A key implication is that the effects of competition on risk-taking and on failure risk can move in opposite directions.

July 8, 2014 | Permalink | Comments (0) | TrackBack (0)

Patent Misuse and Antitrust: Rebirth or False Dawn?

Daryl Lim (John Marshall) asks Patent Misuse and Antitrust: Rebirth or False Dawn?

ABSTRACT: This Article examines how two recent cases, F.T.C. v. Actavis and Kimble v. Marvel Enterprises Inc. could affect both the equitable defense of patent misuse and the patent-antitrust interface more generally. It begins by tracing the history of patent misuse and its reformulation into an “antitrust-lite” doctrine by the Federal Circuit. This Article presents new empirical data confirming this reformulation, and unveils the surprising influence of the Seventh Circuit and the Chicago School on that reformulation. The Article then explores Actavis and Kimble. It explains why Actavis will catalyze more antitrust challenges when patent rights are exercised, and why it also challenges the Federal Circuit’s formulation of patent misuse. The Article proceeds to observe Kimble’s misunderstanding of the patent policy underpinning the Supreme Court’s prohibition against post-expiration royalties. This Article confronts three key objections to a revival of misuse — its vagueness, lax standing requirements and punitive effects on patentees — and explains why these objections are misplaced. The Article concludes by recommending that judges and attorneys use the opportunity provided by Actavis to develop a more thoughtful framework for patent misuse that draws upon the strengths of its roots in patent policy and its interface with antitrust policy.

July 8, 2014 | Permalink | Comments (0) | TrackBack (0)

Defining the Relevant Market in Telecommunications