Thursday, August 7, 2014
Aldo Gonzalez (University of Chile) and Alejandro Micco (University of Chile) have an interesting paper on PRIVATE VERSUS PUBLIC ANTITRUST ENFORCEMENT: EVIDENCE FROM CHILE.
ABSTRACT: This article measures the impact of Fiscalia Nacional Economica (FNE), the agency responsible for enforcing competition law, on the outcome of antitrust trials in Chile. Using statistics on lawsuits since the inception of the new Competition Tribunal in 2004, we find that involvement of the public agency increases the probability of obtaining a guilty verdict in an antitrust lawsuit by 40 percentage points. Conditional upon a verdict, prosecutor participation raises the likelihood of a conviction by 38 percentage points. The results are robust to possible selection bias by the public agency. The prosecutor is likely to take part in cases involving sensitive markets and in accusations of collusion. The state-related character of the accused entity, in addition to its size, does not affect the probability of agency intervention.
Implication of Globalisation for Competition Policy: The Need for International Co-Operation in Merger and Cartel Enforcement
Antonio Capobianco, OECD Competition Division, John Davies, Organization for Economic Co-Operation and Development (OECD), and Sean F Ennis, Organization for Economic Co-Operation and Development (OECD) - Competition Division have a nice overview paper on the Implication of Globalisation for Competition Policy: The Need for International Co-Operation in Merger and Cartel Enforcement.
ABSTRACT: The complexity of co-operation in cross-border competition law enforcement increased significantly between 1990 and 2011, underlining the urgency to improve techniques and tools of competition authority co-operation. As international trade has increased, the number of competition law enforcement activities related to cross-border mergers and cartels has risen substantially (up by about 250-466% since the 1990s). At the same time, the number of competition authorities has increased by a factor of 6 since 1990, from under 20 to 120 as of 2013. The spread of competition law is a positive development but co-operation has become more complicated as a result. Between 1990 and 2011, an index of complexity of co-operation on cross-border cases has increased by between 23 and 53 times. As trade and cross-border business activity increases in the future, and young competition authorities become more active, effective co-operation will become even more complicated. Ultimately, the complexity of co-operation can lead to undesirable outcomes, such as inconsistent decisions and unchallenged illegal conduct. The costs of failures of co-operation are identified, and found to be substantial. To overcome potential failures in co-operation, new and enhanced methods of competition law co-operation should be explored.
Wednesday, August 6, 2014
Soren Rud Kristensen, University of Manchester, Luigi Siciliani, University of York (UK), and Matt Sutton, University of Manchester Optimal Price-Setting in Pay for Performance Schemes in Health Care.
ABSTRACT: The increased availability of process measures implies that quality of care is in some areas de facto verifiable. Optimal price-setting for verifiable quality is well-described in the incentive-design literature. We seek to narrow the large gap between actual price-setting behaviour in Pay-For-Performance schemes and the incentive literature. We present a model for setting prices for process measures of quality and show that optimal prices should reflect the marginal benefit of health gains, providers altruism and the opportunity cost of public funds. We derive optimal prices for processes incentivised in the Best Practice Tariffs for emergency stroke care in the English National Health Service. Based on published estimates, we compare these to the prices set by the English Department of Health. We find that actual tariffs were lower than optimal, relied on an implausibly high level of altruism, or implied a lower social value of health gains than previously used.
DongJoon Lee, Nagoya University of Commerce and Business Administration, Kangsik Choi, Pusan National University, and Tatsuhiko Nariu, Kyoto University discuss First-Mover and Second-Mover Advantage in a Vertically Related Market.
ABSTRACT: We consider the issue of first- and second-mover advantages in a vertically related market. First, we show that the standard conclusions about sequential-move games under Bertrand and Cournot competitions can change in the context of a vertically related market. This is because an upstream monopoly can control first- and second-mover advantages by adjusting input prices. Ultimately, the upstream firm can achieve optimal profits by removing the first-mover (second-mover) advantage under Cournot (Bertrand) competition. Moreover, the profit of the upstream firm and social welfare are equal between Cournot and Bertrand com- petition under both simultaneous- and sequential-move games in a vertically related market.
Stefan Behringer, University of Duisburg-Essen - Mercator School of Management and Lapo Filistrucchi, Tilburg University, Department of Economics, CentER & TILEC; University of Florence, Dipartimento di Scienze Economiche describe Areeda-Turner in Two-Sided Markets.
ABSTRACT: Areeda and Turner (1975) were the first to argue that a price below marginal costs should be considered a sign of predation. Recognizing that marginal cost data were typically unavailable, the authors concluded that a price below average variable cost should be presumed unlawful. This socalled Areeda-Turner Rule has become the standard to assess claims of predation. We first show that in two-sided markets price cost margins on the two-sides of the market are interrelated and that a monopolist, even in the absence of actual or potential competition, may find it optimal to charge a price below marginal cost on one side of the market. As a result, showing that the price is below average variable cost on one side of the market cannot be considered a sign of predation in such markets. This is in contrast to a recent decision of the Commercial Court of Paris that sanctioned Google for giving away for free its online mapping services. We thus extend the Areeda-Turner rule to two-sided markets. We argue that one should apply the rule by taking into account revenues and costs from both sides of the market. As applications, we analyse three alleged cases of predatory behaviour in the market for daily newspapers. Our examples highlight that applying a one-sided Areeda-Turner rule may lead to assess a perfectly legitimate profit maximizing pricing policy as a predatory attempt.
Abuses of Information and Informational Remedies: Rethinking Exchange of Information Under Competition Law?
Fabiana Di Porto, University of Salento - Department of Economic Sciences asks about Abuses of Information and Informational Remedies: Rethinking Exchange of Information Under Competition Law?
ABSTRACT: Traditionally, the way competition law has viewed the exchange or sharing of information among competing firms, has been to some extent mainly negative, at least from the supply side. Present market conditions, an excessively transparent market, where operators exchange detailed and (prospect) commercially sensitive data on a regular basis, can amount to a practice facilitating collusion, or be itself an anti-competitive agreement violating Article 101 TFEU.
Interestingly, though, while a great deal of literature and case-law exists that reflects on the difficult relationship between the exchange of information and Article 101 (collusive scenarios and oligopolistic interdependence), the relationship between the exchange of information and Article 102 is a much less scrutinised issue.
A closer look at the Article 102 case-law suggests a less strict and skeptical approach towards exchange of information, compared to that on Article 101: it is the lack of information exchange or the misuse of information by dominant firms that are deemed anticompetitive and abusive.
At the same time, this closer look reveals that many Article 102 cases are adjudicated via remedies imposing an exchange of information or a duty to disclose information. Such behavioural remedies resemble much – as regards the rationale of intervention, the institutional resources employed and the powers exercised – to traditional regulation: it is therefore suggested to call them ‘para-regulatory’, to distinguish them from pure, traditional regulatory interventions.
In such a scenario, a risk may arise of conflicts with existing information-based regulation (e.g. access and disclosure regulation), leading to legal uncertainty, conflict of decisions and inconsistency; furthermore, information exchange obligations to remedy informational abuses under Article 102 can become suspicious under Article 101, as they can possibly ease unlawful collusion.
The Chapter is therefore organised as follows. Part 2 reviews a selection of Article 102 (or homologous norms in other jurisdictions) decisions dealing with information flows. In particular, two lines of cases are presented: those where exchanges of information are the subject-matter of abuse cases (at 2.1 below), and those where such exchanges are the object of “para-regulatory” remedies enforced pursuant to Article 102 (at 2.2 below). Part 3 focuses on the different treatment exchange of information receives under Articles 101 and 102 TFEU. Thereby possible internal clashes between these two branches of competition law will be analysed. The conclusion explores the theoretical possibility of reconciling such clashes, suggesting a framework for competition agencies to adequately intervening on market information flows.
Tuesday, August 5, 2014
Dominant Market Position and Prohibition of Abuse of Market Power in BRICS Countries: General Approaches
Ksenia Belikova, Peoples Friendship University of Russia analyzes Dominant Market Position and Prohibition of Abuse of Market Power in BRICS Countries: General Approaches.
ABSTRACT: The articles represents a research of general approaches of BRICS countries legislation and legal order to counteraction against such an anticompetitive market strategy as abuse of dominant market power in legal orders of China, India, Russia and South Africa. The author pays particular attention to current legislation of BRICS countries in the field of competition protection with regard to provisions related to criteria of establishment of a dominant market position fixed by Asian (China and India), Euro-Asian (Russia) and African (South Africa) legal orders and prohibition of abuse of market power. This article argues that our society is interested in the engagement of a population in trade and industrial activity. This is the general rule. Nowadays, however, this rule allows exceptions: restrictions of a freedom of trade can be justified by exceptional circumstances in certain cases and under certain circumstances (e.g. exemption necessary in the interest of security of the state or public interest, etc.).
The Distinction between Anti-Competitive Object and Effect after Allianz: The End of Coherence in Competition Analysis?
Csongor Istvan Nagy, University of Szeged, Faculty of Law; Budapest University of Technology and Economics asks The Distinction between Anti-Competitive Object and Effect after Allianz: The End of Coherence in Competition Analysis?
ABSTRACT: The article analyses the distinction between object and effect in competition analysis in the context of the CJEU’s recent ruling in Allianz. First, it examines the rationale and traditional notion of anti-competitive object. Secondly, it provides an outlook to the structure of antitrust analysis in US law and compares it with EU competition law.Thirdly, it gives an overview and assessment on the Allianz ruling as to the grasp of ‘object type’ agreements.The article criticizes the CJEU’s ruling and submits proposals.
The ABA has published State Antitrust Practice and Statutes, Fifth Edition.
BOOK ABSTRACT: This three-volume treatise systematically summarizes the substantive civil and criminal case law, procedure, practice, and statutes for each of the fifty states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands. State Antitrust Practice and Statutes (Fifth) also provides a practical overview of exemptions and defenses to antitrust liability and discusses government and private enforcement developments and trends through the date of publication. As in the first four editions, the treatise provides a survey of the field in the Introduction, followed by jurisdiction-specific chapters, each sharing a common structure specifically designed to facilitate multistate research. In particular, the treatise follows a uniform system of numbering that allows for cross-references between and among all the state chapters. The Fifth edition also contains an updated chapter devoted to developments in state antitrust law and enforcement in the health care industry, plus updated sections addressing antitrust aspects of state consumer protection and unfair competition laws.
The OECD has prepared a discussion on Airline Competition.
Air transport has radically evolved over the last two decades. Liberalisation and deregulation of the sector have facilitated the entry of new firms, which in turn has had a positive impact on competition and innovation. Deregulation and liberalisation also significantly altered marked structure, giving rise to mergers of flag airline carriers and diverse forms of collaboration.
However, in some cases, collaboration can actually be anti-competitive. It is essential to ensure that former regulatory barriers are not replaced by anti-competitive airline mergers, alliances, agreements and unilateral practices.
How can competition and innovation be fostered in order to improve consumer welfare? What is the relationship between competition law and regulation in the air transport sector? These and other questions were addressed in June 2014 when the OECD Competition Committee discussed Airline Competition so as to examine the main competition issues in the airline sector and how these issues have been dealt with by competition enforcement authorities.
MEETING DOCUMENTATION - DOWNLOADS
Papers, panellists and presentations
Contributions from participants
John Balfour (partner at Clyde & Co., UK), Airline Liberalisation and Competition: the EU Experience| ppt
Pablo Mendes de Leon (Leiden University, the Netherlands), Competition in International Markets: A Comparative Analysis | ppt
Brian Pearce (Chief Economist at IATA) Some key features of air transport markets (ppt)
The OECD has collected work on Generic pharmaceuticals and competition.
Entry by generic pharmaceuticals can enhance competition in the drug market by offering more choice and by lowering drug prices to the benefit of health customers. At the same time, innovation in the pharmaceutical sector should be sustained, notably by allowing innovators to obtain intellectual property rights on their originator drug.
Competition concerns arise, however, when originator companies use their intellectual property rights to delay or to prevent generic entry. Some pharmaceutical companies are using new potentially anticompetitive strategies.
In June 2014 meeting, the OECD Competition Committee addressed recent developments regarding such strategies, building on earlier discussions (see 2009 Roundtable Proceedings). Participants have also looked at how competition law enforcement can contribute to enhancing effective competition in the pharmaceutical sector.
Panellists, papers and presentations
Contributions from participants
Romano Subiotto (Partner at Cleary Gottlieb)
Monday, August 4, 2014
The OECD has produced papers on Enhanced Enforcement Co-operation.
International co-operation is a core part of competition-related work at the OECD and the shaping of new co-operation models is key to the benefit of enforcers and business.
In line with the OECD project on international co-operation in competition enforcement, competition delegates participated at a Hearing on Enhanced Enforcement Co-operation on 17 June 2014 so as to study possible new and different forms of co-operation among agencies. Four speakers were invited to share their insights on possible new forms of co-operation and live up the discussion.
Speakers papers and presentations
- Prof. Michal S. Gal (Faculty of Law, University of Haifa, Israel) presented her research on recognition of foreign decisions, and the criteria for such a system to operate in cartel cases Paper | PPT
- Chief Judge P. Wood (U.S. Court of Appeals for the Seventh Circuit, United States) reviewed the legally approved ways in which courts in different jurisdictions are permitted to assist one another, and how those might help the international cooperation effort Paper | PPT
- Dr. John Temple Lang (Cleary Gottlieb Steen & Hamilton LLP, Brussels, Belgium) reflected on possible models based on the “one-stop-shop” principle, and discussed advantages and challenges of such approaches Paper
- Prof. Oliver Budzinski (Institute of Economics, Ilmenau University of Technology, Germany) presented his research on “lead agency” models and discussed how these models could work in practice in the competition enforcement area Paper | PPT
- Presentation by the EU on cooperation in inspections
- Presentation by the ACCC on Australia-New Zealand Cooperation
Anne Riley and I have a new paper in which we are Rethinking Compliance.
ABSTRACT: This article addresses optimal deterrence and its limits in the context of creating a more effective mechanism for antitrust compliance to take hold in businesses. We suggest the need for the creation proactive encouragement of compliance programs, and possibly a consideration of the desirability of incentives for companies to create and to continue to invest in robust and credible compliance systems. Antitrust authorities should work with the business community to create a regulatory scheme that rewards good behavior while punishing bad behavior. To do so, antitrust authorities need to understand how to create and sustain compliance efforts within a company. The proper role of an antitrust compliance program should be to ensure compliance with the law and to promote ethical behaviour by and between companies as part of good corporate governance. Antitrust authorities should play a role in encouraging and supporting this, in the same way other enforcement authorities do (for example in relation to FCPA / anti-bribery enforcement). We argue that from a policy perspective, antitrust enforcement should not just be about punishment but about changing normative values within organizations.
Bjorn Lundqvist, Copenhagen Business School has a new book on Standardization under EU Competition Rules and US Antitrust Laws.
BOOK ABSTRACT: Standardization under EU Competition Rules and US Antitrust Laws is a comprehensive and detailed legal analysis of standard-setting procedure and the regulation of standard essential patents. It deals with the competition law aspects of competitors' collaboration to create technical standards, as well as the contentious antitrust issues regarding access to standards and standard essential patents.
The book shows that there is a clear difference between how standardization is scrutinized and judged in the two jurisdictions. In general, US courts use intellectual property law to address access to standard essential patents, while European courts utilize antitrust rules. Both avenues hold their specific benefits and disadvantages. However, the dichotomy between the tools used in the two jurisdictions also, according to the author, mirror a more fundamental change in attitude to central notions and values such as property, fairness, equity, public interest and competition.
Offering in-depth analysis of the case law currently being written in courtrooms all over the world under the so-called ‘patent war’, the book puts forward a new method for applying competition law to standards and standard-setting – in both its collusive and monopolistic aspects – that will be of special interest to students, academics and practitioners.
Stanley Wong (StanleyWongGlobal) describes The Independence of Decision-Maker Principle in Competition Law Enforcement.
ABSTRACT: In an earlier article, Thinking About Procedural Fairness of Competition Law Enforcement across Jurisdictions: A Suggested Principled Approach, I suggested that in order to engage in meaningful debate about procedural fairness, a principled approach is needed. I proposed that such a principled approach should contain, at minimum, three core principles, which I labeled as Disclosure Principle, Right of Defense Principle, and Independence of Decision-Maker Principle.
In this article I propose to elaborate on the Independence of Decision-Maker Principle (Independence Principle). In the earlier article, I described the Independence Principle in the following terms: "The decision maker which decides whether or not there is a violation of competition law should be independent and impartial." I also suggested that for analytical purposes, the process of competition law enforcement should be divided into five stages: initiation, investigation, prosecution, decision on the merits, and decision on sanctions, if any.
It is also important to identify another stage in discussing procedural fairness. This is the stage when a decision on the merits (or sanctions) is reviewed by a court that is composed of one or more independent and impartial decision makers. I refer to this stage as "judicial supervision" rather the more commonly used terms such as "judicial review" or "judicial appeal" as the latter terms often have special meanings in legal systems about the nature of the judicial supervision. In jurisdictions that vest making in competition enforcement in an administrative body, the availability of judicial supervision and its nature are at the center of the debate as to whether competition laws are criminal in nature.
Finally as a preliminary matter, it is important to distinguish between different institutional structures for decision making in competition law enforcement. For the purpose of this article, it is sufficient to identify decision making in competition law enforcement in a jurisdiction as a variant of one of two models for decision making on the merits: Administrative Model and Litigation Model.
Balancing Fairness and Efficiency in the Globalized Competition Law Enforcement: Insights from JFTC Experiences
Toshiaki Takigawa (Kansai University) is Balancing Fairness and Efficiency in the Globalized Competition Law Enforcement: Insights from JFTC Experiences.
ABSTRACT: A competition agency's decision, consisting of a remedy and a fine, causes serious consequences for the targeted firm. Firms (and other respondents) therefore are empowered to appeal to the courts against an agency's decision. This judicial appeal constitutes the basic safeguard for rights of defense and procedural fairness against abuse of administrative powers by competition agencies.
Nevertheless, discussions at the OECD Competition Committee and, most recently, at the American Bar Association's Antitrust Spring Meeting indicate that the provision of judicial appeals does not constitute an adequate safeguard. Procedural fairness needs to be secured within the decision-making process of the competition agencies.
Setting up a hearing system within a competition agency is deemed necessary because courts usually find it difficult to negate an agency's decision. This is caused by the comparative disadvantage between courts and agencies with regard to specialized knowledge of competition law and economics. Another often cited reason for the ineffectiveness of appeals to the courts is that courts take a long time to reach a decision; during court proceedings, an agency's orders remain in effect.
However, a hearing system presents problems-increasing the administrative and personnel costs of the agency, at the same time slowing down issuance of decisions. Competition agencies therefore need to strike the right balance between procedural fairness and efficient enforcement.
Administrative hearings, as now practiced by the U.S. FTC and the EU's DG Competition, represent two different models for other countries' competition agencies to emulate. In this context, the Japanese experience regarding transformation of its administrative-hearing may help reveal the relative pros and cons of the U.S. FTC and the EU models.
Saturday, August 2, 2014
Michael Han & Janet (Jingyuan) Wang (Freshfields) explain Due Process in Chinese Competition Law Regime.
ABSTRACT: The People's Republic of China adopted its Anti-Monopoly Law in 2008. In the following six years, China has made notable progress towards becoming one of the most robust and dynamic competition law regimes in the world. While substantive competition laws are developing rapidly in China, procedural safeguards for parties involved in antitrust proceedings seem to fall short of the due process requirements upheld in more mature jurisdictions such as the European Union and the United States.
This article provides a cursory review of the due process protections available under the current Chinese competition law and general administrative law, with a comparative view towards the due process requirements in the European Union and the United States. The main conclusion is that while the Chinese competition law regime sets out some key due process rights to parties involved in an antitrust proceeding, there is substantial room for development before antitrust due process protections become adequate, effective, and consistent in China.
Friday, August 1, 2014
Do you have antitrust compliance issues in one or more countries around the world? Do you need a breakdown of law and the current state of policy in over 40 jurisdictions? There is literally no book quite like the Global Antitrust and Compliance Handbook.
BOOK ABSTRACT: This multi-jurisdictional compliance guide offers a comprehensive and detailed multi-country review of critical antitrust compliance issues. The book outlines the laws and practice in forty three of the most important antitrust jurisdictions around the world - focusing on anticompetitive agreements, market power and monopolization, enforcement, arbitration and remedies. With compliance requirements in mind, the book provides law firms and in-house lawyers with the necessary information to explore the changing global antitrust landscape. Chapters in this guide follow a clear division to sections and include discussion of the enforcement priorities in each jurisdiction. Contributions to this book have been authored by leading competition law practitioners from their respective jurisdictions.
Table of Contents
Western Hemisphere 1. Argentina 2. Brazil 3. Canada 4. Chile 5. Colombia 6. Mexico 7. Peru 8. United States Asia and Pacific 9. Australia 10. China 11. Hong Kong 12. India 13. Israel 14. Japan 15. New Zealand 16. South Korea 17. Taiwan 18. Turkey Europe 19. Austria 20. Czech Republic 21. Denmark 22. Estonia 23. European Union 24. Finland 25. France 26. Germany 27. Greece 28. Hungary 29. Ireland 30. Italy 31. Latvia 32. Lithuania 33. Netherlands 34. Norway 35. Poland 36. Portugal 37. Romania 38. Russia 39. Spain 40. Sweden 41. Switzerland 42. United Kingdom Africa 43. South Africa
6th Annual Competition Litigation
Kevin Coates, Head of Unit, Cartels, DG Competition, European Commission
Nicola Boyle, Hausfeld & Co.
Euan Burrows, Ashurst
Cristina Caffarra, Charles River Associates
Louise Freeman, King & Wood Mallesons SJ Berwin
Laurent Geelhand, General Counsel Europe, Michelin
Paul Harris QC, Monckton Chambers
Christopher Hutton, Hogan Lovells International
Helen Jenkins, Oxera Consulting
Daniel Jowell QC, Brick Court Chambers
Jon Lawrence, Freshfields Bruckhaus Deringer
Stephen Morris QC, 20 Essex Street
David Parker, Frontier Economics
Kathrin Westermann, Noerr
Further speakers to be announced
8.30: Welcome coffee and registration
9.00: Chairs’ opening remarks
Nicholas Heaton, Hogan Lovells International Anthony Maton, Hausfeld & Co.
9.15: Session one: The decision and its consequences for damages claims
Kevin Coates, Head of the Cartel Unit at the DG Competition, European Commission, will open this session with an introductory speech. The panel will then consider practical issues arising in damages claims from the form and nature of Commission decisions including:
Introductory speaker: Kevin Coates, Head of Unit, Cartels, DG Competition, European Commission
Moderator: Anthony Maton, Hausfeld & Co.
Panel: Nicola Boyle, Hausfeld & Co. Christopher Hutton, Hogan Lovells International Euan Burrows, Ashurst Kathrin Westermann, Noerr
10.35: Coffee break
11.00: Session two: Rubber - addressing the practicalities
The panel will discuss the practical lessons to be learnt from Copper Tire, the first cartel damages claim to reach trial. The panel who were all directly involved will look at the issue from the perspectives of the client, solicitor and counsel. They will address practical issues as well as discussing points of interest arising in the Copper Tire case itself.
Moderator: Nicholas Heaton, Hogan Lovells International
Panel: Daniel Jowell QC, Brick Court Chambers Laurent Geelhand, General Counsel Europe, Michelin Louise Freeman, King & Wood Mallesons SJ Berwin Cristina Caffarra, Charles River Associates
12.10: Session three: Review of other key developments
In this session, Paul Harris QC from Monckton Chambers, will review some of the other key case law developments in the last 12 months, including:
Moderator: Anthony Maton, Hausfeld & Co.
Speaker: Paul Harris QC, Monckton Chambers
13.00: Networking lunch
14.00: Session four: "In the hot tub" – considering the use of hot tubbing in damages claims
Following the High Court decision in the National Grid case to adopt hot tubbing for the expert economic evidence in that case, the panel, who were directly involved, will consider the issues raised by the use of hot tubbing, it's suitability for use in complex multi issue and multi party competition claims and when it might be advantageous for a party to propose it and when it might not.
Moderator: Nicholas Heaton, Hogan Lovells International
Panel: Helen Jenkins, Oxera Consulting Stephen Morris QC, 20 Essex Street David Parker, Frontier Economics plus one more speaker to be announced
15.15: Coffee break
15.30: Session five: Collective settlements and class actions – the practical effects of the new UK rules
This session will use a case study to examine the new procedural rules being introduced in the CAT in relation to its new powers to hear competition class actions and the important new provisions allowing for collective settlements.
Moderator: Nicholas Heaton, Hogan Lovells International
Panel: Anthony Maton, Hausfeld & Co. Jon Lawrence, Freshfields Bruckhaus Deringer plus further speakers to be announced
16.55: Closing speech
17.25: Chairs' closing remarks
17.30: Close of conference
A Call for a Restriction of "Corporate Human Rights" in Competition Enforcement Procedures, and More Generally
Albert Sanchez-Graells (Univ. of Leicester) and Francisco Marcos (IE Law School) make A Call for a Restriction of "Corporate Human Rights" in Competition Enforcement Procedures, and More Generally.
ABSTRACT: Despite having originally been recognized with the clear and limited purpose of protecting the individual from State abuses (and, incidentally, from violations by other individuals where their rights may clash), the human rights recognized in the European Convention on Human Rights have been, to a significant degree, extended to protect corporate entities. As the European Court of Human Rights put it, the assumption underlying such a protective stretch is that the dynamic nature of the ECHR (i.e. its perception as a "living instrument'") and an unspecified set of present-day conditions support a very flexible interpretation of the ECHR with the teleological aim of making corporations the beneficiaries of an array of "human rights."
It is important to stress that, in our view, the extension of such protection has not been derived from a clearly defined strategy or conscious decision to actually grant such protection to corporations; rather, the patchy developments in this area have usually derived from a compartmentalized or "siloistic" approach to the analysis of specific problems in given cases. Under the very specific circumstances of those cases, good administration considerations-or, to some extent, the will to limit public administrative intervention in the context of enforcement of economic law-were usually the real underpinning rationale for the decisions reached by the Courts confronted with "corporate human rights" claims (mainly, the ECtHR and the Court of Justice of the European Union). Unfortunately, these were cloaked under human rights rhetoric.
Such creeping extensions of corporate human rights protection have resulted in a broader trend where there seems to be a full assimilation between individual human rights (and human rights of groups and associations concerned with the promotion of activities mainly centered in the individual) and corporate human rights (or rights of corporate entities, including or particularly concerned with those engaged in for-profit and economic activities). In our view, the creation of such momentum for corporate human rights has been accidental-and unfortunate.