Friday, May 30, 2014
Philippe Aghion (Harvard), Stefan Bechtold, Lea Cassar, Holger Herz discuss The Causal Effects of Competition on Innovation: Experimental Evidence.
ABSTRACT: In this paper, we design two laboratory experiments to analyze the causal effects of competition on step-by-step innovation. Innovations result from costly R&D investments and move technology up one step. Competition is inversely measured by the ex post rents for firms that operate at the same technological level, i.e. for neck-and-neck firms. First, we find that increased competition leads to a significant increase in R&D investments by neck-and-neck firms. Second, increased competition decreases R&D investments by firms that are lagging behind, in particular if the time horizon is short. Third, we find that increased competition affects industry composition by reducing the fraction of sectors where firms are neck-and-neck. All these results are consistent with the predictions of step-by-step innovation models.
Hassan Benchekroun, McGill University and Gerard Gaudet, University of Montreal, provide thoughts On the effects of mergers on equilibrium outcomes in a common property renewable asset oligopoly.
ABSTRACT: This paper examines a dynamic game of exploitation of a common pool of some renewable asset by agents that sell the result of their exploitation on an oligopolistic market. A Markov Perfect Nash Equilibrium of the game is used to analyze the effects of a merger of a subset of the agents. We study the impact of the merger on the equilibrium production strategies, on the steady states, and on the profitability of the merger for its members. We show that there exists an interval of the asset's stock such that any merger is profitable if the stock at the time the merger is formed falls within that interval. That includes mergers that are known to be unprofitable in the corresponding static equilibrium framework.
Guido Menzio (Department of Economics, University of Pennsylvania) and Nicholas Trachter (Federal Reserve Bank of Richmond) analyze Large and Small Sellers: A Theory of Equilibrium Price Dispersion with Sequential Search.
ABSTRACT: The paper studies equilibrium pricing in a product market for an indivisible good where buyers search for sellers. Buyers search sequentially for sellers, but do not meet every sellers with the same probability. Specifically, a fraction of the buyers’ meetings lead to one particular large seller, while the remaining meetings lead to one of a continuum of small sellers. In this environment, the small sellers would like to set a price that makes the buyers indifferent between purchasing the good and searching for another seller. The large seller would like to price the small sellers out of the market by posting a price that is low enough to induce buyers not to purchase from the small sellers. These incentives give rise to a game of cat and mouse, whose only equilibrium involves mixed strategies for both the large and the small sellers. The fact that the small sellers play mixed strategies implies that there is price dispersion. The fact that the large seller plays mixed strategies implies that prices and allocations vary over time. We show that the fraction of the gains from trade accruing to the buyers is positive and non-monotonic in the degree of market power of the large seller. As long as the large seller has some positive but incomplete market power, the fraction of the gains from trade accruing to the buyers depends in a natural way on the extent of search frictions.
Thursday, May 29, 2014
Philippe Chauve (DG Comp), Antonia Parera and An Renckens discuss Agriculture, Food and Competition Law: Moving the Borders.
ABSTRACT: New competition rules for farmers adopted in 2013 provide new antitrust exemptions addressing two lingering issues of agricultural production: the lack of bargaining power of atomised farmers and the treatment of crises in agricultural production.
Pressure is mounting to address imbalances of bargaining power not only for farmers but at all levels of the food supply chains: this leads to pressure on competition enforcement, it creates tensions between competition and fair trading laws and it may lead to EU harmonisation of rules on fair trading.
The spotlight of competition enforcement is on retailers but the processing and manufacturing part of the chain is the largest source of antitrust cases.
The ABA Section of antitrust Law has a new book on Sports and Antitrust Law.
BOOK ABTRACT: Sports and Antitrust Law presents a legal overview of sports-related topics and offers an exciting new resource on the most current cases and issues, both for the seasoned practitioner and the novice antitrust sports lawyer. This book provides a framework for understanding the ever-evolving area of sports law and its intersection with
Sports and Antitrust Law addresses such topics as general sports-related antitrust principles, the history of sports law, and recurring issues in professional sports.
In six chapters, Sports and Antitrust Law examines the following topics:
Chapter I discusses exemptions, including the everevolving labor exemption most relevant to the major sports leagues.
Chapter II addresses the threshold issue of what is not covered by the Sherman Actnamely, non-commercial restraints and on-field rules and discipline.
Chapter III presents the basic analytical framework of the Sherman Acts application to the sports industry: the elements of Section 1 and Section 2 claims, the singleentity doctrine, and modes of analyses (per se, quick look, and full rule of reason for Section 1 cases and Section 2 analytical principles).
Chapter IV focuses on the application of these principles to specific recurring issues and subjects, including market definition, market power, and a number of challenged restraints (e.g., involving players, teams, equipment,
Chapter V explores sports issues in private litigation, including standing, class actions, injunctions, and damages.
Chapter VI discusses the development of sports antitrust law in Canada.
The ABA Section of Antitrust Law presents Econometrics: Legal, Practical and Technical Issues, Second Edition.
BOOK ABSTRACT: The use of econometricsand empirical analysis generally in antitrust cases reflects the increasing reliance by the courts and by the antitrust agencies on economic methods and testimony. The increasing use of econometric analysis in the field of antitrust, however, has created a knowledge gap. Econometrics: Legal, Practical, and Technical Issues (Second Edition) fills that gap by making econometrics approachable and understandable for noneconomists.
This Second Edition of Econometrics also fills another gapa practical gap in understanding that may limit the ways in which econometric analyses are applied in practice. Because antitrust analysis has become more sophisticated, it is likely that sometime in his or her career, an antitrust attorney will have to work with an economist to develop an empirical study that may involve econometric methods, prepare an argument or brief that incorporates facts that are derived from an econometric study, or cross-examine an economic expert on an econometric study that he or she may have done. This book will help attorneys appreciate the power and value of an econometric analysis and to work with economic experts more effectively by giving antitrust attorneys a better feel and understanding of why econometric techniques are useful and the types of applications in which statistics and econometrics can be and should be applied. In addition, the book discusses the potential pitfalls in the use of econometric methods, how econometric methods have been used in the courtroom, and the evidentiary and discovery issues that often arise in connection with econometric work that is done in the context of a merger review or litigation.
This edition will be a valuable resource for all antitrust attorneys who regularly work with economic experts and those who are interested in understanding the power of economics and econometric analysis in antitrust.
The ABA Section of Antitrust Law has published Joint Ventures: Antitrust Analysis of Collaborations Among Competitors, Second Edition.
BOOK ABSTRACT: Joint Ventures: Antitrust Analysis of Collaborations Among Competitors is the second edition of the Sections handbook on the antitrust analysis of the formation and conduct of joint ventures. In addition to updating case law with the Supreme Courts American Needle decision and other important developments, the book adds new chapters on intellectual property, international joint ventures, and counseling joint ventures. The handbook takes into account relevant statutory and case law as well as government guidelines and enforcement practices to provide guidance to litigants, judges, and counselors.
Since the first handbook was published, joint ventures have only increased in prevalence and prominence in the global economy. Thus, those considering or challenging joint-venture conduct must carefully consider antitrust principles governing various structures and types of conduct. This handbook provides thorough yet practical tools to assist practitioners in identifying and addressing antitrust issues that arise with joint ventures.
Wednesday, May 28, 2014
Fundamental Rights beyond Legal Positivism: Rethinking the Ne Bis in Idem Principle in EU Competition Law
Renato Nazzini King's College London discusses Fundamental Rights beyond Legal Positivism: Rethinking the Ne Bis in Idem Principle in EU Competition Law.
ABSTRACT: This article considers the application of the principle of ne bis in idem in EU competition law in the light of four foundational theories: rights-based theories; freedom of movement theories; legitimacy-based theories; and disciplinary theories. This approach provides a framework to analyse the case law of the EU courts not only against the positivistic standards of internal consistency and compliance with Treaty provisions and the EU Charter, complemented by the relevant jurisprudence of the European Court of Human Rights, but also against normative benchmarks inherent in the EU legal system capable of guiding the development of the case law in a structured and coherent way. This article concludes that key areas in the case law of the EU courts should be reviewed, particularly as regards what constitutes the same offence for the purpose of the principle of ne bis in idem in competition law, what decision bars a second prosecution or punishment, and the application of the EU principle of ne bis in idem in the relationship between EU law and national law proceedings within the Union. Recommendations are made also concerning the issue as to whether a prosecuting authority or several prosecuting authorities are allowed to bring separate proceedings concerning different elements of the same offence, the consequences of the first acquittal or conviction being set aside on appeal or judicial review, and the question of the application of the EU principle of ne bis in idem in an international context.
Rong Ding, National University of Singapore (NUS) - Department of Economics and Julian Wright, National University of Singapore (NUS) - Department of Economics discuss Payment Card Interchange Fees and Price Discrimination.
ABSTRACT: We extend and generalize the existing literature on debit and credit card payment platforms by considering a card platform that can price discriminate by setting different interchange fees for different types of retailers. Despite the platform's ability to price discriminate, it will set the average interchange fee too high, resulting in fees for card usage that are too low, and excessive usage of cards. We show this bias does not disappear even if card fees (or rewards) can be conditioned on the retailer the cardholder transacts with and even when merchant internalization is only partial. We compare the outcome to the case in which only a single interchange fee can be set, noting price discrimination can result in a lower average interchange fee although also lower welfare.
Symposium: Can Antitrust Policy Address Pricing Power in Health Care Markets? Thursday May 29, 2014
What: A half-day event with nationally recognized experts on antitrust law and health policy on the role of antitrust law in responding to today's changing health care markets. Hosted by the National Academy of Social Insurance (NASI). When: 1:30pm-5:00pm ~ Thursday May 29, 2014 Where: Bipartisan Policy Center, 1225 Eye Street, NW, Suite 100, Washington, D.C. 20005
WASHINGTON, D.C.May 27, 2014 (GLOBE NEWSWIRE) -- Consolidation of hospitals and physician practices appears to have enabled some providers to drive prices above competitive levels. At the same time, the dominance of particular health plans raises concerns about the monopsony power of insurers and the effect on prices. Add to this provisions in the Affordable Care Act (ACA) that are designed to improve the integration of care that have the potential to enhance the pricing power of providers and one begins to get a picture of the forces roiling health care markets today.
Discussions at this event will address:
- The applicability of antitrust law to current markets and the ability of antitrust law to prevent anticompetitive behavior and remedy extant monopolies; and
- The role of Accountable Care Organizations (ACOs) in preserving or expanding competition in health care markets.
Speakers will include:
- Barak D. Richman, Duke University
- Paul Ginsburg, University of Southern California Sol Price School of Public Policy
- James C. Robinson, University of California, Berkeley
- Robert Berenson, Institute Fellow, Urban Institute
Visit nasi.org/events to register and see a full agenda.
Questions? Contact Jill Braunstein at (202) 243-7009 ext. 1303
The National Academy of Social Insurance is a nonprofit, nonpartisan organization made up of the nation's leading experts on social insurance. Its mission is to advance solutions to challenges facing the nation by increasing public understanding of how social insurance contributes to economic security.
Jill Braunstein: (202) 243-7009 ext. 1303 or visit "events" - www.nasi.org
- See more at: http://www.globenewswire.com/news-release/2014/05/27/639694/10083331/en/Symposium-Can-Antitrust-Policy-Address-Pricing-Power-in-Health-Care-Markets.html#sthash.qzzQafuB.dpuf
Oliver Budzinski, Ilmenau University of Technology explores The Competition Economics of Financial Fair Play.
ABSTRACT: This paper provides an economic analysis of the competition effects of UEFA’s financial fair play regulations. It concludes that the restrictive effects of the break-even rule cannot be justified by a legitimate objective defense (according to European competition policy) because significant financial problems due to overinvestment are not inherent to European football.
Arahant Jain, University of Petroleum and Energy Studies, Dehradun and Shubha Jindel, Gujarat National Law University discuss Paradoxical Relationship: Intellectual Property Rights and the Competition Policy.
ABSTRACT: Intellectual property can be best termed to be the creative work of the human intellect and its extrapolations. The driving force for its protection is to promote the progress of science and technology, arts, literature and other creative works and to encourage and reward creativity. Nations give statutory expression to the economic rights of creators in their creation and to the rights of the public in accessing those creations. The contribution of intellectual property is sine qua non for the industrial and economic development of a nation. It is pertinent to argue that the prosperity achieved by the developed nations is, to a large extent, the result of exploitation of their intellectual property. Intellectual Property Right allows people to assert ownership rights on the outcomes of their creativity and innovative activity in the same way that they can own physical property . Competition Policy on the other hand, is regulatory in nature, it aims at creating a market place filled with healthy competition, it aims at ensuring a really free and competitive market and to assure consumers low prices and high quality that flows from the effective competition. In order to achieve the aforementioned, it is necessary to curb abuse of market power. The process of competition has to be supported by regulations which preclude any attempt at subversion of free trade and competition. Competition cannot be left unfettered in the belief that it will drive out unfair trade practices. By enactment of a competition policy, the government takes the responsibility for assuring competition among private firms without otherwise interfering in their price and output decisions.
Intellectual property rights create monopolies, while a competition law battles monopolies. The convergence of these two domains opens up scope for redefining the way things work in the present market place in a developing economy such as India. These two domains complement each other when examined through their convergence, but at the same point this convergence needs to be monitored and regulated so as to prevent abuse of such market place position and ensure free markets.
Tuesday, May 27, 2014
- The FTC at 100: The Need for Improvement in Advertising and Privacy RegulationHoward Beales, May 13, 2014
- The Unrealized Congressional Vision for the FTC and Its Historic Performance as a Law Enforcement AgencyDaniel Crane, May 13, 2014
- Should Section 5 Guidelines Focus on Economic Efficiency or Consumer Choice?Robert Lande, May 13, 2014
- Bringing Antitrust’s Economic and Institutional Limits to the FTC’s Consumer Protection Authority Geoffrey Manne, May 13, 2014
- The FTC as Guardian of Privacy and Data SecurityPaul Ohm, May 13, 2014
- The FTC at 100: The Impact of Globalization and TechnologyChristopher Yoo, May 13, 2014
Vishakha Singh Deshwal, National Law Institute University (NLIU), Bhopal describes Combating Cartels in India.
ABSTRACT: While the Competition Law is still evolving in India, we often come across Cartelisation across all market sectors - oil, gas, potash, cement and so on. Cartelisation refers to the process of forming Cartels which is a group of independent companies engaged in similar business that join together to fix prices, limit production or share consumers. The Competition Act, 2002, a part of which came into effect in 2009 prohibits “Cartels”. However, this prohibition is not sufficed to put deal with the problems that such cartels pose for the economy and ultimately, the consumers. The paper studies the reasons why the present competition law in India is not adequately competent in dealing with prohibition of cartels and penalising the corporations involved in such unfair trade practices. It further discusses plausible amendments that can be made to the current legislation so as to ensure effective application of the same by way of comparing the competition laws across different nations.
Ioannis Platis, Centre of International and European Economic Law Competition Law analyzes Implications of Minority Shareholdings: The EU and U.S. Perspectives.
ABSTRACT: Analysis of minority shareholdings on the basis of all relevant EU Competition Law branches (101 TFEU, 102 TFEU, EUMR) and comparative review of the latter with partial share acquisitions treatment under the U.S. antitrust rules. This paper delivers an opportune presentation of the relation between Competition Law and structural links between undertakings in the form of minority shareholdings, only a very short time before EU Competition Law is enhanced with formal legislation on minority interests.
Leslie M. Marx, Duke University - Fuqua School of Business, Economics Group and J. Zhou, Swedish University of Agricultural Sciences (SLU) - Department of Economics; Tilburg Law and Economics Center (TILEC) have an interesting new paper on The Dynamics of Mergers among (Ex)Co-Conspirators in the Shadow of Cartel Enforcement.
ABSTRACT: We investigate cartelists' merger behavior using European Commission (EC) cartel decisions over a 28-year span and information on cartelists' merger activities over the last 30 years. We find that mergers occur frequently but that they cluster in a few particular industries and usually include only a minority of the cartel participants. The EC's leniency program appears to expedite mergers, while the EC's cartel settlement procedure appears to delay mergers. After cartel dissolution, co-conspirators merge at a substantially greater pace. The results shed light on the design of merger policies and enforcement programs against cartels.
Malcolm B. Coate, U.S. Federal Trade Commission (FTC) and Arthur J. DelBuono, Federal Trade Commission ask Modeling the Ease of Entry in Merger Analysis: Can Financial Analysis Move the Ball?
ABSTRACT: In merger analysis, ease of entry, when present, trumps competitive concerns and allows market behavior, such as a merger, to proceed unchallenged. Thus, entry plays a key role in every antitrust study. That said, it is surprising that entry analysis is inconsistently defined, both in the courts and at the Agencies. Research suggests that the key problem revolves around the analysis of the likelihood of entry. This paper addresses the likelihood problem head-on, suggesting the question be addressed with a discounted cash flow analysis of a hypothetical entry designed to deter or defeat the potential anticompetitive effects caused by the merger. We present a comprehensive discounted cash flow model and broaden the analysis to evaluate the major risks of the project. We also discuss how to evaluate the results of the model and discuss various objections to and limitations of the modeling technique. Our approach provides antitrust practitioners and even business managers with a useful tool to aid in the evaluation of the likelihood of entry in the context of a merger.
Monday, May 26, 2014
Monday 16th June 2014
Registration at 5pm, 5.30pm-8pm followed by a reception
Professor Damien Geradin, Tilburg University School of Law & Covington & Burling LLP
Professor Herbert Hovenkamp, University of Iowa Law School
Lars Kjolbye, Latham & Watkins LLP
Dr Ioannis Lianos, UCL Laws (& Chair)
Dr Florian Wagner-von Papp, UCL Laws
Emeritus Professor Richard Whish QC,
Dickson Poon School of Law, Kings' College London
This event will be accredited with 2.5 CPD hours by the SRA & BSB (pending)
The event aims to examine the propensity of EU competition law and US antitrust law to a certain degree to substitute full adjudication of competition law disputes in the high tech sector and proceed instead with either consent decrees, settlements or commitment decisions. The speakers will attempt to identify if there is such trend in the enforcement activity of the European Commission or national competition authorities (in Europe and the US), and, should this initial hypothesis be eventually confirmed, examine the conditions and parameters that seem to influence the choice of competition authorities for such consensual enforcement and explore if these are linked to the specific characteristics of high tech industries or more broadly the economic and technical complexity of such cases. Of course, the recent Google case will be discussed and we will try to analyse the implications of such choice for competition law and the underlying role for economic analysis in this context. The speakers will also take this opportunity to comment on the Intel judgment of the Court, should this be out before the conference, in order to understand how infringement decisions and commitment decisions may be combined by the European Commission in order to deal with the competition issues arising in high tech markets. The conference will aim to understand if consensual enforcement should still be perceived as chosen in exceptional circumstances only, the dominant or "normal" enforcement mechanism being the full adjudication of cases and eventually the adoption of an infringement decision, or if its development denotes a broader transformation of competition law enforcement in mature competition law systems, such as in Europe and the US. Should this new enforcement approach be followed in less mature competition law systems?
UCL Centre for Law, Economics and Society, with IMEDIPA and University of Readings Centre for Commercial Law and Financial Regulation are hosting a one-day Conference
Friday 6 June 2014 at the Hilton Bosphorus Istanbul
This conference brings together world-leading antitrust specialists from the fields of law and economics to explore, in 5 panels, the most important topics in recent competition law practice.
The panels will cover:
- The object / effect distinction in competition law
- Due process in competition law
- Economics analysis and oligopoly in competition law
- Competition law in times of crisis and recent developments (Authorities roundtable)
- Anticompetitive practices involving IP rights
The conference fee includes attendance at the conference, as well as full refreshments including lunch, and any conference materials.
PROGRAMME (as at 12 May 2014)
|FRIDAY 6 JUNE 2014|
Introduction Ioannis Lianos (UCL)
|08:50||Keynote Speaker: Professor Dr. Nurettin Kaldirimci (Chairman, Turkish Competition Authority)|
|09:30||SESSION 1 The object / effect distinction in competition law
The first panel of the conference will delve into the intriguing distinction between anticompetitive object and effect in the context of Article 101 TFEU but also in all other competition regimes that have been inspired by such a distinction. A similar distinction has also been envisaged by some for Article 102 TFEU. The discussion should aim to engage with the tension between categorisation and balancing as two different narratives/techniques often employed in competition law analysis. The topic of categorical thinking in the context of Article 102 TFEU was examined at the plenary session of the ICN in Marrakech this year, which illustrates the interest of competition authorities on this question. The first part of the discussion will focus on Article 101 TFEU and will explore how certain practices may be included in one or the other category (e.g. Resale Price Maintenance, some forms of information exchange), including some interesting recent case law of the Court of Justice of the EU that engaged with this distinction. The discussion will then move to Article 102 TFEU.
Moderator: Herbert Hovenkamp (University of Iowa School of Law)
Panelists: Barry Rodger (University of Strathclyde) Giorgio Monti (European University Institute) Ioannis Lianos (UCL Centre for Law, Economics & Society) Assimakis Komninos (White & Case LLP) Vassilis Karagiannis (KLC Law Firm) Dr Pinar Akman (University of Leeds)
|11:30||SESSION 2 - Due process in competition law
The second panel will engage with the never ending topic of due process and competition law. This is an old theme but in constant evolution as the legitimacy of competition authorities’ actions, in particular their remedies and procedures, is constantly challenged and scrutinized by different stakeholders. Different enforcement systems choose various instruments to supply the “public good” of due process and different institutions are put in place. Adaptations to the existing environment of due process in other areas of public action may also influence the demand for due process and the perception by stakeholders of the optimal level of due process. Demands for effectiveness and due process may enter into competition with each other and difficult compromises need to be made.
Moderator: Judge Nicholas Forwood (General Court of the European Union)
Panelists: Gönenç Gürkaynak (ELIG) Mario Siragusa (Cleary Gottliev Steen & Hamilton LLP, and College of Europe) Wouter Wils (European Commission & King's College London) Ian Forrester (White & Case LLP)
|14:00||SESSION 3 - Economic analysis and oligopoly in competition law
The third panel will explore the thorny issue of the use of economic evidence and oligopoly theory in competition law cases, in the enforcement of antitrust and merger control. Some authors have advanced recently the view that competition authorities and courts should focus less on evidence of communication between undertakings in order to unveil price fixing and more on predictive economic evidence. Is this a practical and desirable suggestion? Similarly, economic evidence, in particular oligopoly theory, has been relied upon in the context of merger control and abuse of collective dominance. Do these different areas of competition law adopt a consistent view of the role of economic evidence and oligopoly theory in the discovery and assessment of anticompetitive practices? More generally, how effects-focused, the effects-based approach to competition law is? What is, if any, the role of institutional limitations and how much these may explain the current situation?
Moderator: Heike Schweitzer (Free University Berlin)
Panelists: Stephen Calkins (Member of the Board, Irish Competition Authority) Emmanuel Dryllerakis (Dryllerakis & Associates) Judge Nicholas Forwood (General Court of the European Union) Andrew I. Gavil (Howard University School of Law) Frederic Jenny (Cour de Cassation (Judge of the French Supreme Court) and Chairman, OECD Competition Committee) Ioannis Kokkoris (University of Reading, Centre for Commercial Law and Financial Regulation)
|16:00||SESSION 4 - Roundtable of Authorities: Competition Law in times of crisis and recent developments
The aim of this panel will be to bring together heads of authorities and competition officials from national competition authorities to discuss a common thread or issue of concern in their enforcement work, but also to explore new themes they are currently exploring. A common theme for almost all the jurisdictions covered in this year’s roundtable of authorities is the financial and economic crisis whose effect has been global and has inevitably influenced, to a different level, their work. Did this crisis and the political and social pressure that resulted from it affected their work and may be led to some reconsideration of their role and priorities? Although the crisis by nature cannot become a permanent state of affairs, did the competition authorities develop specific tools, or ways of thinking, that may be used in other contexts?
Moderator: Frederic Jenny (Conseiller en Service Extraordinaire, Cour de Cassation (Member of the French Supreme Court))
Panelists: Murat Çetinkaya (Member of the Board, Turkish Competition Authority) Antonio Gomes (President, Portuguese Competition Authority) Gabriela Muscolo (Member of the Board, Italian Competition Authority) Bogdan Chiritoiu (President, Romanian Competition Council) Stephen Calkins (Member of the Board, Irish Competition Authority) Dimitris Loukas (Vice-President, Hellenic Competition Commission)
|17:00||SESSION 5 - Anticompetitive practices involving IP rights
The last panel of the conference will explore the hot topic of the interaction of competition law with IP. The question of the abuse of the IP and litigation system in order to harm competitors has been a common theme in recent cases in Europe and the United States. The adoption of the new transfer of technology regulation also marks a more restrictive approach to IP. In the meantime, developing and emergent economies contemplate the use of competition law in order to rebalance what they perceive has been the pro-IP holder balance in TRIPS. The panellists will explore the following themes (i) Standard Essential Patents. (ii) abuse of regulatory and IP processes. (iii) the broader issue of the interaction between IP and competition law and the hypothesis that the tide is turning, this time in favour of competition law and access/dissemination of IP.
Moderator: Ioannis Lianos (UCL Centre for Law, Economics & Society)
Panelists: Ian Forrester (White & Case LLP) Herbert Hovenkamp (University of Iowa School of Law) Alexey Ivanov (Skolkovo Foundation and National Research University Moscow) Frederic Jenny (Conseiller en Service Extraordinaire, Cour de Cassation (Member of the French Supreme Court)) Frank Maier-Rigaud (NERA Economic Consulting)
Jan M. Rybnicek, Federal Trade Commission and Joshua D. Wright, Federal Trade Commission; George Mason University School of Law ask Outside in or Inside Out?: Counting Merger Efficiencies Inside and Out of the Relevant Market.
ABSTRACT: Despite relatively successful efforts to modernize the analytical approach for assessing the potential anticompetitive effects of a merger in the United States, antitrust doctrine and agency practice unfortunately have not similarly incorporated advances in economics with respect to the analysis of efficiencies justifications. Current antitrust doctrine and agency practice in the United States permits the antitrust agencies to challenge, and the federal courts to block, a transaction when there is a substantial risk that the merger may cause anticompetitive harm in one market even when those harms are far outweighed by efficiencies benefits in another market. Rejection of out-of-market efficiencies is an obsolete approach to a welfare-based antitrust regime that was born out of an era in which efficiencies justifications in merger cases generally were viewed with considerable skepticism.. In this contribution to a tribute to William E. Kovacic, who both as a scholar and public servant studied how enforcement programs are shaped by the evolution of antitrust norms, we discuss the evolution of the treatment of out-of-market efficiencies in the United States and around the world, and we argue that the United States courts and antitrust agencies should update antitrust doctrine and agency practice to require a serious and committed consideration of out-of-market efficiencies.