Antitrust & Competition Policy Blog

Exclusive Dealing and Vertical Integration in Interlocking Relationships

Volker Nocke (Mannheim) and Patrick Rey (Toulouse) explore Exclusive Dealing and Vertical Integration in Interlocking Relationships.

ABSTRACT: We develop a model of interlocking bilateral relationships between upstream manufacturers that produce differentiated goods and downstream retailers that compete imperfectly for consumers. Contract offers and acceptance decisions are private information to the contracting parties. We show that both exclusive dealing and vertical integration between a manufacturer and a retailer lead to vertical foreclosure, at the detriment of consumers and society. Finally, we show that firms have indeed an incentive to sign such contracts or to integrate vertically.

The 2014 year in review in antitrust books

2014 was a busy year for me with four edited books published.  This year there were:

The Oxford Handbook of International Antitrust Economics Volume 1 (Oxford University Press 2014)

INTRODUCTION AND INSTITUTIONAL ISSUES

1. Rationales for Antitrust: Economics and Other Bases 
Daniel A. Crane

2. Antitrust Enforcement Regimes: Fundamental Differences
Keith N. Hylton

3. Economic Analysis of Antitrust Exemptions 
Peter Carstensen

4. Healthcare Provider and Payer Markets
Cory S. Capps and David Dranove

5. International Antitrust Institutions 
Oliver Budzinski

6. Competition Policy in Public Choice Perspective
Fred S. McChesney, Michael Reksulak, and William F. Shughart II

7. Antitrust Settlements
Daniel L. Rubinfeld

8. The Economics of Antitrust Class Actions
Roger D. Blair and Christine Piette Durrance

9. Behavioral Economics and Antitrust 
Mark Armstrong and Steffen Huck

10. Experimental Economics in Antitrust
Wieland Müller and Hans-Theo Normann

11. Optimal Antitrust Remedies: A Synthesis
William H. Page

12. Private Antitrust Enforcement in the United States and the European Union: Standing and Antitrust Injury
Jeffrey L. Harrison

13. Freedom to Trade and the Competitive Process
Aaron Edlin and Joseph Farrell


II. MONOPOLY: STRUCTURAL CONSIDERATIONS

14. Monopoly and Dominant Firms: Antitrust Economics and Policy Approaches 
Lawrence J. White

15. Market Definition 
Louis Kaplow

16. Bilateral Monopoly: Economic Analysis and Antitrust Policy
Roger D. Blair and Christina DePasquale

17. Antitrust and the Economics of Networks
Daniel F. Spulber and Christopher S. Yoo

18. The Antitrust Analysis of Multi-Sided Platform Businesses 
David S. Evans and Richard Schmalensee


III. MERGERS

19. Efficiency Claims and Antitrust Enforcement
Howard Shelanski

20. Unilateral Effects 
Bryan Keating and Robert D. Willig

21. Coordinated Effects: Evolution of Practice and Theory 
Jith Jayaratne and Janusz Ordover

22. Buyer Power in Merger Review
Dennis W. Carlton, Mary Coleman, and Mark Israel

23. Vertical Mergers 
Michael A. Salinger

Oxford Handbook of International Antitrust Economics Volume 2 (Oxford University Press 2014)

I. MONOPOLIZATION: CONDUCT

1. A Framework for the Economic Analysis of Exclusionary Conduct
B. Douglas Bernheim and Randal Heeb

2. Predatory Pricing 
Kenneth G. Elzinga and David E. Mills

3. Raising Rivals' Costs 
David T. Scheffman and Richard S. Higgins

4. Predatory Buying
John E. Lopatka

5. Competitive Discounts and Antitrust Policy
Kevin M. Murphy, Edward A. Snyder, and Robert H. Topel

6. Squeezing Claims: Refusals to Deal, Essentials Facilities, and Price Squeezes
Barak Orbach and Raphael Avraham

7. Innovation and Antitrust Policy
Thomas F. Cotter

8. Continental Drift in the Treatment of Dominant Firms: Article 102 TFEU in Contrast to § 2 Sherman Act 
Pierre Larouche and Maarten Pieter Schinkel

9. Treatments of Monopolization in Japan and China
Ping Lin and Hiroshi Ohashi

10. Monopolization in Developing Countries 
Alberto Heimler and Kirtikumar Mehta

11. Business Strategy and Antitrust Policy 
Michael J. Mazzeo and Ryan C. McDevitt


II. VERTICAL INTEGRATION AND CONTRACTUAL EQUIVALENTS

12. Resale Price Maintenance of Online Retailing 
Benjamin Klein

13. Exclusive Dealing 
Howard Marvel

14. Tying Arrangements
Erik Hovenkamp and Herbert Hovenkamp

15. Vertical Restraints Across Jurisdictions 
Ralph A. Winter and Edward M. Iacobucci

16. Franchising and Exclusive Distribution: Adaptation and Antitrust 
Francine Lafontaine and Margaret E. Slade


III. COLLUSION AMONG OSTENSIBLE COMPETITORS

17. Cartels and Collusion: Economic Theory and Experimental Economics 
Jay Pil Choi and Heiko Gerlach

18. Cartels and Collusion: Empirical Evidence 
Margaret C. Levenstein and Valerie Y. Suslow

19. Tacit Collusion in Oligopoly
Edward J. Green, Robert C. Marshall, and Leslie M. Marx

20. Auctions and Bid Rigging
Ken Hendricks, R. Preston McAfee, and Michael A. Williams 

21. Screening for Collusion as a Problem of Inference
Michael J. Doane, Luke M. Froeb, David S. Sibley, and Brijesh P. Pinto

22. Competition Policy for Industry Standards 
Richard Gilbert 

23. Antitrust Corporate Governance and Compliance 
Rosa M. Abrantes-Metz and D. Daniel Sokol 

Global Antitrust Compliance Handbook (Oxford University Press 2014)

• Written with the specific aim of assisting firms in their global compliance efforts
• Covers 43 jurisdictions across Europe, the Western Hemisphere, Asia and Pacific and Africa
• Consistent chapter structure allows for easy comparison

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

Competition and the State (Stanford University Press 2014)

Competition and the State analyzes the role of the state across a number of dimensions as it relates to competition law and policy across a number of dimensions. This book re-conceptualizes the interaction between competition law and government activities in light of the profound transformation of the conception of state action in recent years by looking to the challenges of privatization, new public management, and public-private partnerships. It then asks whether there is a substantive legal framework that might be put in place to address competition issues as they relate to the role of the state. Various chapters also provide case studies of national experiences. 

Vertical Integration as a Source of Hold-up

Marie-Laure Allain (Ecole Polytechnique), Claire Chambolle (INRA) and Patrick Rey (Toulouse) discuss Vertical Integration as a Source of Hold-up.

ABSTRACT: While vertical integration is traditionally seen as a solution to the hold-up problem, this paper highlights instead that it can generate hold-up problems — for rivals. We first consider a successive duopoly where competition among suppliers eliminates any risk of hold-up; downstreamfirms thus obtain the full return from their investments. We then show that vertical integration creates hold-up concerns for the downstream rival, by affecting the integrated supplier’s incentives from both ex ante and ex post standpoints. We also provide illustrations in terms of standard industrial organization models and of antitrust cases, and discuss the robustness of the insights.

Treating RAND Commitments Neutrally

Einer Elhauge, Harvard advocates Treating RAND Commitments Neutrally.

ABSTRACT: This Article argues that the same legal standards should apply to RAND commitments whether they are made to standard-setting organizations or not.  The arguments for concluding that RAND commitments should limit injunctive patent relief or trigger antitrust liability turn on whether the commitment reasonably induces lock-in that generates hold-up effects or market power when that commitment is breached.  But RAND commitments can induce such lock-in effects when they are made outside of standard-setting organizations and do not always induce them when they are made to standard-setting organizations.  Thus, any special legal rules for RAND commitments should turn on whether the commitments induced such lock-in, rather than on the institutional context.  The arguments against using special legal rules for RAND commitments turn on the extent to which lock-in might fail to generate holdup problems, denying patent injunctions might generate reverse-holdup problems, and contract or promissory estoppel remedies might obviate the need for antirust liability.  But those arguments likewise apply equally inside and outside of standard-setting organizations.  Thus, however one resolves the arguments for and against applying special legal rules to RAND commitments, the resulting legal standards should be the same whether or not the commitment is made to a standard-setting organization.

Rehabilitating Jefferson Parish: Why Ties Without a Substantial Foreclosure Share Should Not Be Per Se Legal

Einer Elhauge has a fascinating new paper on Rehabilitating Jefferson Parish: Why Ties Without a Substantial Foreclosure Share Should Not Be Per Se Legal.

ABSTRACT: Current tying law uses a bifurcated rule of reason, condemning ties that have either tying market power or a substantial tied foreclosure share, absent an offsetting procompetitive justification. Many critics of tying law advocate overruling the first branch, commonly called the quasi per se rule, thus making all ties without a substantial foreclosure share per se legal. This article shows they are mistaken. Even without a substantial foreclosure share, ties with market power restrain competition in ways that are likely to harm both consumer welfare and total welfare as long as they foreclose a substantial dollar amount of sales. Critics claim that these effects do not legally count as anticompetitive because they do not impair rivals, but their claim conflicts with precedents that rule otherwise and with the principle that antitrust protects competition, not competitors. Both precedents and economics also show that critics are wrong in claiming that there is no valid distinction between setting a profit-maximizing price and extracting the remaining consumer surplus through tying agreements. Because even the critics admit that consumer welfare and total welfare are harmed by some ties with market power that lack a substantial foreclosure share, even their own analysis fails to support their position of per se legality for such ties. It would instead support the current doctrine that sorts out the ties with market power that harm consumer welfare from those that do not.

Comparative Legal Principles for the Formation of a Group of Persons in the Russian Competition Legislation

Maria A. Egorova, Russian Presidential Academy of National Economy and Public Administration (RANEPA) - M.M. Speransky Department of Law discusses Comparative Legal Principles for the Formation of a Group of Persons in the Russian Competition Legislation.

ABSTRACT: The article analyzes the main criteria systematization group of persons, existing in the legal doctrine, and serves original criteria for determining the formation of a group of persons for the purposes of competition law.

ABA membership trial campaign

The ABA is running a membership trial campaign (member get a member) until the end of January 2015.  This link outlines the details.

Chinese food and a movie on Christmas Day are Jewish traditions according to an article in today's Washington Post

Dan Drezner (Tufts) is upset (at least in a tongue in cheek sort of way) that Christians are taking on the Jewish tradition of Chinese food and a movie on Christmas Day and asks Christians to go to church and have family meals at home instead in his Washington Post op-ed The War on Jewish Christmas must be stopped.

Québec’s Construction Cartels

John M. Connor, Purdue University; American Antitrust Institute (AAI) analyzes Quebec’s Construction Cartels.

ABSTRACT: Around 2012, authorities discovered one of the most complex set of cartels in the world in its construction industry. Dozens of companies large and small colluded on the price of bids for public works in several cities in the Province of Quebec over a decade or more. Bidding firms, some with mafia connections, made regular payoffs to the political parties in power. A commission of inquiry is hard at work to reveal details of the cartels’ conduct and propose solutions.

This working paper lays out the characteristics of bid-rigging cartels worldwide; suggests the likely range of injury to buyers; and outlines the range of effective tools employed to discover hidden, illegal cartels and to punish cartelists.

After Fifty Years – What Is Needed for a Unified European Competition Policy?

John Temple Lang, University of Dublin - Trinity College; Cleary Gottlieb Steen & Hamilton LLP - Rome Offiice asks After Fifty Years – What Is Needed for a Unified European Competition Policy?

ABSTRACT: The first task set by the European Treaties in 1957 was to eliminate tariffs and quotas on trade between Member States. However, it was understood that this would achieve little unless companies were prevented from fixing prices and allocating markets. It was also understood that State subsidies and State monopolies had to be regulated. Thus, it was essential to create a European competition policy that applied to all these elements.

European competition law has developed along a series of channels which it is traditional and convenient to consider separately. They are listed below, not in the order in which they developed from the initial Treaty provisions, but starting with the two areas of law which appear now to be most satisfactorily developed. This paper suggests that the economic principles are still not clear in three other areas and that policy is unsatisfactory and ineffective: Rules on restrictive agreements and practices involving two or more enterprises; Control of large mergers and joint ventures; Rules on State aid to industry; Rules on “abuse” of monopoly power and dominant market positions, by individual enterprises; Limits on national measures establishing monopolies and restricting competition; Private enforcement.

Alongside these six areas of substantive law, and important for all of them, are the areas of European Commission procedure and of judicial review of the actions of the Commission and, more recently, of the actions of national competition authorities. These are also commented on briefly below.

This paper does not attempt to summarise the entire field of European competition law. Instead, it comments on some of the principal developments in each of these areas and describes in more detail the principal problems as they stand today. It will be seen that these areas have developed unevenly and without clear objectives. This is understandable because there were no European Federalist Papers on competition policy. One step was taken at a time, and many steps were needed. It will also be seen that these areas have never been thought of, even by the Commission, as a single body of economic and legal principles. This paper describes what a unified European competition policy would look like and the most important tasks needed to create it.

NY antitrust lawyer, husband charged with defrauding law firms

Reuters reports on the troubling tale of an antitrust partner in New York, Keila Ravelo, who has been charged with defrauding law firms she work for over the course of years.  As Reuters explains:

The law firms paid more than $5 million for invoices the vendors submitted for purported litigation support services that in reality were not done, prosecutors said.

Decentralised Enforcement of EU Competition Law by Sector Regulators – The UK Model

Cosmo Graham University of Leicester - School of Law discusses Decentralised Enforcement of EU Competition Law by Sector Regulators – The UK Model.

ABSTRACT: This paper was delivered at the Fourth ACELG Annual Conference on “Ten Years of Decentralized EU Competition Law Enforcement: Success or Failure?” on 14 November 2014, University of Amsterdam. The paper examines the early debates over concurrency and what were the initial expectations, sets out the legal arrangements that were put into place and describes the enforcement record of the sector regulators or, more accurately, the lack of enforcement activity. From here, the paper goes on to discuss possible reasons for this and sets the record in the context of the enforcement activities of the Office of Fair Trading and the role of the Competition Appeal Tribunal. The third part of the paper looks at the recent reforms introduced by the Enterprise and Regulatory Reform Act 2013 which, among other objectives, seeks to rejuvenate the enforcement of competition law by sector regulators. Finally, the paper attempts an overall assessment of the UK experience and looks at the possible impact of future developments on the current arrangements.

Private International Cartels: A Concise Introduction

John M. Connor, Purdue University; American Antitrust Institute (AAI) offers Private International Cartels: A Concise Introduction.

ABSTRACT: This three-page article is a succinct, nontechnical introduction to the topic of the economics private international cartels. It explains contemporary economic theories of collusion, the major empirical features of discovered cartels, antitrust laws meant to combat price fixing, and the concept of deterrence.

call for papers for forthcoming Clasf workshop on Friday 24 April 2015 at Lancaster Law School

Call for Papers

The Competition Law Scholars Forum (CLaSF)

Invite contributions to the XXIV CLaSF event (www.clasf.org)

Clasf Workshop on

  “Object and/or effects in Competition Law”

Lancaster Law School, Lancaster, Friday 24 April 2015

 

The Competition Law Scholars Forum (CLaSF) will be running a workshop on Friday 24th April 2015 at Lancaster University. The subject of the workshop will be the broad theme of 'Object and/or Effects in Competition Law'. We invite abstract paper proposals from researchers, scholars, practitioners and policy-makers in relation to any issue within this broad theme.  We welcome theoretical, economics-driven, practice-based or policy focused papers, and we are interested in receiving abstracts for papers which may be focused on perspectives or experience at national, regional (eg EU), or international levels, or a combination.

 

Recent decisions of the Court of Justice of the European Union indicate that the 'battle for the soul of antitrust', between the those who advocate competition law being based on an approach focuses entirely on provable economic effects, and those which who put forward a system based on more formal and administrable legal rules, is still raging; in the Courts, before competition authorities, and in the literature. CLaSF is devoting its XXIVth event to this very broad topic. 

 

In particular, suggestions are invited in relation to the following matters:

 

*             The bifurcation of Art 101 TFEU into 'object' and 'effect' cases following Cartes Bancaires, Allianz and Expedia.

*             The 'modernisation' of the approach to abuse under Article 102 TFEU following the European Commission's 2009 Guidance on exclusionary abuses.

*             The reception of the Commission's Guidance by the Court of Justice in cases such as Intel, Telia Sonera and Post Danmark.

*             The tension between EU competition law's ordoliberal tradition and rise of the new 'orthodoxy' Chicago, and Post-Chicago antitrust economics.

 

Papers are invited from researchers, scholars, regulators and practitioners on any of these issues or other topics which fall generally within the broad theme of Object and/or Effects in Competition Law. Any person interested in presenting a paper at the workshop is asked to contact Angus MacCulloch at [email protected]. In the first instance an abstract is required of approximately 500-1000 words, a draft paper (and PPT presentation) is also required a week prior to the workshop.

Please submit your abstract by Friday February 20 2015.

 

Papers presented at the workshop can be submitted to the Competition Law Review editorial board with a view to being published in the Review. Note that the Review is a fully refereed scholarly law journal: Submission does not guarantee publication.

Exclusionary Conduct of Dominant Firms, R&D Competition, and Innovation

Jonathan B. Baker, American University - Washington College of Law explores Exclusionary Conduct of Dominant Firms, R&D Competition, and Innovation.

ABSTRACT: This paper evaluates the innovation consequences of antitrust enforcement against the exclusionary conduct of dominant firms through a Nash equilibrium model of research and development (R&D) competition to create new products. In the two-firm model, whether one firm regards the other firm’s R&D investment as a strategic complement or strategic substitute turns on an increasing differences condition: whether the first firm’s incremental benefit of increased R&D investment is greater if its rival’s R&D effort succeeds or if its rival’s R&D effort fails. Antitrust prohibitions on pre-innovation exclusion and post-innovation exclusion are found to be effective in different strategic settings: preventing dominant firm exclusion of its rival from post-innovation (pre-innovation) product market competition increases the overall likelihood of industry innovation if the dominant firm’s best response function slopes upward (downward) and is sufficiently steep, or if its rival’s best response function slopes downward (upward) and is sufficiently steep. An antitrust prohibition on dominant firm exclusion of its rival from R&D competition increases the overall likelihood of industry innovation if the dominant firm regards rival R&D investment as a strategic complement.

What Makes Public-Private Partnerships Work? An Economic Analysis

Jean Bensaid and Frederic Marty ask What Makes Public-Private Partnerships Work? An Economic Analysis.

ABSTRACT: Public-private partnerships are long-term, global, administrative contracts by which a public authority entrusts a private contractor with some or all of the missions of design, construction, funding, operation and maintenance of an infrastructure or the provision of a public service. The private contractor recovers its initial investment and collects revenue for the service provided by means of tolls paid by users (depending on the traffic) or rent paid by the public authority (depending on the availability of the required service and the satisfaction of criteria of quality and performance).

Criticized for their cost, rigidity and lack of transparency, condemned on the basis of a number of failures or difficulties in their implementation, public-private partnerships are nevertheless an appropriate instrument for the realization of certain projects and for the efficient exploitation of public assets and infrastructures. This Prisme presents  a dispassionate analysis of these contracts, highlighting the economic and financial parameters that can lead public authorities to choose this solution within the context of the search for transparency and the need to make efficient use of public moneys.

Private funding may prove to be indispensable, given the constraints currently imposed on public finances, to meet the needs for infrastructure investment. Likewise, the public-private partnership may create an efficient incentive framework to protect the public authority from spiralling costs or delays and to guarantee a service of quality throughout the duration of the contract.

Having said that, these contracts are no magic solution that can be applied to every project or in every situation. This Prisme explains how far and under what conditions the public-private partnership can fulfil its promise. It places particular emphasis on the financial dimension, which is the cornerstone of these contracts in terms of both efficiency and budgetary sustainability. And lastly, it examines the changes undergone by this model, especially those related to funding conditions.

Who Does What in Competition Law: Harmonizing the Rules on Damages for Infringements of the EU Competition Rules?

Caroline Cauffman, Maastricht University; University of Antwerp and Niels J. Philipsen, Maastricht University - Faculty of Law, Metro ask Who Does What in Competition Law: Harmonizing the Rules on Damages for Infringements of the EU Competition Rules?

ABSTRACT: After a long preparatory process, a Directive harmonizing certain national rules on private enforcement of competition law has been adopted by the European Parliament. In this contribution it is investigated whether harmonization of these rules was desirable and whether the main objectives of the directive, the improvement of the possibilities for victims to obtain damages and of the interaction between public and private competition, are likely to be achieved. With regard to the aim of increasing the possibilities for victims of antitrust infringements to obtain compensation, we can conclude that the Directive indeed increases this possibility, although various obstacles to private action are likely to remain. This includes obstacles in relation to (lacking) possibilities for collective action, the requirement to prove negligence or intent, and rules on disclosure of evidence. With regard to the interaction of public and private enforcement of competition law a crucial issue is finding the right balance between using the leniency program (which the European Commission needs in order to be able to effectively trace cartels) in the public enforcement of competition law and compensating victims via enforcement of private law. Whether the Directive has chosen the most desirable option to achieve this balance is debatable.

The Real Miracles of Chanukah and Christmas plus Chinese Restaurant Recommendations for Christmas Day

I discovered that the real miracle of Channukah is that this week all of the fried foods are calorie free.  I understand from Catholic, Protestant and Orthodox friends that a similar miracle occurs December 24-26 for Christmas related foods. 

For those interested for recommendations of the best Chinese restaurants to visit on Christmas Day (typically the only restaurants open), see my previous post here that includes top picks by a number of antitrust experts. For a more recent antitrust related take on a particular Chinese restaurant by a Harvard Business School professor, see news coverage here.

The EU Concessions Directive: Building (Toll) Bridges between Competition Law and Public Procurement?

Martin Farley (Kings College) and Nicolas Pourbaix (Hogan) ask The EU Concessions Directive: Building (Toll) Bridges between Competition Law and Public Procurement?

ABSTRACT: The nature of concession markets and the type of entities which will be caught by the Concessions Directive increase the possibility that procuring entities will be caught by competition law when awarding concession contracts. A number of specific provisions of the Concessions Directive have the potential to affect—both positively and not so positively—the enforcement of competition law, by seeking to regulate the duration of concession contracts, excluding bidders from participation in tendering procedures on grounds of violation of competition law, and allowing modifications of concession contracts post-award. The complexity and nature of concession contracts offer greater scope for undertakings to form bidding consortia than in traditional public contracts, thereby giving rise to an increased risk that such consortia could be found to infringe competition law.

The Reception and Application of EU Competition Rules in Hungary: An Organic Evolution

Tihamer Toth Competition Law Research Centre, Hungary; Peter Pazmany Catholic University - Faculty of Law describes The Reception and Application of EU Competition Rules in Hungary: An Organic Evolution.

ABSTRACT: I will present how Hungarian competition rules and the practice of the Hungarian Competition Authority were influenced by the EU acquis. The Constitutional Court's decision will be presented that paved the way for a decision of the Association Council adopting new Implementing Rules of the Europe Agreement, mirroring the approach of the European Economic Area’s competition rules. The legally binding obligation to bring domestic competition rules in line with Community standards turned later into a process of drawing inspiration not only from EU hard law but also from soft law instruments in cases where Hungarian competition rules were applied. The paper recalls how the authority GVH prepared both itself and the business sphere during the pre-accession period for the EU membership era. The most important changes in legislation following EU accession and also the most important features of law enforcement are analyzed to show how autonomous the legislative and enforcement activity of a new Member State can be. The functioning and the leading role of the European Competition Network (ECN) in promoting a soft form of harmonization, known as ‘convergence’, will be presented. The paper discusses how the Hungarian Competition Authority applied and sometimes disregarded EU competition law provisions. Finally, a couple of actual competition law issues are discussed, like the harmonization of fining and leniency policies, recent development in private enforcement legislation and the problems with parallel investigations by several European competition authorities.