Tuesday, August 18, 2015
Ambarish Chandra, University of Toronto - Rotman School of Management and Matthew Weinberg, Drexel University - Department of Economics & International Business How Does examine Advertising Depend on Competition? Evidence from U.S. Brewing.
ABSTRACT: The relationship between market structure and advertising has been extensively studied, but has generated sharply opposing theoretical predictions, as well as inconclusive empirical findings, likely due to severe endogeneity concerns. We exploit the 2008 merger of Miller and Coors in the U.S. brewing industry to examine how changes in local concentration affect firms' advertising behaviour. Well-established regional preferences over beer brands, and the sharp increase in concentration from the merger, make this an excellent setting to analyze this question. We find a significant positive effect of local market concentration on advertising expenditures: a 100-point increase in the HHI measure of concentration increases advertising per capita by 6%. We then use this result to evaluate competing theories of advertising. We conclude that the most likely explanation is that advertising has positive spillovers, thus supporting recent findings in a range of settings.
Re-Pricing Through Disruption in Oligopolies with Tacit Collusion: A Framework for Abuse of Collective Dominance Law
Nicolas Petit, University of Liege - School of Law examines Re-Pricing Through Disruption in Oligopolies with Tacit Collusion: A Framework for Abuse of Collective Dominance Law.
ABSTRACT: This paper proposes an understanding of abuse of collective dominance or shared monopolization that does not outlaw oligopolistic tacit collusion as such, but that reputes abusive a set of tactics adopted by tacitly colluding oligopolists exposed to disruption. As much as deviation is an internal force likely to undermine tacit collusion, disruption is a powerful external force that can cause a return to the competitive equilibrium. The sources of disruption may be technological (eg radical innovation), economic (eg entry of a low-cost player) or legal (eg tax reform). But disruption may never deliver its pro-competitive promises if oligopolists tinker to restore a collusive equilibrium. This paper suggests that competition agencies (“agencies”) could use the dormant doctrine of abuse of collective dominance to illegalize oligopolists’ conduct that seeks to “re-price” through disruption, and elude its pro-competitive effect. This rationalized definition of abuse of collective dominance would both promote legal certainty by clarifying the messy state of the law in this field, and ensure economic efficiency by giving agencies a market-triggered ex post remedy in mature oligopolies with lethargic M&A activity.
This paper is divided in IV sections. First, it explains the case for more ex post enforcement in oligopolistic markets with tacit collusion (I). Second, it describes how disruption can undermine tacit collusion, and what oligopolists can do to overcome the competitive effect of disruption (II). Third, it discusses the pros and cons of this approach, in particular in comparison with alternative scholarly proposals to apply cartel law to tacit collusion (III). Fourth, it skims through EU cases decided at Member State level, to gain a better understanding of the existing antitrust policies on collective dominance (IV).
In this issue:
We're proud to present a special two-part issue, ably organized and managed by Guest Editor Ian McEwin, on the developing ASEAN competition law community. In creating a new economic union, all 10 ASEAN member states agreed to have competition laws in place by the end of 2015. This first part highlights progress in Cambodia, Myanmar, Indonesia, and Thailand; next week, we'll bring you Vietnam, Malaysia, Singapore, and the Philippines. (Ian brings us up to date on Brunei and Laos in his introduction.) Whether exploring the new or existing laws, you'll be current on the exciting growth in this global competition arena.
- ASEAN Competition Law: Part I
- R. Ian McEwin, Aug 17, 2015
While there are many differences between the competition laws, increasing regional integration is likely to lead to greater uniformity and the development of institutional mechanisms to deal with cross-border competition disputes—but these developments are highly unlikely to lead to an ASEAN competition law regulator with supranational powers.R. Ian McEwin (University of Malaya)
- David Fruitman, Aug 17, 2015
Given Cambodia’s lack of experience in competition law and policy, I am personally hoping that Cambodia resists the urge to leap into competition enforcement. David Fruitman (DFDL)
- Minn Naing Oo, Daren Shiau, Aug 17, 2015
It is critical for transitional economies to customize competition laws to that country’s specific features, which will have an impact on the manner in which Myanmar-based firms operate. Minn Naing Oo & Daren Shiau (Allen & Gledhill (Myanmar) Co., Ltd)
- Deswin Nur, Aug 17, 2015
Indonesian competition law has multiple objectives, namely public interest, national economic efficiency, equal opportunity, preventing unfair competition, and promoting effective and efficient business. Deswin NUR (KPPU, Indonesia)
- Sakda Thanitcul, Aug 17, 2015
Even though there have been nearly a hundred complaints over the past 16 years, to date there has yet to be any case filed, in relation to the Act, to the Court by any public attorney. Sakda Thanitcul (Chulalongkorn University)
- R. Ian McEwin, Aug 17, 2015
Antoine Duval, European University Institute; T.M.C. Asser Instituut and Ben Van Rompuy, T.M.C. Asser Instituut; Free University of Brussels (VUB) explore The Compatibility of Forced CAS Arbitration with EU Competition Law: Pechstein Reloaded.
ABSTRACT: In its Pechstein ruling, the Oberlandesgericht (OLG) Munchen based itself on German antitrust law to challenge the validity of arbitration clauses in favour of the Court of Arbitration for Sport (CAS), which are commonly used across the sporting world. Interestingly, competition law was used to indirectly secure a fundamental right enshrined in Article 6 of the European Convention of Human Rights: the right to a fair trial. In this paper we analyse whether the OLG could have come to a similar result based on Article 102 TFEU, the EU competition law provision prohibiting the abuse of a dominant position. If the reasoning used by the OLG can be transposed to EU competition law, this would have even more significant consequences for the future of the CAS. The finding of a violation of Article 102 TFEU would give the case a supranational scope and open the door for follow-on damage claims by athletes in all EU Member States.
The paper is structured as follows. The first part elucidates the legal underpinnings of the jurisdiction of the CAS and explicates the forced nature of CAS arbitration. The second part examines whether the imposition of forced CAS arbitration clauses by sports governing bodies may constitute an exploitative abuse of a dominant position under Article 102 TFEU. It will be argued that the answer to this question ultimately depends on the independence of the CAS. The third part, subsequently, scrutinizes whether the CAS fulfils this fundamental requirement. Finally, conclusions are drawn about the challenges ahead for the CAS in the aftermath of the Pechstein case.
Brett Hollenbeck, University of California, Los Angeles (UCLA) - Anderson School of Management studies Horizontal Mergers and Innovation in Concentrated Industries.
ABSTRACT: Antitrust authorities are increasingly concerned with the question: does allowing rival firms to merge increase or decrease incentives to invest and innovate? I examine this question in a dynamic oligopoly model with endogenous horizontal mergers. Firms produce differentiated goods and compete in prices and may merge with rival firms to increase the quality of their product or may continue to produce both products. The model is solved computationally and several counterfactuals are examined. I show that large firms substitute buyouts for investment but that this process creates a powerful incentive for firms to enter the industry and invest to make themselves an attractive merger partner. The result is significantly higher total investment with mergers than without. This result helps shed light on the larger question of the relationship between the competition and innovation.
Monday, August 17, 2015
Industrial policy is a serious concern in antitrust (see my most recent paper on the topic here). I am glad that I am not the only one concern. There European authors, Mario Mariniello, Damien Neven and Jorge Padilla discuss this is a new working paper Antitrust, regulatory capture and economic integration.
– There is growing worldwide concern about bias in the enforcement of competition law in favour of domestic firms. Even seemingly neutral antitrust laws can lead discrimination if they are enforced selectively.
– Authors investigate the distortions that national competition authorities generate when they pursue non-competition goals in favour of domestic firms, and discuss ways to address this negative policy development in a globalised world.
– The distortions identified in the paper would dissipate if governments agreed that the sole objective of competition law ought to be the protection of consumer welfare that competition-law institutions ought to be protected against capture.
– A realistic and effective way to prompt international convergence towards independent enforcement of competition laws is through the inclusion of competition clauses in bilateral trade agreements and the development of dispute-resolution mechanisms.
Jeremy K. West, Organisation for Economic Co-Operation and Development (OECD) discusses Disruptive Innovation.
Abstract: Disruptive technologies and business models profoundly affect existing markets. The most visible recent examples are Internet-based "sharing services" that are disrupting conventional taxi and hotel markets, but there are many others in diverse areas such as finance, retail electricity and automobiles.
Disruptive innovations can deliver important benefits to consumers and can stimulate innovation and price competition from established providers. However, they can also give rise to legitimate public policy concerns (e.g. safety, privacy) and create demands for regulation. Established providers will often lobby for existing regulations to be applied to new providers to lessen their competitive advantage, sometimes claiming rightly or wrongly that this advantage arises from an ‘unfair’ exclusion from regulatory rules.
But how far should regulation go, what role should competition policy play in these debates, and how might competition authorities participate?
This issues paper served as the backdrop for a June 2015 hearing held by the OECD's Competition Committee, in which experts and delegates discussed current competition policy challenges arising from disruptive innovations.
On the efficiency of Bertrand and Cournot equilibrium in the presence of asymmetric network compatibility effects
Tsuyoshi Toshimitsu (School of Economics, Kwansei Gakuin University) offers thoughts On the efficiency of Bertrand and Cournot equilibrium in the presence of asymmetric network compatibility effects.
ABSTRACT: Based on a differentiated duopoly model, we consider the efficiency of Bertrand and Cournot equilibrium in the presence of network effects and product compatibility. In particular, we demonstrate that if an asymmetric product compatibility with a strong network effect between the firms arises, give certain conditions, Cournot equilibrium is more efficient than Bertrand equilibrium in terms of greater consumer, producer, and social surplus.
Vinci Construction e.a. v France: Limits on Unannounced Inspections on the Basis of the Rights to a Fair Trial and to the Respect for Privacy
Collette Rawnsley, Shearman & Sterling examines Vinci Construction e.a. v France: Limits on Unannounced Inspections on the Basis of the Rights to a Fair Trial and to the Respect for Privacy.
ABSTRACT: The European Court of Human Rights (the ‘ECtHR’) has upheld applications by construction companies Vinci Construction France (‘Vinci’) and GTM genie civil et services (‘GTM’) that certain aspects of the dawn raids carried out by the French competition authority (the ‘DGCCRF’) violated the companies' rights under Article 6(1) (right to a fair trial) and Article 8 (private and family life, home and correspondence) of the European Convention of Human Rights (‘ECHR’).
Trading Gains and Losses in Antitrust: Why Losses Should Count More than Gains — An Implication of Behavioral Economics for Antitrust Losses
Richard O. Zerbe Jr., University of Washington - Daniel J. Evans School of Public Affairs describes Trading Gains and Losses in Antitrust: Why Losses Should Count More than Gains — An Implication of Behavioral Economics for Antitrust Losses.
ABSTRACT: In mainstream antitrust law the nature of economic efficiency has not been investigated in great depth. Such an investigation has important implications for antitrust law and economics. Among these are the following: (1) Behavioral economics shows that consumer surplus measures of losses underestimate consumer damages, often considerably, while producer surplus measures generally do not. (2) Thus an efficiency-based approach to antitrust should weigh consumer losses much more heavily than producer gains. (3) This conclusion has profound effects on many areas of antitrust, including every area that involves both market power and efficiency effects. The fact is that consumer surplus measures of losses underestimate consumer damages, often considerably, while producer surplus (profits) measures generally do not. This is because economic efficiency requires that losses be weighed more than gains. This result suggests that the optimal antitrust penalty as suggested by Landes and Posner is an underestimate.
I show further that the concept of economic efficiency furnishes a justification for a focus on consumer protection as the correct role for antitrust law. This justification is related to the underestimates of consumer losses. The gain-loss disparity suggests a rationale in antitrust law for the emphasis on consumer protection rather than using a total surplus standard.
Competition and State Aid Implications of the Spezzino Judgment (C-113/13): The Scope for Inconsistency in Assessing Support for Public Services Voluntary Organisations
Albert Sanchez-Graells, University of Leicester - School of Law explores Competition and State Aid Implications of the Spezzino Judgment (C-113/13): The Scope for Inconsistency in Assessing Support for Public Services Voluntary Organisations.
ABSTRACT: This paper assesses the competition law and State aid implications of the CJEU Judgment in Azienda sanitaria locale n. 5 "Spezzino" and Others, C-113/13, EU:C:2014:2440 (Spezzino). It pays particular attention at the departure from the Altmark test for the assessment of public support granted to providers of public services; as well as on the change of mind by the CJEU regarding the special position of non-profit entities in the direct award of public service contracts.
Friday, August 14, 2015
Paul K. Gorecki, Economic and Social Research Institute, Dublin and Department of Economics, Trinity College Dublin and Francis O’Toole, Department of Economics, Trinity College Dublin explain The dangers of ad hoc changes to merger control regulation: the Irish financial crisis.
ABSTRACT: Ireland’s policy-makers were confronted with difficult decisions concerning the financial sector and competition policy during the recent financial crisis. In response, Ireland’s Credit Institutions (Financial Support) Act 2008 (‘CIFS Act 2008’) introduced ad hoc policy changes to the review of mergers deemed necessary for the stability of the Irish financial system. These changes were repealed in August 2013. This article explores the adequacy of the temporary ad hoc approach and highlight its significant shortcomings, on both procedural and competition assessment grounds. In contrast to this ad hoc temporary-changes approach, this article argues that in the context of a crisis, financial, or otherwise, requiring changes to merger control regulation, the competition agency should conduct the initial competition assessment and only then should non-competition criteria be applied by the relevant Minister and/or independent institution. The major lesson from the Irish experience is that side-lining competition concerns by a series of ad hoc short-term responses to problems in the financial sector is likely to damage growth and the recovery in the medium to longer term.
Laurent Geelhand and Stella Gartagani, Hausfeld examine CDC v Akzo Nobel and Others: Clarifications on the Jurisdiction Rules in Cartel Damages Claims.
ABSTRACT: On 21 May 2015, the Court of Justice of the European Union (‘CJEU’) handed down its ruling on a preliminary reference from the Regional Court of Dortmund in Germany in respect of jurisdictional issues arising in the context of cross-border cartel damages claims. The CJEU clarified the interpretation of Brussels I Regulation1 and its findings apply equally to the Recast Brussels Regulation.
There are several ways in which jurisdiction can be established over a damages claim under the Brussels I Regulation. Article 2 of the Brussels I Regulation (now Article 4 of the Recast Brussels Regulation) sets out the general rule that persons domiciled in a Member State shall be sued in the courts of that Member State. Article 5(3) (now Article 7(2) of the Recast Brussels Regulation) states that in matters relating to tort or delict a person may be sued in the place where the harmful effect occurred or may occur. Article 6(1) (now Article 8(1) of the Recast Brussels Regulation) allows for claims against defendants domiciled in different Member States to be brought in the courts of the Member State where any one of the defendants is domiciled, provided that the claims are so closely connected as to give rise to the risk of irreconcilable judgements resulting from separate proceedings.
Ioannis Lianos, Peter Davis, and Paolisa Nebbia describe Damages Claims for the Infringement of EU Competition Law.
BOOK ABSTRACT: Damages Claims for the Infringement of Competition Law addresses the current state of the law in the EU on damages claims for the infringement of EU competition law by combining a theoretical with a practical perspective.
The work first focuses on the relevant Community acquis, examining all aspects of EU law that may be relevant to damages claims (whether brought by a consumer or not) such as those concerning fault and 'excusable errors', small claims, legal aid, alternative dispute resolution, as well as private international law instruments.
The book then delves into the economic underpinnings of claims for damages, including optimal enforcement theory and damages and the legal standards of liability, the evaluation of damages for cartels, exploitative conduct and exclusionary conduct.
The work also examines collective actions (legal regime and financing aspects), the interaction between damages claims and public enforcement, as well as issues relating to multi-jurisdictional enforcement and damages claims.
Thursday, August 13, 2015
Florian Smuda, Patrice Bougette and Kai Hüschelrath examine Determinants of the Duration of European Appellate Court Proceedings in Cartel Cases.
ABSTRACT: The duration of appellate court proceedings is an important determinant of the efficiency of a court system. We use data of 263 appeals decisions referring to 54 cartels convicted by the European Commission between 2000 and 2012 to investigate the determinants of the duration of the subsequent one- or two-stage appeals process. We find that while the speed of first-stage appellate court decisions depend, inter alia, on authority-related factors such as the complexity of the case, the clarity of the applied rules and regulations and previous or simultaneous US investigations, the second-stage appellate court proceedings appear to be largely unaffected by those drivers.
Frames Agency’s Use of ‘Stand Alone’ Section 5 Authority to Address Unfair Methods of Competition
August 13, 2015
The Federal Trade Commission has issued a Statement of Enforcement Principles that describes the underlying antitrust principles that guide the Commission’s application of its statutory authority to take action against “unfair methods of competition” prohibited by Section 5 of the FTC Act but not necessarily by the Sherman or Clayton Act.
“The promotion of consumer welfare is a cornerstone of the FTC’s antitrust enforcement, and these principles reaffirm the agency’s legal framework in carrying out that important mission,” said FTC Chairwoman Edith Ramirez. “The statement formally aligns Section 5 with the Sherman and Clayton Acts.”
The statement announced today explains that, consistent with FTC precedent, the Commission will adhere to the following principles when deciding whether to use its standalone authority under Section 5 of the FTC Act to challenge unfair methods of competition:
- the Commission will be guided by the public policy underlying the antitrust laws, namely, the promotion of consumer welfare;
- the act or practice will be evaluated under a framework similar to the rule of reason, that is, an act or practice challenged by the Commission must cause, or be likely to cause, harm to competition or the competitive process, taking into account any associated cognizable efficiencies and business justifications; and
- the Commission is less likely to challenge an act or practice as an unfair method of competition on a standalone basis if enforcement of the Sherman or Clayton Act is sufficient to address the competitive harm arising from the act or practice.
The Commission vote to approve the Statement of Enforcement Principles was 4-1, with Commissioner Maureen K. Ohlhausen voting no. The Commission issued a statement, and Commissioner Ohlhausen issued a dissenting statement.
Jooyong Jun, Bank of Korea; Bank of Korea - Economic Research Institute describes Entry of Non-Financial Firms and Competition in the Retail Payments Market.
ABSTRACT: We investigate the effects of a non-financial firm’s entry on competition in the retail payments market, from the perspective of duopoly between an incumbent and an entrant in conditions of vertical restraints. Considering the cross-platform externalities in payment processing, differentiated preferences for payment platforms, and competitive bottleneck on the consumer side, we derive the following results. When only the entry of a vertically integrated (or end-to-end service) provider is allowed, either all merchants choose to multi-home or no entry occurs, regardless of the regulatory requirement. On the other hand, if the entry of a downstream-only (or front-end service) provider is possible, a partial multi-homing equilibrium result can emerge for some conditions under which the entry of an end-to-end service provider does not occur. In addition, due to the lowered entry cost, the overall welfare is greater when the entry of downstream-only service is possible although the entire increase in welfare goes to the entrant. Without regulation, however, the vertically integrated incumbent does not voluntarily provide the back-end service to the entrant when the merchant’s benefit from the payments service is not sufficiently high. It suggests the need for proper regulatory measures to reach a socially desirable outcome from the new entry in the retail payments market.
Jonathan R Lhost, Lawrence University - Department of Economics, Brijesh Pinto, Keystone Strategy, LLC, and David S. Sibley, University of Texas at Austin - Department of Economics examine the Effects of Spectrum Holdings on Equilibrium in the Wireless Industry.
ABSTRACT: We propose a model of Bertrand competition in which consumers choose firms based on prices and qualities. Service quality depends on congestion, which is a function of capacity and output. We first present theoretical properties of the model. Next, we calibrate the model to the wireless industry and use it to evaluate the impacts of changes in spectrum allocation on consumer welfare and profits. Simulations of the model show that when one firm acquires more spectrum, consumer welfare at all firms increases due to congestion externality effects. We find that a transfer of spectrum from one firm to another can either raise or lower consumer welfare at the firms not involved in the transaction, again due to externality effects. Where it is possible to compare the results of our model to the wireless industry, they are consistent with the data.
Einer Elhauge, Harvard Law School explores Horizontal Shareholding as an Antitrust Violation.
ABSTRACT: Horizontal shareholdings exist when a common set of investors own significant shares in corporations that are horizontal competitors in a product market. Economic models show that such horizontal shareholdings are likely to anticompetitively raise prices when the owned businesses compete in a concentrated market. Recent empirical work not only confirms the prediction of these models, but also reveals that such horizontal shareholdings are omnipresent in our economy. I show that such horizontal shareholdings can help explain fundamental economic puzzles, including why corporate executives are rewarded for industry performance rather than just individual corporate performance, why corporations have not used recent high profits to expand output and employment, and why economic inequality has risen in recent decades. I also show that stock acquisitions that create such anticompetitive horizontal shareholdings are illegal under current antitrust law, and I recommend antitrust enforcement actions to undo them and their adverse economic effects.
Wednesday, August 12, 2015
Paolo Buccirossi, Laboratory of Economics, Antitrust, Regulation (LEAR) Catarina Moura Pinto Marvao, Stockholm School of Economics - Stockholm Institute of Transition Economics (SITE); Trinity College Dublin and Giancarlo Spagnolo, Stockholm School of Economics (SITE); Centre for Economic Policy Research (CEPR); University of Rome 'Tor Vergata'; EIEF discuss Leniency and Damages.
ABSTRACT: Damage actions may reduce the attractiveness of leniency programs for cartel participants if their cooperation with the competition authority increases the chance that the cartels victims will bring a successful suit. A long legal debate culminated in an EU directive, adopted in November 2014, which seeks a balance between public and private enforcement. It protects the effectiveness of a leniency program by preventing the use of leniency statements in subsequent actions for damages. Our analysis shows such compromise is not required: limiting the cartel victims ability to recover their loss is not necessary to preserve the effectiveness of a leniency program and may be counterproductive. We show that damage actions will actually improve its effectiveness, through a legal regime in which the civil liability of the immunity recipient is minimized and full access to all evidence collected by the competition authority, is granted to claimants, like in the US.