Wednesday, November 16, 2016

A Dynamic Contest Model of Platform Competition in Two-Sided Markets

Martin Grossmann, University of Zurich - Department of Business Administration (IBW), Markus Lang, University of Zurich - Department of Business Administration (IBW), Helmut M. Dietl, University of Zurich - Department of Business Administration (IBW) offer A Dynamic Contest Model of Platform Competition in Two-Sided Markets.

ABSTRACT:  In this article, we analyze the dynamic competition between two platform firms (A&B) in two-sided markets with network externalities. In Period 1, platform A or B wins the contest in a first stage and can serve the two-sided market monopolistically in a second stage. In Period 2, the two platforms carry over previous investments to a subsequent contest in a first stage, and the winner (A or B) serves the market monopolistically in a second stage. We show that a head start of one platform does not guarantee future success. The combination of cost advantages and network externalities affects the platforms' success. Moreover, a market dominance of a platform does not necessarily result in higher profits.

November 16, 2016 | Permalink | Comments (0)

A Vocabulary for Conversing About Entrepreneurship, Innovation, and Antitrust

Albert Foer, American Antitrust Institute (AAI) offers A Vocabulary for Conversing About Entrepreneurship, Innovation, and Antitrust.

ABSTRACT: As an introduction to the discussion of entrepreneurship, innovation, and antitrust, this chapter defines key terms, particularly focusing on the relationship between the concepts of innovation and entrepreneurship. In the process, the author considers ways in which the antitrust laws may apply to each. Nearly all the key words were shown to have multiple meanings and usages, forcing us to be as explicit as possible in assigning varying roles for antitrust to varying meanings of entrepreneurship.

 

November 16, 2016 | Permalink | Comments (0)

The Complexity of Conversing About Entrepreneurship, Innovation, and Antitrust

Peter Carstensen, University of Wisconsin Law School underscores The Complexity of Conversing About Entrepreneurship, Innovation, and Antitrust.

ABSTRACT: Laying out the competition policy issues relevant to the complex challenges of promoting entrepreneurship and innovation requires broad strokes and generalizations. Moreover, the range of issues invites confusion as to goals and terms. What is impressive about Bert Foer’s chapter is how well it covers the need for a common language to understand the competition policy issues that are given extensive and focused consideration in this book. In my view, one of the most important insights from the focus on innovation and entrepreneurship is that market dynamics make competition policy much more important but also much less certain. Moreover, positing a policy goal of promoting innovation and entrepreneurship affects how important parts of competition law should be interpreted. It also identifies a potentially significant role for competition policy as a means of defining the scope of other legal regimes that directly affect innovation.

 

November 16, 2016 | Permalink | Comments (0)

Tuesday, November 15, 2016

Entrepreneurship, Innovation, and Antitrust

Robert E. Litan, Ewing Marion Kauffman Foundation has written on Entrepreneurship, Innovation, and Antitrust.

ABSTRACT: Entrepreneurship is key to productivity growth, yet in recent decades new-firm formation has flagged. There is some evidence that business concentration may be a contributing cause. Well-designed antitrust enforcement policy, especially aimed at policing abuse of market power by dominant platforms, will be crucial to preserving opportunities for new entrants, especially in technology sectors. But antitrust procedures should also be updated to speed up decisions so that legal outcomes are not completely outpaced by technology.

 

November 15, 2016 | Permalink | Comments (0)

State Aid and the Banking System in the Financial Crisis: From Bail-out to Bail-in

Stefano Lucchini, Oxford University, Jacques Moscianese, Essec Business School Paris, Irene de Angelis, Fabrizio Di Benedetto, Università degli Studi di Milano, have written State Aid and the Banking System in the Financial Crisis: From Bail-out to Bail-in.

ABSTRACT:  States has traditionally faced banking crisis through the so-called bail-out tool: public resources have been used for a long time in order to rescue banks, putting the burden on taxpayers. Since the beginning of the crisis, the European Commission (Commission) has adopted special State aid rules for the rescue of banks, providing guidance on the use of bail-out principles but without any precise exit strategy. In order to reduce public support to banks, the Banking Communications and the new Bank Recovery and Resolution Directive introduced the bail-in (or burden-sharing) tool, putting the burden of bank rescue on shareholders and subordinated creditors while minimising the burden on taxpayers. On July 2016, the European Court of Justice, in the Kotnik case, declared the compatibility with European Union Law of burden-sharing measures, which however must comply with the general principle of proportionality, especially with regard to subordinated creditors.

November 15, 2016 | Permalink | Comments (0)

Euro Interest Rate Derivatives: Reduction of Fine in the First-Ever Appeal Against a Settlement Decision

Pierre Zelenko (Linklaters) and Jeremie Marthan (Linklaters) have written on Euro Interest Rate Derivatives: Reduction of Fine in the First-Ever Appeal Against a Settlement Decision.

ABSTRACT:  Despite the conclusion of a settlement, the principle of equal treatment requires the Commission to amend its settlement decision if it is established that the value of sales on the basis of which the fines of the settling parties have been set do not reflect their relative position vis-à-vis each other.

November 15, 2016 | Permalink | Comments (0)

Can the SIEC test be used to assess effects from buyer power?

Roman Inderst (Goethe University Frankfurt) and Nicola Mazzarotto (KPMG UK LLP) ask Can the SIEC test be used to assess effects from buyer power?

ABSTRACT: Under EU competition law mergers are assessed based on the so-called ‘Significant Impediment to Effective Competition’ (SIEC) test. That test is generally applied to examine market power sellers have towards consumers; but it can also serve to assess the power detained by buyers vis-à-vis suppliers. This however may require adaptations as the economics of both settings are different. In particular, there should be no untested presumption of so-called ‘second round’ effects, according to which increased buyer power of merging firms would also increase buyer power of non-merging firms.

November 15, 2016 | Permalink | Comments (0)

Monday, November 14, 2016

AAI 2016 Antitrust Enforcement Awards Winners

The American Antitrust Institute (AAI) recognized leading legal practitioners and economists at the AAI 2016 Antitrust Enforcement Awards.  The Honorees were featured at a gala awards dinner on Wednesday, November 9, 2016 following the AAI’s Annual Private Antitrust Enforcement Conference. 

Outstanding Antitrust Litigation Achievement in Private Law Practice
Boies, Schiller & Flexner LLP
Hausfeld LLP
Susman Godfrey LLP
In re Municipal Derivatives Antitrust Litigation

In 2008, the team of filed the initial complaint in a massive MDL challenging alleged bid-rigging and market allocation schemes involving the sale of municipal derivatives throughout the United States.  This case was litigated concurrently with a DOJ criminal investigation. State attorneys general were also negotiating their own settlements on behalf of overlapping classes.  The Team was able to work with the state attorneys general in joint mediation sessions with some settling defendants and even joint settlement agreements. In 2016, the Team reached settlement agreements with the final remaining defendants, pushing the total settlement amount to $223 million. The litigation team included:  William Isaacson, Scott Gant, and Jonathan Shaw of Boies, Schiller & Flexner LLP; Michael Hausfeld, Megan Jones, Michael Lehmann, and Swathi Bojedla of Hausfeld LLP; and Marc Seltzer, Bill Carmody, Seth Ard, and Arun Subramanian of Susman Godfrey LLP.    

Outstanding Antitrust Litigation Achievement in Private Law Practice
Hausfeld LLP
Kaplan Fox & Kilsheimer LLP
Levin, Fishbein, Sedran & Berman
Robins Kaplan LLP
In re Air Cargo Shipping Services Antitrust Litigation

The size, geographic scope, and significant recovery in this case make it a landmark.  The four co-lead firms worked for over a decade for victims of an alleged global conspiracy to inflate the prices of airfreight shipping services sold directly by major domestic and international air cargo carriers. The class recovered more than $1.2 billion for victims from more than 30 defendants. The litigation team included: Michael Hausfeld, Brent Landau, Melinda Coolidge, Hilary Scherrer, and Swathi Bojedla of Hausfeld LLP;  Robert Kaplan, Gregory Arenson, Elana Katcher, and Gary Specks of Kaplan Fox & Kilsheimer LLP; Howard Sedran, Austin Cohen, and Keith Verrier of Levin, Fishbein, Sedran & Berman; and Hollis Salzman and Meegan Hollywood of Robins Kaplan LLP.   

Outstanding Antitrust Litigation Achievement in Private Law Practice
Edward Diver, Howard Langer, and Peter Leckman
Langer, Grogan & Diver P.C.
Garber v. Office of the Commissioner of Baseball 
Laumann v. National Hockey League

These cases confronted a serious antitrust violation that had gone unchallenged for decades. Diver, Langer, and Leckman spent months investigating and planning the novel case.  They won significant precedents and the case ultimately concluded in landmark settlements that changed the way these and other sports leagues make their games available.  The settlements significantly reduced prices to millions of consumers and have been valued at more than $200 million. These cases benefited consumers, changed sports broadcasting, and generated several insightful, scholarly opinions that have improved antitrust law.  Their pioneering work has reinvigorated the application of the antitrust laws to sports broadcasting.

Outstanding Antitrust Litigation Achievement in Economics
Einer R. Elhauge
Harvard Law School
Adriana M. Castro, et al. v. Sanofi Pasteur Inc.

Einer Elhauge served as the plaintiffs’ primary economic expert in this antitrust class action by physicians and other purchasers challenging loyalty commitments induced by bundled penalties in vaccine markets by Sanofi as a violation of Sections 1 and 2 of the Sherman Act.  Professor Elhauge provided insight and analysis to explain and demonstrate how bundled loyalty “discounts” (here, really penalties) stifle competition and harm consumers, even if a competitor continues to profit in the relevant market. His work in this case focused the Court on the proper analysis of harm to competition. The Court observed that Professor Elhauge was “eminently qualified” and recognized by various federal courts as an “antitrust titan.”

Outstanding Antitrust Litigation Achievement in Economics
Leslie M. Marx
Duke University / Bates White Economic Consulting
Carpenter Co. v. BASF SE
Woodbridge Foam Corp. v. BASF SE
Dash Multi-Corp v. BASF SE

Leslie Marx served as the testifying expert on causation and damages for a coalition of eleven plaintiffs in In re Urethane Antitrust Litigation.  Professor Marx worked on behalf of plaintiffs who  purchased a variety of urethane chemicals, offering trial testimony about capacity manipulation and the presence of an effective conspiracy. Professor Marx was one of only two plaintiff witnesses who testified in person at trial, and her testimony provided significant support for the existence of a conspiracy.  Professor Marx’s testimony was undoubtedly a major factor in Dow’s midtrial settlement.

Outstanding Antitrust Litigation Achievement in Economics
Carl Shapiro
University of California, Berkeley
Charles River Associates
Federal Trade Commission v. Staples, Inc. and Office Depot, Inc.

Carl Shapiro supported the FTC throughout its review
 of the proposed $6.3 billion merger of Staples and Office Depot. Professor Shapiro analyzed the competitive issues associated with the business-to-business sale and distribution of consumable office supplies and provided expert testimony in the FTC’s successful district court action enjoining the transaction. In his testimony, Professor Shapiro helped the court navigate through numerous complex economic issues. On each issue, the court’s decision relied on Professor Shapiro’s guidance, both in connecting facts and more importantly in providing a framework for analysis.  This resulted in a decision that is well grounded in economic theory and helps clarify merger review for future enforcers and antitrust counsel.

Outstanding Antitrust Litigation Achievement in Economics
Michael D. Whinston
Massachusetts Institute of Technology / Bates White Economic Consulting
United States of America v. AB Electrolux, Electrolux North America, Inc., and General Electric Company

Michael Whinston provided three expert reports and trial testimony in support of DOJ’s challenge to the proposed acquisition by Electrolux of General Electric’s major appliance business. Professor Whinston’s testimony was an early and leading example of the upward pricing pressure methodology applied in the context of a litigated merger.  His testimony also helped advance the idea that targeted customers can be at risk of adverse competitive effects even within a larger market.

Outstanding Antitrust Litigation Achievement by a Young Lawyer
Jeffrey Dubner
Cohen Milstein Sellers & Toll PLLC
Garber v. the Office of the Commissioner of Baseball
Laumann v. National Hockey League

Mr. Dubner served in several essential roles in the consolidated cases. He served as the “right-hand” to the lead lawyers in the case. The Garber case settled just a week before trial, and Mr. Dubner had the responsibility of organizing the substantial evidence to be presented, while at the same time preparing pretrial briefs and preparing to examine witnesses at trial. He also argued a motion at the pretrial conference. Mr. Dubner recommended that plaintiffs retain Professor Einer Elhauge as a trial witness to rebut the economic experts defendants’ proffered, which proved an important strategic suggestion.

Outstanding Antitrust Litigation Achievement by a Young Lawyer
Omar Ochoa
Susman Godfrey LLP
In re Automotive Parts Antitrust Litigation

Omar Ochoa engaged in all of the Susman Godfrey trial team’s tasks and day-to-day operations and successfully briefed over a dozen motions to dismiss, which significantly impacted the course of the case. Mr. Ochoa briefed and argued the issue of whether foreign defendants’ conduct was subject to the federal district court’s jurisdiction under stream of commerce doctrine. Although multiple defendants argued they did not come under the court’s jurisdiction, Mr. Ochoa persuaded the court that the defendants had not only placed products in the stream of U.S. commerce, but knew that their products would be ultimately sold in the U.S.

Outstanding Antitrust Litigation Achievement by a Young Lawyer
William V. Reiss
Robins Kaplan LLP
In re Automotive Parts Antitrust Litigation

William Reiss has worked on the case since the first complaint was filed in late 2011.  He has been one of the leading architects in formulating the legal strategy and managing the day-to-day coordination for this litigation. Mr. Riess also played a critical role in coordinating the litigation efforts of the end-payor plaintiffs with various separate groups of plaintiffs, defendants, and state Attorneys General. He was instrumental in the success of end-payor plaintiffs in defeating defendants’ sometimes lengthy motions to dismiss that contained arguments under 30 separate state laws and the District of Columbia.  Through Mr. Riess’s leadership, the court repeatedly upheld virtually all of end-payor plaintiffs’ claims.

Outstanding Antitrust Litigation Achievement by a Young Lawyer
Elizabeth Tran
Cotchett, Pitre & McCarthy, LLP
In re Automotive Parts Antitrust Litigation

Elizabeth Tran has actively worked on the case since inception. She led a coordination effort among at least seven different plaintiff groups, state Attorneys General, and over 50 defendant groups. Ms. Tran used her economics background to build a settlement methodology leading to more consistent results among the many differently situated defendants in the case.  This methodology enabled counsel to reach settlements that were adequate, fair, reasonable, consistent, and beneficial to the class.

2016 Judging Committee

  • Chair: Hollis Salzman, Robins Kaplan LLP
  • Ellen S. Cooper, Office of the Attorney General of Maryland
  • David DeRamus, Bates White Economic Consulting
  • Harry First, New York University School of Law
  • Kathleen E. Foote, California Department of Justice Antitrust Section
  • Warren Grimes, Southwestern Law School
  • Thomas Horton, South Dakota School of Law
  • Jeff Leitzinger, EconOne Research Inc.
  • Roberta Liebenberg, Fine, Kaplan and Black
  • Robert Litan, Korein Tillery
  • Milton Marquis, Cozen O'Connor
  • Ellen Meriwether, Cafferty Clobes Meriwether & Sprengel LLP
  • Janet Netz, ApplEcon
  • Cathy Smith, Gustafson Gluek
  • Judith Zahid, Zelle LLP

November 14, 2016 | Permalink | Comments (0)

AALS Voting for the Antitrust Committee

Hillary Greene (UConn), Chair of the AALS Section (and beloved co-author and friend) asked me to send out the following to US AALS School Member Law Professors:

 

Dear AALS Antitrust Section Membership,

Members of the Antitrust and Economic Regulation Section (Antitrust

Section) of AALS should have received an email (via the listserv) on

November 14th that contains a link that will enable you to participate in

the first virtual election to appoint the newest member to the Antitrust

Section’s Executive Committee.

If you are an Antitrust Section member and you have not received an

email from Professor Hillary Greene (Chair, Antitrust Section) regarding

this election, please contact AALS immediately at support@aals.org.

If you have any technical questions, please contact Mr. Patrick Riley

(Manager of Section Services, AALS) at priley@aals.org.

Please direct any other questions or comments to Antitrust Section

Chairperson Hillary Greene at hillary.greene@uconn.edu.

Detailed instructions regarding this election are provided when you

access the Wufoo nomination form with the link you should have been

emailed. Here is a brief summary of that information:

The Antitrust Section’s Executive Committee is comprised of 6

members. The most senior member (as defined by year of

appointment to the board) serves as the Chairperson. After serving

as Chairperson for one year, he/she rotates off the Executive

Committee and the next most senior member becomes the new

Chairperson.

This election will occur in two phases. Phase one involves soliciting

nominations and it is open from November 14th through November

23nd. Phase two, the actual vote itself, is slated for December 1st

through December 12th.

The three individuals who receive the greatest number of

nominations and who meet the other requirements (membership in

the Antitrust Section, research/teaching interests falling squarely

within field of antitrust, and who indicate a willingness to be placed

on the ballot after being contacted by the Executive Committee)

along with up to two additional nominees selected by the Executive

Committee (who also meet the requirements) will constitute the

final slate of candidates.

Persons who previously served on the Executive Committee are

ineligible for nomination. Only faculty and administrators at AALS

member schools are eligible to hold office.

We appreciate your participation in this process!

Sincerely,

Hillary Greene

Chair, AALS Antitrust and Economic Regulation Section

C. Scott Hemphill, Chair-Elect, Executive Committee

Rebecca Haw Allensworth, Executive Committee

Aaron Edlin, Executive Committee

Harry First, Executive Committee

Alan J. Meese, Executive Committee

 

November 14, 2016 | Permalink | Comments (0)

Appreciability and De Minimis in Article 102 TFEU

Pablo Ibanez Colomo (LSE) discusses Appreciability and De Minimis in Article 102 TFEU.

ABSTRACT: In Post Danmark II, the Court held that, in the context of Article 102 TFEU, it is not necessary to show that an anticompetitive effect is of a ‘serious’ or ‘appreciable’ nature to apply that provision. In this context, the notion of ‘appreciability’ must be distinguished from that of ‘likelihood’, which refers to the probability of the anticompetitive effects of the practice. The notion must also be distinguished from that of effects as, contrary to what has sometimes been suggested, ruling out the need to show the appreciability of an anticompetitive effect does not say anything about what an effect is.

November 14, 2016 | Permalink | Comments (0)

Capacity Mechanisms and State Aid: Between PSOS, Market Liberalisation, and Security of Supply

Elisabetta Righini (Latham) and Juan Carlos Gonzalez Fernandez (Latham) describe Capacity Mechanisms and State Aid: Between PSOS, Market Liberalisation, and Security of Supply.

ABSTRACT: This paper provides an overview of the current regulatory environment for capacity mechanisms with a particular focus on State aid and the European Commission's ongoing sector inquiry. From a regulatory perspective, after a period with limited policy initiatives, the European Commission is paving the way to adopt new and far-reaching regulation in the electricity sector that will affect capacity mechanisms. From a State aid perspective, the European Commission has developed a stricter stance when assessing the compatibility of capacity mechanisms with EU State aid rules. Security of supply and generation adequacy will be an important item on the European Commission's agenda in the near future and the outcomes of the sector inquiry, once finalised, will feed into further enforcement and regulatory initiatives.

November 14, 2016 | Permalink | Comments (0)

South Africa: The Criminalisation of Cartel Conduct

Lesley Morphet (Hogan) and Nkonzo Hlatshwayo (Hogan) explore South Africa: The Criminalisation of Cartel Conduct.

ABSTRACT: South Africa joins an array of other jurisdictions criminalizing cartel conduct such as the United States, Canada, Australia and some European Member States such as the United Kingdom and Germany. On 1 May 2016 legislation criminalizing cartel conduct came into effect in South Africa introducing severe penalties (being a possible fine of R500,000 (about EUR 30,000), or imprisonment for up to ten years, or both). Directors and managers of companies can now be held criminally liable for participating in, or knowingly acquiescing to, cartel conduct (being price fixing, market division and bid rigging). There are some concerns that it may have a negative impact on the Corporate Leniency Policy, which has been used very effectively by the Competition Authorities in uncovering cartel conduct in South Africa.

November 14, 2016 | Permalink | Comments (0)

Recent Developments in EU Merger Control 2015

Paul McGeown (Wilson Sonsini) and Aude Barthelemy have explore Recent Developments in EU Merger Control 2015.

ABSTRACT: In 2015, concerns about the possible reduction in innovation following a merger came to the fore in a handful of Commission decisions, notably Novartis/GSK Oncology and Pfizer/Hospira. Across industries, several of the Commission's more detailed decisions analysed non-horizontal relationships between the parties’ activities (rather than plain horizontal overlaps) with an emphasis on the incentives that the merged business might have for pursuing a particular foreclosure strategy. In a small number of cases the Commission also sought to push the boundaries of its jurisdiction to explore markets where neither of the merging parties was present or where the transaction created a market leader without that market being affected.

November 14, 2016 | Permalink | Comments (0)

Friday, November 11, 2016

Recent Competition Law Developments in the Automotive Industry

Anne C. Wegner, Sophie Oberhammer and Almuth Berger(all Luther Rechtsanwaltsgesellschaft mbH) describe Recent Competition Law Developments in the Automotive Industry.

ABSTRACT: The European Commission continues targeting car part suppliers and manufacturers for horizontal practices with the Commission settling on the highest cartel fines ever for the truck makers cartel. National authorities have also targeted manufacturers, importers, dealers, and car parts suppliers for horizontal as well as some vertical restraints with a focus on exchange of sensitive information, retail price maintenance, warranty clauses, and online sales restrictions. Follow-on damages litigation is still running low-key—but the machinery for preparations of negotiations appears to have started. National courts clarified their interpretation of antitrust law, ruling in particular on access to network claims thereby partly diverging from the European Commission's preferred (brand-specific) market definition for the after-markets. As regards access to technical information, the Court action by the German industry association of independent parts dealers for the release of additional (raw) data has resulted in a first instance judgement which is pending in the second instance Court now.

November 11, 2016 | Permalink | Comments (0)

Market Power in the Portfolio: Product Market Competition and Mutual Fund Performance

Stefan Jaspersen, University of Cologne - Centre for Financial Research (CFR) examines Market Power in the Portfolio: Product Market Competition and Mutual Fund Performance.

ABSTRACT: I provide evidence that fund managers who overweight firms with the most differentiated products (‘monopolies’) exhibit a superior risk-adjusted performance. This is consistent with information advantages due to a better understanding of qualitative information on a firm’s competitive environment. I find that funds with above median monopoly bets outperform by up to 92 basis points annually and trade more successfully in both their monopoly and non-monopoly sub-portfolios. My identification strategy includes exogenous shocks to information quality using the Sarbanes-Oxley Act and to a firm’s product market environment using the 9/11 terrorist attacks. I document that managers who place larger monopoly bets are less likely to invest into rival firms at the same time, have a longer investment horizon, and hold more illiquid and high quality stocks.

November 11, 2016 | Permalink | Comments (0)

Will consumers be winners in merger trials?

David Balto liken antitrust to baseball in an op-ed Will consumers be winners in merger trials?

November 11, 2016 | Permalink | Comments (0)

Punishing Cartel Behaviour: Means to Encourage Compliance with the Hong Kong Competition Ordinance

Sandra Marco Colino, The Chinese University of Hong Kong (CUHK) are Punishing Cartel Behaviour: Means to Encourage Compliance with the Hong Kong Competition Ordinance.

ABSTRACT: This paper examines the way that cartel behaviour may be sanctioned under the new Hong Kong Competition Ordinance, and assesses whether such punishment is suitable to efficiently deter this kind of anti-competitive activity. The legislation, adopted in 2012, has introduced an array of sanctions which are traditionally used in competition regimes around the world to fight practices considered to be particularly pernicious. When a company is found to have breached the CO, remedies and pecuniary penalties may be imposed on the corporation. In addition, individual sanctions are also contemplated, and directors may be disqualified in certain cases. Interestingly, harsher sanctions may be imposed on individuals who breach the procedural rules, including fines and even imprisonment.

The chapter consists of three main parts. It begins with an analysis of the goals that penalties in competition law ought to pursue by drawing on the traditional justifications of punishment, and focusing expressly on reparation, retribution and deterrence. Subsequently, an overview of the most important forms of punishing cartels is provided, with an assessment of their pros and cons. This is followed by a study of the specific penalties that are imposed in Hong Kong (both in the former sector-specific competition rules and in the new cross-sector CO), and their suitability to achieve the goals described in the first section. Finally, conclusions are drawn.

November 11, 2016 | Permalink | Comments (0)

Thursday, November 10, 2016

Asian Competition Forum 12th Annual Conference - 5th & 6th December 2016, Hong Kong

Asian Competition Forum 12th Annual Conference
5th & 6th December 2016, Hong Kong

INNOVATION, CREATIVITY, TECHNOLOGY: THE IMPACT OF COMPETITION LAW IN ASIA

DRAFT 18/10/2016

First Day – Morning
8:30 – 9:00 Registration
9:00 – 9:15
Welcome Speech and Opening Address
Ms. Rose Webb, CEO Hong Kong Competition Commission
9:15-10:00
Keynote Speech
Professor Michael JACOBS, Distinguished Research Professor of Law, De Paul University
College of Law, Chicago, USA

SESSION (A): Abuse of Dominance in Technology Markets
10:00-11:00
Chair: TBC
• Prof Ioannis KOKKORIS, Executive Director of Institute for Global Law, Queen
Mary University: 'Innovation, Search Engines and Abuse of Dominance';
• Prof Francisco MARCOS, IE Law School: 'Innovation by Dominant Firms in the
Market: Damned if You Don't... But Damned if You Do?'
• Mr. Stephen CROSSWELL, Partner, Competition Practice, Baker & McKenzie
(Hong Kong): 'Dominance or the power of innovation – how does a regulator know?'
11:00-11:15 Break

SESSION (B): Anti-Trust Standards and Innovation in Asia
11:15 – 12:45
Chair: TBC
• Ms. Dina KALLAY, Director, Competition & Intellectual Property, Ericsson:
'Asian Antitrust-Intellectual Property Developments in a Global Perspective';
• Mr. Karan Singh CHANDHIOK, Partner and Practice Head, Competition Law
and Disputes Practice, Chandhiok & Associates and Treasurer of the Competition
Law Bar Association: ' Should Traditional Anti-Trust Standards apply in Technology
Markets: Issues from India'
• Mr. Marc WAHA, Foreign Legal Consultant, Norton Rose Fulbright: 'The impact
of technological change on market definition and the competitive assessment';
• Prof. HOU Liyang, Professor and Assistant Dean, KoGuan Law School, Shanghai
Jiao Tong University: 'Impact of Innovation on Competition Law: from an outcomeoriented
approach to a process-oriented approach';

12:45 – 14:00

Lunch

First Day – Afternoon Breakout
SESSION (C ): ASEAN Jurisdictions and Innovation
14:00-15:30
Chair: TBC

• Mr. David FRUITMAN, Regional Competition Counsel, Senior Consultant DFDL
(Cambodia): 'The Legislative and Institutional Capacity of Cambodia to Address
Innovation Markets';
• Prof Dr. Ningrum SIRAIT, University of Sumatra Utara: 'Innovation, Intellectual
Property Rights and Fair Competition in Indonesia';
• Ms. Kanni RAMAIAH, University Technology MARA (Malaysia): ' Innovation,
Intellectual Property Rights and Fair Competition Policy in Malaysia';
• Commissioner Saidah SAKWAN, KPPU International: 'Online Transportation
Services: Competition or Regulatory Issue?';
• Mr. Anthony ABAD, President and CEO of Trade Advisors: 'Competition,
Innovation and Compliance for Technology-Driven Companies… The Case of the
Philippine Startup Ecosystem'.
15:30-15:45 Break

SESSION (D): Patent Terms and Competition Law
15:45-17:30
Chair: TBC
• Dr. Jasmine HUANG, Chu Hai College of Higher Education: 'Balancing Between
Patents Laws and Competition Law – Use of Economic Analysis to find Optimal Patent
Period';
• Assoc. Prof Burton ONG, National University of Singapore: 'Disputes arising from
Standard Essential Patent ownership and transactions: How big a role should the
competition law framework play?';
• Professor Toshiaki TAKIGAWA, Kansai University: 'Non-Assertion of Patent
Clause and Competition Law: A Comparative Analysis of the US, the EU, Japan and
China'

SESSION (E): IP Licensing in Asia
14:00-15:30
Chair: TBC
• Mr. Guy Lougher, Partner and Head of EU & Competition, Pinsent Masons:
'Impact of the Second Conduct Rule on licensing IP rights';
• Mr. Kentaro HIRAYAMA, Attorney at Law and Associate Professor, Tokyo
University of Science, Graduate School of Innovation Studies: 'Refusals to License
Intellectual Property – Cases and Guidelines in Japan';
• Mr. Kelvin KWOK, Assistant Professor at Law, University of Hong Kong and
Barrister-at-Law, Des Voeux Chambers: 'Refusal to License Intellectual Property
Rights under the Anti-Monopoly Law of China'
15:30-15:45 Break

SESSION (F): Information Networks and Competition
15:45-17:30
Chair: TBC
• Mr. Victor HUNG, Head of Planning and Trade Practices Division, Hong Kong
Consumer Council: 'Designing Anti-competitive Network Structure';
• Mr. Marcus BEZZI, Executive General Manager, Competition Enforcement,
Australia Competition and Consumer Commission: 'Tackling online vertical
restraints to enhance price competition'

• TBC
Second Day – Morning
8:30 – 9:00 Registration
9:00-9:20
• Prof. Caron BEATON-WELLS, The University of Melbourne, 'Global Competition
Law Education in an Online Environment'

SESSION (G): Innovation and Competition
9:20-10:45
Chair: TBC
• Dr. Steven VAN UYTSEL, Associate Professor, Kyushu University: 'Technologydriven
Innovation, Startups, and Competition Law: The Case of Japan';
• Mr. Emilio VARANINI, Deputy Attorney General of California State: 'Fostering
Innovation and Creativity in Labor and in Distribution via Competition Law in
California: Lessons for Asia for the 21st Century';
• Mr. Herbert FUNG, Director (Business and Economics), Competition
Commission of Singapore: 'Rebalancing Competition Policy to Stimulate Innovation
and Sustain Growth';
• Asst. Prof. Sandra MARCO COLINO, Faculty of Law, Chinese University of
Hong Kong: 'Digital Markets and Emerging Competition Regimes: the Case of Hong
Kong'.

10:45– 11:00 Break

SESSION (H): Technology and Market Analysis
11:00 – 12:30
Chair: TBC
• Dr. Angus YOUNG, Senior Lecturer, Department of Accountancy & Law, Hong
Kong Baptist University: 'Legal Technology Changing the Business of Law: New
Frontiers in Competition?'
• Prof Deborah HEALEY, Director, Corporate and Commercial LLM Programme,
Faculty of Law, University of New South Wales:
• TBC
• TBC
12:30 – 14:00

Lunch

Second Day – Afternoon

SESSION (I): China and Innovation Markets
14:00 – 15:30
Chair: TBC
• Prof. WANG Xiaoye, Institute of Law, Chinese Academy of Social Science: 'SEPs
and Competition Law – from Perspective of the Case of Huawei v. IDC';
• Dr. ZHU Jingwen, Registered Foreign Lawyer, Winston and Strawn: 'China's New
Rules on Antitrust and Intellectual Property Intersected Issues';
• Prof LIN Ping, Head and Professor, Director of Centre for Public Policy Studies
and Director of Master of Science in International Banking and Finance
Programme, Department of Economics, Lingnan University: 'Fair Competition
Review in High-Tech Industries in China: A Case Study'

15:30 – 15:45 Break

SESSION (J): Disruptive Technologies
15:45 – 17:20

Chair: TBC
• Mr. Hassan QAQAYA, Ex-UNCTAD: 'Competition Law and Innovation in the 21st
Century';
• Dr. Joseph WILSON, Former Chairman, Competition Commission of Pakistan,
McGill University: 'Regulated Industries and Disruptive Technologies: Role for
Competition Agencies';
• Prof. Allan FELS, Professorial Fellow, The University of Melbourne: TBC
• Mr. Andrew J. HEIMERT, Counsel for Asian Competition Affairs, Federal Trade
Commission: TBC

17:20 – 17:30
Closing Address
Prof. Mark WILLIAMS
Executive Director, ACF

November 10, 2016 | Permalink | Comments (0)

Is Bounded Rationality in Entry Decisions Necessarily Bad for Social Welfare?

Michal S. Gal, University of Haifa - Faculty of Law asks Is Bounded Rationality in Entry Decisions Necessarily Bad for Social Welfare?

ABSTRACT: In the chapter Boundedly Rational Entrepreneurs and Antitrust Professor Tor provides an excellent overview of the effects of bounded rationality on the behavior of entrepreneurs in the marketplace. In particular, he uses the recognized behavioral economics biases concerning overconfident beliefs and risk-seeking preferences in order to explain the excessively risky new entry that is prevalent in the market. This overview offers us a new and illuminating way, beyond our conventional assumptions, of recognizing the motivations behind market entry. Professor Tor then focuses on the social welfare effects of such boundedly rational entry. He argues that while irrational entrants generate social costs, excessively risky entry also brings about important social benefits, primarily due its association with innovation. The chapter then connects some of these insights to the realm of antitrust and offers several suggestions for its application. In this short note, I offer some observations that follow the three parts of the chapter.

November 10, 2016 | Permalink | Comments (0)

Aggregate Concentration: An Empirical Study of Competition Law Solutions

Michal S. Gal, University of Haifa - Faculty of Law and Thomas K. Cheng, The University of Hong Kong - Faculty of Law discuss Aggregate Concentration: An Empirical Study of Competition Law Solutions.

ABSTRACT: Competition law is generally focused on competition in a market. Yet, as recent economic studies have clearly indicated, one of the main sources of competition concerns of jurisdictions around the world is the impact of high levels of aggregate concentration in their markets, when a small group of economic entities controls a large part of the economic activity through holdings in many markets. High levels of aggregate concentration can significantly impact competition and welfare. On the one hand, conglomerates' substantial resources and varied experiences, as well as their economies of scale and scope, often enable them to enter markets more readily than other firms, especially when entry barriers are high. On the other hand, high levels of aggregate concentration raise significant competitive concerns. Most importantly, oligopolistic coordination in and across markets as well as entry barriers into markets might be increased. These effects, in turn, might lead to stagnation and poor utilization of resources, which adversely affect growth and welfare. Another major concern is a political economy one: given their size and economic heft, large conglomerates may attempt to translate their economic power into political power in order to create, protect and entrench their privileged positions. Given these effects, the paper attempts to explore the weight given- if at all- to aggregate concentration in the application of competition laws around the world. The analysis is based, inter alia, on the experiences of 35 different jurisdictions in dealing with aggregate concentration through competition law, based on a survey performed with the assistance of the UN Conference on Trade and Development.

November 10, 2016 | Permalink | Comments (0)