Friday, January 24, 2020
M.M. Sharma (Vaish Associates) has written on "Role of Courts in Enforcement of Competition Law in India" which was published simultaneously both in the Global Competition Litigation Review , ( 2019 Volume 12, Issue 2/ 2019) as well as in the European Competition Law Review ,( Volume 40 Issue 7 2019) . The articles can be cited as : (2019) G.C.L.R., Issue 2 © Thomson Reuters & Contributors ( Pp.57-74) and (2019) 40 E.C.L.R. Issue 7© 2019 Thomson Reuters & Contributors (Pp.312-331) .
No Forum to Rule Them All: Comity and Conflict in Transnational FRAND Disputes October 31, 2019 | 94 Wash. L. Rev. 1085
Eli Greenbaum surveys No Forum to Rule Them All: Comity and Conflict in Transnational FRAND Disputes.
Abstract: Recent years have seen an explosion in FRAND litigation, in which parties commit to license intellectual property under “fair, reasonable and non-discriminatory” (FRAND) terms, but they cannot agree on the meaning of that commitment. Much of this litigation is multinational and involves coordinating patent, antitrust, and contract claims across several jurisdictions. A number of courts and commentators have aimed to centralize and thereby streamline these disputes, whether by consolidating all litigation in one judicial forum or through the creation of a comprehensive arbitral process. This Article argues that such efforts are misguided—FRAND disputes are particularly unamenable to centralization, and the costs of centralizing FRAND disputes are high. Rather, absent other agreement between the parties, FRAND disputes should be resolved through the ordinary territorial structures of patent law, and attempts to simplify these disputes should focus on procedural and substantive coordination across jurisdictions.
Maximilian Andres, University of PotsdamLisa Bruttel, Humboldt University of Berlin, Jana Friedrichsen, German Institute for Economic Research (DIW Berlin); Humboldt University of Berlin - Faculty of Economics explore The Effect of Leniency Rule on Cartel Formation and Stability: Experiments with Open Communication.
ABSTRACT: Cartels can severely harm social welfare. Competition authorities introduced leniency rules to destabilize existing cartels and hinder the formation of new ones. Empirically, it is difficult to judge the success of these measures because functioning cartels are unobservable. Existing experimental studies confirm that a leniency rule indeed reduces cartelization. We extend these studies by having a participant in the role of the competition authority actively participating in the experiment. Based on chat communication content and price setting behavior, this authority judges whether firms formed a cartel and decides on fines in real time. We find that a leniency rule does not affect cartelization in this setup.
Thursday, January 23, 2020
Call for Papers: 18th ANNUAL INTERNATIONAL INDUSTRIAL ORGANIZATION CONFERENCE Drexel University, Philadelphia, Pennsylvania May 1-3, 2020
Elena Argentesi University of Bologna - Department of Economics Paolo Buccirossi Independent Emilio Calvano University of Bologna - Department of Economics; University of Toulouse 1 - Department of Economics; CSEF - Center for Studies in Economics and Finance Tomaso Duso German Institute for Economic Research (DIW Berlin); TU Berlin- Faculty of Economics and Management - Empirical Industrial Organization Alessia Marrazzo Lear - Laboratory of Economics, Antitrust, Regulation Salvatore Nava Lear - Laboratory of Economics, Antitrust, Regulation have produced Merger Policy in Digital Markets: An Ex-Post Assessment.
ABSTRACT: This paper presents a broad retrospective evaluation of mergers and merger decisions in the digital sector. We first discuss the most crucial features of digital markets such as network effects, multi-sidedness, big data, and rapid innovation that create important challenges for competition policy. We show that these features have been key determinants of the theories of harm in major merger cases in the past few years. We then analyse the characteristics of almost 300 acquisitions carried out by three major digital companies – Amazon, Facebook, and Google – between 2008 and 2018. We cluster target companies on their area of economic activity and show that they span a wide range of economic sectors. In most cases, their products and services appear to be complementary to those supplied by the acquirers. Moreover, target companies seem to be particularly young, being four-years-old or younger in nearly 60% of cases at the time of the acquisition. Finally, we examine two important merger cases, Facebook/Instagram and Google/Waze, providing a systematic assessment of the theories of harm considered by the UK competition authorities as well as evidence on the evolution of the market after the transactions were approved. We discuss whether the CAs performed complete and careful analyses to foresee the competitive consequences of the investigated mergers and whether a more effective merger control regime can be achieved within the current legal framework.
Manuel Peláez Muras Autonomous University of Madrid ; Banco de España studies Antitrust and Coopservice: Procurement Aggregation is A Serious Thing (Adjudicating Too).
Antritrust and Coopservice (judgment of 19 December 2018, case C-216/17) is a peculiar product of the Court of Justice. It is one of a kind in aggregate procurement, a subfield of public procurement that has remained virtually untouched by the Court. A number of very helpful and reasonable directions can be drawn from this judgment with respect to the duration and quantification of framework agreements as well as the identification of the authorities entitled to use them in the case of framework agreements concluded jointly by several authorities. At the same time, it is not a model of adjudication, incurring in some inaccuracies, obvious mistakes, and even unkindness to the referring national court. This surely make it more enjoyable to read and comment. The present paper shows the slips of the Court, while highlighting the main directions that can be extracted vis-à-vis the opera-tion of framework agreements and joint contracts.
ABSTRACT: When it comes to market definition in two-sided markets, an idea that has gained traction—among academics, competition authorities and even the US Supreme Court—is the distinction between transaction and non-transaction platforms. However, this distinction has no theoretical underpinning in the context of the hypothetical monopolist test (HMT). The hypothetical monopolist sets profit-maximising prices on both sides, as a function of own-price elasticities and externalities between the sides, regardless of whether the platform is transaction or non-transaction. I address the various theoretical and practical arguments put forward in support of the distinction between transaction and non-transaction and explain why none of these justify a different approach to market definition. I also discuss why some of the policy suggestions made by proponents of the distinction—for example, that a single market should be defined for transaction platforms but separate markets for non-transaction platforms—reflect some confusion about how the HMT works.
Wednesday, January 22, 2020
Csongor István Nagy, University of Szeged, Faculty of Law describes Anticompetitive Object/Effect: An Overview of EU and National Case Law.
ABSTRACT: Anticompetitive object is a key notion of EU competition law and is being remolded. This paper presents the trajectory of this process and its impact and demonstrates how this impaired the consistency and predictability of competition analysis. Section 2 gives a concise presentation of an idealized form of the pre-Allianz concept. Section 3 examines the new doctrine’s emergence in Allianz. This is followed by a presentation of its ephemeral marginalization in Cartes bancaires, MasterCard and „Maxima Latvija” (Section 4), where the Court interpreted this doctrine very restrictively and suggested that it may be used on very rare occasions, and its surge in Hoffmann-La Roche & Novartis (Section 5), where the Court failed to resists the siren song of anti-competitive object and showed how the doctrine may erode the pre-existing categories. Section 6 takes stock of the damages caused by the Allianz doctrine to consistency in object-analysis.
ABSTRACT: The General Court ruled that, in case of annulment of a cartel decision based on an inadequate statement of reasons, in addition to repaying the fine amount received, the Commission must pay default interests at the ECB refinancing rate increased by 3.5 percentage points since the date on which the applicant unduly made provisional payment of the fine in accordance with the principle of restitutio in integrum.
Devin Williams, University of Illinois; University of Florida investigates The Effect of Potential Entrants on Audit Market Competition.
ABSTRACT: Concerns regarding a lack of competition in the market for public-company audits focus on Big Four audit firms. Little concern has been raised regarding Non-Big Four firms, yet we know little about competition and barriers to entry in this market. Prior studies only consider competition from audit firms that already have public-company clients. I examine the role of potential entrants – PCAOB registered audit firms with no public clients – as an additional source of competition that can affect the quality and pricing of small firms in the public-company audit market. I find that audit quality increases and audit fees decrease for clients of Non-Big Four auditors when competition from potential entrants increases. Collectively, the results inform regulators and academics of the role potential entrants play in improving the financial reporting environment.
Anne T. Coughlan, Northwestern University - Kellogg School of Management asks Consumer Harm from Voluntary Business Arrangements: What Conditions are Necessary?
ABSTRACT: Consumer participation in the entrepreneurial “gig economy” is now a common occurrence. The gig economy is characterized by flexible jobs, here called voluntary business arrangements (VBAs), filled by independent contractors and freelancers who work part-time or in temporary positions. The VBA participant enjoys job flexibility and control but does not typically enjoy the surety of full-time employment, health insurance, or other guarantees that accompany a full-time job.
These uncertainties suggest the possibility of ex post outcomes that fail to meet the participant’s ex ante expectations. This research analyzes when and whether such expectation divergences rise to the level of true harm to a consumer participant in a VBA. For example, in the context of one gig economy option – the multi-level marketing (MLM) business opportunity – litigation against some MLM firms has argued distributor harm because the firm has misled enrollees about the business opportunity, and/or because the business is a pyramid scheme.
This paper therefore uses the MLM context as the basis for definition and analysis of an economic model of distributor participation and true harm (here called “Avoidable Economic Loss,” or AEL). The analysis seeks both to define true harm and to examine the underlying conditions that suggest that true harm has occurred. This requires disentangling purposefully pernicious behavior by the MLM firm from other possible precursors to disappointing business outcomes – such as the inherent risk of entrepreneurial ventures, the dual roles of inherent skill and purposeful hard work, and the lack of full information about all elements of the business before a prospect commits to participate.
In order to most stringently test for the possibility of AEL in the MLM context, the analysis focuses on the distributors most likely to be at risk for harm: newer distributors who may personally consume the DS company’s products and may also sell them at retail, but who have not built a network of downline distributors that enable larger bonus payments from the MLM firm. Within this population are consumers of varying sales and business productivity, whose skill levels are unknown to the firm and likely also unknown to the participant. My analysis shows that: It is economically rational for a person to join the MLM as a personal-consumption-only distributor, without pursuing a retailing business; Distributors with full information do not suffer an AEL by joining an MLM, regardless of their skill level; Distributors who lack full information do not suffer an AEL unless the MLM firm or its sponsoring upline distributor purposefully misrepresent or suppress information that would have caused some to fail to join and thereby avoid unexpected negative outcomes; and an AEL can – but does not always – result from purposeful over-stating of the quality of the business opportunity by the MLM firm.
The model shows that an AEL occurs not because prospects are incompletely informed of all aspects of the MLM business, but rather when useful information that could have changed a prospect’s decision to join is known and is purposefully misrepresented or suppressed. The analysis therefore suggests a set of guidelines for assessing truly harmful behavior by an MLM firm, which help distinguish the key role of “fraud” in the identification of illegal pyramid schemes, above and beyond other characteristics such as the nature of the compensation plan and the commonality of personal consumption of the MLM’s products by its distributor participants.
Tuesday, January 21, 2020
CALL FOR PAPERS Northwestern Center on Law, Business, and Economics Thirteenth Annual Conference on Innovation Economics Conference theme: Intellectual Property and Antitrust Policy Thursday, June 11, 2020 — Friday, June 12, 2020
Thirteenth Annual Conference on Innovation Economics
- Complete papers for the conference should be submitted to the following email address: email@example.com.
- Abstracts, incomplete papers, or proposals will not be accepted. The papers should not be either published or forthcoming.
- The submitting author should be the one who intends to present the paper here in Chicago.
- Authors of each accepted paper will receive an allotted speaker fee of $1,500 per paper, regardless of the number of authors. If more than one author attends the conference, the honorarium or travel reimbursement can be divided equally between the attending authors.
- Due to potential funding sources for this event, the Northwestern CLBE reserves the right to structure the payment as either a speaker fee or a travel expense reimbursement up to the agreed upon amount.
- The Northwestern CLBE will also reserve and pay for hotel accommodations for attending authors and discussants for the nights of Wednesday, June 10, 2020 and Thursday, June 11, 2020. Authors are expected to attend and participate in the full duration of the conference.
Julian Nowag, Lund University - Faculty of Law; Oxford Centre for Competition Law and Policy has written on Competition Law’s Sustainability Gap? Tools for an Examination and a Brief Overview.
ABSTRACT: The aim of this paper is two-fold. First, the paper aims to provide tools for a structured examination of competition law’s perceived inability to address sustainability. The EU framework is chosen as a case study as EU competition law is embedded in the EU’s constitutional framework. As a result, EU competition law is subject to the requirement of Article 11 TFEU. This articles mandates that ‘environmental protection requirements must be integrated into the definition and implementation of the Union's policies and activities, in particular with a view to promoting sustainable development.’ The paper thus aims at providing some tools for a closer examination of how such integration can or cannot take place. The second aim of this paper is modest. It aims to provide the reader with a cursory examination of the perceived gap. It shows that EU competition law has developed some tools that can be well be used to foster sustainability in a competition law context, and that these tools are often not EU specific. Thus, these could equally inspire other jurisdictions.
Donggeun Kim, University of Oklahoma, Myongjin Kim, University of Oklahoma, and Kerry M. Tan, Loyola University Maryland study Tacit Collusion and Price Dispersion in the Presence of Southwest Airlines.
ABSTRACT: We study the impact of tacit collusion on price dispersion in the U.S. airline industry. We find that tacit collusion driven by multi-market contact has a positive effect on prices, but a negative effect on price dispersion. Our empirical results suggest that airfares throughout the price distribution increases, yet the price distribution becomes more compressed since 10th percentile airfares increase by a larger amount than 90th percentile airfares. Moreover, we also find that this pricing phenomenon does not exist if Southwest Airlines is present on the route. Thus, route-level price competition is softened when the same airlines directly compete more frequently, except when Southwest Airlines services that route.
Simonetta Vezzoso, University of Trento and Rob Nicholls, UNSW Business School; UNSW Business School Cybersecurity and Data Governance Research Network; UNSW Law Centre for Law, Markets and Regulation offer Decentralised Digital Ecosystems and Competition Law: A Conceptual Framework.
ABSTRACT: In an environment where populism has the potential to drive regulation and where daily Internet use means dealing with a very few, very big, businesses, the concept of decentralisation is attractive. We are now at a stage where technology-powered decentralisation has the potential to have sweeping effects on the economy and on personal lives. It might be even expected that decentralisation does not raise serious competition law issues.
This paper analyses digital ledger technology as a tool to implement decentralisation. It provides an overview of the current blockchain landscape. It also offers a framework of analysis by first clarifying the concept of decentralisation. It analyses decentralised ecosystems by adopting a systems perspective. In doing so, it draws the important distinction between blockchain and distributed ledger technology as centralised systems and those which actually offer decentralisation. The paper uses the broad conceptual framework that it develops to discuss a selected number of potential competition policy aspects related to blockchain ecosystems.
Monday, January 20, 2020
Hiba Hafiz, Boston College Law School has written on Interagency Merger Review in Labor Markets.
ABSTRACT: As empirical evidence of labor market concentration mounts, academics and policymakers have put forward a range of proposals to challenge or reverse its effects on workers’ wages and labor market options. Prominent among these is more aggressive review of the labor market effects of mergers as part of the Department of Justice (DOJ) and the Federal Trade Commission (FTC)’s broader merger review and approval process. This Essay argues for a novel intervention in the labor antitrust debates: because the consumer welfare focus of the antitrust agencies will prioritize consumers over workers when and if they conflict, and because the antitrust agencies lack expertise in labor markets, labor agencies should have concurrent jurisdiction to review and approve mergers that increase employer monopsony power under a “public interest” standard.
The Essay makes three original contributions. First, it outlines the limitations of existing proposals for integrating labor market effects into the antitrust agencies’ merger review as a doctrinal and methodological matter. Second, it provides the first overview and evaluation of the range of interagency coordination and policy-sharing between the DOJ/FTC and outside agencies on merger review, including but not limited to the antitrust agencies’ concurrent jurisdiction with the Federal Communications Commission. This overview reveals a more complex picture of antitrust merger review that incorporates a range of standards—including a “public interest” standard—depending on the regulated industry, showing a broader administrative default of mandated expertise in industry-specific antitrust regulation. That default both contextualizes and supports the proposed extension of concurrent jurisdiction to labor agencies in merger reviews with labor market concentration effects. Finally, it provides detailed recommendations for how the labor agencies’ concurrent jurisdiction would operate to integrate their expertise into the evaluation of post-merger labor market effects.
CALL FOR PAPERS Boston University Questrom School of Business Eighth Annual Platform Research Symposium Wednesday, July 15, 2020
CALL FOR PAPERS
Boston University Questrom School of Business
Eighth Annual Platform Research Symposium
Wednesday, July 15, 2020
Submissions Due: March 15, 2020
We will host the Eighth Annual Platform Research Symposium next July 15 in Boston. You are cordially invited to submit an original research paper. Please do not hesitate to forward this invitation to others who are currently working on research related to platforms.
The symposium will be held at the Boston University Questrom School of Business.
Topics of particular interest include:
- How traditional firms compete or play with platforms
- Antitrust & regulation issues raised by platforms
- Strategies for platform launch and growth
- Platform governance, design and architecture
- Internal organization of platform firms
- Transforming products into platforms
- Data and analytics for platforms
- Fake news and platform externalities
- Valuing platforms
Please upload your submissions at https://easychair.org/conferences/?conf=platstrat2020 by March 15, 2020. Authors will be notified of decisions on or around April 15, 2020.
- In addition to 8-10 regular presentations (roughly 45 minutes each, including discussion), we will also feature 8-10 short presentations (8-9 minutes each, no discussion). The short presentations are best suited for early stage papers or nascent research projects related to platforms.
- The submitting author should be the one who intends to present the paper here in Boston.
We look forward to seeing you in Boston this summer.
Scientific committee: Andrei Hagiu, Geoffrey Parker, Marshall Van Alstyne, Feng Zhu.
Max Huffman, Indiana University Robert H. McKinney School of Law identifies Competition Policy Implications of Sharing Economy Enterprises.
ABSTRACT: As the sharing economy increases its share of the aggregate of overall productivity in nations around the globe, it is natural that it will attract competition policy concerns. Long experience shows that new firm and enterprise structures, contract relationships, and industries attract law enforcement and regulator attention — both because they upend traditional norms governing the way economies are believed to function and because they may violate legal rules developed around those norms.
Experience also shows the danger of stifling innovation in business practices by hewing to a traditional view of the “right” way for economies to operate. Such stifling may undermine growth and development where old ways are preferred to innovation. Stifling may have asymmetric impacts on those not currently in the market.
The law must accommodate the immutable goal of market access. The sharing economy presents a particular challenge because, as I define it below, the foundational enterprise structure challenges traditional norms, disrupting regulatory systems to achieve greater economic efficiency. The degree of intervention to limit activity by sharing economy enterprises that is appropriate depends on the legitimacy of the regulatory structure being disrupted. That in turn might best be understood as the accessibility of the jurisdiction’s markets in the status quo ante.
The paper outlines a structure for analyzing the impact of sharing economy enterprises on economic outcomes across a variety of jurisdictions, including both the developing and the developed world. Part I gives a “first principles” look at the role of competition policy in protecting markets, suggesting that the need for competition policy in the context of the sharing economy depends on the regulatory state of affairs in the industry it is disrupting. Part II considers the sharing economy as an enterprise structure, including its seven defining characteristics and how those characteristics may confound traditional competition law principles. Part III discusses the benefits to markets the sharing economy promises and set those against the apparent competition policy concerns.