Antitrust & Competition Policy Blog

Use and Abuse of Antidumping by Global Cartels

Use and Abuse of Antidumping by Global Cartels

 

Arevik Gnutzmann-Mkrtchyan

Leibniz Universität Hannover - Faculty of Economics and Management; European University Institute - Economics Department (ECO)

Martin Hoffstadt

Gottfried Wilhelm Leibniz Universität Hannover

Abstract

Antidumping creates opportunities for abuse to stifle market competition. Whether cartels actually abuse trade policy for anticompetitive purposes remains an open question in the literature. To address this gap, we construct a novel dataset that matches cartel investigations with trade data at the product level. We then estimate the world import price and quantity effects of antidumping in cartel products. We find that the use of antidumping in cartel industries helps to maintain higher world import prices and lower quantities during cartel periods, and to induce the establishment of a cartel. The effect is present both for antidumping cases that result in duties and cases that are withdrawn by the petitioning industry.

An Anticlimactic Ending in the “Roadmap for an Antitrust Case Against Facebook”: An Antitrust Enforcement Action Against Facebook’s Long-Consummated Acquisitions Would be Unwise

See this CPI article.

Airport Dominance, Route Network Design and Flight Delays

Airport Dominance, Route Network Design and Flight Delays

Joan Calzada

University of Barcelona - Department of Political Economics

Xavier Fageda

University of Barcelona

Abstract

In this paper, we use detailed information of weather conditions, Eurocontrol regulations and strikes to examine the main drivers of flight delays in six Spanish airports in the period 2017–2018. We show that external shocks are an important driver of delays for low-cost and dominant airlines at large airports. Dominant airlines have better on-time performance when they operate hub-and-spoke networks, although this can be partially explained by their more frequent use of schedule padding. Finally, we find no direct evidence that competition at route level affects delays, although padding is more frequent when route competition is weak.

Vertical Contracting with Endogenous Market Structure

Vertical Contracting with Endogenous Market Structure

 

Marco Pagnozzi

Università di Napoli Federico II; CSEF

Salvatore Piccolo

Compass Lexecon

Markus Reisinger

Frankfurt School of Finance & Management - Economics Department; CESifo (Center for Economic Studies and Ifo Institute)

Abstract

We analyze vertical contracting between a manufacturer and retailers who have correlated private information. The manufacturer chooses the number of retailers and secretly contracts with each of them. We highlight a new trade-off between limiting competition and reducing retailers' information rents that shapes the optimal size of the distribution network. We show how the manufacturer's technology and the characteristics of demand affect this distribution network. In contrast to previous literature, we show that the manufacturer may choose a number of retailers that exceeds the socially optimal one, and that vertical integration can raise consumer welfare.

Designing Remedies for Digital Markets: The Interplay Between Antitrust and Regulation

Designing Remedies for Digital Markets: The Interplay Between Antitrust and Regulation

 

Filippo Lancieri

University of Chicago, Law School; Stigler Center

Caio Mario da Silva Pereira Neto

São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP

Abstract

Over the past decade, societies significantly improved their understanding of the competitive dynamics at play in digital markets. However, a challenge remains in designing remedies that actually improve overall welfare.
This paper first maps out the frontier of remedy design in the digital world. Section I summarizes antitrust remedies imposed on digital companies to both group cases according to the different underlying concerns they tackle and to identify potential interplays with regulatory interventions that share the same rationale. Section II complements this analysis by reviewing eighteen key independent reports on competition in digital markets to identify proposals to advance antitrust or regulatory interventions. The overall conclusion is that while the interplay between antitrust and regulation is bound to grow, authorities lack a coherent framework that would allow them coherently and rationally apply these policies in practice.
Section III, the core of the paper, fills this gap by introducing a new framework to integrate antitrust and regulatory interventions in the digital world—one that is focused on two different levels of remedy design. First, it develops a compounded error-cost framework authorities can apply when choosing between remedies for a given conduct: when authorities accept higher risks of over-enforcement in deciding to intervene they should compensate by taking lower risks of over-enforcement in remedy design, and vice-versa. Second, it proposes four criteria authorities can rely on to allocate between different regulators three connected but different key activities in remedy design: (i) the identification of harmful behavior; (ii) the design of the intervention; and (iii) monitoring and adaptation of the remedy.
Section IV concludes by applying this framework to seven types of conduct that Sections I and II identified as potentially problematic: (i) discrimination, unfair treatment and self-preferencing; (ii) exclusivity relations with suppliers, distributors or clients; (iii) tying or bundling through contractual agreements; (iv) MFNs and other price parity clauses; (v) refusals to deal, limited interoperability and lack of data portability; (vi) rules and terms of service imposed by digital platforms; and (vii) nudges, sludges and other concerns in user interfaces.

The Draft Fining Guidelines and the future of antitrust fines in China

The Draft Fining Guidelines and the future of antitrust fines in China

Su Sun, Chenying Zhang

 

 

Abstract

Fines are a major part of the punishment and deterrence in China’s enforcement of its Antimonopoly Law. China has been drafting antitrust fining guidelines in the past several years and the current version is believed to be close to final. One natural question is: will the antitrust fining guidelines lead to harsher antitrust fines in China’s future enforcement? We attempt to answer this question by assessing whether fine recipients in China’s historical antitrust investigations would have received higher fines according to the Draft Fining Guidelines. Based on a large number of historical non-merger case decisions issued by China’s antitrust agencies through September 2019, our quantitative analysis shows that higher future fines should be expected in the future. We also explore several factors that might explain why historical fines were below the level predicted by the Draft Fining Guidelines.

Grab–Uber merger in Southeast Asia: the Singapore approach

Grab–Uber merger in Southeast Asia: the Singapore approach

Deborah Healey

 

 

The Competition and Consumer Commission of Singapore (CCCS) issued an infringement decision in October 2018 after finding that the sale of Uber’s Southeast Asian business to Grab for a 27.5 per cent stake in Grab was in breach of the Competition Act (the ‘Act’).¹ The CCCS found that the transaction resulted in a substantial lessening of competition in the provision of ride-hailing platform services in Singapore in breach of section 54 of the Act. A financial penalty of $6,582,055 was imposed on Uber, and a financial penalty of $6,419,647 was imposed on Grab. Other Directions were made. This was the first time that the CCCS had investigated and penalized an unnotified merger (although notification is not compulsory).

This followed the imposition of earlier Interim Measures Directions (IMDs) aimed at lessening the impact of the transaction on drivers and riders, while the investigation continued following the failure of the parties to notify the CCCS prior to completion.

The published decision contains a detailed analysis of the merger and its surrounding circumstances under the Act. It is heavily redacted in parts to maintain commercial confidentiality, so some of the commercial issues are more difficult to assess. Nevertheless, the CCCS took a particularly strong position in rejecting the arguments of the parties and ultimately imposed the financial penalties and extensive Directions to redress the anticompetitive outcomes arising from the merger which had been completed.

The transaction allowed Uber to exit the jurisdiction and the region but left it with a significant shareholding in Grab and a board position in that company. This has been a pattern of behaviour for Uber in earlier transactions, which raises some issues about the true nature and impact of the transactions on competition in the region

Platforms as regulators

Platforms as regulators

Niamh Dunne

 

Abstract

The proposition that certain digital platforms act as ‘regulators’ within their own business models is a key pillar of the European Commission report on Competition Policy for the Digital Era, and the basis upon which its authors build a wide-ranging duty for dominant platforms to secure competition that is ‘fair, unbiased and pro-users’. This article seeks to shed light on this novel contention, exploring its meaning and the implications for platform operators. It considers the rationale provided within the report and compares the approach with established Article 102 TFEU case law, specifically the ‘special responsibility’ doctrine. Consideration is further given to whether the platforms-as-regulators notion aligns with alternative modes of regulation within the digital sphere. The aim is to explore whether this approach is coherent, and actually useful, as a means by which to frame and direct future enforcement against digital platforms.

Evaluating Mergers and Divestitures: A Casino Case Study

Evaluating Mergers and Divestitures: A Casino Case Study

F David Osinski, Jeremy A Sandford

Abstract

Despite frequent use in practice, merger remedies receive little attention in the economics literature. We analyze the 2013 merger of two casino operators and the subsequent divestiture of one St. Louis casino. Using public data from the Missouri Gaming Commission, we employ a difference-in-difference framework with other Missouri casinos as the control group to estimate separate effects of the merger and divestiture on each St. Louis casino. Results indicate the merged firm benefited from efficiencies, resulting in lower prices and higher quantity; however, the divested casino performed worse than before the merger. Synthetic control estimates confirm these results. This study raises questions about whether to assess remedies by the performance of the divested asset or the consumer welfare of the entire merger. It also raises questions regarding remedy endogeneity: do firms face incentives to offer declining assets? Both have applicability beyond this case, supporting the need for further research. 

Unwired Planet v Huawei, Conversant v Huawei & ZTE: UK Supreme Court confirms Global FRAND licensing

Unwired Planet v Huawei, Conversant v Huawei & ZTE: UK Supreme Court confirms Global FRAND licensing

Sophie Lawrance, Francion Brooks, James Batsford 

Journal of European Competition Law & Practice

 

On 26 August 2020, the UK Supreme Court (the ‘Supreme Court’) gave its judgment¹ in the appeals of two judgments of the Court of Appeal of England and Wales (the ‘Court of Appeal’) in Unwired Planet v Huawei² and Conversant v Huawei & ZTE³. The Supreme Court unanimously dismissed both appeals in their entirety and endorsed the rulings of the lower courts on several key legal issues surrounding fair, reasonable, and non-discriminatory (FRAND) licensing of standardised technology, including the application of European competition law. This article will set out the background to the proceedings, summarise the key findings of the Supreme Court, and comment on the continuing importance of competition law in FRAND litigation.

 

Key Points

• The UK Supreme Court upheld the decision of the Court of Appeal in both Unwired Planet v Huawei and Conversant v Huawei & ZTE.

• The Supreme Court confirmed that English courts have jurisdiction to set the terms of a global fair, reasonable, and non-discriminatory (FRAND) licence and grant an injunction preventing further infringement of UK standard essential patents if an implementer does not accept those terms.

• The Supreme Court also confirmed that the ‘non-discrimination’ limb of the FRAND obligation does not prevent SEP holders from offering lower rates to some licensees and that failure to follow the negotiation framework established in Huawei v ZTE will not automatically result in an abuse of dominance finding.

• The Supreme Court’s findings mean that the English courts remain a favourable jurisdiction to resolve global FRAND disputes, although it remains to be seen whether other courts will be similarly willing to settle global terms.

Unfair Pricing and Standard Essential Patents

Unfair Pricing and Standard Essential Patents

 

Marco Botta

Max Planck Institute for Innovation and Competition; European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS)

Abstract

Technical standards that are agreed within a Standard Development Organization (SDO) often cover several ‘essential’ patents for the implementation of a standard (i.e., Standard Essential Patents, SEPs). In order to allow for the standard implementation, the SEP holder commits to license its patents to any potential licensee on the basis of Fair and Reasonable and Non-Discriminatory (FRAND) conditions. In view of the recent ruling of the UK Supreme Court in Unwired Planet and the judgement of the German Bundesgerichtshof in Sisvel v. Haier, the paper assumes that the FRAND commitment implies a ‘range’ rather than a ‘single’ royalty rate. On the other hand, a royalty rate ‘beyond the outer boundary of the range’ should be considered ‘unfair’, and thus incompatible with the FRAND commitment. Besides representing a breach of the FRAND commitment, an ‘unfair’ royalty rate might also be considered an abuse of a dominant position by the SEP holder, in breach of Art. 102(a) TFEU. This paper analyses whether, and under what circumstances, Art. 102(a) TFEU can be relied upon by a competition authority in Europe to sanction a case where an ‘unfair’ royalty rate has been set by the SEP holder. To this regard, the paper provides a detailed analysis of the EU Court of Justice’s jurisprudence on Art. 102(a) TFEU. In particular, the latter jurisprudence is relied as a ‘yardstick’ to assess ‘when’ competition policy should sanction a request of unfair royalty rate by the SEP holder, ‘how’ a competition agency should assess the case and, eventually, ‘what’ remedies the competition authority might adopt.

Robbin' Hood

Robbin' Hood

 

Harry First

New York University School of Law

Abstract

Is it an antitrust offense to sell face masks at a high price in the midst of a pandemic?

In this essay I address this question by examining two recent decisions in South Africa that found the high prices for face masks charged by two retailers were excessive under South Africa competition law, even though neither firm was shown to be dominant by traditional methods. In addition to discussing the two cases, I argue that South Africa’s effort to use competition law to prevent this kind of price increase has important lessons for antitrust enforcement elsewhere, including the United States. Specifically, the two cases remind us of the importance of price in antitrust analysis; the need to pay attention to justice in antitrust analysis; our over-willingness to rely on market corrections rather than acknowledging market failures; and our need to change our culture of antitrust enforcement. It may be that the “supreme evil” of antitrust is not collusion, but a failure to pay attention to how antitrust can advance justice.

The Simple Economics of Wholesale Price-Parity Agreements: The Case of the Airline Tickets Distribution Industry*

The Simple Economics of Wholesale Price-Parity Agreements: The Case of the Airline Tickets Distribution Industry

Jorge Padilla, Salvatore Piccolo, Nadine Watson

 

•  

  Abstract

This paper clarifies the differences between retail and wholesale price-parity agreements in vertical industries. In contrast to traditional wide and narrow retail price-parity arrangements, the competitive effects of wholesale price-parity depend on the complexity of the vertical supply chain, the business model operated by sellers and distributors, and the strength of competition between direct and indirect distribution channels. While retail price-parity agreements are almost always anticompetitive, wholesale price-parity agreements may positively affect consumer welfare when direct and indirect distribution channels are close substitutes. To demonstrate the relevance of our analysis for competition policy, we illustrate our findings by referring to an industry that has recently attracted policy and regulatory interest on both sides of the Atlantic: the airline ticket distribution industry. We find that, in this industry, while wholesale price-parity agreements always harm airlines, Global Distribution Systems (GDSs) have preferences more aligned with consumers: when consumers benefit from these provisions, GDSs benefit too.

Super platforms, big data, and competition law: the Japanese approach in contrast with the USA and EU

Super platforms, big data, and competition law: the Japanese approach in contrast with the USA and EU

Toshiaki Takigawa

 

ABSTRACT

This article examines antitrust issues concerning digital platforms equipped with big data. Recent initiatives by the Japanese competition agency are highlighted, comparing them with those by the USA and EU competition authorities. First examined is whether competition among platforms would result in a select few super platforms with market power, concluding that AI with machine learning has augmented the power of super platforms with strong AI-capability, leading to increased importance of merger control over acquisitions by platforms. Next scrutinized is the argument for utility-regulation to be imposed on super platforms, concluding that wide support is limited to data portability, leaving competition law as the key tool for addressing super platforms, its core tool being the provision against exclusionary conduct, enforcement of which, initially, concerns whether to order super platforms to render their data accessible to their rivals. Passive refusal-to-share data needs to be scrutinized under the essential facility doctrine. Beyond passive refusal, platforms’ exclusionary conduct requires competition agencies to weigh the conduct’s exclusionary effects against its efficiency effects. Finally addressed is exploitative abuse, explaining its relation to consumer protection, concluding that competition law enforcement on exploitative abuse should be minimized, since it accompanies risk of over-enforcement.

The Boundaries of the Firm and the Reach of Competition Law: Corporate Group Liability and Sanctioning in the EU and the US

The Boundaries of the Firm and the Reach of Competition Law: Corporate Group Liability and Sanctioning in the EU and the US

Marco Corradi and Julian Nowag (eds), The Intersections between Competition Law and Corporate Law and Finance (Cambridge University Press, 2021)

Carsten Koenig

University of Cologne

Abstract

While company law makes great efforts to maintain the separation of different legal entities, other areas of law strive in the opposite direction. In recent times, there has been a new emphasis on the common responsibility of corporate groups, especially when they are large and powerful. One of the fields that shape this emerging principle is competition law. Focusing on the whole group and not on its individual members is increasingly becoming the norm here. But it is still far from being uniformly accepted. While EU competition law is pushing ahead, US antitrust law is said to take a rather critical stance. Against this background, this book chapter examines the functions performed by a unitary perspective on corporate groups. A special focus is on the calcu-lation of fines, an issue that is currently the subject of many court disputes in Europe. It is argued that the best approach is usually to consider the whole group as it exists at the time of the prohi-bition decision, even if there have been changes in the corporate structure in the past. Questions of liability are also examined in detail. One of the main aims of the chapter is to raise awareness of how different the functions of a unitary perspective on corporate groups are and how im-portant this insight is for the conclusions that can be drawn.

16th ASCOLA Conference on ALL Competition Law Issues Porto, Portugal July 1-3, 2021 CALL FOR PAPERS

16th ASCOLA Conference

on ALL Competition Law Issues

 

Porto, Portugal

July 1-3, 2021

CALL FOR PAPERS

The Academic Society for Competition Law (ASCOLA) will hold its 16th annual conference from Thursday July 1st to Saturday July 3rd, 2021 at Católica University, in Porto, Portugal. Should the pandemic not enable this option, it will be conducted online. Should some members not be able to travel due to the pandemic, we will organize a hybrid conference, where papers could also be presented via zoom.

Main Topic: Competition and Innovation in Digital Markets

The digital economy poses challenges to competition and to innovation. These are also reflected in the application of competition laws to digital markets. Accordingly, at the 16th ASCOLA conference, we would like to reflect systematically and critically on the application of competition laws in digital markets in a way which furthers competition and/or innovation. The conference topic is not limited to any specific jurisdiction, but aims to promote a general discussion on such issues. We also invite scholars from the field of competition economics. The papers should preferably facilitate a discussion with regard to (relatively) similar problems encountered worldwide.  

 

Additional Sessions

Additional sessions allow scholars to present their most recent research on any topic related to competition law (including jurisdiction-specific topics). Thus, submissions need not relate to the main theme of the conference. For example, papers may cover the implications of the pandemic on competition law, finance for competition, issues of sustainability, climate change and competition law, or the relationship of fundamental rights and competition law, or any other competition-law-related subject.

Papers for all subjects will undergo the same evaluation process. Papers will be selected solely on the basis of the quality of reviews they receive (see below).

 

Submission of Papers

ASCOLA members are invited to submit DRAFT PAPERS or EXTENDED ABSTRACTS (minimum of 8 pages) no later than January 29, 2021. Authors will be informed by March 26, 2021, by the latest, whether they have been selected for the conference.

Each paper will be evaluated by two independent reviewers who will be asked to evaluate them in accordance with different pre-set parameters. To ensure merit-based selection, the process is a double-blind review, in which reviewers do not know the identity of authors, and vice versa.  Accordingly, please submit two versions of your paper: one which includes all details, and one which removes all traces of the identity of the author(s) and is marked as such. To ensure as fair a process as possible, the only ones who see the review scores are the conference organizers. Non-members can submit papers, but must apply for membership and become members before the conference.

Submissions should be sent to [email protected].

Those submitting also to the Best Junior Paper award (see below) should indicate this fact at the time of submission.

Authors of selected papers will then have until June 1, 2021 to submit their papers for the conference. The organisers retain the right to exclude a paper that does not meet the quality requirements set for the conference.

Potential venues for publication of the conference papers

Provided their authors agree, the papers will be published on the conference website.

In addition, authors of papers accepted to the conference and relating to its main topic may be invited to submit their papers to a book, published by Edgar Elgar, as part of the ASCOLA book series. The editors might need to make a selection based on quality.

In addition, ASCOLA has reached an agreement with the Journal of Competition Law and Economics and the Journal of Antitrust Enforcement (both published by Oxford University Press), that authors whose papers have been accepted to the ASCOLA conference can request ASCOLA to submit the reviews received to the journal(s). This, in turn, will shorten their review processes.  

 

Authors are not obliged to take advantage of any of these publication venues and can choose to publish their papers elsewhere.

 

Costs

Speakers are expected to cover their costs for travel and hotel expenses but ASCOLA will provide scholarships, depending on available funds, to those who cannot finance their participation otherwise, in line with the Guidelines for Financial Aid set by its Scholarship Committee. Decisions on scholarships will be taken by a Scholarship Committee. Scholarships will mainly be granted to those presenting in the general sessions.

 

Awards

Two awards will potentially be given during the conference.

- A Best Junior Paper Award will be given for the best contribution among those submitted by authors not older than 35 years. In order to be eligible for this award, scholars should specifically state their date of birth at the time of submission.

- An Award for Distinguished Services to ASCOLA might be given to one or several ASCOLA members who have made a substantial contribution to the development of the association.

 

ASCOLA- THE place to showcase competition law scholarship!

www.ascola.org

State-Controlled Entities in the EU Merger Control: the Case of PKN Orlen and Lotos Group

State-Controlled Entities in the EU Merger Control: the Case of PKN Orlen and Lotos Group

Yearbook of Antitrust and Regulatory Studies, Vol. 13, No. 22, pp. 189-209, 2020

Alexandr Svetlicinii

University of Macau - Faculty of Law

Abstract

The economic downturn caused by the coronavirus pandemics is expected to result in the increased participation of the state in the functioning of markets. One of the forms of this participation is the recapitalization and state shareholding in commercial enterprises, which could lead to anti-competitive effects to the detriment of competitors and consumers. In this regard, the effective enforcement of merger control rules at the EU and national levels gains in importance. The present paper questions the adequacy of the available merger control standards and assessment tools for taking into account potential anti-competitive effects stemming from ownership and non ownership forms of state control over undertakings. The analysis is focused on the experiences of Polish state owned enterprises under the EU and national merger control assessment. It was prompted by the notification of the PKN Orlen/Lotos merger that received conditional clearance from the EU Commission.

Competition Threats and Rival Innovation Responses: Evidence from Breakthrough Therapies

Competition Threats and Rival Innovation Responses: Evidence from Breakthrough Therapies

Jon A. Garfinkel

University of Iowa - Tippie College of Business

Mosab Hammoudeh

University of Iowa - Henry B. Tippie College of Business

Abstract

We study the effect of competition on firm innovation at the product level. We instrument shocks to competition in therapeutic areas with the FDA’s breakthrough designation therapy (BTD) indication. BTDs strongly associate with several indicators of future success, including announcement returns and eventual FDA approval to market the drug. BTD shocks discourage rivals’ innovation in that therapeutic area. The effect varies with the ex-ante competitiveness of the therapeutic area, as well as with the rival’s position (leader vs. follower) in that area, in a manner consistent with the theory by Aghion et al. (2005).

Vertical Agreements under the UK Competition Act 1998: A Twenty-Year Retrospective

Vertical Agreements under the UK Competition Act 1998: A Twenty-Year Retrospective

Chapter in B. Rodger, P. Whelan and A MacCulloch (eds), The UK Competition Regime: A Twenty-Year Retrospective, Oxford University Press, 2021, Forthcoming

24 Pages Posted: 30 Dec 2020

Alison Jones

King's College London – The Dickson Poon School of Law

Abstract

This Chapter charts the development of UK competition law and policy towards vertical agreements since the Competition Act 1998 (CA98) came into force in March 2000.

It traces how UK policy has evolved and notes that although early UK cases focused principally on resale price maintenance, a variety of vertical restraints have now been analysed under the rules, including restraints on online selling which have proliferated with the rapid growth of e-commerce.

Although the analysis of vertical agreements under the CA98 is now closely aligned with that adopted under EU law, the UK authorities have also appraised some agreements which have to date received limited attention in EU jurisprudence, including price relationship agreements and most favoured nation clauses (“MFNs”).

Finally, the Chapter considers how the law could, or should, develop in the future, especially after the transition period following the UK’s departure from the EU ends. In particular, whether, post-Brexit, the UK authorities should continue to follow EU competition law, which has in significant respects been influenced by internal market considerations in this sphere, or whether it should take a different course.

How Soon Is Now?

How Soon Is Now?

 

Pedro Caro de Sousa

Organization for Economic Co-Operation and Development (OECD)

Chris Pike

Organization for Economic Co-Operation and Development (OECD) - Competition Division

Abstract

Time matters for competition law on a number of dimensions. Most obviously, the time in which new products or technologies are introduced (dynamic efficiency) is of course one of the key benefits of competition, alongside allocative and productive efficiency. Time is also important for the assessment of competition law. Think, for example, of the speed with which a market clears; the period within which we expect harm to competition or efficiencies to occur; the pace of supply side substitution; the non-transitory nature of a SSNIP or SSNDQ; the length of a profit sacrifice; the time in which potential or indeed responsive entry might occur; the period for paying off a sunk investment; or the benevolent nature of temporary market power as opposed to persistent market power.

Time also introduces uncertainty into competition law, particularly when the assessment relates to future events, such as the likely impact of a notified merger on market conditions. The longer the time-horizon for merger assessments, the larger the degree of uncertainty. Such prospective assessments often imply the balancing of probabilities by decision-makers, which are subject to substantive, evidentiary and practical constraints.

This paper focuses on the time that separates existing competition from potential competition, the uncertainty and risk that this time difference creates, and the extent to which the timeframe for a competitive effects analysis allows for an examination (and weighing) of existing and potential competition considerations.