Journal of Competition Law and Economics最新文献_第2页

Lessons for Future Excessive Pricing Cases From Economics and the Court of Appeal Judgment In Pfizer/Flynn† 从经济学和上诉法院判决辉瑞/弗林对未来定价过高案件的教训

Journal of Competition Law and Economics Pub Date : 2020-11-02 DOI: 10.1093/joclec/nhaa024

P. Davis

{"title":"Lessons for Future Excessive Pricing Cases From Economics and the Court of Appeal Judgment In Pfizer/Flynn†","authors":"P. Davis","doi":"10.1093/joclec/nhaa024","DOIUrl":"https://doi.org/10.1093/joclec/nhaa024","url":null,"abstract":"\u0000 I consider the lessons that can be drawn from economics and the recent Court of Appeal (CoA) judgment in Pfizer/Flynn for future excessive pricing cases under TFEU Article 102. In future, defendants will ask their economic experts to develop reliable evidence under both limbs of the United Brands test. The required economic analysis will involve developing a suitable price benchmark, describing what prices would have been under ‘normal and sufficiently competitive’ conditions. The benchmark can be based on various types of evidence including cost-plus and/or comparator evidence. The CoA highlights that the cellophane fallacy is a legitimate concern for competition agencies. They also accept the Competition Appeal Tribunal (CAT’)s conclusion that ‘some’ economic value might be relevant beyond the Competition and Markets Authority (CMA’)s cost-plus benchmark—without being prescriptive about whether or indeed how a competition agency should further take it into account. I provide a suggestion for doing so. Finally, I note that economists consider that competitive markets can result in economically efficient market outcomes but these can be consistent with high degrees of inequality. As a result, a competitive benchmark in excessive pricing cases will necessarily involve Article 102 only taking fairness into account to a limited extent.","PeriodicalId":399709,"journal":{"name":"Journal of Competition Law and Economics","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122268776","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Ban of Off-Net/On-Net Price Discrimination in Chile† 智利禁止网外/网内价格歧视

Journal of Competition Law and Economics Pub Date : 2020-10-05 DOI: 10.1093/joclec/nhaa025

Claudio A. Agostini, M. Willington, Eduardo H. Saavedra

引用次数: 0

A Financial Capitalism Perspective on Start-Up Acquisitions: Introducing the Economic Goodwill Test 初创企业收购的金融资本主义视角:引入经济商誉测试

Journal of Competition Law and Economics Pub Date : 2020-09-10 DOI: 10.1093/joclec/nhaa021

A. McLean

{"title":"A Financial Capitalism Perspective on Start-Up Acquisitions: Introducing the Economic Goodwill Test","authors":"A. McLean","doi":"10.1093/joclec/nhaa021","DOIUrl":"https://doi.org/10.1093/joclec/nhaa021","url":null,"abstract":"\u0000 This paper discusses the acquisition of start-ups by major technology firms. Such transactions pose a significant anticompetitive threat, yet often escape competition scrutiny because they fail to trigger merger notification threshold tests. Alongside a financial analysis of historic acquisitions by Google, Apple, Facebook, Amazon and Microsoft, the paper introduces a new threshold test—the economic goodwill test. The economic goodwill test is a concerned with the value of a target’s net tangible assets as a proportion of total transaction value. The difference between these figures largely represents the gains an acquirer expects to realise from a strengthened competitive position, therefore reflecting the logic driving the mass acquisition of technology start-ups. Although a specific triggering figure is not prescribed, the economic goodwill test represents a useful innovation that could bring potentially anticompetitive start-up acquisitions under substantive merger review. More broadly, the paper argues start-up acquisitions are representative of the difficulties that competition law faces governing economic activity in the era of financial capitalism. The modern financial system creates a strong bridge between the present and the distant future. This enables firms to engage in future-oriented competitive strategies that challenge competition law’s static approach.","PeriodicalId":399709,"journal":{"name":"Journal of Competition Law and Economics","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128792159","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Analytical Shortcuts in EU Competition Enforcement: Proxies, Premises, and Presumptions 欧盟竞争执法中的分析捷径:代理、前提和假设

Journal of Competition Law and Economics Pub Date : 2020-09-09 DOI: 10.1093/joclec/nhaa013

A. Kalintiri

{"title":"Analytical Shortcuts in EU Competition Enforcement: Proxies, Premises, and Presumptions","authors":"A. Kalintiri","doi":"10.1093/joclec/nhaa013","DOIUrl":"https://doi.org/10.1093/joclec/nhaa013","url":null,"abstract":"\u0000 Analytical shortcuts lie at the heart of competition enforcement and have crucial implications for both substance and procedure. Nevertheless, not all of them are created equal. This point has been rather missed in competition scholarship due to the tendency to use the term ‘presumption’ in an overly expansive and ultimately inaccurate manner. Aspiring to inject some conceptual clarity in the discussion, this work proposes a taxonomy for distinguishing common analytical shortcuts in law enforcement comprising proxies, premises, and presumptions in the technical sense. With this taxonomy in mind, it then takes a closer look at their operation in EU competition enforcement in particular. As the article demonstrates, proxies, premises, and presumptions play an intricate and multilayered role in the interpretation and application of the EU antitrust and merger rules that the generic use of the term ‘presumption’ fails to adequately capture. Given their significance for the effectiveness, efficiency, and accuracy of enforcement, competition authorities and courts should be conscious of their function and of their substantive and procedural implications and should use them appropriately and wisely.","PeriodicalId":399709,"journal":{"name":"Journal of Competition Law and Economics","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126797582","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Dynamically Efficient Royalties for Standard-Essential Patents 动态有效的标准必要专利使用费

Journal of Competition Law and Economics Pub Date : 2020-09-09 DOI: 10.1093/joclec/nhaa010

Bertram Neurohr

{"title":"Dynamically Efficient Royalties for Standard-Essential Patents","authors":"Bertram Neurohr","doi":"10.1093/joclec/nhaa010","DOIUrl":"https://doi.org/10.1093/joclec/nhaa010","url":null,"abstract":"\u0000 Some economists have argued that a reasonable royalty for a standard-essential patent should be based on the patent’s ex ante incremental value. Others have argued that a patent’s ex ante incremental value is insufficient, that a reasonable royalty is more akin to the prize in a winner-takes-all tournament, and that it should reflect the R&D costs associated with both the winning technology and unsuccessful alternative technologies. The results presented in this paper are favourable to the latter view, but with the additional qualification that a reasonable royalty ought to cover the costs of only those R&D efforts—successful or not—that are efficiency enhancing from an ex ante perspective. The notion of ex ante incremental value is core to identifying these efforts and hence to determining what the dynamically efficient outcome is. A reasonable royalty is one that induces this dynamically efficient outcome (i.e. a dynamically efficient level of R&D), balancing the costs incurred by innovators with the benefits that go to implementers and/or consumers. As such, a reasonable royalty is significantly higher than a technology’s ex ante incremental value. High ‘winner’ margins are offset by losses incurred by ‘losers’, leaving a significant proportion of the total net value generated by R&D to implementers and consumers.","PeriodicalId":399709,"journal":{"name":"Journal of Competition Law and Economics","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128999034","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

An Event Study Analysis of the Impacts of the European Interchange Fee Regulation* 欧洲交换费管制影响的事件研究分析*

Journal of Competition Law and Economics Pub Date : 2020-07-17 DOI: 10.1093/joclec/nhaa019

Alen Veljan, Ali Roaidi

{"title":"An Event Study Analysis of the Impacts of the European Interchange Fee Regulation*","authors":"Alen Veljan, Ali Roaidi","doi":"10.1093/joclec/nhaa019","DOIUrl":"https://doi.org/10.1093/joclec/nhaa019","url":null,"abstract":"\u0000 One of the key success factors of the regulatory involvement by the European Commission (EC) in card payment markets across Europe is the reduction of merchant service charges for retailers and final prices for goods and services for consumers. In light of the EC’s scheduled review of the impacts of the policy intervention, this paper evaluates the usability of the event study analysis to determine the impacts of the interchange fee regulation. Findings show that 1 April 2009 is the single, statistically significant date in relation to the regulation. Contrary to common rationale, positive excess returns are recorded for issuers (9 percent-pts), pure issuers (9 percent-pts), and merchants (4.8 percent-pts), primarily driven by previous uncertainty of investors around a potential ban on interchange fees. As a consequence, total market capitalization for the retail industry increased by 11.2 billion Euro. This results in a partial pass-through rate of 46 percent from acquirers to merchants. The event study is deemed a suitable methodology to complement existing research techniques in this field. To determine ultimate pass-through to consumers, further investigation on the prevalent manifestation of issuer–acquirers needs to be conducted.","PeriodicalId":399709,"journal":{"name":"Journal of Competition Law and Economics","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115351500","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Openness and Integrity in Antitrust 反垄断中的公开与诚信

Journal of Competition Law and Economics Pub Date : 2020-07-16 DOI: 10.1093/joclec/nhaa018

Stavros Makris

{"title":"Openness and Integrity in Antitrust","authors":"Stavros Makris","doi":"10.1093/joclec/nhaa018","DOIUrl":"https://doi.org/10.1093/joclec/nhaa018","url":null,"abstract":"\u0000 Reasonable disagreements are pervasive in antitrust, yet the leading antitrust systems function in a broadly effective and consistent manner. How can we explain this paradox? The tentative reply to this question is that the two main antitrust jurisdictions have managed to do so by adopting the features of ‘responsive law’ (RL). Therefore, antitrust institutions could further benefit if they adopt the RL framework to understand and deal with reasonable disagreements.\u0000 To support this argument, I contend that reasonable disagreements are endogenous in antitrust systems, as they derive from antitrust’s fuzzy mandate, conceptually elastic vocabulary, and rules and standards mode of analysis. In a nutshell, reasonable disagreements are the by-product of two complementary yet antithetical forces of antitrust: openness and integrity. Nonetheless, conventional wisdom has it that such disagreements are temporary indeterminacies that will eventually be eradicated. This view stems from a conceptualization of antitrust as a form of ‘autonomous law’. However, this model of law does not take reasonable disagreements seriously and as a result offers an inadequate modus operandi for dealing with them. The ‘RL’ model, on the contrary, recognizes the endogeneity of reasonable disagreements and the underlying forces that generate them. Instead of attempting to eliminate them, therefore, the RL model suggests that antitrust institutions should seek to tame and exploit them. For this purpose, this model proposes a legal-institutional modus operandi for calibrating the eliciting forces of reasonable disagreements, that is, openness and integrity. The hallmarks of this approach are constructive teleological interpretation, experimentalist network-based enforcement by postbureaucratic enforcers, and courts operating as catalysts.","PeriodicalId":399709,"journal":{"name":"Journal of Competition Law and Economics","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127226132","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

Generic Entry Before the Agreed-Upon Date in Pharmaceutical Patent Settlements 药品专利和解中约定日期之前的通用条目

Journal of Competition Law and Economics Pub Date : 2020-06-02 DOI: 10.1093/JOCLEC/NHAA007

Keith M. Drake, T. Mcguire

{"title":"Generic Entry Before the Agreed-Upon Date in Pharmaceutical Patent Settlements","authors":"Keith M. Drake, T. Mcguire","doi":"10.1093/JOCLEC/NHAA007","DOIUrl":"https://doi.org/10.1093/JOCLEC/NHAA007","url":null,"abstract":"Drug patent litigation settlements specify a date for generic entry and typically include so-called “acceleration clauses” allowing the settling generic to enter earlier in certain circumstances, such as a third party winning the patent litigation. Agreed-upon dates in settlements between a brand and a generic with “first-filer” status affect the entire market because this date affects the date other generics may enter as well. This paper documents the entry outcome after a first filer-brand settlement by tracking how often the “acceleration clauses” in these settlements in fact accelerate entry. In total, the first filer entered prior to the original settlement date ten times in the 99 settlements included in our data. In four of these ten, the first filer failed to retain its 180-day exclusivity period — awarded by the FDA to the first generic to challenge the brand’s patents — which allowed other later filing generics to enter and trigger the acceleration clause. In two cases, the first filer’s entry was accelerated by another first-filer generic with shared rights to the 180-day exclusivity period. In the other four cases, the first filer’s earlier entry was due to some special clause in the settlement (e.g., because of a shrinking brand market). In no case was a first filer’s intact 180-day exclusivity period accelerated because of a later filing generic winning the patent litigation or settling for an earlier entry date.","PeriodicalId":399709,"journal":{"name":"Journal of Competition Law and Economics","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117154904","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

ANTITRUST DAMAGES IN FINANCIAL MARKETS 金融市场的反垄断损害

Journal of Competition Law and Economics Pub Date : 2020-04-30 DOI: 10.1093/joclec/nhaa003

John K. Wald

引用次数: 0

ACCESS TO DIGITAL CAR DATA AND COMPETITION IN AFTERMARKET MAINTENANCE SERVICES 数字化汽车数据的获取和售后维修服务的竞争

Journal of Competition Law and Economics Pub Date : 2020-04-30 DOI: 10.1093/joclec/nhaa005

B. Martens, Frank Mueller‐Langer

引用次数: 2