Journal of Competition Law and Economics最新文献

{"title":"DETECTING BID-RIGGING CARTELS WITH DESCRIPTIVE STATISTICS","authors":"David Imhof","doi":"10.1093/joclec/nhz019","DOIUrl":"https://doi.org/10.1093/joclec/nhz019","url":null,"abstract":"\u0000 The paper shows that descriptive statistics, used as screens, capture the effect of bid rigging in the distribution of the bids. The bid-rigging cartel studied in this paper negatively affected the variance of the bids as illustrated by the coefficient of variance and the kurtosis statistic. Furthermore, it cleverly manipulated the differences between bids to secure that the designated bidder from the cartel won the contract. Such cover-bidding mechanism produced asymmetry in the distribution of the bids illustrated by the relative distance, the skewness statistic, and the percentage difference between the first and second lowest bids. The descriptive statistics capture the change in the statistical pattern of the distribution of the bids between periods of collusion and competition. Moreover, the bid rotation screen shows that the behavior of firms changed radically between the cartel and post-cartel periods. Finally, the paper discusses policy implications for competition agencies wishing to set up a detection method for screening procurement markets.","PeriodicalId":399709,"journal":{"name":"Journal of Competition Law and Economics","volume":"102 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127128639","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}

{"title":"DATA SHARING IN IOT ECOSYSTEMS AND COMPETITION LAW: THE EXAMPLE OF CONNECTED CARS","authors":"Wolfgang Kerber","doi":"10.1093/joclec/nhz018","DOIUrl":"https://doi.org/10.1093/joclec/nhz018","url":null,"abstract":"\u0000 This paper analyzes whether competition law can help to solve problems of access to data and interoperability in Internet of Things (IoT) ecosystems, where often one firm has exclusive control of the data produced by a smart device (and of the technical access to this device). Such a gatekeeper position can lead to the elimination of competition for aftermarket and other complementary services in such IoT ecosystems. This problem is analyzed both from an economic and a legal perspective and also generally for IoT ecosystems as well as for the much discussed problems of “access to in-vehicle data and resources” in connected cars, where the “extended vehicle” concept of the car manufacturers leads to such positions of exclusive control. The paper analyzes, in particular, the competition rules about abusive behavior of dominant firms (Art. 102 TFEU) and of firms with “relative market power” (§ 20 (1) GWB) in German competition law. These provisions might offer (if appropriately applied and amended) at least some solutions for these data access problems. Competition law, however, might not be sufficient for dealing with all or most of these problems, that is, that also additional solutions might be needed (data portability, direct data (access) rights, or sector-specific regulation).","PeriodicalId":399709,"journal":{"name":"Journal of Competition Law and Economics","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133451343","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}

{"title":"THE FAILING FIRM DEFENSE—AN EQUITY-BASED APPROACH","authors":"Adi Ayal, Y. Rotem","doi":"10.1093/joclec/nhz020","DOIUrl":"https://doi.org/10.1093/joclec/nhz020","url":null,"abstract":"The failing firm defense allows parties to an anticompetitive merger one of whom is a financially distressed firm to defend the merger by proving that enjoining it may generate no better, perhaps even worse, effects on market competition if the financially distressed firm will liquidate and exit the market. The problem with the doctrine lies in antitrust regulators having to make highly uncertain predictions as to the state of competition in the market if the merger is allowed or enjoined. As a result, in practice, regulators are pushed to extremes, succumbing to either type I errors (enjoining mergers that should have been approved) or type II errors (approving mergers that should have been blocked). For example, in the United States, more than eighty years after its introduction into case-law, the doctrine is rarely invoked or accepted—a state of affairs suggesting the presence of type I errors. The paper offers a novel approach that arguably could better minimize the costs of both types of errors combined. We argue that rather than merely approve or disapprove of the merger antitrust regulators should also consider a third possibility: approval of the merger under the condition that the State receive an equity stake in the merged entity in proportion to the actual post-merger decrease in market competition. The decrease in competition and the subsequent dilution of incumbent equityholders in favor of the State is to be decided ex-post-facto by comparing the change in an agreed upon competition measure (for example, the Herfindahl-Hirschman Index, or even generally the market price) before and after the merger, even at several time intervals (to reverse the process, if necessary), and by translating such a change to an amount of (hypothetical) monetary compensation, to be paid by the issuance of equity-rights to the State. Such an approach transforms the ex-ante complex and uncertain regulatory decision transforms to a rather simple * College of Law & Business (CLB), Ramat-Gan, Israel. Email: rotem@clb.ac.il. ** Phd (Law, BIU) Phd (Economics, UC Berkeley); Bar Ilan University. 1 Words of the Danish physicist Niels Bohr, as quoted in Alan G. Mencher, On the Social Deployment of Science, 27 BULL. ATOMIC SCI. 34 (December 1971), at 37.","PeriodicalId":399709,"journal":{"name":"Journal of Competition Law and Economics","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130914525","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}

{"title":"No magic dust: The relationship between the national and local assessments in Sainsbury’s/Asda","authors":"J. Haydock, Tom Smith","doi":"10.1093/joclec/nhz022","DOIUrl":"https://doi.org/10.1093/joclec/nhz022","url":null,"abstract":"\u0000 We consider the Competition and Markets Authority (CMA) investigation into the proposed merger of UK grocery and fuel retailers Sainsbury’s and Asda. The CMA prohibited the merger in April 2019, based on a finding of widespread competition concerns. In this article we examine in particular the CMA’s assessments of the proposed merger’s effects on the merging parties’ unilateral incentives to worsen their offering across their businesses—for example, by raising supermarket product prices nationwide.\u0000 We note that the CMA’s concerns on a national basis arose exclusively from the aggregation of the competitive impacts in individual local areas. We consider to what extent this is likely to be the case in other mergers with somewhat similar features. We also consider under what circumstances an assessment of national-level concerns is necessary when the relevant geographic markets have been defined as local. We address the relationship between the CMA’s national-level analysis and its assessments of the merging parties’ incentives to worsen their offerings at specific stores. Finally, we discuss the ways in which the CMA’s national-level concerns affected its analysis of possible remedies.","PeriodicalId":399709,"journal":{"name":"Journal of Competition Law and Economics","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130243898","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}

{"title":"ADVANCING QUALITY COMPETITION IN BIG DATA MARKETS","authors":"Adrian Kuenzler","doi":"10.1093/joclec/nhz021","DOIUrl":"https://doi.org/10.1093/joclec/nhz021","url":null,"abstract":"\u0000 The European Commission in its decision in Google Search (Shopping) found that a dominant search engine abused its market power by giving preferential treatment to its own related services over those of rivals. Conventional market mechanisms, it is supposed, can no longer correct the harm arising from such conduct. But there is disagreement in legal scholarship as to what this harm actually represents. This article maintains that the practice of self-favouring is best understood as an attempt to ward off product quality degradations in digital markets, which are difficult to repair purely by means of the consumer’s sole ability to switch. Framed against Albert Hirschman’s well-known work on Exit, Voice, and Loyalty, the Commission’s ruling must be understood as recognition that rivalry stemming from smaller market actors will not necessarily prevent large platforms from degrading product quality, despite the consumer’s ability to gain access to a variety of services that are only a click away. The article explicates the market’s functioning and the available methods of recuperation against the backdrop of the available case law in this area, and expounds the Commission’s findings in light of Hirschman’s theory.","PeriodicalId":399709,"journal":{"name":"Journal of Competition Law and Economics","volume":"98 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120960411","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}

{"title":"INDIRECT NETWORK EFFECTS, USAGE EXTERNALITIES, AND PLATFORM COMPETITION","authors":"P. A. Johnson","doi":"10.1093/joclec/nhz014","DOIUrl":"https://doi.org/10.1093/joclec/nhz014","url":null,"abstract":"\u0000 Platforms, or two-sided markets, have become a topic of significant discussion in competition law over the past decade, culminating in the recent US Supreme Court decision in Ohio v. American Express Co. This note discusses externalities in platforms. Indirect network effects, one type of externality common on platforms, have been prominent in these discussions. However, the prominence of indirect network effects has obscured the importance of another externality that exists on platforms, a usage externality. This note argues that a near exclusive focus on indirect network effects has led to errors in identifying when a market should be analyzed as a platform. These errors implicate the identification of platforms like those at issue in Ohio v. American Express Co. as well as a wider set of platforms, such as ad-supported media platforms.","PeriodicalId":399709,"journal":{"name":"Journal of Competition Law and Economics","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114254441","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}

{"title":"EVALUATING THE COMPETITION EFFECTS OF UBER’S ENTRY INTO THE BRAZILIAN INCUMBENT CAB-HAILING APP SEGMENT","authors":"G. Resende, Ricardo Carvalho de Andrade Lima","doi":"10.1093/JOCLEC/NHZ005","DOIUrl":"https://doi.org/10.1093/JOCLEC/NHZ005","url":null,"abstract":"This paper assesses the competition effects of Uber’s entry into the incumbent cab-hailing app segment in Brazil. Using a monthly panel data set (from 2014 to 2016) covering the Brazilian municipalities and a difference-in-differences estimator, we show that Uber’s entry into the market resulted in an average reduction of 56.8 percent in the number of rides from cab-hailing apps in the cities where the platform operates. The magnitude of this effect suggests that Uber has had a clearly disruptive effect on the incumbent sector. We also found significant spatial heterogeneity in the competition effects of the platform when comparing the markets of the capitals of the North and Northeast regions (where Uber entered late) with the capitals of the South, Southeast, and Central West regions (where Uber entered early). Only in the second group of municipalities, we found that Uber’s entry caused a reduction in taxi fares (reduction of 12.1 percent). This indicates that the cab-hailing app sector reacted to Uber’s entry by offering discounts in fares after a longer period of exposure to a competitive environment.","PeriodicalId":399709,"journal":{"name":"Journal of Competition Law and Economics","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115988589","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}

{"title":"MOBILE PHONE REGULATION: THE EFFECTS OF PROHIBITING HANDSET BUNDLING IN FINLAND","authors":"T. Hazlett, Sarah Oh, B. Skorup","doi":"10.1093/JOCLEC/NHX030","DOIUrl":"https://doi.org/10.1093/JOCLEC/NHX030","url":null,"abstract":"Vertical restrictions have theoretically ambiguous efficiency effects. Marketplace evidence is, therefore, required to reveal the presence of anticompetitive foreclosure. The bundling of mobile phones with cellular network service offers one such market test. One EU member, Finland, prohibited tying arrangements for mobile service and mobile handsets in wireless broadband markets, and then cleanly ended this prohibition in April 2006. We compare the growth in Finnish third-generation (3G) uptake against other European markets using quarterly data from first quarter 2006 through fourth quarter 2012. An output effects model adjusting for market-specific factors suggests 3G penetration growth in Finland increased substantially following market reform.","PeriodicalId":399709,"journal":{"name":"Journal of Competition Law and Economics","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127805103","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}

{"title":"APPLYING TWO-SIDED MARKETS THEORY: THE MASTERCARD AND AMERICAN EXPRESS DECISIONS","authors":"G. Colangelo, Mariateresa Maggiolino","doi":"10.1093/JOCLEC/NHY001","DOIUrl":"https://doi.org/10.1093/JOCLEC/NHY001","url":null,"abstract":"Since the seminal papers by Rochet and Tirole, the payment card industry has represented an elected field of study for the economic features of multi-sided markets and their effects on both regulation and antitrust analysis. The recent judgments of the UK High Court of Justice in MasterCard and of the US Court of Appeals for the Second Circuit in American Express are particularly relevant since they are the first to concretely apply the economic theory of multi-sided markets to the payment card industry. In particular, given the peculiarities of multi-sided markets, the coexistence of different business models, and the twofold competitive interpretation of the conduct once studied in its own context, courts have emphasised the need to articulate a judgment around counterfactual hypotheses. This is a way to measure the actual impact on competition, testing the realistic scenario that would occur if the investigated conduct was absent, so as to give appropriate consideration to the business model of the single platform, in which competition law should intervene. The same reasoning that makes us consider advantageous a flexible antitrust approach (meaning a case-by-case analysis) forces us to be critical of the current US and EU regulation of payment systems.","PeriodicalId":399709,"journal":{"name":"Journal of Competition Law and Economics","volume":"2 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116400125","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}

{"title":"PRIVATE ANTITRUST AT THE U.S. INTERNATIONAL TRADE COMMISSION","authors":"F. Kieff","doi":"10.1093/JOCLEC/NHY003","DOIUrl":"https://doi.org/10.1093/JOCLEC/NHY003","url":null,"abstract":"This paper, drafted as an adjudicator’s opinion in a recent case of nearly first impression, explores an approach to aligning the strengths and opportunities available through the U.S. International Trade Commission (ITC) by considering how more ordinary antitrust issues can be adjudicated through the Section 337 portion of the ITC’s docket. This might be done using existing law. The basic theme is that there are several significant reasons why even a skeptic of the ITC's Anti-dumping, Countervailing Duty, and Safeguards docket (collectively, the \"Title VII\" docket) – as well as an antitrust skeptic – should be significantly less worried when cases normally expected to be brought in the Title VII portion of the ITC’s docket as petitions are instead brought in the Section 337 portion of the ITC docket as complaints alleging ordinary violations of the antitrust laws. Private antitrust litigation fits well within the ITC’s Section 337 docket for several reasons. It squarely fits with the plain meaning of the ITC’s statute. It also squarely fits the well-established antitrust case law. In addition, it offers some practical benefits. Unlike the relatively easy-to-satisfy legal requirement for assessing injury in the Title VII portion of the docket, a 337 investigation involving established antitrust law would turn on the substantive legal standards within that body of established antitrust law that are seen by a broad consensus to be focused on a middle of the road attempt to represent true public interest in avoiding actual economic harm to a market as a whole. In addition, a 337 investigation, which involves initial inter-partes adversarial litigation before an Administrative Law Judge (ALJ), implicates less reliance on administrative deference than an action in the Title VII portion of the docket, and more reliance than in the Title VII portion of the docket on a detailed factual record involving the full panoply of procedural devices ordinarily available in federal court for truth-testing of evidence including cross examination of testimony, all in a timeframe likely to be significantly shorter (around 18 months) than the many years typically required for antitrust litigation in federal court. Nevertheless, at least one recent high-profile dispute involving steel imported from China shows there is at least one significant barrier that may stand as a practical obstacle to a private litigant bringing an antitrust claim under the Section 337 portion of the ITC’s docket: the doctrine that federal courts developed called “antitrust injury,” During the initial phases of such a case recently brought against Chinese importers of steel by the domestic US steel industry, with support from both companies and unions, the ALJ dismissed the antitrust complaint for lack of antitrust injury in an initial determination that was then reviewed by the Commission. The ITC affirmed. This paper explores some reasons why the antitrust injury doctrine from federal court m","PeriodicalId":399709,"journal":{"name":"Journal of Competition Law and Economics","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126424996","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}