Antitrust: Antitrust Law & Policy eJournal最新文献

{"title":"Two Strings to One Bow? Article 47 of the EU Charter of Fundamental Rights in the EU Competition Case Law: Between Procedural and Substantive Fairness","authors":"Giulia Gentile","doi":"10.2139/ssrn.3710508","DOIUrl":"https://doi.org/10.2139/ssrn.3710508","url":null,"abstract":"In recent years, the EU competition framework has been under strain because of the increasing market interconnectivity. Criticisms have raised regarding the EU competition enforcement model. In response, institutional debate and measures have focused on the enhancement of fairness in this area of EU law. Following the entry into force of the Lisbon Treaty, another source of ‘fairness’ in the enforcement of EU competition law is the EU Charter of Fundamental Rights. Article 47 of the EU Charter is the most invoked provision in the context of EU competition litigation. Considered to reaffirm the EU general principle of effective judicial protection, this article constitutionalises the right to an effective remedy and to a fair trial. Although the existing literature has highlighted the overall influence of fundamental rights in the enforcement of competition law, the contribution of Article 47 Charter, as interpreted by the Court of Justice of the European Union, in enhancing fairness in EU competition policies remains, so far, underexplored. The current paper aims to fill this gap in the literature by offering a threefold input. First, the paper situates the discussion on fairness in EU competition law in the broader philosophical debate regarding various conception(s) of fairness. Second, the paper analyses the case law of the EU Court of Justice on Article 47 of the EU Charter in EU competition litigation. Finally, the paper discusses what kind of ‘fairness’ Article 47 strengthens in the area of EU competition law enforcement.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130370550","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":"Comment on the Competition Commission's Proposal to Accept Commitments Proposed by the Hong Kong Seaport Alliance","authors":"Sinchit Lai","doi":"10.2139/ssrn.3681865","DOIUrl":"https://doi.org/10.2139/ssrn.3681865","url":null,"abstract":"On 12 August 2020, the Hong Kong Competition Commission invited the public to comment on its proposal to accept commitments proposed by the Hong Kong Seaport Alliance (Ref. no.: EC/03AY). This short piece recommends the Commission to require the four concerned parties to commit to terminating their commercial and financial coordination partially or entirely.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125747550","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 the Effects Doctrine in Tech Markets","authors":"A. Agarwal","doi":"10.2139/ssrn.3677658","DOIUrl":"https://doi.org/10.2139/ssrn.3677658","url":null,"abstract":"Over the last fifty years, antitrust has developed into a coherent, principled, and workable body of law that contributes positively not only to American competitiveness and societal well-being, but also helps to export the culture of market competition around the world. However, with the advent of ecommerce and the rapid growth in the technology sector, questions have been raised regarding market concentration and a dearth of enforcement actions being brought in these spaces. Critics have questioned the well settled Chicago School of thought, claiming that the consumer welfare standard is diminishing- benefiting neither the consumer nor competition. Proponents of the Chicago School argue that efforts to abandon the consumer welfare standard are a misguided throwback to the incoherent antitrust regime of the mid-twentieth century. They caution against allowing economic populism to turn the focus of the antitrust regime away from economic efficiency. My research will examine whether a socialistic reversal of the antitrust regime would truly benefit the American economy through the thought process that is gaining traction now, or would it cause it to suffer based on chilled innovation and over-regulation.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122375429","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":"Acquisitions of Potential Competitors: The U.S. Approach and Calls for Reform","authors":"Koren W. Wong-Ervin, James Moore","doi":"10.2139/ssrn.3677443","DOIUrl":"https://doi.org/10.2139/ssrn.3677443","url":null,"abstract":"This Article begins with a discussion of the U.S. approach to analyzing acquisitions of potential competitors. We explain the need for exacting standards, including due to the increased difficulties of predicting the future world without the acquisition. Unlike with actual competition, with potential competition there is no history of competition with price and other historical data, which makes the counterfactual analysis all the more difficult. We then consider the evidence that existing laws have resulted in systematic underenforcement and substantial harm to competition, finding no reliable evidence to this effect. We conclude with a discussion of the risks posed by various reform proposals, including the potential for harm to competition and innovation. We also explain how the various proposals would introduce significant uncertainty in antitrust enforcement, which can serve as a tax on transactions.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127851520","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":"Modeling the Effects of Mergers in Procurement: Comment","authors":"K. Waehrer","doi":"10.2139/ssrn.3633543","DOIUrl":"https://doi.org/10.2139/ssrn.3633543","url":null,"abstract":"Miller (2014, 2017) proposes an approach to the analysis of merger effects in markets involving procurement where one of the two product lines is discontinued. This note proves that, as presented in Miller (2014, 2017) and applied to a number of actual merger cases, eliminating one of the two product lines will not be more profitable than retaining both product lines from the merger, and therefore, applying this approach will likely overstate the anti-competitive effects of mergers.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114298166","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":"Antitrust House Judiciary Committee Antitrust Subcommittee Testimony","authors":"D. Sokol","doi":"10.2139/ssrn.3592567","DOIUrl":"https://doi.org/10.2139/ssrn.3592567","url":null,"abstract":"Much of the competition policy discussion today centers around goals of antitrust. Until recently, the only antitrust goals discussed in the US were economic ones. Anyone who thought otherwise was on the fringe and often discounted both academically and within policy circles. Yet today, the goals of antitrust once again have become the subject of debate due to a concatenation of events. Growing populism on both the left and right in the United States and globally; a number of studies showing increased income inequality and increased concentration; digital transformations across industries that disrupt traditional ways of organizing economic activity and life more generally; trends towards protectionism and economic sovereignty; and the lingering effects of the Great Recession in some countries all have caused people in policy settings, some antitrust authorities, and some scholars to question whether an economics-based goal focused on effects to consumer and competition (which for shorthand I call the “consumer welfare” standard) is relevant and whether competition can be used to achieve particular results. \u0000 \u0000This testimony before the House Judiciary Committee Antitrust Subcommittee covers the following topics: \u0000 \u0000The Importance of Economic Analysis and Antitrust Common Law \u0000 \u0000Fairness in Antitrust \u0000 \u0000Antitrust instrumentalization \u0000 \u0000Antitrust and “Tech” \u0000 \u0000Bipartisan support for economic analysis in antitrust \u0000 \u0000Courts have expressly embraced economic analysis \u0000 \u0000Antitrust Non-Price Enforcement \u0000 \u0000Antitrust history offers an example of what political antitrust can do (badly) \u0000 \u0000Merger thresholds are adequate \u0000 \u0000Agencies, guided by economic analysis, do a good job given the overall uncertainty of addressing mergers \u0000 \u0000Are tech acquisitions different for start ups? \u0000 \u0000How should we think about vertical mergers? \u0000 \u0000Agencies should not be duplicative of investigations into the same companies \u0000 \u0000Agencies should invest in more tech knowledge \u0000 \u0000Agencies need to better understand the value of different types of platforms \u0000 \u0000More money invested in competition advocacy","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127126714","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":"Towards a More Competitive Mobile Payment Industry: Standardization and Beyond","authors":"Xingyu Yan","doi":"10.1093/joclec/nhaa029","DOIUrl":"https://doi.org/10.1093/joclec/nhaa029","url":null,"abstract":"\u0000 Mobile payments are becoming increasingly popular around the world. In countries like China, they appear in the form of barcode payments and are poised to replace cash and bank card payments for day-to-day consumer purchases. Against that backdrop, this paper analyzes the availability of barcode standardization as an approach to interoperability and ultimately to enhanced competition in the mobile payment industry. It uses the Chinese industry as a study case, which features a duopoly structure and shifting competitive dynamics among three definable groups of market players. This paper confirms that standardization can enhance competition and argues that, in this case, a government-mandated standardization is preferable to a voluntary one because the latter is prone to financial market failures. Along this line, this paper makes three suggestions for furthering the barcode standardization. It also advises prudence and competitive neutrality for the financial regulator and calls for more active involvements of the competition and data protection authorities.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115895362","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":"Joint Response to the House Judiciary Committee on the State of Antitrust Law and Implications for Protecting Competition in Digital Markets","authors":"J. Baker, Joseph Farrell, Andrew I. Gavil, M. Gaynor, Michael Kades, M. Katz, Gene Kimmelman, A. Melamed, N. Rose, S. Salop, Fiona M. Scott Morton, C. Shapiro","doi":"10.2139/ssrn.3632532","DOIUrl":"https://doi.org/10.2139/ssrn.3632532","url":null,"abstract":"Economic research establishes that market power is now a serious problem. Growing market power harms consumers and workers, slows innovation, and limits productivity growth. Market power is on the rise in a number of major industries, including, for example, airlines, brewing, and hospitals, where multiple horizontal mergers that were allowed to proceed without antitrust challenge have markedly increased concentration in important markets and facilitated the exercise of market power. Exclusionary conduct by dominant companies that stifles competition from actual and potential rivals — including nascent rivals with capabilities for challenging a dominant firm’s market power and firms with competing R&D efforts — impairs what is often the most important economic force creating competitive pressure for dominant firms. This concern exists in digital marketplaces. Platforms are often insulated from platform competition to a substantial extent by substantial scale economies in supply and demand (network effects) combined with customer switching costs.Courts have contributed to increased monopoly power through decisions that have weakened the prohibitions against anticompetitive exclusionary conduct and anticompetitive mergers. The antitrust laws, as interpreted and enforced today, are inadequate to confront and deter growing market power in the U.S. economy and unnecessarily limit the ability of antitrust enforcers to address anticompetitive conduct. Many key antitrust precedents — particularly those precedents governing exclusionary conduct — rely on unsound economic theories or unsupported empirical claims about the competitive effects of certain practices. In part for this reason, the antitrust rules constructed by the courts reflect a systematically skewed error cost balance: they are too concerned to avoid both chilling procompetitive conduct and the high costs of litigation, and too dismissive of the costs of failing to deter harmful conduct. Excessively permissive precedents and unsound or unsupported economic claims have, in turn, encouraged overly cautious enforcement policies and overly demanding proof requirements and have discouraged government enforcers and private plaintiffs from bringing meritorious exclusionary conduct cases. The statement discusses a number of legal rules that are unsupported by or inconsistent with sound economic research that have contributed to overly permissive rules.The signatories to this letter strongly believe that antitrust enforcement has become too lax, in large part because of the courts and that Congress must act to correct this problem. The statement suggests a number of reforms could be considered. We do not collectively or unanimously endorse any of these, though some of us have done so in other contexts. We do believe that Congress has a historic opportunity to identify adverse trends in judicial interpretation of the antitrust and correct problems—not just by overriding damaging precedents, but also b","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132829790","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":"Did Asymmetric Mobile Termination Rates Help Entrants Gain Market Share?","authors":"J. Sidak, Andrew P. Vassallo, L. Sabetti","doi":"10.2139/ssrn.3179162","DOIUrl":"https://doi.org/10.2139/ssrn.3179162","url":null,"abstract":"Regulators in many countries have asserted that setting asymmetric mobile termination rates (MTRs) between the incumbent mobile telephony operator and its smaller rivals is an efficacious means by which to help entrants attain efficient scale. We investigate empirically the efficacy of this policy experiment using data from a global sample of 34 countries from 1996 through 2014. We estimate a model that relates operators’ long-run market shares to initial entry conditions and the degree of asymmetry among MTRs using an instrumental variables (IV) strategy. The estimates imply that a high degree of asymmetry among MTRs lowers an entrant’s long-run market share by roughly 4 percentage points compared with a regime of symmetric MTRs, and the effect is roughly constant across market penetration levels. Furthermore, mobile operators tend to perform better when entering markets with higher levels of concentration and lower levels of market penetration. Our novel findings cast doubt on the efficacy of imposing asymmetric MTRs as a means to achieve greater equality of competitive outcomes. Our findings inform the larger body of theoretical literature on the pricing of interconnection and network access.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126167629","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":"Libra: A Concentrate of 'Blockchain Antitrust'","authors":"Thibault Schrepel","doi":"10.36644/mlr.online.118.libra","DOIUrl":"https://doi.org/10.36644/mlr.online.118.libra","url":null,"abstract":"Blockchains promise to decentralize the economy, bypassing trusts in favor of decentralized communities. The World Economic Forum predicts that 10 percent of the global gross domestic product will be stored on blockchain by 2027. Gartner further prophesizes that blockchain will create $3.1 trillion worth of business value by 2030. Even if that prediction turns out to be too optimistic, blockchain’s legal implications cannot be neglected.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"71 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128203640","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}