Monday, September 18, 2017
Call for papers, Clasf workshop, Graz Thursday 19 April 2018, Antitrust at the intersection of law and economics
Call for Papers
The Competition Law Scholars Forum (CLaSF) and the Institute of Corporate and International Commercial Law of the University of Graz invite contributions to a workshop on
“Antitrust at the intersection of law and economics”
at the University of Graz (Austria) on Thursday, 19 April 2018
The Competition Law Scholars Forum (CLaSF) will be running its XXXth workshop on Thursday, 19 April 2018, at the Law Faculty of the University of Graz. The subject of the workshop will be the broad theme of ‘Antitrust at the intersection of law and economics.’
We invite abstract paper proposals from researchers, scholars, practitioners and policy-makers in relation to any issue within this broad theme. We welcome theoretical, economics-driven, practice-based or policy-focused papers, and we are interested in receiving abstracts for papers which may be focused on perspectives or experience at national, regional (eg EU), or international levels, or a combination.
Suggestions are invited particularly in the field of the following matters:
The role of economics in the development of antitrust legal doctrines (eg, influence of different antitrust schools on specific abuses of dominance, conceptual questions, etc);
The role of economists in antitrust law theory and practice;
Comparative analysis on the role of economics in different competition law jurisdictions and traditions;
The interplay and possible tensions between competition law and competition economics on a theoretical and a practical level;
The application of law & economics methodology to specific competition law issues as an insight into antitrust between law and economics;
The EU’s “more economics” approach revisited (is it time for “less economics”?)
The Workshop will consist of a mix of invited speakers and contributions chosen following this call for papers.
Any person interested in being considered on the basis of the call for papers at the workshop is asked to contact Professor Barry Rodger at email@example.com. An abstract is required of approximately 500-1,000 words, to be submitted by no later than 15 January 2018, and decisions on successful submissions will be taken by 29 January 2018. Submission of presentation/draft paper is also required a week prior to the workshop.
Papers presented at the conference can be submitted to the Competition Law Review editorial board with a view to being published in the Review. Note that the Review is a fully refereed scholarly law journal: submission does not guarantee publication.
This weekend we had tastings of different honeys and apples for Rosh Hashana. Our top picks in order of preference:
- Zestar (hard to get in Florida)
- Granny Smith
Our least favorite:
Red delicious - red but not delicious. Lacks flavor
A Comparative Analysis of the Collective Dominance Definition in Ukrainian and European Law – The Electricity Market Case
Kseniya Smyrnova, Taras Shevchenko National University of Kyiv offers A Comparative Analysis of the Collective Dominance Definition in Ukrainian and European Law – The Electricity Market Case.
ABSTRACT: This paper follows a comparative approach to the analysis of collective dominance doctrine and practice in the EU and the enforcement practice in Ukraine. The aim of this paper is to assess the compliance of the Ukrainian competition authority’s (AMCU) analysis of the national electricity market with EU law enforcement practice. The latter arises from Ukraine’s wider duty to fulfill its international law obligation to comply with EU competition rules, based on Article 18 of the Treaty establishing the Energy Community also taking into account the interpretative criteria developed in EU case law (according to Article 94 of the Association Agreement between Ukraine and the EU). Article 255 of the Association Agreement, which clearly provides for the use of the principle of transparency, non-discrimination and neutrality when complying with the procedures of fairness, justice and the right of defence, also illustrates the necessity of carrying out research in this field.
Erik Hovenkamp, Harvard Law analyzes Tying, Exclusivity, and Standard-Essential Patents. Erik, a JD/PhD is on the entry level law market this year and I think that his work is very good. I strongly would encourage hiring committees to take a look at him.
ABSTRACT: When a technological standard is adopted, implementers must pay to license all “standard-essential” patents (SEPs)—those covering core features of the standard—although the particular price terms usually cannot negotiated beforehand. To allay implementers’ fear of being “held up,” SEP owners usually make commitments to offer licenses on “fair, reasonable, and nondiscriminatory” (FRAND) terms. Among other things, this acts as a contractual price control for SEP licenses—albeit an imprecise one that is subject to judicial interpretation.
Aside from licenses, an SEP holder may further supply an important “collateral input”—one that is not subject to the FRAND pledge, but which implementers nevertheless require in order to market a viable product. For example, this might be a physical component of the final product. The SEP holder might tie its SEP rights to the collateral input. It might also engage exclusive dealing or related practices, such as a “loyalty discounting” arrangement that imposes larger royalties on implementers who buy the input from competing providers. Importantly, FRAND’s operation as a price control significantly alters the economic analysis: here the primary impetus for tying may be to circumvent the price control by shifting the desired overcharge to the tied good—a concern that does not arise when a seller has complete autonomy over its pricing (as is usually the case). The natural result may be to foreclose competitors’ input sales.
Such restraints have received little attention in the FRAND literature, but they are an emerging concern for innovation and competition policy. They have recently been attacked in two high-profile complaints filed against Qualcomm—one by the Federal Trade Commission, and the other by Apple. Against this backdrop, this article provides a legal and economic evaluation of tying and exclusive dealing arrangements in FRAND licensing. Such practices may act to undermine the FRAND price control, potentially violating the SEP holder’s commitment. The case for antitrust intervention is harder to make, but in principle the arrangement could act to exclude actual or potential competition in the collateral input market, bringing it within antitrust’s reach. I conclude by offering several policy recommendations for how courts and standard setting organizations might address these tying and exclusivity arrangements.
Friday, September 15, 2017
Urska Petrovcic, Criterion Economics examines Injunctions for Standard-Essential Patents in the European Union.
ABSTRACT: Injunctions for standard essential patents (SEPs) — that is, patents that are essential to practice an industry standard — have been at the center of the antitrust debate for more than a decade. In July 2015, the Court of Justice of the European Union (CJEU) issued its long awaited decision in Huawei Technologies. Co. v. ZTE Corp., in which it addressed, for the first time, the question of whether an SEP holder’s request for an injunction could violate Article 102 of the Treaty on the Functioning of the European Union (TFEU) — the provision of EU competition law that prohibits a dominant company from abusing its market position. In this article, I analyze the implications of the CJEU’s judgment for SEP holders that seek to enforce their SEPs in the European Union. Huawei confirmed that an SEP holder faces a stricter level of antitrust scrutiny in the European Union than in some other jurisdictions, such as the United States. In practical terms, however, the developments that followed Huawei showed that the judgment limited Article 102 TFEU’s scope in addressing an SEP holder’s behavior, when compared with the approach that the European Commission had adopted in its previous investigations. After Huawei, an SEP holder’s request for an injunction is less likely to trigger antitrust liability under Article 102 TFEU. In addition, Huawei raised the barrier that an SEP holder must overcome to obtain an injunction. Yet, the requirements established in Huawei are not so strict as to preclude obtaining that remedy. Unlike in the United States, where, as of August 2017, no SEP holder has obtained an injunction, several SEP holders have requested and obtained injunctions against infringers in the European Union.
Marina Lao, Seton Hall has a paper on Workers in the 'Gig' Economy: The Case for Extending the Antitrust Labor Exemption to Them.
ABSTRACT: Consumers are the clear winners in the fast-growing sharing economy (and, more specifically, the “gig” economy), as are the technology companies that conceived and developed the digital platform models and that serve as the intermediaries. Though workers on the platforms have also benefited, particularly those who value flexibility, there is a sense that they are not receiving an appropriate share of the joint surplus that their “partnership” with the platforms is producing. For those troubled by this disparity, the challenge is to find a principled solution that would allow the benefits to be distributed more equitably, but would not upend the innovative business model and thereby lose the associated efficiencies and other benefits.
In this Essay, I argue for the extension of the antitrust labor exemption, currently limited to labor activities of employees, to encompass gig-economy workers. That would allow them to negotiate collectively with the platform/intermediary over compensation and benefits issues without exposure to antitrust liability. Gig-economy workers straddle the line between employee and independent contractor and do not currently receive the benefits and protections that are tied to employment. I explain why it would be consistent with the philosophies underlying the antitrust law and the exemption to extend the exemption to gig-economy workers, and why that can be reconciled with more recent refusals to apply the exemption to non-employee professionals—mostly independent physicians.
The Essay additionally addresses the drawbacks of different solutions proposed by others also concerned about the precarious circumstances of gig-economy workers, focusing in particular on a proposal to legislatively redefine “employment” broadly to cover gig-economy workers. My concern with this proposal is that it risks jeopardizing the very business model that has facilitated online intermediated work, and could also have the unintended effect of diminishing platform competition, which is troubling from a competition policy perspective. Given the uncertainties and risks, the simpler approach of extending the antitrust labor exemption to permit collective action by gig-economy workers, proposed in this Essay, seems to be the better path.
The exemption is not a perfect solution, and I address its weaknesses. But it is a means to advance the workers’ interests in securing an appropriate share of the surplus that has been jointly created by the platform and the workers, without as much risk of dismantling the business model in the process.
Acting Assistant Attorney General Andrew Finch Delivers Keynote Address At Annual Conference On International Antitrust Law And Policy
A highlight from Day 1 at Fordham was this speech by Acting Assistant Attorney General Andrew Finch. Some highlights include:
"First, we have spoken and will continue to speak forcefully about the importance of rule of law, and procedural fairness and transparency, in effective antitrust enforcement... [I]n a world where businesses increasingly operate across multiple jurisdictions and are subject to different antitrust enforcement regimes, transparency that increases understanding and confidence in each agency’s processes and decision-making will minimize the impact of such differences. Finally, transparency, together with strong procedural fairness protections, enables us to keep to the path of fair and non-discriminatory enforcement and foster the conditions for economic growth."
"We have also begun to engage regarding the need for greater international cooperation and coordination on cartel cases."
"We must keep in mind that there are pro-competitive benefits to technological innovations in the marketplace."
"The Division is also continuing its commitment to help newer agencies develop strong evidence-based enforcement policies and practices."
The Economist asks Is Margrethe Vestager championing consumers or her political career?
Perhaps their answer is clear in the last lines of the story - "But mixing politics with trustbusting so overtly is a dangerous game. The competition directorate’s standing as a neutral arbiter may get damaged in the process."
Michal Gal, Haifa argues for The Social Contract at the Basis of Competition Law.
ABSTRACT: Competition law constitutes an important part of the social contract that stands at the basis of market economies, which conceptualizes the relationship between the state and its citizens, as well as among citizens, and legitimizes state action. This article seeks to unveil the social contract that stands at the basis of competition laws by shedding light on the assumptions at its basis. It then explores whether these assumptions indeed further the goals of the social contract, namely total and individual welfare. In particular, in light of recent challenges to the welfare effects of market economies, this short article seeks to determine whether equality and inclusive growth goals should play a more pronounced role in the competition laws of developed jurisdictions, and if so, by what means.
Thursday, September 14, 2017
Koren W. Wong-Ervin, George Mason University, Scalia Law School - Global Antitrust Institute is Righting the Course: What the DOJ Should Do About the IEEE Business Review Letter.
ABSTRACT: Standard-development organizations (SDOs) “vary widely in size, formality, organization and scope,” and therefore individual SDOs may need to adopt different approaches to meet the specific needs of their members. Critically, to balance the needs of both contributors and implementers, SDO policies must be developed through transparent and consensus-based processes. Issuance of best practices by a government agency may unduly influence private SDOs and their members to adopt policies that might not otherwise gain consensus support within a particular SDO and that may not best meet the needs of that SDO, its members, and the public. Accordingly, the U.S. antitrust agencies have taken the position that they do “not advocate that [SDOs] adopt any specific disclosure or licensing policy, and the [a]gencies do not suggest that any specific disclosure or licensing policy is required.”
Herb Hovenkamp (Penn) has written on ANTITRUST AND THE DESIGN OF PRODUCTION.
ABSTRACT: Both economics and antitrust policy have traditionally distinguished “production” from “distribution.” The former is concerned with how products are designed and built, the latter with how they are placed into the hands of consumers. Nothing in the language of the antitrust laws suggests much concern with production as such. Although courts do not view it that way, even per se unlawful naked price fixing among rivals is a restraint on distribution rather than production. Naked price fixing assumes a product that has already been designed and built, and the important cartel decision is what should be each firm’s output, or the price charged to buyers. At the same time, however, many price agreements among rivals are in fact a part of design or production rather than distribution.
Many of the difficulties that antitrust law has had with vertical restraints arose because antitrust courts mistakenly viewed a practice as part of distribution when it was really part of design or production. Agreements that seem nominally to be about distribution or price are in fact mechanisms by which firms share design and production activities. For example, tying arrangements are not simply ways of pricing finished goods. Rather, as the long history of tying-like practices in patent law illustrates, most tying is the consequence of a design or production choice or else a mechanism for sharing entrepreneurial risk. Particularly misunderstood are variable proportion, or metering, ties. Ignoring incentive effects, when the seller has a monopoly in the tying product and the tied product is perfectly competitive, such ties may reduce short run consumer welfare from the single monopoly price, at least if they also reduce output of the durable good. However, that result is trivial across the range of litigated variable proportion tying cases. The sellers in these cases are virtually never monopolists or even close. When metering ties are imposed by non-monopolists the welfare effects are unambiguously positive.
An antitrust policy driven by concerns for consumer welfare should favor design and production initiatives but disfavor restraints on pricing. Indeed, it is more important for antitrust policy to get the innovation question right than to be right on price, because innovation has the potential to affect economic development much more dramatically, and in both directions. That is, just as innovation benefits the economy by a greater amount than price competition under constant technology, so too a restraint on innovation can do greater harm.
By focusing so much on price, antitrust policy has often missed the point of some arrangements, particularly those that involve new technologies or innovations in business organization. In the process, it has confused innovation with monopoly. For example, antitrust’s long war with tying arrangements occurred because litigants and courts were obsessed with pricing and either never queried or else did not appreciate how tying relates to innovation and production. By their nature, innovations upset a market’s equilibrium, producing temporarily higher returns. As a result, a common feature of innovation is short-run prices that are above cost and welfare reducing to the myopic eye. These are essential features of innovation-intensive markets, however, and in such cases the social cost of false condemnation is high.
Gerti Shijaku analyzes Bank Stability and Competition: Evidence from Albanian Banking Market.
ABSTRACT: This paper analyses the inter-temporal competition – stability nexus after the global financial crises. For this reason, the empirical estimation approach follows a five – step procedure. First, we utilise quarterly macroeconomic and balance sheet and income statement data for 16 banks operating in the Albanian banking sector over the period 2008 – 2015. Second, we calculate a new composite index as a measure of bank stability conditions, which includes a wide set of information rather than focusing only on one aspect of risk. Then, we construct a proxy for bank competition such as the Boone indicator. Empirical estimations are based on the General Method of Moments approach. A set of robustness checks include also the use of other alternative proxy of competition such as the Lerner index and the efficient-adjusted Lerner index, profit elasticity and the Herfindahl index. Empirical results strongly support the “competition – stability” view after the global financial crises - that higher degree of competition boosts further bank stability conditions. Results further indicate that greater concentration has also a negative impact on bank stability. Results imply also that bank stability is positively linked with macroeconomic conditions and capital ratio and inverse with operational efficiency. Finally, we do not find a non-linear relationship between competition and stability.
On the relationship between bank market concentration and stability of financial institutions: Evidence from the Italian banking sector
Barra, Cristian ; Zotti and Roberto offer thoughts On the relationship between bank market concentration and stability of financial institutions: Evidence from the Italian banking sector.
ABSTRACT: This paper explores the relationship between bank market concentration and financial stability of financial institutions relying on highly territorially disaggregated data taken at municipality level in Italy between 2001 and 2012. Firstly, we test the existence of a U-shaped relationship between market concentration and financial stability. Secondly, we estimate the impact of the level of concentration of the banking system and other explanatory variables, such as size, level of capitalization and credit insolvency of financial institutions, on a proxy of risk taking behavior such as the banking ‘‘stability inefficiency’’ derived simultaneously from the estimation of a stability stochastic frontier. The paper concludes that the inefficiency of financial stability is U-shaped relationship with respect to the measure of market concentration. Boosting market power increases bank failure in very concentrated markets while leads to higher financial stability in already competitive markets. Bank size is an essential factor in explaining this relationship as the effect of size on the inefficiency of stability is an inverse U-shaped as a function of the market share indicator; results also suggest that high, low and average concentration levels do not change the positive effects that the level of capitalization has on the stability inefficiency.
Wednesday, September 13, 2017
This one-day conference is co-organized by the Centre for Law, Economics and Society at UCL and the Global Competition Law Centre at the College of Europe, Bruges
The conference is convened by:
- Professor Ioannis Lianos, UCL
- Dr. Damien Gerard, College of Europe & Université Catholique de Louvain.
The conference will explore the “liminal conditions of modern competition law” (Lianos, 2017), in particular the various transformations that are taking place globally and may affect the direction of the competition law enterprise. Four transformations emerge as being particularly challenging for mainstream competition law doctrine. The conference will therefore be divided into four panels dealing with each of these areas:
- The political dimension of competition law: protectionism and populism, free trade and globalism
- The financialisation challenge: common and joint ownership
- Technological transformations and the emergence of a new competition law
- “Social” and “Green” capitalism: towards a social and green antitrust?
Confirmed speakers include:
- Jose Azar (IESE Business School, University of Navarra)
- Cristina Caffara (Charles River Associates)
- Dennis Davis (Competition Appeal Court of South Africa & University of Cape Town)
- Carles Esteva-Mosso (European Commission)
- Amelia Fletcher (FCA & University of East Anglia)
- Michal Gal (University of Haifa)
- Damien Geradin (Tilburg University & UCL)
- Damien Gerard (College of Europe & Université Catholique de Louvain)
- Herbert Hovenkamp (University of Pennsylvania Law School & Warton School of Business)
- Alexey Ivanov (HSE/Skolkovo Institute for Law and Development)
- Suzanne Kingston (University College Dublin)
- Ioannis Kokkoris (CCLS, Queen Mary University of London)
- Assimakis Komninos (White & Case & UCL)
- Kai-Uwe Kuhn (University of East Anglia)
- Ioannis Lianos (UCL)
- Guillaume Loriot (European Commission)
- Philip Lowe (FTI Consulting)
- Bjorn Lundqvist (Stockholm University)
- Barry Lynn (Open Markets)
- Oke Odudu (University of Cambridge)
- Sir Peter Roth (Competition Appeal Tribunal)
- Maarten Pieter Schinkel (University of Amsterdam)
- Maurice Stucke (University of Tennessee College of Law)
- Mike Walker (Competition and Markets Authority)
- Tim Wu (Columbia Law School)
You can register here.
Jill R. Horwitz ; Charleen Hsuan ; and Austin Nichols study The Role of Hospital and Market Characteristics in Invasive Cardiac Service Diffusion.
ABSTRACT: Little is known about how the adoption and diffusion of medical innovation is related to and influenced by market characteristics such as competition. The particular complications involved in investigating these relationships in the health care sector may explain the dearth of research. We examine diagnostic angiography, percutaneous coronary interventions (PCI), and coronary artery bypass grafting (CABG), three invasive cardiac services. We document the relationship between the adoption by hospitals of these three invasive cardiac services and the characteristics of hospitals, their markets, and the interactions among them, from 1996-2014. The results show that the probability of hospitals adopting a new cardiac service depends on competition in two distinct ways: 1) hospitals are substantially more likely to adopt an invasive cardiac service if competitor hospitals also adopt new services; 2) hospitals are less likely to adopt a new service if a larger fraction of the nearby population already has geographic access to the service at a nearby hospital. The first effect is stronger, leading to the net effect of hospitals duplicating access rather than expanding access to care. In addition, for-profit hospitals are considerably more likely to adopt these cardiac services than either nonprofit or government-owned hospitals. Nonprofit hospitals in high for-profit markets are also more likely to adopt them relative to other nonprofits. These results suggest that factors other than medical need, such as a medical arms race, partially explain technological adoption.
tellenbosch University (South Africa) and Justus-Liebig-University (Germany) invite you to contribute to a symposium on imperfect forms of collusion that is going to be held on January 12 and 13, 2018, in Cape Town. The conference features prominent keynote speakers such as John Connor, William Kovacic, Kai-Uwe Kühn, Giancarlo Spagnolo, and others.
The topic Imperfect Forms of Collusion refers, for example, to information exchange and list price collusion that were elements of, for example, the European trucks cartel and whose economic assessment and appropriate legal treatment is far from clear. The symposium thus invites scholars from law, economics, criminology and related fields to contribute answers to the following non-exhaustive list of questions:
- Under what circumstances can agreements on list prices raise transaction prices even if the colluding firms are free to counteract the agreement by granting higher rebates?
- To what extent do list prices serve as reference points affecting sales managers’ behaviour even if perfectly rational agents would leave transaction prices constant despite the agreed-upon increase of list prices?
- Which incentive / remuneration / bonus schemes facilitate collusion?
- What is the likely effect of information exchange among competitors if they discuss the state of negotiations with common buyers without, however, agreeing on prices?
- How can the effect of information exchange on the delayed introduction of technical innovations be assessed? What harm results from such agreements? And how can the damage be quantified that emerges from an impairment of dynamic (rather than allocative) efficiency?
This list of questions is far from comprehensive but illustrates that the topic Imperfect Forms of Collusion concerns all agreements among competitors going beyond classical hardcore restrictions such as price fixing, customer allocation, or bid rigging. We also invite case studies illustrating collusive behaviour observed in practice and prosecuted by the authorities that deserves to be studied more intensely. This also concerns the question about the appropriate legal treatment of these forms of collusion, i.e., which imperfect forms of collusion should be banned per se, and which forms should be treated by a rule of reason? To what extent are, for example, the horizontal guidelines of EU competition law appropriate to deal with these Imperfect Forms of Collusion? Moreover, we especially welcome contributions from the behavioural sciences.
Besides providing a platform for a lively exchange of ideas, we also offer an opportunity to publish these contributions in a handbook on Imperfect Forms of Collusion. A similar volume that one of the organizers edited recently may give you an impression of how this new book may look like: Competition Law Compliance Programmes, J. Paha (ed.), Springer publishers (https://goo.gl/1dwV2C).
Submissions may take the form of either abstracts or completed papers. Applicants who wish to attend without presenting a paper must indicate their research interests, as they may be involved as discussants.
Send papers and abstracts to Prof Willem Boshoff: firstname.lastname@example.org
Deadline for submission: 29 October 2017
The target audience are researchers, academics and graduate students in related fields from, e.g., law, economics, business administration, criminology, sociology, and political sciences. Employees of competition authorities are invited to share their views, too. South African researchers from historically disadvantaged backgrounds are also encouraged to apply.
The conference will be hosted in Stellenbosch, situated in the Cape Winelands to the north of Cape Town, at the Stellenbosch Institute for Advanced Study (STIAS).
Registration and Financial support
You may register for the conference by sending an email to Rossouw van Jaarsveld (email@example.com). The participation fee of 3000 ZAR covers the conference material and all meals. The fee may be reduced for, e.g., PhD-students. For questions about financial support or workshop arrangements, please contact Mr. van Jaarsveld.
Prof Willem Boshoff (Department of Economics, Stellenbosch University)
PD. Dr. Johannes Paha (Justus-Liebig-University & Stellenbosch University)
Acting Assistant Attorney General Andrew Finch Delivers Remarks at Global Antitrust Enforcement Symposium
Christos Genakos; Tommaso Valletti; and Frank Verboven are Evaluating Market Consolidation in Mobile Communications.
ABSTRACT: We study the dual relationship between market structure and prices and between market structure and investment in mobile telecommunications. Using a uniquely constructed panel of mobile operators' prices and accounting information across 33 OECD countries between 2002 and 2014, we document that more concentrated markets lead to higher end user prices. Furthermore, they also lead to higher investment per mobile operator, though the impact on total investment is not conclusive. Our findings are not only relevant for the current consolidation wave in the telecommunications industry. More generally, they stress that competition and regulatory authorities should take seriously the potential trade-off between market power effects and efficiency gains stemming from agreements between firms.
Diego Escobari explores Airport, airline and departure time choice and substitution patterns: An empirical analysis.
ABSTRACT: This paper uses the random-coefficients logit methodology that controls for potential endogeneity of prices and allows for general substitution patterns to estimate various demand systems. The estimation takes advantage of an original ticket-level revealed preference data set on travels from the New York City area to Toronto that contains prices and characteristics of not only flight choices but also of all non-booked alternative flights. Consistent with having higher valuations, our results show that travelers buying closer to departure have a higher utility of flying. Moreover, consumers' heterogeneity decreases as the flight date nears. At the carrier level, we identify which carriers have more price-sensitive consumers and which carriers face greater competition. In addition, the results suggest that our multi-airport metropolitan area can be considered as a single market and that JFK and Newark are relatively closer substitutes. Overall, consumers are more willing to switch to alternative carriers than between airports or departure times.