Antitrust & Competition Policy Blog

More Common Ground for International Competition Law?

The 4th ASCOLA Conference
More Common Ground for International Competition Law?
June 16-17, 2009
George Washington University Law School
Washington, D.C.

Registration is free
 
Day 1: Tuesday, June 16

8.45 a.m. Welcome and Opening
Edward Swaine, Competition Law Center at George Washington University
Law School

9.00 a.m. PART I: Economic Foundations of Competition Law
Chair: Warren Grimes
How Consumer Choice is the Best Way to Model Competition Law
Robert Lande, University of Baltimore Law School
A Unified Theory of Competition and Consumer Protection Law: Consumer Choice
Neal Averitt, Federal Trade Commission
Goals of Competition Policy and the Role of Behavioral Economics
Maurice Stucke, University of Tennessee College of Law

10:30 – 11:30 a.m.: Coffee Break
Comments
Jonathan Baker, American University Law School
Wolfgang Kerber, University of Marburg
Discussion

12:30 p.m. Lunch

2:00 p.m. PART II: Institutional Hot Topics
Chair: N.N.
The Role of NGOs in the Development of Competition Law
Albert Foer, American Antitrust Institute
Developments in U.S. Enforcement
Stephen Calkins, Wayne State University Law School
Comments
Joël Monéger, Université de Paris-Dauphine
Discussion

3:15 – 3:45 p.m.: Coffee Break

3:45 p.m. PART III: International Antitrust
Chair: N.N.
Rethinking of Extraterritorial Application of Competition Law in Japan
Yoshizumi Tojo, Rikkyo University (Japan)
Regional Agreements as the Next Step in International Antitrust
Michal Gal, Haifa University
Comments
Clifford Jones, University of Florida Law School

Discussion
5:00 p.m. General Assembly (ASCOLA Members Only)

Day 1: Wednesday, June 17

9:00 a.m. PART IV: International Perspectives of Hot Topics
Chair: N.N.
The Anti-competitive Effect of Resale Price Maintenance
Marina Lao, Seton Hall University Law School
Australia’s criminalization of cartels: Should it be contagious?
Caron Beaton-Wells, University of Melbourne
Comments
Josef Bejček, Brno University (Czech Republic)

Discussion
10:30 – 11:30 a.m.: Coffee Break
A Comparative Look at the Control of State Enterprises in China
Deborah Healey, University of New South Wales
Competition in the Telecoms Sector in Africa
Philippe Brusick, Geneva
Comments and Discussion

1:00 p.m. Lunch
Lunch Speech
Diane P. Wood, Federal Judge at the Court of Appeals for the
7th Circuit; University of Chicago Law School

2:30 p.m. PART V: Abuse of Dominance and Monopolization
Chair: N.N.
Prospects for Narrowing the US-EC Gap on Dominant Firm Conduct
Andrew Gavil, Howard University School of Law
Abuse of Market Power in Related Markets
Thomas Eilmansberger, Salzburg University
Comments and Discussion

3:45 – 4:15 p.m.: Coffee Break

4:15 p.m. PART VI: Intellectual Property in Competition
Chair: N.N.
Patent Ambush Strategies and Article 82 EC Treaty
Andreas Fuchs, Osnabrück University
Reverse Payment in Patent Litigation Settlements
Rudolph J.R. Peritz, New York Law School
Comments
Josef Drexl, Max Planck Institute for Intellectual Property, Competition and Tax Law (Munich)
Discussion

5:45 p.m. Farewell
Josef Drexl, Chair of ASCOLA

Registrants should send inquiries to lduche@gwu.law.edu.

Intellectual Oligopoly: A Cautious Defense of Intellectual Oligopoly with Fringe Competition

Posted by D. Daniel Sokol

Mark Lemley (Stanford Law) challenges Michele Boldrin and David Levine in Intellectual Oligopoly: A Cautious Defense of Intellectual Oligopoly with Fringe Competition.

ABSTRACT: Michele Boldrin and David Levine offer a strong attack on intellectual property (IP), which they call “intellectual monopoly.” In their view, IP is not necessary to encourage invention or creation. Quite the contrary, they argue that we get innovation from competition, not monopoly. Further, because monopoly imposes well-recognized social costs, we are better off without it if it doesn’t in fact spur new innovation.

Boldrin and Levine make a plausible case on their own terms. Nonetheless, I think their terms are misleading. IP rights are rarely if ever “intellectual monopolies.” Most patents, to say nothing of most copyrights, create no economic rents. What this means is that we can’t assume that IP rights generally impose deadweight losses on society. They cause deviation from atomistic, perfect competition, but they don’t cause monopoly pricing. With a small number of exceptions, therefore, they don’t cause the social harms Boldrin and Levine correctly associate with monopoly pricing.

Antitrust and 'Free Movement' Risks of Expanding U.S. Professional Sports Leagues into Europe

Posted by D. Daniel Sokol

Marc Edelman, Rutgers School of Law-Camden and Brian Doyle, Seton Hall Law explain Antitrust and 'Free Movement' Risks of Expanding U.S. Professional Sports Leagues into Europe.

ABSTRACT: This article discusses the legal risks that would emerge if the National Basketball Association ("NBA") and National Football League ("NFL") decide to expand into Europe. Part I of this article explains the differences in operating structure between U.S. and European professional sports leagues. Part II discusses the differences in competition law between the United States and European Community. Part III explains why the legal status of age and education requirements (age/education requirements) is more favorable to professional sports leagues under U.S. law than under EC law. Part IV explains why the legal status of league drafts and reserve systems also might be more favorable to professional sports leagues under U.S. law.

Economic Effects of State Bans on Direct Manufacturer Sales to Car Buyers

Posted by D. Daniel Sokol

Gerald R. Bodisch (DOJ) examines the Economic Effects of State Bans on Direct Manufacturer Sales to Car Buyers.  I think that this is an important paper.  The reason that the franchise rules work the way they do is because of public choice concerns.  There are lots of local dealers (although the number will be shrinking soon thanks to GM and Chrysler bankruptcies) with lots of political power at the state level that make sure to protect themselves from competition.  Hopefully this paper will move the debate forward by shedding light on how laws can be changed to reflect pro-competitive concerns and to protect consumers from special interests that missuse government regulation for anti-competitive ends.  This is a must read for state legislators and consumer groups. 

ABSTRACT: State franchise laws prohibit auto manufacturers from making sales directly to consumers. This paper advocates eliminating state bans on direct manufacturer sales in order to provide automakers with an opportunity to reduce inventories and distribution costs by better matching production with consumer preferences.

Antitrust, Patents and Developing Nations

Posted by D. Daniel Sokol

John Barton (Stanford Law) writes on Antitrust, Patents and Developing Nations.

ABSTRACT: In the developed world, antitrust policy has traditionally been a foil to intellectual property (IP). There are now serious concerns that the world's IP system, including both rules created by national legislation and those created by international agreements, is stronger than is the economic interests of developing nations. A stronger antitrust law might be a valuable response.

This article, therefore, examines the actions that developing nations might take in the antitrust area, looking both at national legislation and at international analysis and explores how to pursue such approaches consistently with current law in the area. The article concentrates on patents but considers copyright law where that law affects technological innovation, as in the case of software. The article does not explore other areas of antitrust laws such as the general treatment of Intellectual Property rights, which noted the possible role of antitrust law but did not explore it in depth because antitrust law proved less relevant to the poorest nations than did the basic access issues explored in that analysis. Nor, except in passing, does the article consider compulsory licensing based on broad principles, such as those included in TRIPS Article 3I3 of the Doha Declaration.

The Article avoids emphasizing specific technical doctrines, emphasizing instead the various economic standards that permeate antitrust practices. It considers three important contexts: the response to a (generally foreign) monopolist, the response to a (generally primarily foreign) global oligopoly or cartel, and the management of relations between a major (generally foreign) firm and a local licensee.

Sports Leagues and the Rule of Reason: How to Assess Internal Venture Restraints

Posted by D. Daniel Sokol

James Keyte & Paul Eckles (both Skadden) address Sports Leagues and the Rule of Reason: How to Assess Internal Venture Restraints.

ABSTRACT: ...The question, then, is whether there is an alternative analytical framework the Court could adopt that could cut short or streamline these wasteful litigations but without a finding that sports leagues are a single entity? For many years, in addition to pressing its "single entity" defense, sports leagues have argued for a particular variant of the "ancillary restraints doctrine" that would find a League's internal decisions, rules, and practices are "ancillary" to the joint venture itself and, hence, reasonable as a matter of law.

As discussed below, the sports leagues have not had much success in the lower courts with this argument; moreover, the jurisprudence regarding the ancillary restraints doctrine in general has a muddled history and has largely been subsumed within the broader rule of reason. Professor Gary R. Roberts, who has been writing on this subject for decades, once framed the question this way: "The ultimate issue here is not whether leagues are single entities or a collection of independent firms; rather, it is whether or not the internal rules and decisions of leagues ought to be immune from case-by-case rule of reason review under section 1."

American Needle could provide the Supreme Court the opportunity to cut through that confusion over the rule of reason's application to sports leagues and adopt an analytical framework recognizing that legitimate joint ventures should have the discretion to run their businesses based on their own business judgment without being second-guessed by federal courts. For far too long, there has been a schism in the rule of reason framework as applied to sports leagues and other legitimate ventures. Thus, while certain types of restraints can be challenged without any economic analysis at all under the per se rule, there has been no analytic device at the other end of the spectrum to immunize from antitrust challenge under Section 1 the types of fundamental decisions that legitimate business collaborations must be allowed to make without continual second-guessing under the guise of Section 1.

Entry in the ADHD Drugs Market: Welfare Impact of Generics and Me-toos

Posted by D. Daniel Sokol

Farasat A.S. Bokhari (FSU - Econ) and Gary M. Fournier (FSU - Econ) explain Entry in the ADHD Drugs Market: Welfare Impact of Generics and Me-toos.

ABSTRACT: In this paper, we exploit a novel approach for instrumenting a differentiated products demand system for therapeutically equivalent drugs. Using unusually detailed sales data on psychostimulant drugs, used to treat Attention Decit Hyperactivity Disorder (ADHD), we are able to identify and measure substitution patterns across a range of drugs. We find that the demand for ADHD drugs is quite elastic and there are significant substitution possibilities among these drugs, both within the molecule and form, as well as across the segments. In addition, the first-time introduction of a generic drug shows large welfare gains due to expansion of the market to price sensitive consumers. Further, the welfare gains due to the introduction of me-too drugs vary by the novelty of the drug, and for significantly new varieties can be as large as those of the introduction of a generic. Our results bear policy implications for both, the speed with which new drugs are approved for marketing, as well as for actions among pharmaceutical firms that may delay the
entry of a generic drug.

Horizontal Mergers, Involuntary Unemployment, and Welfare

Posted by D. Daniel Sokol

Oliver Budzinski (Environmental and Business Economics - University of Southern Denmark) and Jürgen-Peter Kretschmer (Economic Policy Unit - Philipps-University of Marburg) analyze Horizontal Mergers, Involuntary Unemployment, and Welfare.

Standard welfare analysis of horizontal mergers usually refers to two effects: the anticompetitive market power effect reduces welfare by enabling firms to charge prices above marginal costs, whereas the procompetitive efficiency effect increases welfare by reducing the costs of production (synergies). However, demand-side effects of synergies are usually neglected. We introduce them into a standard oligopoly model of horizontal merger by assuming an (empirically supported) decrease in labour demand due to merger-specific synergies and derive welfare effects. We find that efficiency benefits from horizontal mergers are substantially decreased, if involuntary unemployment exists. However, in full employment economies, demand-side effects remain negligible. Eventually, policy conclusions for merger control are discussed

The world turn’d upside down

Posted by D. Daniel Sokol

Peter Freeman (Chairman, Competition Commission) delivered a speech The world turn’d upside down.

ABSTRACT: The line from which the title phrase is taken is from a ballad sung in protest against the abolition by Oliver Cromwell of Christmas festivities at the time of the English Civil War. We are not facing civil strife today, but we are facing economic strife on a scale not seen since the 1930s. In that sense, our world has indeed turned upside down.

This is a critical time for both competition policy and competition enforcement. These of course are different things, and we should be clear what we mean by them. Policy is the overall framework which provides the objectives and justification for what we do. Enforce-ment means the actions taken by authorities in pursuit of those objectives. I have always thought that the idea of ‘enforcing’ competition is rather heroic. Enforcing the law that prohibits infringements as in the case of Articles 81 and 82, yes; but in the CC’s case, with our job of investigating mergers and markets, as well as our regulatory role, we are better described as acting to maintain, restore or promote competition, depending on the circum-stances.

The Overcharge as a Measure for Antitrust Damages

Posted by D. Daniel Sokol

Martijn A. Han, University of Amsterdam - Amsterdam Center for Law & Economics, Maarten Pieter Schinkel, University of Amsterdam - Amsterdam Center for Law & Economics, and Jan Tuinstra, University of Amsterdam - Department of Quantitative Economics discuss The Overcharge as a Measure for Antitrust Damages.

ABSTRACT: Victims of antitrust violations can recover damages in court. Yet, the quantification of antitrust damages and to whom they accrue is often complex. An illegal price increase somewhere in the chain of production percolates through to the other layers in a sequence of partial pass-ons. The resulting reductions in sales and input demands lead to additional harm to downstream (in)direct purchasers and upstream suppliers to the cartel, respectively. Nevertheless, U.S. civil antitrust litigation is almost exclusively concerned with direct purchaser claims for (treble) damages calculated on the basis of the overcharge. Similar best practice rules are emerging in Europe. In this paper, we show that the direct purchaser overcharge bears no structural relation to the true harm inflicted by a cartel on all of its direct and indirect purchasers and sellers in the chain of production.

Alitalia—Government Interventionism, The Road to Recovery?

Posted by D. Daniel Sokol

Philippe Noguès (O'Melveny & Myers) & Giovanni Cifelli (O'Melveny & Myers) asks Alitalia—Government Interventionism, The Road to Recovery?

ABSTRACT: On December 3, 2008, the Italian competition authority (the “ICA”) authorized the merger between Compagnia Aerea Italiana (“CAI”), a new Italian company incorporated in order to acquire most of the passenger-related assets of Alitalia, and AirOne, the second largest Italian carrier. According to the decision, the transaction led to overlaps on 22 domestic and seven international routes where the combined entity would have a market share ranging from 50 to 100 percent. More importantly, the decision also outlined that the merged entity would be the only carrier to offer passenger air transport on numerous routes, including some of the most relevant routes in terms of traffic and revenue, whereas elsewhere the presence of competing operators, with a few exceptions, would be strongly reduced.

Confronted with that analysis—which concluded that a transaction would impede effective competition by creating dominant positions on several markets—many, if not all, competition regulators in the world would have either prohibited the transaction or approved it further to significant structural remedies in order to ensure that the consumer would not be harmed. In fact, quite the contrary happened in this case!

Antitrust/Competition Professors - Separated at Birth

Posted by D. Daniel Sokol

While waiting in the Athens airport on the way back from a conference, a colleague and I played the game of who antitrust professors look like.  Here is our list in alphabetical order (and please make suggestions in the comments section about additional names):

June 3 Update.  Based on email suggestions, I have included additional names.

Arianna Andreangeli (Liverpool Law) and   Eva Mendes

Darren Bush (Houston Law) and Philip Seymour Hoffman

Dan Crane (Michigan Law) and David Hyde Pierce

German Coloma (Universidad del CEMA - Econ) and Jason Statham 

Harry First (NYU Law) and Richard Schiff

Eleanor Fox (NYU Law) and Valerie Harper

Luke Froeb (Vanderbilt - Management) and Tim Daley

Andy Gavil (Howard Law) and Richard Dreyfuss 

Damien Geradin (Tilburg - Law) and Keifer Sutherland

Herb Hovenkamp (Iowa Law) and Obi Won Kenobi

Valentine Korah (UCL Law) and Judy Dench 

Bill Kovacic (GW Law and FTC) and  Kris Kristofferson 

Thom Lambert (Missouri Law) and Lady Gaga

John Lopatka (Penn State Law) and Frank Langella

Bill Page (Florida Law) and Bill Gates   

Randy Picker (Chicago Law) and Kelsey Grammer

Daniel Sokol (Florida Law) and Steve from Blues Clues

Florian Wagner-von Papp (UCL Law) and  Elijah Wood

Spencer Waller (Chicago Loyola Law) and Roberto Benigni

 Phil Weiser (Colorado Law) and  Jonathan Silverman

Josh Wright (George Mason Law) and Michael Rapaport

Avoidance and Denial of Liability for Cartel Offences: Proactive Lawful Escape Routes Left Open by the Cartel Legislation

Posted by D. Daniel Sokol

Brent Fisse (Melbourne Law) discusses Avoidance and Denial of Liability for Cartel Offences: Proactive Lawful Escape Routes Left Open by the Cartel Legislation.  Download Fisse_Avoidance_&_Denial_of_Liability_for_Cartel_Offences

ABSTRACT: Cartel litigation and cartel investigation are likely to be shaped to a significant extent by what corporations and managers do proactively in response to the threat of criminal sanctions, civil penalties and liability for damages. It would be a mistake to assume that the prime targets of the new cartel legislation1 – those competitors who cause multi-million dollar losses to consumer welfare by co-ordinating their conduct instead of competing against each other – will be sitting ducks waiting to be shot.

The new cartel offences and civil penalty prohibitions are intended to electrify the deterrence of cartel conduct. However, discussion of the implications for corporate and individual behaviour has been superficial and not always realistic. It is entirely possible that a direct effect will be to induce the more widespread use of anti-competitive methods of doing business that do not involve breaking the law. Corporations and their advisers are adept at managing the law in ways they believe will achieve their perceived interests as distinct from the interests of legislators and enforcement agencies.2 This paper outlines some of the avenues open to corporations and their managers to avoid or deny liability by revising their liability control strategies and doing some re-engineering or personal training to implement those strategies.

Many lawful escape routes are open to those in the corporate sector who do not share the noble aspirations of those responsible for Australian anti-cartel laws. The escape routes are not riskfree
but some conceivably can be made to work.

Asia-Pacific Antitrust Review 2009

Posted by D. Daniel Sokol

The Global Competition Review has published the The Asia-Pacific Antitrust Review.

• Introduction
  1. Introduction
     Graeme Samuel - Chairman of the Australian Competition and Consumer Commission
• Overviews
  1. Overview: Cartels
     Paul Schoff, Andrew Matthews - Minter Ellison
  2. Overview: International Competition
     Peter Camesasca, Dimitri Nionakis, Marc Reysen, David Stewart - Howrey LLP
  3. Overview: Merger Control
     David A Higbee - Hunton & Williams LLP
• Country Chapters
  1. Australia: Overview
     Peter Armitage, Wolfgang Hellmann - Blake Dawson
  2. Canada: Cartels
     Jim Dinning, Mark Katz - Davies Ward Phillips & Vineberg LLP
  3. Canada: Merger Control
     Susan M Hutton - Stikeman Elliott LLP
  4. China: Antimonopoly Law
     Nathan Bush - O'Melveny & Myers LLP
  5. China: Merger Control
     Peter J Wang, Yizhe Zhang - Jones Day
  6. Hong Kong: Overview
     Christy Baker, Connie Carnabuci, Margaret Wang - Freshfields Bruckhaus Deringer
  7. India: Overview
     Suchitra Chitale - Chitale & Chitale Partners
  8. Indonesia: Overview
     James Donoghue, Toby Grainger - Soebagjo, Jatim, Djarot in association with Blake Dawson
  9. Japan: Merger Control
     Shigeyoshi Ezaki, Etsuko Hara, Vassili Moussis - Anderson Mori & Tomotsune
  10. Korea: Overview
      Kyung-Taek Jung, Donghoon Yi - Kim & Chang
  11. Korea: Abuse of Dominance
      Karen Yookyung Choi, Min-Ho Lee - Shin & Kim
  12. Korea: Merger Control
      Yong Seok Ahn, Yu Jin Kim - Lee & Ko
  13. Papua New Guinea: Overview
      Peter Armitage, Wolfgang Hellmann - Blake Dawson

A Plea for Greater Antitrust Transparency

Posted by D. Daniel Sokol

Comments over breakfast one morning last week at a great antitrust conference in Santorini organized by Ioannis Lianos and UCL got me thinking about the lack of transparency among antitrust practitioners and academics -- at least in the United States though I suspect elsewhere as well.  Oftentimes, academics and private practitioners (many with former agency experience) are asked to present at various hearings and workshops because of their expertise on a topic.  Oftentimes they include written submissions along with their oral testimony.  It is very rare that such practitioners and academics include who has paid for their testimony.

Going forward, I hope that DOJ and FTC begin the introduction to every speaker with the following question. "Have you or will you be billing a client for work in connection with this testimony and if so, who is it?"

Similarly for law reviews and peer review journals, I hope that going forward they mandate disclosure the way that the Antitrust Law Journal does for these purposes.

The unfulfilled promise of New Zealand’s monopolisation law: Sources, symptoms and solutions

Posted by D. Daniel Sokol

Rex Ahdar (Law, University of Otago) has an interesting piece on The unfulfilled promise of New Zealand’s monopolisation law: Sources, symptoms and solutions. Download Monopolization.CCLJ

ABSTRACT: New Zealand’s monopolisation prohibition — s 36 of the Commerce Act 1986 — is not an effective weapon in the antitrust armoury. Proving a violation of s 36 is most difficult as the paucity of successful cases illustrates. Based on a laudable concern that efficient, innovative conduct might be curtailed, the New Zealand courts have overcompensated by promulgating a strict counterfactual test for ‘taking advantage of’ that thwarts effective prosecution of monopolising conduct. This article traces the reasons for this unduly lenient approach and puts forward several suggested solutions — including a multi-stage, burden-shifting, composite test — aimed at reviving s 36 as an effective enforcement tool against single-firm conduct that curtails effective competition.

ICN 8th Annual Conference

Posted by D. Daniel Sokol

The annual conference is this week.  Movers and shakers from around the world will gather in Zurich.

AGENDA

Tuesday, June 2, 2009

09:00 - 16:30

Competition Principles under Threat
Pre-ICN Competition and Development Forum
Co-sponsored by IDRC and the Swiss Competition Commission
Side Entrance, Kongresshaus Zurich

16:30 - 20:30

Registration to the ICN Conference
Main Entrance, Kongresshaus Zurich

19:00 - 21:00

Welcome Reception
Hosted by the Chairman of the Swiss Competition Commission and
co-sponsored by the International Chamber of Commerce
At Festsaal, Kaufleuten, Zurich

Wednesday, June 3, 2009

08:00 - 08:30

Registration and Welcome Coffee
Main Entrance, Kongresshaus Zurich

08:30 - 08:35

Opening of the Conference
Walter A. Stoffel, Chairman, Swiss Competition Commision
Plenary, Kongresshaus Zurich

08:35 - 09:30

Welcoming Addresses
Plenary, Kongresshaus Zurich Doris Leuthard, Head, Federal Department of Economic Affairs / Federal Councilor
Regine Aeppli, President, Government of the Canton of Zurich
David Lewis, Interim Chair, Steering Group, International Competition Network
Walter A. Stoffel, Chairman, Swiss Competition Commision

09:30 - 11:00

Advocacy Working Group, Plenary Session
Plenary, Kongresshaus Zurich

Moderator:

John Fingleton, CEO, U.K. Office of Fair Trading

09:30 - 10:20

Market Studies Subgroup: Reviewing experience and learning for the future
Market Studies Showcase

Moderators:	René Jansen, Board Member, Netherlands Competition Authority
	David Miller, Executive Director, Jamaica Fair Trading Commission
	Kim Sparlund, Deputy Director General, Danish Competition Authority

Panel Discussion

Panelists:	Melanie L. Aitken, Interim Commissioner of Competition, Competition Bureau Canada
	Thula Kaira, Executive Director, Zambia Competition Commission
	Dhanendra Kumar, Chairman, Competition Commission of India
	Anne Perrot, Vice-Chair, Autorité de la Concurrence, France

10:20 - 11:00

Competition Advocacy Review and Update Subgroup

Panelists:	Eduardo Pérez Motta, President, Federal Competition Commission, Mexico
	HackHyun Kim, Director General, Korea Fair Trade Commission
	David Anderson, Partner, Berwin Leighton Paisner LLP, Brussels
	Vladimir Kachalin, Advisor to the Chairman, Federal Antimonopoly Service of Russia

11:00 - 11:30

Coffee/Tea Break
Networking, Coffee Break & Lunch, Kongresshaus Zurich

11:30 - 12:15

Advocacy Working Group, Breakout Session (6 sessions)
Session 1: Institutional directions of competition advocacy
Working Group Room 1, Kongresshaus Zurich

Moderator:	Małgorzata Krasnodębska-Tomkiel, President, Office of Competition and Consumer Protection, Poland
Resource Persons:	Nancy Olson, Attorney, U.S. Department of Justice
	Mirna Pavletic Zupic, Member, Croatian Competition Council

Session 2: Sectoral dimension of competition advocacy
Working Group Room 2, Kongresshaus Zurich

Moderator:	Markus Lange, Head, Bundeskartellamt, Germany
Resource Persons:	Shuichi Sugahisa, Director, Japan Fair Trade Commission
	Nigel Caesar, Competition Law Officer, Competition Bureau Canada
	Clara Guzman, Director, National Competition Commission, Spain

Session 3: Competition advocacy: ICN Members experience and recommendations for further ICN work
Working Group Room 3, Kongresshaus Zurich

Moderator:	Andrea Appella, Director, U.K. Office of Fair Trading
Resource Persons:	Maria Coppola Tineo, Counsel, U.S. Federal Trade Commission
	Duane Schippers, Deputy Commissioner, Competition Bureau Canada

Session 4: Market Studies: Definition, Purpose and Powers
Working Group Room 4, Kongresshaus Zurich

Moderator:	René Jansen, Board Member, Netherlands Competition Authority
Resource Person:	Hannah Priest, Attorney, U.K. Office of Fair Trading

Session 5: Market Studies: Process
Working Group Room 5, Kongresshaus Zurich

Moderator:	Philip Lowe, Director General, European Commission, DG Competition
Resource Person:	Graham Winton, Director, U.K. Office of Fair Trading

Session 6: Market Studies: Evaluation
Working Group Room 6, Kongresshaus Zurich

Moderator:	Declan Purcell, Member and Director, Irish Competition Authority
Resource Person:	Gianluca Sepe, Senior Lawyer, Italian Competition Authority

12:15 - 13:30

Lunch
Networking, Coffee Break & Lunch, Kongresshaus Zurich

13:30 - 14:45

Merger Working Group, Plenary Session
Plenary, Kongresshaus Zurich

13:30 - 13:45

Remarks on Recommended Practices for Merger Analysis
J. Robert Kramer II, Director, U.S. Department of Justice

13:45 - 14:45

Panel: Merger Analysis in Troubled Times

Moderator:	Christine A. Varney, Assistant Attorney General, U.S. Department of Justice
Panelists:	Ali İhsan Çağlayan, Acting Director, Turkish Competition Authority
	Nadia Calviño, Deputy Director General, European Commission, DG Competition
	Yuji Kimura, Chief Investigator, Japan Fair Trade Commission
	Alastair Mordaunt, Director, U.K. Office of Fair Trading
	Stanley Wong, Member and Director, Irish Competition Authority

14:45 - 15:45

Merger Working Group, Breakout Session (6 sessions)
Session 1: Merger Analysis in Troubled Times and new Merger Analysis RPs
Working Group Room 1, Kongresshaus Zurich

Moderators:	Michele Pacillo, Economist, Irish Competition Authority
	Adam Fanaki, Acting Senior Deputy Commissioner of Competition, Competition Bureau Canada
	Mateusz Blachucki, Chief Expert, Office of Competition and Consumer Protection, Poland
Resource Person:	Ted Henneberry, Orrick, Herrington & Sutcliffe LLP, USA

Session 2: Merger Analysis in Troubled Times and new Merger Analysis RPs
Working Group Room 2, Kongresshaus Zurich

Moderators:	Kai Hooghoff, Lawyer, Bundeskartellamt, Germany
	Nadine Mouy, Deputy General, Autorité de la Concurrence, France
Resource Persons:	Randall Hofley, Stikeman Elliott LLP, Canada
	John Taladay, Howrey LLP, USA

Session 3: Merger Analysis in Troubled Times and new Merger Analysis RPs
Working Group Room 3, Kongresshaus Zurich

Moderators:	Peter Freeman, Chairman, U.K. Competition Commission
	Eric Tu, International Affairs Officer, Taiwan Fair Trade Commission
	Nancy Olson, Attorney, U.S. Department of Justice
Resource Person:	Jérôme Philippe, Freshfields Bruckhaus Deringer, France

Session 4: Merger Analysis in Troubled Times and new Merger Analysis RPs
Working Group Room 4, Kongresshaus Zurich

Moderators:	J. Robert Kramer II, Director, U.S. Department of Justice
	Olavo Chinaglia, Commissioner, Administrative Council for Economic Defence, Brazil
Resource Person:	Paul Gorecki, Economic & Social Research Council, Ireland

Session 5: Notification & Procedures
Working Group Room 5, Kongresshaus Zurich

Moderators:	Cynthia Lewis Lagdameo, Counsel, U.S. Federal Trade Commission
	Paul O'Brien, Attorney, U.S. Department of Justice
Resource Persons:	Juergen Schindler, Allen & Overy
	Dave Poddar, Mallesons Stephen Jaques
	Omar Wakil, Torys LLP

Session 6: Notification & Procedures
Working Group Room 6, Kongresshaus Zurich

Moderators:	Tim Grimwade, Executive General Manager, Mergers Group, Australian Competition & Consumer Commission
	Daniela Trampert-Paparella, Case Handler, Austrian Competition Authority
Resource Persons:	Robert Schlossberg, Freshfields Bruckhaus Deringer
	Hendrik Bourgeois, General Electric

15:45 - 16:15

Coffee/Tea Break
Networking, Coffee Break & Lunch, Kongresshaus Zurich

16:15 - 18:00

Special Project (Competition Law in Small Economies), Plenary Session
Plenary, Kongresshaus Zurich

Moderator:	Walter A. Stoffel, Chairman, Swiss Competition Commission
Panelists:	Ronit Kan, Director General, Israel Antitrust Agency
	Charles Webb, Executive Director, Jersey Competition Regulatory Authority
	Philip Marsden, Director, British Institute of International and Comparative Law
	Michal Gal, University of Haifa, NYU Center for Law and Business
	Alberto Heimler, Advisor, Italian Competition Authority

18:00 - 20:30

Standing Reception
Hosted by the Swiss Competition Commission and the City of Zurich &
the Canton of Zurich, co-sponsored by the Studienvereinigung Kartellrecht
At Lake Side, Zurich

Thursday, June 4, 2009

08:30 - 09:00

Coffee/Tea Break
Networking, Coffee Break & Lunch, Kongresshaus Zurich

09:00 - 10:00

Cartel Working Group, Plenary Session

09:00 - 09:30

Cartel Subgroup 1: Transitioning from an Administrative to a Criminal Regime
Plenary, Kongresshaus Zurich

Moderator:	Scott D. Hammond, Deputy Assistant Attorney General, U.S. Department of Justice
Panelists:	Ana Paula Martinez, Director, Secretariat of Economic Law of the Ministry of Justice, Brazil
	Graeme Samuel, Chairman, Australian Competition and Consumer Commission

09:30 - 10:00

Cartel Subgroup 2: Investigative Techniques
Plenary, Kongresshaus Zurich

Moderator:	John Pecman, Acting Senior Deputy Commissioner of Competition, Competition Bureau Canada
Panelists:	Kirtikumar Mehta, Principal Advisor, European Commission, DG Competition
	Monique van Oers, Director, Netherlands Competition Authority
	Simon Williams, Senior Director, U.K. Office of Fair Trading

10:00 - 11:15

Cartel Working Group, Breakout Session (6 sessions)
Subgroup 1, Session 1: Transitioning to Criminal Sanctions
Working Group Room 1, Kongresshaus Zurich

Moderators:	Scott D. Hammond, Deputy Assistant Attorney General, U.S. Department of Justice
	Ana Paula Martinez, Director, Secretariat of Economic Law of the Ministry of Justice, Brazil
	Andrew Christopher, Baker & McKenzie

Subgroup 1, Session 2: Transitioning to Criminal Sanctions
Working Group Room 2, Kongresshaus Zurich

Moderators:	Bruno Lasserre, President, Autorité de la Concurrence, France
	Simon Williams, Senior Director, U.K. Office of Fair Trading
	Elizabeth Farina, Law and Economics Consulting Group

Subgroup 1, Session 3: Transitioning to Criminal Sanctions
Working Group Room 3, Kongresshaus Zurich

Moderators:	Graeme Samuel, Chairman, Australian Competition and Consumer Commission
	Eduardo Pérez Motta, President, Federal Competiton Commission, Mexico
	Mario Siragusa, Partner, Cleary Gottlieb

Subgroup 2, Session 1: Leniency: Maximising Incentives for Reporting and Cooperation
Working Group Room 4, Kongresshaus Zurich

Moderators:	Randal T. Hughes, Partner, McCarthy Tétrault
	Toshiyuki Nambu, Director, Japan Fair Trade Commission
	Mark Pearson, Executive General Manager, Australian Competition and Consumer Commission
	Gianluca Sepe, Senior Lawyser, Italian Competition Authority

Subgroup 2, Session 2: International Cooperation and the Cooperation of Searches
Working Group Room 5, Kongresshaus Zurich

Moderators:	Sabrina Carron-Roth, Senior Legal Advisor, Swiss Competition Commission
	John Pecman, Acting Senior Deputy Commissioner of Competition, Competition Bureau Canada
	Gary Spratling, Gibson, Dunn & Crutcher
	Peter Szolnoky, Section Head, Hungarian Competition Authority

Subgroup 2, Session 3: Investigative Tool Boxes in Criminal and Civil Regimes: Ways to Optimise Detection
Working Group Room 6, Kongresshaus Zurich

Moderators:	Olivier Guersent, Director, European Commission, DC Competition
	Pieter Kalbfleisch, Chairman, Netherlands Competition Authority
	Monique van Oers, Director, Netherlands Competition Authority

11:15 - 11:45

Coffee/Tea Break
Networking, Coffee Break & Lunch, Kongresshaus Zurich

11:45 - 12:45

Unilateral Conduct Working Group, Plenary Session
Distinguishing Pro From Anticompetitive Conduct: The Fine Line Between Aggressive Competition and Anticompetitive Foreclosure in Tying and Discounting Cases
Plenary, Kongresshaus Zurich

11:45 - 11:50

Introductory Remarks
Jon Leibowitz, Chairman, U.S. Federal Trade Commission

11:50 - 12:45

Panel Discussion

Moderator:	Markus Lange, Section Head, Bundeskartellamt, Germany
Panelists:	Damien Neven, Chief Economist, European Commission, DG Competition
	Shlomi Parizat, Chief Economist, Israel Antitrust Authority
	Simon Roberts, Chief Economist, South Africa Competition Commission
	Renata Hesse, Wilson Sonsini Goodrich & Rosati
	Jorge Padilla, Law and Economics Consulting Group

12:45 - 13:45

Lunch
Networking, Coffee Break & Lunch, Kongresshaus Zurich

13:45 - 15:00

Unilateral Conduct Working Group, Breakout Session (6 sessions)
Session 1:
Working Group Room 1, Kongresshaus Zurich

Moderator:	Richie Hutton, New Zealand Commerce Commission
Resource Person:	Kai Hooghoff, Legal Adviser, Bundeskartellamt, Germany

Session 2:
Working Group Room 2, Kongresshaus Zurich

Moderator:	Deborah Platt Majoras, General Counsel, The Procter & Gamble Company
Resource Persons:	Ernst Ferdinandusse, Principal Administrator, European Commission
	Stephanie Yon, International Adviser, Autorité de la Concurrence, France

Session 3:
Working Group Room 3, Kongresshaus Zurich

Moderator:	Gianluca Sepe, Senior Lawyser, Italian Competition Authority
Resource Persons:	Charles Webb, Executive Director, Jersey Competition Regulatory Authority
	Michael Blechman, Kaye Scholer, LLP

Session 4:
Working Group Room 4, Kongresshaus Zurich

Moderator:	Anne Purcell White, Assistant Chief, U.S. Department of Justice
Resource Persons:	Frank Montag, Freshfields Bruckhaus Deringer
	Paolo Palmigiano, BT Group plc

Session 5:
Working Group Room 5, Kongresshaus Zurich

Moderator:	Shuichi Sugahisa, Director, Japan Fair Trade Commission
Resource Persons:	Alden Abbott, Associate Director, U.S. Federal Trade Commission
	Marcel Meinhardt, Lenz & Staehelin

Session 6:
Working Group Room 6, Kongresshaus Zurich

Moderator:	Justus Haucap, University of Erlangen-Nuremberg
Resource Persons:	Martine Dagenais, Assistant Deputy Commissioner, Competition Bureau Canada
	Eleanor M. Fox, New York University School of Law

15:00 - 16:00

Competition Policy Implementation Working Group, Plenary Session

15:00 - 15:50

CPI Subgroup 1
Plenary, Kongresshaus Zurich

Moderator:	Olavo Chinaglia, Commissioner, Administrative Council for Economic Defence, Brazil
Panelists	Philip Lowe, Director General, European Commission, DG Competition
	Maria Coppola Tineo, Counsel, U.S. Federal Trade Commission
	Barış Ekdi, Competition Expert, Turkish Competition Authority

15:50 - 16:00

CPI Subgroup 2
Plenary, Kongresshaus Zurich

Speaker:

Russell Damtoft, Associate Director, U.S. Federal Trade Commission

16:00 - 16:25

Coffee/Tea Break
Networking, Coffee Break & Lunch, Kongresshaus Zurich

16:25 - 17:45

Competition Policy Implementation Working Group, Breakout Session (5 sessions)
CPI Subgroup 1, Session 1: Institutional Setting
Working Group Room 1, Kongresshaus Zurich

Moderator:	Jungwon Song, Section Head, Korean Fair Trade Commission
Resource Persons:	Fabien Zivy, Head of Staff of the President, Autorité de la Concurrence, France
	Shan Ramburuth, Commissioner, South African Competition Commission

CPI Subgroup 1, Session 2: Compliance with remedies and sanctions – design, monitoring compliance and enforcement of decisions
Working Group Room 2, Kongresshaus Zurich

Moderator:	William Kovacic, Commissioner, U.S. Federal Trade Commission
Resource Persons:	Carlos Esteva Mosso, Acting Director, European Commission, DC Competition
	Tsutomu Nakato, Hibiya Sogo Law Office, Japan

CPI Subgroup 1, Session 3: Ex-post evaluation – macro evaluation – broad evaluation; impact in consumers; what are the benefits the agencies’ decision give to society (assessment)
Working Group Room 3, Kongresshaus Zurich

Moderator:	Barış Ekdi, Competition Expert, Turkish Competition Authority
Resource Persons:	Celina Escolan, President, El Salvador Superintendency of Competition
	John Fingleton, CEO, U.K. Office of Fair Trading
	Kazuhiko Takeshima, Chairman, Japan Fair Trade Commission

CPI Subgroup 2, Session 1: The assessment of technical assistance needs of developing agencies
Working Group Room 5, Kongresshaus Zurich

Moderator:	Joszef Sarai, Section Head, Hungarian Competition Authority
Resource Persons:	Vladimir Kachelin, Assistant to the Head, Federal Antimonopoly Service of the Russian Federation
	Hilary Jennings, Organization for Economic Cooperation and Development
	George Lipmile, United Nations Commission on Trade and Development

CPI Subgroup 2, Session 2: ICN experience-sharing in cyberspace: the on-line discussion forum
Working Group Room 6, Kongresshaus Zurich

Moderator:	Mariana Tavares, Section Head, Portuguese Competition Authority
Resource Persons:	Kenneth Smith Ramos, Director General, Federal Competition Commission, Mexico
	Russel Damtoft, Associate Director, U.S. Federal Trade Commission
	Eleanor M. Fox, New York University School of Law

17:45 - 18:00

Confirmation of ICN Steering Group: 2009-2011 (ICN members only)
Plenary, Kongresshaus Zurich

18:00 - 23:00

Dinner on the Mountain (ICN conference attendees and companions)
Hosted by the Swiss Competition Commission
At Uto Kulm, Zurich

Friday, June 5, 2009

08:30 - 09:00

Coffee/Tea Break
Networking, Coffee Break & Lunch, Kongresshaus Zurich

09:00 - 12:15

“Interactive ICN – Maximising Network Effects”
Panel and Plenary Sessions on Vice-Chairs’ present and future work and ideas for assisting and supporting member agencies
Plenary, Kongresshaus Zurich

09:00 - 10:45

“Interactive ICN – Maximising Network Effects”
Panel Discussion

Moderator:	Philip Collins, Chairman, U.K. Office of Fair Trading
Panelists:	William E. Kovacic, ICN Vice-Chair for Outreach; Commissioner, U.S. Federal Trade Commission
	Eduardo Pérez Motta, ICN Vice-Chair of International Coordination; President, Commission on Competition, Mexico
	Kazuhiko Takeshima, ICN Vice-Chair of Advocacy and Implementation; Chairman, Japan Fair Trade Commission
	Eleanor M. Fox, New York University School of Law
	Tommy Deza Sandoval, Legal Adviser, Sala de Defensa de la Competencia, Peru
	Chuan Leong Lam, Chairman, Competition Commission of Singapore
	David Miller, Executive Director, Jamaica Fair Trading Commission

10:45 - 11:15

Coffee/Tea Break
Networking, Coffee Break & Lunch, Kongresshaus Zurich

11:15 - 12:15

“Interactive ICN – Maximising Network Effects”
Plenary Session & Discussion, Continued
Plenary, Kongresshaus Zurich

12:15 - 13:15

Report Back, Adoption of Work and Future Work plans (including presentation from the Egyptian Competition Authority on 2009 Cartel workshop)
Plenary, Kongresshaus Zurich

13:15 - 13:45

Closing Ceremony
Plenary, Kongresshaus Zurich
Walter A. Stoffel, Chairman, Swiss Competition Commission
David Lewis, Interim Chair, Steering Group, International Competition
Fevzi Özkan, Vice President, Turkish Competition Authority

13:45 - 14:45

Lunch
Networking, Coffee Break & Lunch, Kongresshaus Zurich

15:00 - 18:00

Sightseeing Tour Zurich (ICN conference attendees and companions; limited Registration)
Main Entrance, Kongresshaus Zurich

Assessing the Antitrust Case Against the Bowl Championship Series

Posted by D. Daniel Sokol

Andrew Zimbalist (Smith College - Econ) writes on Assessing the Antitrust Case Against the Bowl Championship Series.

ABSTRACT: In an uncertain world, one predictable event is that the Bowl Championship Series (“BCS”) perennially engenders widespread skepticism and strident criticism. In 2008-09, Florida (13-1) beat Oklahoma (12-2) to win the putative college football national championship. No one disputes that Florida and Oklahoma were among the nation’s best teams, but Utah (13-0), USC (12-1), and Texas (12-1) all feel they deserved a shot at the title. Indeed, Texas even beat Oklahoma in a regular season game.

This year, the president of the United States is also weighing in. President Obama stated: “If I’m Utah, or if I’m USC or if I’m Texas, I might still have some quibbles. That’s why we need a playoff.”

In place since 1998, the BCS purports to determine the national champion in college football, while preserving the century-old system of postseason bowl games. To make its determination of which teams go to the championship game, the BCS employs the USA Today Coaches Poll, the Harris Interactive College Football Poll, and an average of six computer rankings...

Does the BCS violate U.S. antitrust laws and is it vulnerable to an antitrust challenge?

Economic Theory And Competition Law

Posted by D. Daniel Sokol

Recently out is Economic Theory And Competition Law, edited by Josef Drexl (Max Planck Institute). 

BOOK ABSTRACT: It is a fact that economics matters when it comes to competition law. Yet, the context for this book is the increasingly complex relationship of economic theory and competition law which gives rise to lively political and academic debate about the direction competition law should take in a more global and innovation-oriented market place. Adopting a comparative background, taking into account different situations in the US, Europe, Japan, transition and developing countries, the contributors to the book investigate the impact of economics on the objectives of competition law both in various fields of competition law enforcement – restrictive agreements, unilateral restraints, merger control – and on the effectiveness of enforcement in a given legal and judicial system.

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Contents: Preface Part I: The Goals of Competition Law – A Comparative Perspective Part II: The Status of Efficiency Analysis in Competition Law Part III: Economic Analysis and Competition Law in Practice Part IV: Guest Speech Index Contributors: M. Chagny, T. Eilmansberger, H.W. Friederiszick, M.-A. Frison-Roche, M.S. Gal, D.J. Gerber, T.L. Greaney, S. Hayashi, W. Kerber, B. Lasserre, A. Louvaris, G. Parr, A. Perrot, H. Schweitzer, L. Tichý, R. Zäch, D. Zimmer

Two-Sided Market Definition

Posted by D. Daniel Sokol

David S. Evans, University College, London, University of Chicago Law School, LECG explains Two-Sided Market Definition.

ABSTRACT: This paper addresses the analysis of market definition when the parties involved in an antitrust or merger analysis include one or more two-sided platforms. We discuss how standard market definition measures such as SSNIP tests, diversion ratios, and conditional logit demand analyses have to be modified to account for the unique characteristics of two-sided platforms. We also review how market definition of two- sided platforms was treated in recent US and EC case law.

Bidding Markets and Competition Law in the European Union and the United Kingdom

Posted by D. Daniel Sokol

Pal Szilagyi, Competition Law Research Centre, Hungary discusses Bidding Markets and Competition Law in the European Union and the United Kingdom.

ABSTRACT: The first part of a two part article on EC and UK case law on competition in bidding markets, examines EC case law. Discuss economic considerations, particularly auction types and models, the characteristics of ideal bidding markets (illustrated by a diagram) and the impact of collusion, entry deterrence and predatory behavior. Reviews European Commission and Court of First Instance case law on: (1) bidding procedure; (2) the number and frequency of tenders, and duration and value of contracts; (3) undertakings, competitors and market position; and (4) buyers and supply side substitutability.

The second part of a two part article on EC and UK case law on competition in bidding markets, examines Office of Fair Trading and Competition Commission decisions on: (1) the procedure, frequency and value of tenders; (2) undertakings, competitors and market position; and (3) buyers and supply side substitutability. Reflects on the characteristics of EC and UK practice described in the two parts.

Merger Action Group v. Secretary of State for Business, Enterprise and Regulatory Reform

Posted by D. Daniel Sokol

Helen Davies (Brick Court Chambers) & Richard Blakeley (Brick Court Chambers) describe Merger Action Group v. Secretary of State for Business, Enterprise and Regulatory Reform.

ABSTRACT: On December 10, 2008, the Competition Appeal Tribunal (“CAT”) handed down its judgment in Merger Action Group v Secretary of State for Business, Enterprise and Regulatory Reform [2008] CAT 36. The CAT decided: (i) that the Merger Action Group (“MAG”), an unincorporated association formed for the purposes of mounting this legal challenge and constituted of a handful of Scottish businessmen, was made up of “persons aggrieved” within the meaning of section 120(1) of the Enterprise Act 2002 (“the Act”) but (ii) that the substantive challenge to the Secretary of State’s decision not to refer the merger between Lloyds TSB Group plc (“Lloyds TSB”) and HBOS plc (“HBOS”) to the Competition Commission for investigation should fail.

The claim certainly proved to be dramatic in its execution, not least because MAG’s challenge to the Secretary of State’s decision was brought just hours before the statutory time limit was due to expire and time was undoubtedly of the essence to the prospects of the merger being successfully completed. Ultimately, however, save in two particular aspects on which we focus here, it proved to be unremarkable in its conclusion.

We first discuss the background to the merger and the claim by MAG, followed by the CAT’s substantive conclusion. We then turn to the two more interesting aspects of the CAT’s decision: that the members of MAG had standing to bring the application; and that the appropriate forum of the proceedings was Scotland.

The Role of Behavioural Economics in Consumer Protection and Competition Law

Posted by D. Daniel Sokol

The Role of Behavioural Economics in Consumer Protection and Competition Law

to be held on 3 June 2009 from 4.30 - 7.30, at UCL Law Faculty, London
accredited with 3 CPD hours by the Bar Standards Board and the Solicitors Regulation Authority

About this event:
Economists have long assumed that people are rational.  Such people know what they want and make decisions to maximize the utility from those preferences.  A new body of research from economists and psychologists investigates how people actually behave and questions the rationality hypothesis.  This new field—known as “behavioural economics”—increasingly spills over into the realm of policy.  If people make the wrong decisions because of in effect faulty wiring would they benefit from having the government fix this? That could come in the form of consumer protection policies such as giving people a reprieve from impulsive decisions to other policies such as requiring people to opt-out of certain decisions rather than opting in.  There are antitrust implications as well since in principle firms could use our faulty wiring to increase their market power.  This new field does not come without controversy.  Some question whether the results are exaggerated, whether such policies may unduly disadvantage consumers who are able to defend themselves in the market, and whether a theory in which consumer welfare is ill-defined can provide a good way to develop economic models or devise policy interventions. The Colloquium will delve into this new field, its implications, and its controversies.

Programme:

4.00	Registration
4.30	Welcome and Introduction to Behavioural Economics Professor David Evans, UCL / Jevons Professor Mark Armstrong, UCL (Economics)
	Panel discussion on the role of behavioural economics on competition and consumer protection enforcement
	Panelists: Miguel de la Mano Deputy Chief Economist, DG Comp, European Commission Amelia Fletcher Chief Economist, Office of Fair Trading  Alison Oldale Chief Economist, UK Competition Commission Eliana Garces-Tolon Member of Commissioner Cabinet, DG Sanco, European Commission Representative from the US Federal Trade Commission
	A judicial perspective:
	Judge Douglas Ginsburg US Court of Appeals for the District of Columbia Circuit Vivien Rose Chairman of the Competition Appeal Tribunal
7.30	Drinks and Canapes

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Date: Wednesday 3 June 2009
Time: 4 - 7.30pm
Accreditation: 2.5 CPD hours, Law Society and Bar Standards Board 

Venue: UCL Law Faculty, Bentham House, Endsleigh Gardens, London WC1H 0EG
nearest underground Euston Square and Euston

Accreditation: accredited with 3 CPD hours by the Bar Standards Board and the Solicitors Regulation Authority

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Queries: Please contact Lisa Penfold, Events Manager at UCL Law Faculty
email: lisa.penfold@ucl.ac.uk
phone: +44 (0)20 7679 1514 

Download a copy of the schedule for this event and a map of the venue location

Mergers, Innovation, and Productivity: Evidence from Japanese Manufacturing Firms

Posted by D. Daniel Sokol

Kaoru Hosono (Gakushuin University), Miho Takizawa (Toyo University), and Kotaro Tsuru (Research Institute of Economy, Trade and Industry) undertake a nice empirical study in Mergers, Innovation, and Productivity: Evidence from Japanese Manufacturing Firms.

ABSTRACT: We investigate the impact of merger on innovation and efficiency using a micro dataset of Japanese manufacturing firms including unlisted firms during the period of 1995-1999. We find that the acquirer's total factor productivity (TFP) decreases immediately after mergers and does not significantly recover to the pre-merger level within three years after mergers. We also find that the R&D intensity does not significantly change after mergers in spite of a significant increase in the debt-to-asset ratio. Our results suggest that the costs of business integration are large and persistent. To take into considering large integration costs, we also analyze the post-merger performance from one year after mergers, finding no significant increase in TFP or R&D intensity up to three years after mergers. Given the heterogeneity of mergers, we analyze the post-merger performance by classifying merger types. We find that the ! recovery of TFP after mergers is significant for mergers across industries or within the same business group, suggesting that a synergy effect works well and integration costs are small for those types of mergers.

Retail and Wholesale Market Power in Organic Foods

Posted by D. Daniel Sokol

Timothy J. Richards (ASU - School of Management and Agribusiness), Ram Acharya (New Mexico - Agricultural Economics), and Ignacio Molina (ASU - National Food and Agricultural Policy Project) undertake a study into Retail and Wholesale Market Power in Organic Foods.

ABSTRACT: The demand for organic fresh fruits and vegetable continues to grow at a rate far higher than the rest of the produce industry. The cost of meeting organic certification standards, however, has meant that supply has been slow to adjust. With limited supply, we hypothesize that organic suppliers enjoy more market power in bargaining over their share of the retail-production cost margin for fresh apples. We test this hypothesis using a random parameters, generalized extreme value demand model (mixed logit) combined with a structural model of retail and wholesale pricing that allows conduct to vary by product attributes (organic or non-organic) and time. We find that organic growers do indeed earn a larger share of the total margin than non-organic growers, but this vertical market power is eroding over time as market supply adjusts.

Efficiencies in Merger Analysis: Alchemy in the Age of Empiricism?

Posted by D. Daniel Sokol

Tim Greaney of Saint Louis University School of Law asks Efficiencies in Merger Analysis: Alchemy in the Age of Empiricism?

ABSTRACT: One is hard-pressed to find in law an undertaking more fraught with uncertainty than the application of the efficiencies defense in merger analysis. Generalist fact finders (judges) and politically-attuned government officials (prosecutors and regulators) are charged with two Herculean tasks: (1) predicting the outcome of organic changes in business enterprises and (2) comparing the magnitude of those changes to the equally uncertain amount of harm to future competition that the transaction will cause. Given the enormous, perhaps intractable, uncertainty of this inquiry, it is therefore paradoxical that many of the strongest advocates for strengthening the role of efficiencies analysis in merger reviews are self-described proponents of bringing a ?new empiricism? to antitrust analysis. This chapter focuses on the tensions inherent in incorporating an efficiencies defense (or evaluating efficiencies as part of the appraisal of mergers) and maintaining the rigour and impartiality promised by proponents of the ?empirical? approach. This argument should not be misconstrued as a brief for abandoning the efficiencies inquiry altogether. Rather, it is, first, an appeal for candour (and humility) by those undertaking the inquiry; and second, it is a brief for constraining discretion by imposing more clearly delineated presumptive rules of law on judges and insisting on greater transparency by agencies in deciding whether to challenge mergers.

Market Concentration and Business Survival in Static v Dynamic Industries

Posted by D. Daniel Sokol

Andrew Burke (Cranfield School of Management) and Aoife Hanley (Kiel Institute for the World Economy) have an interesting study on Market Concentration and Business Survival in Static v Dynamic Industries.

ABSTRACT: We propose that the effect of market concentration on firm survival is different according to whether an industry is static (low entry and exit) or dynamic. In our empirical analysis we find support for this hypothesis. Industry concentration rates reduce the survival of new plants but only in markets marked by low entry and exit rates. Specifically, a 10 percent increase in the 5-firm concentration ratio in a dynamic market raises the survival rate of new ventures by approximately 2 percent. Our results have implications for the antitrust/competition law indicating less need for regulation of dominant firms in dynamic industries characterized by high entry and exit rates. We use a unique dataset comprising the population of new ventures that enter the UK market in 1998

Influence of integration of Czech Republic into EU on form and protection of economic competition

Posted by D. Daniel Sokol

Pavlína Pellešová (University of Silesia-School of Business Administration) discusses the Influence of integration of Czech Republic into EU on form and protection of economic competition.

ABSTRACT: The article is focused on area of economic competition. The basic pre-requisite of economic competition is assuring of freedom of entrepreneurship, freedom of partners choice, possibility to enter in and secede from branches, functional value system which ensures transparency of market and informed ness of subjects. Policy of protection of economic competition is actively executed policy which contributes to maintenance of competitive environment, which eliminates obstacles that weaken competition. Within the frame of EU it is a coordinated policy. In Czech Republic economic competition is modified by economic competition law which is asserted by Board of protection of economic competition as central administrative authority. Authoress adverts to problems connected with protection of economic competition, e.g. in connection with verification of fusions, unfair competition, exploitation of dominating position in the market.

Supermarket Competition through Price Promotions: A Cross Category Analysis

Posted by D. Daniel Sokol

Richard James Volpe (UC Davis Ag Econ) examines Supermarket Competition through Price Promotions: A Cross Category Analysis.

ABSTRACT: This study takes an important first step at quantifying the nature of competition between major supermarket chains through price promotions. Using data that covers virtually the entire product menus of supermarkets representing two major chains in 18 cities, I examine both the effect of direct competition on promotional intensity and the nature of promotional competition itself. In a counterintuitive finding, there appears to slightly less promotional activity in cities in which both chains compete directly, as compared to cities in which only one chain operates. Moreover, most promotional activity tends to be retaliatory, rather than accommodating, in nature.This study takes an important first step at quantifying the nature of competition between major supermarket chains through price promotions. Using data that covers virtually the entire product menus of supermarkets representing two major chains in 18 cities, I examine both the effect of direct competition on promotional intensity and the nature of promotional competition itself. In a counterintuitive finding, there appears to slightly less promotional activity in cities in which both chains compete directly, as compared to cities in which only one chain operates. Moreover, most promotional activity tends to be retaliatory, rather than accommodating, in nature.

Merger Action Group v. Secretary of State for BERR: External Control of the Scottish Economy, Merger Control and the Scottish 'Ring-fence': the LloydsTSB/HBOS Merger

Posted by D. Daniel Sokol

Barry Rodger (University of Strathclyde Law School) has been doing some very interesting empirical work on private rights of action in the UK.  In a departure from that work, he takes on the issue of merger control and nationalism in the UK (think Braveheart but in an antitrust context) in Merger Action Group v. Secretary of State for BERR: External Control of the Scottish Economy, Merger Control and the Scottish 'Ring-fence': the LloydsTSB/HBOS Merger.

The recent merger between Lloyds/TSB and HBOS has again raised concerns regarding the increase in external control of Scottish companies and also demonstrates many facets of the merger control system in the United Kingdom which was revised by the Enterprise Act 2002. The legal context for consideration of the merger is the challenge to the merger approval process by a number of interested third parties based in Scotland, grouped together as the Merger Action Group, (“MAG”) before the Competition Appeal Tribunal (“CAT”).

However, this brief article will focus more on the economic and legal context in which the challenge arose rather than the outcome of the review proceedings, providing a particularly personal view of the merger and its potential impact on the Scottish economy.