More Common Ground for International Competition Law?

Cases in the intellectual property rights (IPR)–Competition Law intersection have raised the issue of costs of enforcement of IPRs when dealing with the assessment of whether competition law has been breached. Importantly, a systematic underestimation of enforcement costs may be problematic for the protection of underlying investments behind intellectual property as well as obstruct the cooperation between an IPR holder and its licensees, in particular as regards patent rights. Cases on reverse payments indicate that payments by a patent holder to a generic manufacturer under a settlement agreement may well be legitimate in order avoid enforcement costs while not restricting competition. The hard stance on no-challenge clauses and termination clauses under the technology transfer block exemption regulation (TTBER) can destabilize the relation between two parties that would benefit from increased certainty when cooperating to commercialize new technology. In cases regarding the failure of parties to agree on fair and reasonable and non-discriminatory-licensing of standard essential patents, a correct approach has probably been taken in Huawei. However, it is doubtful to what extent the judgment is based upon a balancing exercise that explicitly factors in enforcements cost. Accordingly, it is argued that the current framework of analysis of cases in the intersection is inadequate to proper assess enforcement costs of IPRs.

Recent works in legal scholarship have shifted the focus of competition law to the economic analysis of law. Yet today we face the revival of the fairness concerns in competition polices. This article concerns itself with the nature of the interdependent relationship between competition law and consumer protection law as ancillary to the necessary relationship between law and morality. Hereby it aims to revisit their raison d’être to discuss that fairness and equity do not lack economic foundations. For an efficient market structure, private property and good faith in contractual relations are essential. This article aims to scrutinise the latter, while showing its objective criteria: Honesty, trust and reasonableness, as the moral essence of competition and consumer protection laws. These criteria provide efficient means to address moral aspects of fairness in competition law as it is best illustrated within its relation to consumer protection without compromising their economic foundations. Keywords: competition law, consumer protection, fairness, good faith, honesty, trust

It is a well-established principle of EU competition law that parent companies can be fined for antitrust infringements by their subsidiaries. Under the new EU Directive on Antitrust Damages Actions, parent company liability is likely to be extended to private antitrust litigation. In the United States, in contrast, no fines are imposed on parent companies unless they are directly involved in an antitrust infringement. Moreover, US courts are reluctant to hold parent companies directly or indirectly liable in private damages suits. Against this background, I explore in this article the striking difference between EU and US competition law with regard to parent company liability. I show that one of the main purposes of holding parent companies liable in EU competition law is to solve an underdeterrence problem that occurs when subsidiaries lack sufficient assets to pay for fines or damages. I argue that the same function is fulfilled in US antitrust law by other enforcement instruments, in particular, the individual liability of managers and employees. On this basis, I conclude that primarily the existence of these functional substitutes explains why a need for parent company liability has not arisen in US antitrust law.

Part One Introduction 1 Introduction and Framework for Analysis I. Introduction II. General Approach to the Interrelationship between Competition and Public Procurement Law III. Aim of the Study IV. Structure of the Study and General Overview V. Methodology: An Eclectic and Heuristic Multi-Disciplinary and Functional Approach to EU Law VI. Normative Assumptions VII. Delimitation of the Study: Exclusions and Limitations Part Two Foundations and Principles: The Economic and Legal Basics of Public Procurement and Competition Law 2 An Economic Approach to Public Procurement and Competition I. Introduction II. Types of 'Public Procurement Markets' III. Economic Dimensions of Public Procurement IV. The Role of Public Authorities as Purchasing and Contracting Authorities V. Public Procurement as a Market Failure: Difficulties in Recreating a Competitive Scenario and Competition- Restricting Effects 60 VI. Conclusions to this Chapter 3 Basics of Competition and Public Procurement Regulation I. Introduction II. Principles Common to Competition and Public Procurement Law as Two Sets of Economic Regulation III. The Goal(s) of Competition Law IV. Goals of Public Procurement V. Conclusions to this Chapter: Common Goals of Competition Law and Public Procurement Conclusions to Part Two: Legal and Economic Normative Foundations of a More Competition-Oriented Public Procurement System Part Three General Part: The Building Blocks of a Framework for the Competition Analysis of Public Procurement 4 EU Competition Law and Public Procurement: The Inability of EU Competition Rules to Rein in Anti-Competitive Public Procurement I. Introduction II. The Inability of Rules on the Grant of State Aid and Special or Exclusive Rights to Tackle Anti-Competitive Public Procurement III. The Inapplicability of 'Core' EU Antitrust Rules to Public Procurement: A Jurisprudentially Created Gap in EU Competition Law IV. The Insufficiency of State Action Doctrine to Capture Most of the Anti-Competitive Public Procurement Regulations and Practices V. Preliminary Conclusions: The Insufficiency of Current Competition Institutions and Potential Improvements to Achieve Better Results VI. A Revision of Current Doctrine to Achieve Better Results (1): A More Economic Approach to the Concept of 'Economic Activity' in the Public Procurement Field VII. A Revision of Current Doctrine to Achieve Better Results (2): Setting the Proper Bounds to the State Action Doctrine VIII. Conclusions to this Chapter 5 The Principle of Competition Embedded in the EU Public Procurement Directives I. Introduction II. The Competition Principle Embedded in the pre-2014 EU Public Procurement Directives III. The Principle of Competition Consolidated in Article 18(1) of Directive 2014/24: A Critical Assessment of the Interpretative Difficulties it Creates IV. Implications of the Competition Principle for the Shaping of Public Procurement Rules by Member States: The General Obligation to Develop a Pro-Competitive Public Procurement Framework V. The Principle of Equal Treatment and the Principle of Competition Distinguished VI. Conclusions to this Chapter Part Four Analysis of Competition Distortions Caused by Public Procurement 6 A Critical Assessment of the 2014 EU Public Procurement Directives and the Existing Case Law from a Competition Perspective: Preventing Competitive Distortions by the Public Buyer I. Introduction II. A Competition Appraisal of Potential Distortions Derived from Public Procurement Processes III. Two Examples of Potential Distortions Derived from the Exercise of Public Entities' Market Power IV. Conclusions to this Chapter 7 Complementary Proposals for the Development of a More Competition-Oriented Public Procurement Framework I. Introduction II. Complementary Proposals Aimed at Limiting Publicly Created Restraints of Competition III. Complementary Proposals Aimed at Limiting Privately Created Restraints of Competition IV. Complementary Measures Aimed, in General, at Strengthening the Relationships between Competition and Procurement Authorities V. Conclusions to this Chapter Part V General Conclusions 8 Conclusions: Towards a More Competition-Oriented Procurement System References

This chapter will review competition policy and law (CPL) in ASEAN and provide some lessons for improving legal technical assistance (LTA) on CPL to ASEAN and intensifying intra-ASEAN cooperation in competition law enforcement. In 2021 Cambodia finally enacted its competition law and all ASEAN Member States have established respective competition law regimes. While they share various common features in the texts of the laws, the degree of implementation varies. The independence of competition authorities is one of the underlying causes of this difference and the lack of enforcement resources and expertise is crucial, particularly for CLMV Countries. The chapter will propose Japan Fair Trade Commission to extend LTA based on its experiences of the Antimonopoly Act enforcement for 75 years. Intra-ASEAN cooperation on CPL could support the efforts by young competition authorities in CLMV Countries to implement respective competition laws and coordinate enforcement activities to address anticompetitive mergers and other practices with regional dimension. In this context, the chapter will also examine the future developments of ASEAN-wide CPL, comparing with EU competition law and its institution.

Optimal Sequential Investigation Rules in Competition Law

The paper article contains a comparative analysis of the legal treatment of resale price maintenance (RPM) agreements. The comparative analysis is based on the US antitrust, EU competition, and Republic of Serbia competition laws. These agreements still cause numerous discussions among authors without a unique position about their practical application. The paper article also considers and presents the basic market effects these agreements could cause in practice. Based on comparative analysis and consideration of different approaches in their treatment, the conclusion is that a new flexible approach is needed to measure the effects of RPM agreements on the market in general, market participants, and consumers. Accordingly, the authors recommend improving competition law in the Republic of Serbia.

The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary, and illustrative diagrams and flowcharts. This chapter presents sample exam questions along with examiner’s tips, answer plans, and suggested answers about EU competition and merger law. The questions on competition law range from a general overview question, a question which surveys the basic concepts and requirements of Arts 101 and 102 TFEU and the Mergers Regulation, to questions concentrating on specific aspects of competition law including the procedure of competition law investigations and enforcement. The 2007 Lisbon Treaty made little substantive change to the competition law provisions, which can be found in Arts 101–106 of the amended TFEU. More significant is the Competition Regulation 1/2003 and the Merger Regulation, 139/2004, which is under revision for future reform or replacement.

Contents: Preface PART I: INTRODUCTION 1. Setting the Scene: The Scope and Limits of 'International Competition Law' Ariel Ezrachi PART II: FROM UNILATERAL ENFORCEMENT TO COOPERATION NETWORKS 2. Competition Law and Extraterritoriality Florian Wagner-von Papp 3. Competition Agency Networks Around the World Imelda Maher and Anestis Papadopoulos 4. Building Global Antitrust Standards: The ICN's Practicable Approach Hugh M. Hollman, William E. Kovacic and Andrew S. Robertson 5. 'Jaw-jaw' not 'Law-law' - from Treaties to Meetings: The Increasing Informality and Effectiveness of International Cooperation Philip Marsden 6. The Role of NGOs in Competition Law Enforcement Pradeep S. Mehta, Udai S. Mehta and Cornelius Dube 7. Greater International Convergence and the Behavioural Antitrust Gambit Maurice E. Stucke PART III: ENFORCEMENT CHALLENGES WORLDWIDE 8. Paths to Competition Advocacy Allan Fels and Wendy Ng 9. Competition Law and Developing Economies: Between 'Informed Divergence' and International Convergence Kathryn McMahon 10. Private and Public Enforcement: Complements, Substitutes and Conflicts - A Global Perspective Donald I. Baker 11. Criminal Sanctions for Cartels - the Jury is Still Out Caron Beaton-Wells 12. Cartels, Extradition and Concurrent Criminal Prosecution Michael O'Kane PART IV: COMPARATIVE REVIEW OF LAWS AND PROCEDURES 13. Merger Control: Key International Norms and Differences D. Daniel Sokol and William Blumenthal 14. Unilateral Conduct: The Search for Global Standards Giorgio Monti 15. Market Power - the Root of All Evil? A Comparative Analysis of the Concepts of Market Power, Dominance and Monopolisation Hedvig Schmidt 16. Drawing the Boundary between Joint and Unilateral Conduct: Parent - Subsidiary Relationships and Joint Ventures Alison Jones 17. Resale Price Maintenance in Comparative Perspective Ulf Bernitz 18. Innovation, IPRs and EU Competition Law: Cross Currents in the EU/US Debate Steven Anderman 19. Recent US FTC Antitrust - IP Interface Developments Alden F. Abbott and Dina Kallay 20. The Patent - Competition Interface in Asia: A Regional Approach? Thomas K. Cheng 21. Competition Law and Enforcement in the Pharmaceutical Industry Michael A. Carrier 22. The Consumer and Competition Policy: Welfare, Interest and Engagement Phil Evans Index

This chapter provides an introduction to, and basis for, the material discussed in the subsequent chapters. It introduces some relevant concepts of microeconomics including demand curves, consumer and producer surplus, elasticity of demand, and economies of scale and scope. It discusses the model of perfect competition and the concepts of allocative, productive and dynamic efficiency; the problems in competition terms of monopoly and oligopoly; and the concept of welfare, particularly consumer welfare and total welfare. It considers various schools of competition analysis and theories and concepts relevant to competition law. It discusses the possible objectives of competition law, and particularly considers what objectives are pursued by EU competition law. The chapter also looks at US antitrust law; competition law and the digital economy; competition law and regulation; and at some basic issues in the application of EU competition law.

Antitrust authorities in both the United States and Europe have expressed deep concern over settlements of antitrust cases in the pharmaceutical sector, settlements involving ”reverse payments” from plaintiffs to defendants, large sums paid by branded pharmaceutical companies to generic competitors in exchange for promises to stay off the market. Such ”pay-for-delay” settlements have proliferated in the United States since Federal Circuit Courts of Appeals have found them unproblematic despite the Federal Trade Commission's persistently strong position that they violate the antitrust laws. These cases arise at the intersection of three statutory regimes seeking to promote innovation, three clusters of doctrine and policy that have interacted only to reach impasse: the Patent Act, the 1984 amendment to the Food, Drug, and Cosmetic Act, and finally the Sherman Anti-Trust Act. Antitrust is a late corner to the fierce competition over patented drugs, competition that permeates the approval process in the Food & Drug Administration [FDA], competition that is restrained by these pay-for-delay settlement agreements. To set the stage, we begin with the Patent Act and its relationship to the FDA approval process. The story of pay-for-delay settlements then proceeds to the settlement agreements and their antitrust implications. We conclude that the best solution in these antitrust cases would be adoption of the FTC's approach of presumptive illegality. Together with an amendment proposed to fix the food and drug act, the presumptive illegality of pay-for-delay settlements under the antitrust laws would make the market for pharmaceuticals more price competitive, open weak patents to serious challenge, and as a result save consumers billions of dollars annually without taking from branded drug companies legitimately earned incentives to engage in research and development.

From Regulatory Tool to Competition Law Rule: The Case of Margin Squeeze under EU Competition Law

In the twenty-first century, voter choice and the broader political debate are within the reach of those that can access and channel the vast streams of user data that are generated online. How digital platforms utilize personal user data to influence the outcome of democratic processes has become a central issue that liberal democracies must confront. The paper explores whether competition law has a role to play when it comes to addressing this intersection of Big Tech, data, and democracy. It first sets out the democratic roots of competition or antitrust law in the United States and the European Union. From these, the paper deduces that competition law cannot remain inactive when it comes to maintaining a democratic society in the face of the abilities of Big Tech to influence democratic processes and outcomes. The paper then goes a step further and asks what role competition law could play in this regard. Should democratic values simply be reflected in the procedural set-up of antitrust law, or is there a role for democratic values in the substantive provisions as well? And if so, does antitrust law’s focus on keeping market power in check suffice to fulfill its role in a democratic society, or does this role require the law to specifically target antidemocratic market behavior as anticompetitive harm? In navigating these questions, the paper contributes to the ongoing debate on political antitrust and sets out an ambitious research agenda on how to carry this discussion forward.

This chapter examines the role of arbitration in competition law as well as its advantages and disadvantages when it comes to resolving disputes compared to other approaches. It provides examples of competition law issues resolved through arbitration and how arbitration has been used by authorities such as the European Commission to police and enforce commitments. It also discusses the jurisdictional competence of arbitrators in relation to competition law disputes and issues, such as challenging the extent and validity of an arbitration clause. The chapter proceeds by analysing the arbitrability of competition law issues, the construction and use of arbitration clauses in competition cases, the doctrine of ‘separability’ and the illegality of agreement containing arbitration clause, and the anti-competitive effect of an arbitration agreement. Finally, it describes the practicalities of resolving competition law issues through arbitration, along with the rules governing appeals and enforcement of arbitral awards.

The Omega Man or The Isolation of U.S. Antitrust Law