Jorge L. Contreras ‘FROM PRIVATE ORDERING TO PUBLIC LAW: THE LEGAL FRAMEWORKS GOVERNING STANDARDS-ESSENTIAL PATENTS’

This paper, focusing on the interaction of standards and international law, was published in the Harvard Journal of Law & Technology, and can be found here. It starts from the observation that there is a “basic question [about] whether technical standard setting is best conceptualized as a private activity governed most efficiently by its own internal rules and procedures, or whether it is at root a public activity that should be regulated within the sphere of public law.” The article proceeds as follows: after a general introduction to private ordering structures (i.e. rules systems that private actors conceive, observe, and often enforce through extra-legal means) in Part II, Parts III and IV describe how technical standard setting has evolved as a private sector activity. Part V analyses the incorporation of standards bodies’ rules and norms into private law adjudication. Part VI shifts the focus to the public benefits that standard setting affords, and Part VII describes the recent debate regarding public…

David Evans ‘THE EMERGING HIGH-COURT JURISPRUDENCE ON THE ANTITRUST ANALYSIS OF MULTISIDED PLATFORMS’

This paper – available here – reviews various court decisions adopted between September 2014 and 2016 that apply competition law to matters involving multisided markets. The paper is short, and the structure is quite simple: after summarizing the key differences between multisided markets (the author insists in calling them matchmakers) and traditional businesses, it reviews the aforementioned court decisions. The article is quite short, and provides a succinct overview of these cases and their implications for antitrust analysis of matters involving multisided platforms. These include three decisions regarding payment cards, including the US Court of Appeals decision on American Express  and the European Court’s decisions in Groupement des Cartes Bancaires and MasterCard; the GoogleMaps decision by the Cour d’Appel de Paris; and the Telcent decision by China’s Supreme People’s Court. The conclusion is that all these decisions recognize that platforms serve multiple interdependent groups of customers, and that the interactions between these groups matter for the substantive analysis of antitrust…

Asda Stores Ld & Ors v MasterCard 2017 EWHC 93 (Comm)

This decision – available here – concerns a standalone claim for damages against MasterCard brought before the English courts. As some of you will know, disputes over the legality of Multilateral Interchange Fees (MIFs) and various payment card-schemes has been ongoing for well over a decade.  In the US, it included a decision on the legality of the American Express System which has found its way to the Supreme Court docket. In this case, which follows a decision by the European Commission – but is not a follow on claim since the practices in question, while similar, are not the same ones that were subject to the Commission’s decision – the English courts had to decide whether the level at which MasterCard set its MIFs was illegal, and hence whether damages are due. You may be pleased to hear that the decision is long and complicated – if nothing else, because it conducts an in-depth effects based assessment that hinges…

Pablo Ibanez Colomo and Alfonso Lamadrid ‘On the notion of restriction of competition: what we know and what we don’t know we know’

This paper is published in Gerard, Merola and Meyring, Bernd, (eds.) The Notion of Restriction of Competition: Revisiting the Foundations of Antitrust Enforcement in Europe. (Bruylant), and can be found here. One  who is not familiar with competition law would presume that the concept of restriction of competition must surely be well established, as otherwise how can one identify those practices that restrict competition? As anyone who is closer to the action knows , the concept is not really that well established in practice. This paper’s argument is that there is much greater consensus about the concept of restriction of competition in the EU that is usually acknowledged. Instead of presenting a normative view of what a “restriction of competition” should be, this piece systematically reviews the incremental contributions that the EU courts have made to the definition of the notion of restriction of competition, and finds broad agreement around some fundamental questions. In order to do this, the paper is…

Louis Kaplow ‘On the relevance of market power’

This article was published in the Harvard Law Review, and can be found at https://harvardlawreview.org/2017/03/on-the-relevance-of-market-power/. This is a book-length all-out attack on the conception of “market power” as it is currently applied. Like most  law and economics literature, it is concerned with how best to design laws in order to maximise the social benefit of law enforcement. While the argument is not easy to encapsulate, I think the main point is that greater market power – understood as  “the degree to which price can profitably be elevated above a competitive level, often taken as marginal cost” – does not necessarily mean that greater anticompetitive effects must follow. Instead, market power can have a variety of different effects, depending on the specific impact of the relevant practices on welfare. As such – and unlike what we do today – the concept of market power should be derived backwards from the level at which an antitrust infringement should be found, based on the impact that…

Daniel Sokol ‘Troubled Waters Between U.S. and European Antitrust’

This is an article-length review of The Atlantic Divide in Antitrust: An Examination of US and EU Competition Policy by Daniel J. Gifford and Robert T. Kudrle, a book on the differences between EU and American antitrust. It was published in the Michigan Law Review, and can be found at https://repository.law.umich.edu/mlr/vol115/iss6/10/. The review is interesting because: (I) it provides an overview of the book and its arguments, which is quite useful; (II) it describes how the different goals of antitrust and institutional framework on both sides of the pond lead to different enforcement priorities and allocation of powers to enforcement agencies; (iii) it assesses in some detail how single firm conduct is differently pursued on both sides of the Atlantic; and (iv) it compares different enforcement practices regarding cartels in Europe and the US. The main argument of both the book and the article is that: “With its steadfast economic focus, antitrust in the United States has a clear goal. In…