Douglas Ginsburg and John Taladay about ‘The Enduring Vitality of Comity in a Globalized World’ (2017) George Mason Law Review 24 1069

Different competition agencies apply different legal standards, procedures and approaches to identifying and redressing perceived antitrust violations. One inescapable consequence of the global proliferation of competition regimes is a much greater risk of conflict, which can take various forms and which are particularly high when an agency applies an “effects” doctrine that allows for the imposition of remedies that necessarily have an effect beyond that jurisdiction’s own borders. This article, available here,  identifies a deficit in the international coordination mechanisms that are available, and proposes an expanded use of traditional comity to ensure that international competition law enforcement produces benefits for consumers while minimising unnecessary and inappropriate interference with the legitimate interests of foreign jurisdictions. Section I looks at how the difference in the substantive standards applied by different jurisdictions can be a source of potential international conflict. A key source of tension in international competition law enforcement emanates from differences in the substantive standards applied by different jurisdictions. The…

Angela Huyue Zhang ‘Strategic Comity’ (2019) Yale Journal of International Law 44(2)

The extent to which US courts should enforce antitrust laws against state-led export cartels has been the subject of intense debate among academics, courts and policymakers for decades. While defendants often invoke the state compulsion defence, which is based on comity and respect for foreign sovereigns, these doctrines have long been criticised for their ambiguity and inconsistent application. The recent Supreme Court decision regarding the Chinese state-led Vitamin C cartel – reviewed here – highlights a number of challenges with the way these doctrines have been applied in the US. The author’s argument in this paper, available here, is that the application of both comity and foreign state compulsion defences are susceptible to political considerations, and that the Supreme Court decision is a good example of this. The author argues that the Supreme Court proactively solicited the opinion of the executive branch before hearing its case, and its final ruling is exactly in line with the opinions and suggestions proposed…

Jonathan T. Fried ‘The place of competition and development in the global trade and economic architecture’ (2017) Concurrences 1 3

The author was the Canadian ambassador to the WTO. In this piece, available here, which is the opening speech to a conference on ‘Competition and globalization in developing economies’, he argues that trade liberalisation must be accompanied by sound economic regulation that enables trade and investment to occur. Robust and effective competition law and regulation is a key element of this enabling environment, and a potential contributor to sustainable development as well. The trade and competition communities have been supporting each other’s goals, and applying similar approaches, for some time. Building on this base, there are actions that will lead to the better integration of trade and competition perspectives, while avoiding being drawn into grand debates about new forms of global governance, as has happened in the past. In a first section, the paper provides an overview of the international trade regime. From its post-war beginnings as an “interim” agreement called the General Agreement on Tariffs and Trade (‘GATT’) through…

Julien Briguet ‘The State’s Invisible Hand: Chinese SOEs Facing EU Antitrust Law‘ (2018) World Competition Law 52(5) 839

Chinese outbound merger and acquisition (M&A) activity has surged in Europe during the last decade. Chinese companies, particularly state-owned enterprises (SOEs) were the key drivers of this surge, amounting to 70% of these investments in Europe. This paper, available here, argues that the way the European Commission looks at mergers involving Chinese state-owned enterprises (SOEs) suffers from several flaws. These arise primarily from inconsistency in how the single economic entity doctrine has been applied to these companies – sometimes a single Chinese SOE is taken to be the relevant economic unit, sometimes all SOEs active in a specific industry were said to comprise the acquiring undertaking. The author argues that a more systematic application of the single economic entity doctrine is required to restore consistency to the case law, address the realities of China’s State capitalism and protect the principle of competitive neutrality at the core of EU competition law. Section two reviews how the single economic entity doctrine applies…

Pieter J. F. Huizing ‘Comparing territorial limits to EU and US public enforcement of the LCD cartel’ (2018) Journal of Antitrust Enforcement 6 231

This article, available here, describes the US and EU positions on the territorial scope of public cartel enforcement – i.e. how far outside their territories can competition authorities reach to punish cartel conduct committed abroad by foreign undertakings – by reference to the LCD cartel. Cartelised LCD panels were manufactured by a number of Asian producers with varying levels of direct and indirect imports into the EU and the USA. Both the European Commission (Commission) and the U.S. Department of Justice (DOJ) had to determine the territorial limits to their enforcement in respect of this international cartel, and to then defend their approach in court. In both jurisdictions, it is accepted that competition authorities benefit from long territorial reach and wide discretion in determining the amount of fines. It is submitted that the legal precedents created by decisions regarding this cartel are a cause for concern in view of the increasingly crowded global cartel enforcement arena. This argument is developed…

Luca Prete ‘On Implementation and Effects: The Recent Case-law on the Territorial (or Extraterritorial?) Application of EU Competition Rules’ (2018) Journal of European Competition Law & Practice 9(8) 487

In an era of globalisation and digitalisation, complex issues may arise as regards the laws applicable to situations that either involve cross-border elements or occur in cyberspace. The disconnect between the borderless nature of modern trade and the essentially domestic character of economic laws may give rise to complex issues of jurisdiction. Rules and principles of private international law often determine which national laws are applicable in any given situation. However, no equivalent system of binding rules exists as far as the public enforcement of antitrust rules is concerned. As a result, the same business conduct may potentially fall within the jurisdiction of a number of States, each having its own rules. Clearly, problems may not only arise when those rules are dissimilar (or interpreted and applied differently), but also when various jurisdictions with identical rules are applied cumulatively to the same conduct. This piece, available here, reviews European jurisprudence concerning the reach and scope of the EU’s competition laws….

Omar Shah, Christina Renner and Leonidas Theodosiou ‘Intel, iiyama, Power Cables: A Revolution in the Treatment of Territoriality and Jurisdiction in EU Competition Law?’ (2019) Journal of European Competition Law & Practice

Important recent decisions by the EU and national courts – in Intel, iiyama and Power Cables – have set the stage for a potential increase in public enforcement and private litigation of business conduct which has effects on competition in the EU internal market despite not being implemented there. This paper, available here, addresses the potential changes to EU and national law wrought by these decisions, and considers the extent to which limiting principles may emerge to address potential conflicts of law, multiplicity of proceedings and double jeopardy. It is structured as follows: Section 2 describes the evolution of EU law on the jurisdictional reach of its competition provisions. The EU Courts have had to delimit the jurisdictional scope of EU law, typically in the context of judicial review of decisions of the European Commission (‘Commission’) in which the Commission had exercised enforcement jurisdiction over conduct whose territorial links to the EU were susceptible to challenge. Early on, the Court…

Carsten Koenig ‘Comparing Parent Company Liability in EU and US Competition Law’ (2018) World Competition 41(1) 69

This paper, available here , contrasts how law parent companies can be fined for antitrust infringements by their subsidiaries under EU competition law, while courts in the US are reluctant to hold parent companies directly or indirectly liable in private damages suits. The author argues that one of the main reasons why EU competition law holds parent companies liable is to solve an under-deterrence problem that occurs when subsidiaries lack sufficient assets to pay fines or damages. US antitrust law uses other enforcement instruments to address under-deterrence by, in particular the individual liability of managers and employees. The article consists of four substantive parts: In section 2, the paper reviews the case law and literature on parent company liability for antitrust infringements by subsidiaries in the European Union and the United States. In the EU, the single economic entity doctrine is deeply ingrained in competition law. The European court interprets the concept of ‘undertaking’ in a functional way: it is the economic entity…

Eric Barbier de La Serre and Eileen Lagathu ‘The Law on Fines Imposed in EU Competition Proceedings’ (2018) Journal of European Competition Law & Practice 9(7) 459

This paper, available here, provides a brief overview of a number of important issues regarding fining in Europe up to 2018. There is no specific argument being made, just an overview of the state of play at the time this paper was published. Section I discusses how the statute of limitations affects fine amounts. The Commission’s power to impose fines for substantive infringements is subject to a 5-year limitation period from the date the infringement was committed – or, in the case of a continuing or repeated infringement, from the date when the infringement ceased – unless formal steps to investigate or prosecute the infringement have been taken by a competition authority during that period. Each interruption produces effects erga omnes, in so far as the limitation period starts running afresh in respect of all undertakings that participated in the infringement. Furthermore, the fact that the conduct of subsidiaries falls outside the scope of the statute of limitation does not preclude proceedings from…

Javier Garcia-Verdugo, Carlos Merino Troncoso and Lorena Gomez Cruz ‘An Economic Assessment of Antitrust Fines in Spain’ (2018) World Competition Law and Economics Review 41(3) 335

This article, available here, tries to quantify the deterrent power of fines imposed by the Spanish competition authority from 2011 to 2015. Despite being authored by senior staff at the Spanish competition authority, the paper concludes that most of the fines imposed by the Spanish competition authority during this period were under deterrent. The argument is structured as follows: Section II sets out how to quantify cartel gains. A deterrent optimal fine can be defined as a fine that deters a company from participating in a cartel. Such an outcome is achieved when there is no expected net gain from participating in the cartel in the first place, i.e. when the expected illicit gain of entering into a cartel is lower than the expected loss from being sanctioned for cartel participation. Therefore, the reference value for an optimal fine should be determined by reference to an estimate of the illicit gain (also known as excess profit) flowing from cartel membership. This illicit…