David Gerber ‘Competitive Harm in Global Supply Chains’  (2018) Journal of Antitrust Enforcement 6(1) 5-24

This paper – which can be found here – focuses on the difficulties that transnational supply chains pose for competition law enforcement. ‘Transnational supply chain’ is a concept used to describe the process through which multiple firms located in multiple jurisdictions provide components for and/or assemble and manufacture end-use products. As a result of this process, anticompetitive conduct in one jurisdiction may have anticompetitive effects in other jurisdictions. However, few legal tools are available for deterring such harms. The article reviews current responses to the problem, and identifies the potential value of transnational coordination as a response. The article is structured as follows: A first section outlines the challenge posed by global supply chains. It describes their development with the deepening of globalisation, and the form that supply chains usually take. Global supply chains have major consequences for many countries, so we might expect them to have generated legal developments on the transnational level. Yet, little attention has been paid…

Filomena Garcia, Jose Manuel Paz y Mino, Gustavo Torrens ‘Of Course Collusion Should be Prosecuted. But Maybe… (Or the case for international antitrust agreements)’ (2017) CPI

This paper – which can be found here – was written by a number of economists at University of Indiana, and it looks at the incentives of competition authorities to pursue international cartels. A benevolent competition authority with a mandate to maximize national welfare might prefer to delay the prosecution of domestic firms when those firms will benefit from anticompetitive conduct at the expense of foreign consumers. To demonstrate this, the paper develops a simple two-country model of collusion and antitrust policy where there is an industry comprised of two multinational firms that operate in countries with competition agencies. In a first variant of this model, the competition agency of the country where the effects of an anticompetitive practice are felt (country B) will discover this practice only if the agency of the country where the companies are based (country A) starts an investigation. The authors show that country B always prosecutes the colluding firms as soon as there is…

Pierre Huizing ‘Fining Foreign Effects: A New Frontier of Extraterritorial Cartel Enforcement in Europe?’ (2017) World Competition 40(3) 365

This paper – which can be found here – asks whether national competition agencies in Europe (NCAs) have the power to sanction anticompetitive activity taking place outside their territory. The question went unaddressed in Regulation 1/2003, which set up the system of decentralized competition enforcement currently in place in the EU. According to this paper, the members of the European Competition Network (ECN) used to proceed on the basis of a common understanding that each authority would only pursue cross-border cartels for their domestic effects – with the Commission pursuing EU-wide cartels. However, in recent cases some NCAs have departed from this practice and imposed fines that took into account the EU-wide effects of cartels. This article reviews the NCA’s practice as regards the sanctioning of extra-territorial cartel activity, and the academic and political debate about whether this practice is legitimate and appropriate. It does so as follows: Section 2 reviews the enforcement practices of a number of NCAs. It…

Florian Wagner Von Papp ‘Competition Law in EU Free Trade and Cooperation Agreements (and What the UK Can Expect After Brexit)’ European Yearbook of International Economic Law, Forthcoming

This paper – which can be found here – focuses on the interplay between trade and competition from a competition perspective. Its basic argument is that the more integrated a trade area is, the more similar competition rules are likely to be, and the easier it will be for international cooperation to occur.  The focus of the paper is on demonstrating how this occurs in practice, by looking at “the concentric circles of cooperation around the EU by examining the intergovernmental and inter-agency agreements concluded by the EU to face the complexities of the transnational economy of the 21st century.” Section 2 contains a short overview of the relationship between free trade and competition law. Free trade interacts with competition law on many levels, and their relationship is mainly symbiotic and self-reinforcing. However, competition and trade law conflict at points. Free trade should increase competition, since market entry by foreign competitors undermines domestic market power. Competition law is then useful…

David Gerber ‘Competition Law: Convergence in Uncertainty are We Where We Thought We Were?’

This paper – which you can find here – focuses on the international convergence of competition law. Global convergence has been a central theme in competition law for more than two decades. Until recently, the trend seemed to be for greater convergence; given recent developments, however, should we expected this trend to hold? The author’s analysis begins from the observation that convergence has been driven by:  (1) continuing political stability and transnational engagement in Europe and the US, (2) the capacity and willingness of the US and Europe to lead competition law developments elsewhere; and (3) the willingness of others to accept the EU and US’ leadership in competition law. These elements have all  been under attack recently. Both the political stability and transnational engagement of Europe and the US are not what they used to be; the same can be said about their capacity (if not willingness) to lead competition law developments across the world; and, importantly, the willingness…