Steve Salop and Jonathan Baker ‘Antitrust, Competition Policy, and Inequality’

Originally circulated on 4 December 2016 This article, published in the Georgetown Law Review, is one of the first ones I am aware of on how public concerns about inequality may affect antitrust enforcement and competition policy. It argues that, among a number of other (arguably more important) factors, market power and increased concentration have led to increasing inequality. Technological change has created more markets with intellectual property protection or network effects, which allow firms to achieve market power. The adoption of more permissive antitrust rules during the past quarter-century has also likely increased the prevalence of market power. Since the returns of market power accrue to capital, which belongs to a minority of the population –usually the richest segment –, this increases the surplus of producers and, with it, inequality. The article provides a flavour of the times – and includes a useful review of the literature on competition and inequality, and of possible initiatives that agencies/legislators may adopt…

Damien Geradin and Emilio Villano ‘Arbitrability of EU Competition law-based claims’

First circulated on 28 October 2016   This paper provides an interesting overview (if for lawyers only) of the arbitrability of EU competition law. It was published in World Competition, and can be found at https://www.kluwerlawonline.com/abstract.php?id=WOCO2017004. Very pro-arbitration, as is usual among those who write about it (usually because people who write about arbitration are engaged in arbitration as party representatives or arbitrators). Comprehensive, and of undoubted value to anyone interested or involved in this area.

Wouter Wils ‘The Use of Leniency in EU Cartel Enforcement: An Assessment After Twenty Years’

This paper by Wouter Wils – available at https://www.concurrences.com/en/review/numeros/no-1-2017/articles/the-use-of-leniency-in-eu-cartel-enforcement-an-assessment-after-twenty-years – describes  20 years of leniency in Europe. In addition to some interesting statistics, it contains an overview of arguments for and against the use of leniency. It is useful for anyone doing bid-rigging / promoting the virtues of competition, but putting at risk the job of thousands of trainee lawyers who will no longer have a job searching for examples of the practical application of  leniency by the European Commission.

Joseph Drexl ‘The Transplantability of the EU’s Competition Law Framework into the ASEAN Region’

This paper by Josef Drexl – a chapter on a book on the ‘The Regionalisation of Competition Law and Policy within the ASEAN Economic Community – focuses on the transplantability of competition law systems across regions(in this case, from the EU to ASEAN). Basic argument: some elements of a competition system are transplantable, others are not. A full, successful transplant from the EU to ASEAN must take into consideration the goals of ASEAN competition law, the degree and potential of economic integration of the national economies, the level of economic development of these economies, the development of a competition culture in these countries, the comparative advantages of centralised and decentralised enforcement, and the willingness of ASEAN countries to surrender sovereignty in the field of competition law. In short, transplants depend on socio-economic conditions. I think we can all agree with this article of faith in spirit, even if I’m doubtful that anyone is very good at embracing it in practice –…

William E. Kovacic and David A. Hyman ‘Regulatory Leveraging: Problem or Solution?’

This is a paper – published in the George Mason Law Review and available at http://www.georgemasonlawreview.org/wp-content/uploads/Kovacic-and-Hyman_ReadyforJCI.pdf – by Bill Kovacic and David Hyman on the desirability of competition agencies having regulatory competences in addition to those related to antitrust, and on how the spill-over between these various areas of competence may work. The paper provides a theoretical framework (the first of its kind, as far as I’m aware) for the various types of leveraging of competition and other regulatory concerns in practice, both inter- and intra-agencies . It also includes examples of the various types of spill-over that may occur, mainly by reference to FTC work but also including some European authorities; and a cost-benefit analysis of the various types of spill-over (bottom line: “it depends, but regulatory spill-over should mainly be avoided”). Good stuff, potentially useful.