Lee Hyo-young ‘Applying Competition Policy to Optimise International Trade Rules’ Korea Institute for International Economic Law 17-01

This paper – which can be found here – focuses on the relationship between trade and competition, and particularly on how the (apparently deceased, now revived) Trans-Pacific Partnership (TPP) imposes new rules on State-Owned Enterprises. It is structured as follows: Part II reviews how competition policy has historically figured in trade agreements. It contains an overview of the relationship between competition and international trade rules – in the Havana Charter, GATT and the WTO. This section also discusses how both competition and international trade law share the objective of enhancing economic efficiency and consumer welfare through trade liberalization and open markets. As a result, competition law is important for successful trade liberalisation, and to prevent anticompetitive and collusive conduct between businesses and governments that, from an international trade law perspective, amount to a form of non-tariff barrier that hinders access to markets by foreign competitors. After reviewing the main international trade law treaties, the author concludes that current rules fail…

Niamh Dunne ‘Competition Law (and its Limits) in the Sharing Economy’ Forthcoming, Nestor Davidson, Michèle Finck and John Infranca (eds.), Cambridge Handbook on Law and Regulation of the Sharing Economy (Cambridge University Press)

As the title indicates: ‘This contribution (which can be found here) considers the potential application of competition law—specifically, the ‘antitrust’ rules governing anticompetitive unilateral or coordinated conduct—within the sharing economy.’ The sharing economy is described as a sector marked by recurrent characteristics, such as: (i) its underlying economic rationale is the under-utilisation of durable goods or other assets, which generates excess capacity that can be rented out; (ii) sharing economy businesses provide classic examples of ‘disruptive’ innovation, which originates outside a value network and displaces it; (iii) the innovations that underpin the sharing economy are rooted in the internet and mobile technologies; (iv) sharing economy businesses are often platforms in multi-sided markets; (v) sharing economy firms frequently conflict with regulatory regimes that control and limit the activities of competitors, resulting in recurrent critiques that such competition is inherently ‘unfair’. The paper is structured as follows: Section II examines how prohibitions against anticompetitive unilateral conduct may apply to the sharing economy. It begins…

Carl Shapiro ‘Antitrust in Times of Populism’

This paper – which can be found here – has been surrounded by a lot of publicity, and is a potentially important piece. It begins with an observation that goes to the heart of the debate:  ‘politicians are calling on antitrust to solve an array of problems associated with the excessive power of large corporations’. The author believes that ‘concerns about corporate power, and today’s renewed interest in antitrust, represent an opportunity to strengthen competition policy.’ At the same time, he alerts that the role of antitrust in promoting competition could well be undermined if antitrust is called upon or expected to address problems not directly relating to competition, such as the political power of corporations or income inequality. The ‘central purpose of this article is to assess the relevant economic evidence regarding competition (…) and then, based on that evidence and on antitrust learning and experience, identify ways to improve and strengthen antitrust.’ The paper is structured as follows:…

Steve Davies  ‘The deterrence value of competition policy can and should be measured’

This blog post – which can be found here –  pulls together the results from three recently completed papers on cartel deterrence (namely: (1) “The Deterrent Effect of Anti-Cartel Enforcement: A Tale of Two Tails”, with Bos, Davies, Harrington and Ormosi, 2017; (2) “Quantifying the deterrent effect of Anti-Cartel Enforcement”, Davies, Ormosi & Mariuzzo, 2017; and (3) “Cartel enforcement and deterrence over the life of a Competition Authority”, with Armoogum, Davies & Mariuzzo, (2017)). Given that deterrence can never be directly observed – because it refers to events that never occur – the papers are instead based on two statistical regularities that the authors uncovered from close scrutiny of large databases already in the public domain. The first regularity comes from a historical comparison of the overcharges set by 500 legal and illegal cartels. This comparison reveals a significantly lower incidence of illegal cartels in the two tails of the distribution of overcharges – i.e. when it is illegal to…

Angela Daly ‘Beyond Hipster Antitrust:  A Critical Perspective on the European Commission’s Google Decision’ (2017) European Competition and Regulation Law Review 1(3) 188

The argument of this article – which can be found here – is straightforward: “competition law as it stands is not well-equipped to address (all of) the problems a very large concentration of private power such as Google poses to Internet users. However, unlike the ‘antitrust hipsters’, it is argued that reform to competition law is insufficient – other areas of law and regulation may be more appropriately employed to ensure user autonomy in these circumstances.” The paper begins with an extremely cursory analysis of the Commission’s decision in the Google case. Since the decision is not yet published, the paper relies on comments from the Competition Commissioner that there was an abuse because Google: “promoted its own comparison shopping service in its generic search results, and demoted the results of its competitors, with the effect that competitors were ‘denied… the chance to compete on the merits and to innovate’ and European consumers were ‘denied… a genuine choice of services…

Friso Bostoen ‘Margin Squeeze – Where competition law and sector regulation compete’ (2017) 53 Jura Falconis 3

This paper – which you can find here – provides an overview of margin squeeze as an antitrust infringement – i.e. the situation where a dominant undertaking charges “a price for the product on the upstream market which, compared to the price it charges on the downstream market, does not allow even an equally efficient competitor to trade profitably in the downstream market on a lasting basis”. The paper also looks at the relationship between margin squeeze and sectoral regulation. The article starts with an overview of the different ways an undertaking can abuse its dominant position through pricing (chapter 2). It then defines margin squeeze (chapter 3), before looking at how margin squeeze is assessed in a number of EU cases (chapter 4) and into the role of the as-efficient-competitor test in identifying margin squeeze situations (chapter 5). It then discusses why some undertakings appear to be more susceptible to commit this abuse than others, and lists the traits such…

Orla Lynskey ‘Regulating ‘Platform Power” LSE Law, Society and Economy Working Papers 1/2017

This paper – which can be found here – is not strictly about competition, but has a wider regulatory focus. Its main arguments are that: (i) the term ‘platform power’ fails to reflect the potentially problematic power at the heart of the information society. Focus should therefore shift from this concept to the identification of concerns raised by the practices of Internet intermediaries; (ii) blind spots exist when the issue of ‘platform power’ is viewed solely through an economic lens. As a result, competition law fails to capture and sanction practices that negatively impact upon non-economic parameters, such as freedom of expression and privacy. The argument about platform power is made out in Section 2, and it is broken down into three different elements: The initial focus of the argument is on the EU’s attempts to address developments in the digital sphere, and in particular on the European Commission’s Digital Market strategy. The various meanings given in Europe to “platforms”…

Edward B. Rock and Daniel L. Rubinfeld ‘Defusing the Antitrust Threat to Institutional Investor Involvement in Corporate Governance’

This paper – available here – criticises arguments for increased antitrust intervention against institutional investors. The paper begins by identifying its target: “a line of new economics research that claims to show theoretically and empirically that concentration of shareholdings in the hands of diversified investors has substantial anti-competitive effects in concentrated markets”, and subsequent legal scholarship that interprets this economic research to mean that the practices of institutional investors infringe competition law, or should, in any event, be subject antitrust rules. The first half of the paper develops a number of methodological criticisms of existing theoretical and empirical analyses of the portfolio strategies adopted by institutional investors. These criticisms are said to put in doubt a number of conclusions regarding the extent to which common ownership makes a difference to competition in the market – and, by extension, the justifications for antitrust intervention against institutional investors. Part II then analyses the legal implications of the economic evidence, and concludes that holdings by diversified…