101,525 research outputs found

    China's Competition Policy Reforms: The Antimonopoly Law and Beyond

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    More than twelve years have elapsed since China began its efforts to enact a comprehensive antitrust law. Today, drafts of the law are still being debated. Such a protracted legislative process is highly unusual in China, and can only be explained by the controversy the draft law generates. After a brief review of China’s current competition policy, this paper discusses the fundamental issues in China’s economy that give rise to the challenges facing China’s antitrust policymakers in enacting the new antitrust law. These issues include the role of state-owned enterprises, perceived excessive competition in China’s economy, mergers and acquisitions by foreign companies, the treatment of administrative monopolies, and the enforcement of the antitrust law. While those controversies create significant policy issues for China, they do not constitute valid objections to the enactment of the new antitrust law. Meanwhile, it will be important for China to recognize that the new antitrust law alone will not be sufficient to fully realize its goal of promoting competition in its economy; other reforms will be necessary as well. China will be better off by moving swiftly to enact the new antitrust law, while keeping the momentum to engage in those other reforms.China, antitrust, law,

    Antitrust Private Enforcement – Case of Poland

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    This article presents the main difficulties surrounding private enforcement of antitrust law in Poland, currently the key implementation problem in the field of antitrust law. Whereas the basic standards concerning the public pillar of antitrust enforcement have already been established, either in the European Community (EC) or in its Member States, the private pillar of antitrust enforcement has not yet been fully developed. The fact that private enforcement of antitrust law is possible, and in fact equal, to public enforcement is not yet commonly recognized. In response to the European Commission’s White Paper on Damages actions for breach of the EC antitrust rules, private enforcement of antirust law is presently under intense discussion in EC Member States. This article should be considered as one of the contributions to this debate. It presents the main legal framework of private enforcement of antitrust law in Poland. In order to do so, it directly refers to the Polish Act on competition and consumer protection, the Civil Code and the Civil Procedure Code. This article also discusses Polish case law in this area. It aims to assess whether existing Polish legal provisions are, in fact, sufficient to ensure effective private enforcement of Polish as well as EC antitrust law. The article refers to the main proposals of the European Commission’s White Paper. It is concluded that private enforcement of antitrust law is indeed possible in Poland on the basis of currently applicable procedural rules, even if there are no special instruments designed to facilitate it. However, it cannot be expect that in the current legal climate, private parties will eagerly and frequently apply for damages in cases of a breach of Polish antitrust law. Antitrust cases are special in many aspects and, thus, they require specific solutions in procedural terms. This article aims to pinpoint those areas, where the Polish law needs to be changed in order to develop and promote private enforcement of antitrust law in Poland.private and public enforcement, private parties, antitrust damages, court proceedings, collective redress, damage actions

    Platforms, Power, and the Antitrust Challenge: A Modest Proposal to Narrow the U.S.-Europe Divide

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    Big platforms dominate the new economy landscape. Colloquially known as GAFA [Google, Amazon, Facebook, and Apple] or FAANG [Facebook, Amazon, Apple, Netflix, and Google], the high tech big data companies are charged with using the power of their platforms to squelch start-ups, appropriate rivals’ ideas, and take and commercialize the personal data of their users. Are the platforms violating the antitrust laws? Should they be broken up? Or are they the agents of progress in the new economy? On these points, the United States antitrust law and the European Union competition law may diverge. The Competition Directorate-General of the European Commission has brought proceedings against or is investigating Google, Amazon, Apple, and Facebook. Germany, under its own competition law, has condemned Facebook’s conduct. Meanwhile, in the United States, authorities are skeptical, but they have commenced investigations. This Article is a comparative analysis of U.S. and EU law regarding monopolization/abuse of dominance as background to understanding why EU law is aggressive and U.S. law may be meek in the treatment of the big tech platforms. First, it examines the factors that underlie the two perspectives. Second, it considers three cases or problems—Google/Comparative Shopping (EU), Facebook-Personal Data (Germany), and dominant platforms’ acquisitions of start-ups that are inchoate competitive threats, such as Facebook’s acquisitions of WhatsApp and Instagram. The Article considers what lessons the latest Supreme Court antitrust decision, Ohio v. American Express (AmEx), holds for the analysis of the big data antitrust issues. Third, it asks what U.S. antitrust law and enforcement should do. It concludes that U.S. antitrust law should reclaim its role as watchdog to stop abuses of economic power, and makes suggestions for U.S. antitrust law to meet the big-platform challenge in a modest but meaningful and practicable way. I. Introduction II. A Brief Comparison of U.S. and EU Law of Monopolization/Abuse of Dominance ... A. The United States ... B. Europe ... C. Presumptions and Divergences III. Implications for High Tech, Big Data IV. Three Examples of Alleged Platform Abuse ... A. Google/Comparative Shopping ... 1. EU Law ... 2. U.S. Law ... B. Facebook—Abuse of Data ... 1. German Law ... 2. U.S. Law ... C. Start-Ups: Nipping Competition in the Bud V. Proposals VI. Conclusio

    Should United States antitrust law be applied to state trading enterprises in agricultural trade?

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    In a number of countries, State Trading Enterprises (“STEs”) control agricultural exports to the United States. For antitrust purposes, export STEs may be characterized as cartels of producers colluding to fix prices into importing country markets. This Article considers the legal and policy issues involved in applying United States antitrust law extraterritorially to STEs. In order to analyze these issues, this article uses STEs in the New Zealand dairy industry as a case study. First, the nature of STEs and their legal status in international trade law will be discussed. The Article next considers the potential liability of STEs in United States antitrust law, with particular reference to the New Zealand Dairy Board and its successor company, “Fonterra.” Because these STEs could be characterized as price-fixing cartels, depending on findings of market definition and market power, United States courts would have antitrust jurisdiction, unless this jurisdiction was excluded by considerations of comity. This Article also considers the broader issue of applying United States antitrust law to export STEs in their agricultural trade context, and the corresponding policy implications

    Antitrust and Nonprofit Hospital Mergers: A Return to Basics

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    Courts reviewing proposed mergers of nonprofit hospitals have too often abandoned the bedrock principles of antitrust law, failing to pay heed to the most elemental hallmarks of socially beneficial competition. This Article suggests that courts’ misapplication of antitrust law in these cases reflects a failure to understand the structural details of the American health care market. After reviewing recent cases in which courts have rejected challenges to proposed mergers between nonprofit hospitals, it documents how courts have engaged in a faulty analysis that ultimately protects nonprofit hospitals from the rigors of standard antitrust scrutiny. It then identifies the core principles of antitrust law—preventing supracompetitive prices, optimizing output, and maximizing allocative efficiency—that have been absent from, if not violated by, the rulings in these merger cases

    Movements, Moments, and the Eroding Antitrust Consensus

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    Timothy Wu, The Curse of Bigness: Antitrust in the New Gilded Age (Columbia Global Reports, 2018). $14.99. Timothy Wu’s book, The Curse of Bigness, offers a brief history on and critical perspective of antitrust law’s development over the last century, calling for a return to a Brandeisian approach to the law. In this review-essay, I use Wu’s text as a starting point to explore antitrust law’s current political moment. Tracing the dynamics at play in this debate and Wu’s role in it, I note areas underexplored in Wu’s text regarding the interplay of antitrust law with other forms of industrial regulation, highlighting in particular current difficulties in copyright law as one of the underlying tensions driving popular discontent with the major technology firms or “tech trusts.” I consider the continuing influence of Robert Bork’s The Antitrust Paradox, now more than forty years old, and how the current reform movement might execute a shift as lasting and substantial as the one Bork spearheaded with his book

    Clarett v. National Football League: Defining the Non-Statutory Labor Exception to Antitrust Law as it pertains to Restraints primarily focused in Labor Markets and Restraints primarily focused in Business Markets

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    [Excerpt] “Contemporary sports have seen an influx of young talent opting for a chance at playing in the big leagues earlier at the expense of obtaining higher education. Many dream of playing professional sports—dreams often prohibited by player eligibility rules. In situations where the restraints are not argued to have been protected by non-statutory labor exception, antitrust law has been seen to set its talons into eligibility rules. […] Federal antitrust law and national labor law set forth two conflicting policies that have created a periodic drama for sports fans concerned that their favorite sports will suffer a cataclysmic court room battle impairing the quality of the game. The Supreme Court interpreted federal antitrust and labor law to implicitly exclude antitrust liability for certain collective bargaining labor related activities under the non-statutory labor exception to antitrust law. This absence of explicit guidance has led to a split in the circuits where courts have formulated their own interpretations of these colliding national policies. In 1996, the Supreme Court in Brown v. Pro Football, Inc., attempted to further clarify the scope of this exemption and ultimately held that national antitrust and labor policies favored the application of the exception when the alleged restraints were in labor markets defined by collective bargaining. In 2004, the United States Court of Appeals for the Second Circuit held in Clarett v. National Football League4 that Brown reaffirmed the Second Circuit position that restraints resulting from the collective bargaining process and primarily impacting the labor market were subject to the non-statutory labor exception to antitrust law. […] This note will analyze the Second Circuit’s ruling and rationale in light of the relevant governing law and national policies between antitrust law and labor law. Part II will discuss the general trend of player-raised antitrust challenges to restraint cases in professional sports, setting the stage for an aspiring football player like Clarett to challenge the NFL Eligibility Rules. In Part III, this note will discuss the facts, procedural history and outcome of Clarett. Part IV will discuss the historical background under which Clarett was ruled. Part V will analyze how courts have distinguished between restraints created through the collective bargaining process which primarily impact the labor market as opposed to those that primarily impact business markets. In Part VI, this note will analyze Clarett’s interpretation of Brown in distinguishing labor and business markets, and discuss how the non-statutory labor exception should be applied to labor market restraints as compared to business market restraints. Finally, it will outline the legacy that Clarett provides for future player-raised challenges in similar situations.

    Protecting Innovation: The Role of State Attorneys General in Antitrust Enforcement

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    Antitrust law was devised at the end of the 19th century. Since then, courts and regulators applying antitrust laws have developed a wide range of appallingly anticompetitive doctrines. Many of those doctrines tended to protect businesses from competitive forces, rather than the other way around. Nor were the stakes trivial: As Robert Bork insisted in his seminal work, the Antitrust Paradox (1978), many of these doctrines were "ultimately incompatible with the preservation of a liberal capitalist social order."In recent years, antitrust enforcement by state attorneys general has seen a dramatic rise. This raises several concerns: first, the potential of geographic bias that comes from state attorneys general protecting the interests of business or consumers in their states from competition; second, the potential for increased litigation and harsher penalties; and third, the duplicative nature of state antitrust enforcement, particularly in the context of parens patriae suits and pre-merger reviews. These concerns suggest that increased state involvement in antitrust enforcement could have significant negative consequences for competition and innovation. This danger is particularly acute in high-technology markets, where antitrust enforcement is already problematic in several ways. Consumers benefit from increased efficiency, but efficiency can increase market share, which in turn can trigger ill-advised antitrust enforcement. The complexity and rapid innovation of high-tech markets increase the danger of erroneous and damaging antitrust enforcement. These challenges are exacerbated by state involvement in antitrust. While we see a clear role for the states in enforcing antitrust law in local commerce, it is much more difficult to discern a role for the states in transactions that are in many cases not only national, but international. Instead, the involvement of the states in these markets is more likely to lead to an expansive regulatory regime that inhibits -- rather than enhances -- competition and innovation. This is particularly true in the case of e-commerce. This paper examines the role of states in antitrust enforcement and the impact this role can have on competition, particularly in high-tech markets. Part I provides a short summary of major antitrust laws. Part II looks at the different ways in which antitrust law is enforced. Part III provides a closer look at the role of the states in antitrust enforcement, focusing on Texas. Part IV sets forth a law-and-economics analysis of the main types of cases that are typically the subject of antitrust enforcement, with a special focus on the activity of state attorneys general. Part V provides a close look at antitrust enforcement in high-tech markets. Part VI makes recommendations for improvement.This paper argues for a continued effort to understand how markets work, and for revision of antitrust laws and judicial doctrines in light of those insights. We argue that the scope of state antitrust enforcement should be reduced, particularly with respect to interstate and high technology markets. Specifically, we recommend that states' ability to bring parens patriae suits under the federal antitrust laws should be repealed, and that state involvement in premerger review should be curtailed. We also find that where the federal government has settled an antitrust matter under investigation, continued state involvement makes little sense, and in fact may stifle product development, investment and innovation

    Competition Policy In Network Industries: An Introduction

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    We discuss issues of the application of antitrust law and regulatory rules to network industries. In assessing the application of antitrust in network industries, we analyze a number of relevant features of network industries and the way in which antitrust law and regulatory rules can affect them. These relevant features include (among others) network effects, market structure, market share and profits inequality, choice of technical standards, relationship between the number of active firms and social benefits, existence of market power, leveraging of market power in complementary markets, and innovation races. We find that there are often significant differences on the effects of application of antitrust law in network and non-network industries.networks, network effects, public policy, antitrust, telecommunications, technical standards

    Antitrust in China: The Problem of Incentive Compatibility

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    This paper reviews China's recent efforts to enact a competition policy (antitrust) law. We focus on three issues: (1) What is the substance of the proposed law, and how does it differ from existing antitrust law in other countries, (2) How will the law be implemented or enforced, and how will those who must implement this law interpret their mandate, and (3) What will be the likely effects of this law given China's unique history and cultural heritage. We emphasize China's economic, legal and regulatory contexts in which an antitrust law may be enforced. Our central focus is the problem of establishing a substantive and procedural legal framework that is incentive-compatible with economic efficiency and growth. The policy debate on antitrust within the Chinese government is not public. An unofficial draft of the proposed law was widely circulated outside China in 2003 and was the subject of a public commentary by the American Bar Association. A slightly revised draft was submitted for deliberation to the State Council in March 2004 (See comments from Shang Ming, Director of the newly established Antitrust Investigative Office in the Ministry of Commerce, on September 16, 2004, available at http://big5.china.com.cn/chinese/law/661991.htm).The changes from the prior draft seem to have chiefly to do with which agency of the government will administer the law. At this time, no further information is available to us. Our comments on the "proposed law" are therefore based on the version that has already circulated. We find a number of respects in which the draft law could be improved, both to increase its clarity and to make its enforcement more consistent with the goal of achieving improvements in economic efficiency. We also find much merit in the draft, especially its strong focus on reducing anticompetitive practices of state owned enterprises (SOEs) and other government bodies. However, our major difficulty with the new law is that, in the absence of a tradition of reliance on the rule of law, Chinese and foreign enterprises will find it very difficult to rely on the antitrust statute or the actions of the courts in China as a basis for predicting the antitrust liability that might result from various business practices. Therefore, the principal vector by which antitrust law (or indeed any law) affects economic behavior is absent from the Chinese scene. Unless the bureaucracy that enforces the new antitrust law actively pursues a policy of consistent enforcement based on written guidelines, stare decisis, or other sources of predictability, the substance of the statute itself will have little significance. That outcome would represent a significant loss for the economic welfare of the Chinese people.Technology and Industry, Regulatory Reform, Other Topics
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