Antitrust and Trade Regulation Commons^™

Uk Competition Appeal Tribunal Rules On Oft’S Duty To Refer Mergers For Investigation, Suyong Kim

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On 3 December 2003, the Competition Appeal Tribunal in the UK upheld an application by IBA Health Ltd for judicial review against the Office of Fair Trading's decision not to refer the anticipated merger between iSoft Plc and Torex Plc to the Competition Commissionfor detailed investigation. This is the first case under the new merger control provisions in the Enterprise Act 2002 to come before the Tribunal for judicial review under Section 120 of that Act.

Uberregulation Without Economics: The World Trade Organization's Decision In The U.S.-Mexico Arbitration On Telecommunications Services, General Agreement On Trade In Services, Gats, J. Gregory Sidak, Hal J. Singer

Federal Communications Law Journal

In April 2004, a World Trade Organization ("WTO") arbitration panel found that Mexico had violated its commitments under the Annex on Telecommunications to the General Agreement on Trade in Services ("GATS") by failing to ensure that Telmex, Mexico's largest supplier of basic telecommunications services, provide interconnection to U.S. telecommunications carriers at international settlement rates that were costoriented. The WTO panel deemed long run average incremental cost ("LRAIC") to be the appropriate cost standard for setting settlement rates. Mexico thus became obliged to change its domestic telecommunications regulations or face trade sanctions. The decision is the first WTO arbitration to deal …

The Road Not Yet Traveled: Why The Fcc Should Issue Digital Must-Carry Rules For Public Television "First", Andrew D. Cotlar

Federal Communications Law Journal

After having recently adopted a variety of complex decisions concerning the digital television transition, the Federal Communications Commission ("FCC") may be poised in the next year to address the issue of mandatory cable carriage of digital broadcast television signals. In this regard, it may reasonably consider the possibility of crafting digital carriage rules for public television stations first without ruling positively or negatively on carriage of commercial stations. This action may legitimately be based on the unique legislative and factual differences between the noncommercial and commercial service and would be constitutionally permissible. This Article sets forth the legal basis for …

Nonprofit Solicitation Under The Telemarketing Sales Rule, Rita Marie Cain

Federal Communications Law Journal

In 2003, the Federal Trade Commission ("FTC") revised its Telemarketing Sales Rule ("TSR") to establish a national Do-Not-Call Registry for commercial telemarketing. Congress directed the Federal Communications Commission ("FCC") to coordinate its telemarketing regulations under the Telephone Consumer Protection Act ("TCPA") of 1991 to achieve maximum consistency between the two agencies' telemarketing restrictions. Nonprofit solicitation is exempt from the national Do-Not-Call Registry, but is covered by other provisions of the FTC rule. The TSR created a new in-house no-call list requirement and imposed additional restrictions not previously known for nonprofit solicitors. The separate nonprofit provisions of the TSR raise unique …

Competition Versus Regulation: "Mediating Between Right And Right'* In The Wireless And Wireline Telephone Industries, Benjamin Douglas Arden

Federal Communications Law Journal

The wireline telephone industry in the United States is the most complete and sophisticated system in the world, built under 100 years of strict government regulation. While the wireline telephone industry was built under a scheme emphasizing regulatory control, the infancy of the wireless telephone industry has been subject to increasing deregulation and reliance on free market forces to guide the industry's development. It has been suggested that this shift in policy reflects the acknowledged failure of strict government regulation. This Note argues that the shift in regulatory policy reflects a difference in circumstances between the development of the wireless …

Examining The Merits Of Dual Regulation For Single-Stock Futures: How The Divergent Insider Trading Regimes For Federal Futures And Securities Markets Demonstrate The Necessity For (And Virtual Inevitability Of) Dual Cftcsec Regulation For Single-Stock Futures, Zachary T. Knepper

The University of New Hampshire Law Review

[Excerpt] "Single-stock futures are a recent addition to the financial landscape in the United States and provide retail and institutional investors with a new tool for investment or speculation. So far, the market response to these instruments has been cool. Some observers have argued that the regulatory framework for single-stock futures is a cause of the lack of investor interest. Single-stock futures are regulated by both the Commodities Futures Trading Commission (“CFTC”) and the Securities and Exchange Commission (“SEC”), and this system of dual regulation has been criticized as overly burdensome and unnecessary."

The Article 82 Ec Abuse Concept: What Scope Is There For Modernization?, Ulrich Quack, James Burling, John Ratliff, Antonio Capobianco, Suyong Kim, William Kolasky

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On 30 September 2004, Wilmer Cutler Pickering Hale and Dorr LLP, the University of Nyenrode, and Global Competition Review co-sponsored a seminar on the reform of Article 82 EC by the European Commission. The seminar raised a great deal of interest amongst members of the legal community and attracted a large attendance. The speakers included some of the most well-known top-level policy makers, academics, and practitioners in the field of competition law. Over the last two years, there have been numerous calls for modernization of the way in which Article 82 of the EC Treaty is applied by the European …

Theory And Practice Of Competition Advocacy At The Ftc, James C. Cooper, Paul A. Pautler, Todd J. Zywicki

George Mason University School of Law Working Papers Series

This article was prepared as part of a recent symposium celebrating the Ninetieth Anniversary of the founding of the Federal Trade Commission. In addition, fall 2004 marks the Thirtieth Anniversary of a pivotal moment in the establishment of the modern advocacy program at the FTC, Chairman Lewis Engman’s speech on the economic burden that inefficient transportation regulation policies were imposing on the American economy. Although the FTC has been involved in advocacy activities since its founding, Engman’s speech symbolized a new aggressiveness on the part of the FTC in using its expertise to work with other governmental actors at all …

The Rise Of Anti-Dumping, Effects On Business, Natalie Mcnelis

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

While conventional wisdom is that dumping is selling at a loss, this is not necessarily the case. Dumping is exporting a product at a lower price than that charged on the home market (the dumping margin (see Glossary)). As a result, a company may be making money on the export of a product, but if it is making a greater profit on its home market than it is making on a foreign market, it may be dumping. A company may engage in dumping as part of a deliberate strategy (for instance, it may be protected from competition on its home …

Governing By Negotiation: The Internet Naming System, Tamar Frankel

Cardozo Journal of International and Comparative Law

The governance of the Internet naming system is at a critical juncture, characterized by instability and power struggles. ICANN, while central to the system, operates on a precarious foundation due to its short-term contract with the U.S. Department of Commerce, which grants the U.S. significant control. The system's structure is vague, relying on ad hoc decisions rather than fixed rules, leading to a complex interplay between governments, registries, and ICANN. The article employs game theory to analyze these dynamics, highlighting the challenges in balancing structure and flexibility amidst evolving stakeholders' roles and internationalization pressures.

Supreme Court In Search Of Limiting Principles, William Kolasky

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

US antitrust law evolves as the common law does: through experience, not logic. US statutes are framed in broad, almost constitutional terms, leaving the courts to define how those laws should be applied to an ever-changing economy and how new learning should be integrated into their application. Yet over the years, the Supreme Court has come to hear fewer and fewer antitrust cases, allowing the lower courts to develop antitrust doctrine until a split among the lower courts requires the high court to step in to resolve the conflict. It is for this reason that the Supreme Court’s 2004 term …

Judicial Review Of Mergers, Suyong Kim, Anne Vallery, Deirdre Waters

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

After the significant and much publicised appeals heard by the EC courts in 2002 and early 2003, 2004 has been a quieter year for judicial review of merger cases. Nevertheless, 2004 has seen judgments and opinions that further develop EC merger control law, albeit largely on procedural points. On the substantive side, Advocate General Tizzano delivered his opinion1 in the appeal against the judgment of the Court of First Instance (‘CFI’) in the Tetra Laval case, where he focused on the standard of proof required in Commission merger decisions and the scope of permissible judicial review of those decisions. The …

Can A Bankrupt Company Assign Its Patent License To The Highest Bidder, Even When The License Itself Forbids Assignment? Why Everex Systems, Inc. V. Cadtrak Corp. Gives An Unconvincing Answer, Matthew D. Siegel

ExpressO

A patent licensee that declares bankruptcy will often want to assign its rights under the license to another party in exchange for much-needed cash. The Bankruptcy Code generally allows debtors to assign executory contracts, including patent licenses, in this way. Indeed, the Code permits debtors to assign a contract even if the contract itself contains a “no-assign” clause, i.e., a clause expressly forbidding assignment. But there is an exception: The Code will defer to certain kinds of otherwise applicable non-bankruptcy law that would normally prevent the contract from being assigned. In particular, the Code will not allow assignment by a …

Good Faith In The Cisg: Interpretation Problems In Article 7, Benedict C. Sheehy

ExpressO

ABSTRACT: This article examines the dispute concerning the meaning of Good Faith in the CISG. Although there are good reasons for arguing a more limited interpretation or more limited application of Good Faith, there are also good reasons for a broader approach. Regardless of the correct interpretation, however, practitioners and academics need to have a sense of where the actual jurisprudence is going. This article reviews every published case on Article 7 since its inception and concludes that while there is little to suggest a strong pattern is developing, a guided pattern while incorrect doctrinally is preferable to the current …

Beware Buyer Power, Robert H. Lande

All Faculty Scholarship

The conventional antitrust wisdom is that buyer side market power or monopsony is so unusual and so rarely anticompetitive that it should not merit more than a scholarly afterthought. Moreover, these brief mentions typically say it is essentially the mirror image of seller power or that, while seller-side power is suspect since it leads to higher consumer prices, buyer-side power is usually benign, because the public should not care which layer of a distribution channel gets any potential savings that can arise. This short article discusses how buyer power can be anticompetitive. It also discusses how buyer power or monopsony …

Mind The Gap: Unilateral Effects Analysis Arrives In Ec Merger Control, Sven Volcker

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

With the adoption of a new substantive test in the revised Merger Regulation, and the publication of the European Commission's Guidelines on the assesment of horizontal mergers, unilateral effects analysis is poised to become an integral part of merger review in the European Union. Notwithstanding the Commission's insistence on a European terminology ("non-coordinated" rather than "unilateral" effects), the EC thus embraces a concept that has gained substantial traction in the United States since its explicit recognition in the 1992 Horizontal Merger Guidelines as one variant of a "substantial lessening of competition" (SLC) under s.7 of the Clayton Act. This is …

Antitrust And Competition Law Update: Important Changes To U.S. Antitrust Statutes Become Law, William Kolasky

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On June 22, 2004, President Bush signed into law perhaps the most significant amendments to the U.S. antitrust statutes since the Hart-Scott-Rodino Antitrust Improvements Act of 1976. These changes, enacted as H.R. 1086, will have substantial implications for several areas of antitrust enforcement. These include: • limiting potential civil actions against standard-setting organizations;increasing even further incentives for antitrust wrongdoers to participate in the Antitrust Division’s corporate leniency program; increasing criminal penalties for corporations and individuals; and enhancing judicial scrutiny of antitrust consent decrees.

Antitrust And Competition Law Update: F. Hoffman-La Roche Ltd. V. Empagran: Supreme Court Restricts Extraterritorial Reach Of U.S. Antitrust Laws, James Burling

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On June 14, the U.S. Supreme Court issued an important opinion on the extraterritorial reach of U.S. antitrust laws in F. Hoffmann-La Roche Ltd. v. Empagran, S.A.1 The opinion, written by Justice Breyer, restricts the extraterritorial application of the antitrust laws under the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA). The Court unanimously held that purchasers in overseas markets claiming injury from price fixing (or other antitrust violations) cannot sue in U.S. courts by alleging that they were harmed by conduct that also injured consumers in the United States, at least absent allegations that injury to U.S. consumers facilitated …

The Implications Of Microsoft And Ims Health: Interesting Times For Dominant Intellectual Property Holders In Europe, Sven Voelcker

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

This article examines: (i) The Commission's treatment of trying issues with respect to Microsoft Window's Media Player (ii) The Commission's analysis of Microsoft's withholding of interoperability specifications for workgroup server operating systems, and (iii) the Court of Justice's pronouncement on refusals by dominant companies to license IP rights in IMS Health

No Penalty On The Play: Why The Bowl Championship Series Stays In-Bounds Of The Sherman Act, M. Todd Carroll

Washington and Lee Law Review

No abstract provided.

The Impact On The Czech Republic, John Ratliff

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On 1 May 2004, huge changes were introduced to the way in which EC competition law is enforced. The recent enlargement, with ten new EU Member States, is probably the most important change, because it results in a scale change in the size of the European Union. However, that change has also led to other important changes: a reappraisal of how enforcement is spread across competition authorities in the European Union and an effort to see whether other modernising steps should be taken. Coincidentally, the EC Merger Control Regulation has also been subject to a review mechanism and the related …

Antitrust And Competition Law Update: New European Licensing Rules Require Fresh Assessment Of Existing And New Intellectual Property Licenses, Axel Gutermuth, Thomas Mueller, John Ratliff

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

As of 1 May 2004, many licensors and licensees of patents, know-how and computer software in Europe will need to step up their efforts to ensure that they comply with European competition law. Companies without significant market power will enjoy greater flexibility than in the past to tailor licenses to their particular needs. But companies which license competitors or which have market power need to review their market position and licenses more carefully and more frequently.

Antitrust And Law Update: Interesting Times For Ip Holders In Europe, The Implications Of Microsoft And Ims Health, Sven Volcker, Leon Greenfield, Antonio Capobianco, Markus Hutschneider

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On March 24th 2004, the European Commission issued its long awaited Microsoft decision, which has now been published on its Website.1 On April 29th 2004, the Court of Justice handed down its judgment in the IMS Health case.2 Both decisions have important implications for all companies with valuable IP portfolios that do business in the European Union. Although these decisions are arguably not revolutionary given the existing legal framework for dominant companies set out in Article 82 EC, they illustrate that EC competition law sometimes strikes a different balance than US antitrust law between spurring innovation by protecting IP rights …

Online Music Joint Ventures: Taken For A Song, Harry First

ExpressO

In 2001 the five major record companies, controlling more than 80 percent of prerecorded music sales in the United States, announced the formation of two joint ventures to distribute music over the Internet. The Department of Justice opened an antitrust investigation into these ventures even before the ventures began their operations. Two and one-half years later the Department announced that it had closed the investigation because its "theoretical concerns ultimately were not supported by the evidence." The Department's investigation, however, focused on the ventures' licensing practices rather than on their formation.

This paper focuses on the formation of the online …

Modern Bootlegging And The Prohibition On Fair Prices: Last Call For The Repeal Of Pharmaceutical Price Gouging, Luke W. Cleland

ExpressO

This article discusses the recent passage of the Medicare Prescription Drug, Modernization and Improvement Act of 2003, and the executive and judicial decisions affecting the ability of the general public to access foreign pharmaceutical markets. The article examines the recent actions taken by the U.S. government, explore various state movements within the United States aimed at reducing pharmaceutical drug prices, outline the process of pharmaceutical drug prices in foreign countries, and advocate for a workable integration of all available mechanisms to feasibly reduce prescription drug prices for the benefit of both U.S. consumers and U.S. drug companies. As avenues to …

Parity Rules: Mapping Regulatory Treatment Of Similar Services, Sherille Ismail

Federal Communications Law Journal

The notion of regulatory parity has greatly impacted the evolution of American communications regulation, but the difficulties associated with applying this standard are frequently under-appreciated by industry participants. Throughout this Article, the Author acknowledges the difficulties in applying equal treatment standards to operators of various communications, video, and data services. Mr. Ismail asserts that several problems arise with attempts to ameliorate apparent disparities in how entities are regarded under current regulations, including difficulties in assessing revenue resources, channel control, and service delivery methods. The Article concludes that parity is difficult to define and apply in an effort to eliminate inefficiencies …

Multinational Antitrust: Lessons From The U.S. Experience, Douglas H. Ginsburg

Michigan Law Review

The globalization of business has resulted in a host of new issues facing antitrust regulators. As they rush to meet the challenges presented by the vastly greater volume of international business transactions, the increasing consolidation of global business operations, and the rapid evolution of computing and communications networks, the regulators leave in their wake an increasingly onerous burden on businesses engaged in international commerce. There is little guidance available, however, to the antitrust neophyte who wants to become familiar with these developments. They, as well as legal and economic scholars, lawyers, and others already steeped in antitrust law - or …

Tarnishment And The Ftda: Lessening The Capacity To Identify And Distinguish, Layne T. Smith

BYU Law Review

No abstract provided.

Wandering Along The Road To Competition And Convergence- The Changing Cmrs Roadmap, Leonard J. Kennedy, Heather A. Purcell

Federal Communications Law Journal

In this timely follow-up piece to a 1998 piece entitled A Federal Regulatory Framework that is "Hog Tight, Horse High, and Bull Strong, " the Authors of this Article revisit the progress of American commercial mobile radio services ("CMRS") proliferation and regulation. The piece expresses the concern that balkanization has continued to plague wireless regulation in the United States, as misguided legal analyses and state regulation further hinder wireless development across the nation. While the European Union has witnessed unprecedented growth in this sector, conflicting court and FCC decisions and continued federal, state, and local burdens on CMRS have placed …

A Horizontal Leap Forward: Formulating A New Communications Public Policy Framework Based On The Network Layers Model, Richard S. Whitt

Federal Communications Law Journal

Over the course of the last several decades, legal and structural fictions have evolved and have been integrated into the reality of communications theory and regulation. In this Article, the Author argues that the development of a "layers approach" to communications regulation of IP networks would lead to greater efficiencies while addressing public policy issues. By reconceptualizing communications regulation along horizontal layers, Mr. Whitt posits that the logical walls surrounding the key components of IP networks should be removed to promote increased functionality of communications oversight and management. In this way, the outmoded vertical separation associated with the legal legacy …