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Antitrust and Trade Regulation Commons™
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Articles 31 - 60 of 62
Full-Text Articles in Antitrust and Trade Regulation
Exiting The Euro, Frederick V. Perry, Wendy Gelman
Exiting The Euro, Frederick V. Perry, Wendy Gelman
Richmond Journal of Global Law & Business
The Crisis in the Euro Zone threatens to break up the Euro and perhaps derail the European Union itself. Many argue that a Member State exiting the Euro would be not only unthinkable, but also a practical impossibility, given the status of the “constitutionality” of European law, the treaties forming the European Union and the Euro, and customary European law. Europeans have been, for centuries, very creative in forging economic and trading alliances—some that appeared to be political alliances and even elementary union. They have also, on more than one occasion, attempted to confect monetary stability. Some of these attempts …
The Diverging Approach To Price Squeezes In The United States And Europe, George A. Hay, Kathryn Mcmahon
The Diverging Approach To Price Squeezes In The United States And Europe, George A. Hay, Kathryn Mcmahon
Cornell Law Faculty Publications
Notwithstanding assertions of greater harmonization and convergence between United States and European Union competition law, recent case law has identified significant differences in their approaches to the regulation of a price or margin squeeze. In the US after linkLine the likelihood of a successful claim has been significantly diminished, particularly if there has been no prior course of voluntary dealing and no downstream predatory pricing. In contrast, in a series of decisions in liberalized telecommunications markets, the EU Courts in applying an “as efficient competitor test” have focused on the preservation of competitive rivalry as “equality of opportunity.” This significantly …
Consumer Watchdog: The Fcc’S Proposed Rulemaking To Help Consumers Avoid Bill Shock, Cameron Robinson
Consumer Watchdog: The Fcc’S Proposed Rulemaking To Help Consumers Avoid Bill Shock, Cameron Robinson
Federal Communications Law Journal
This Note discusses the proposed rulemaking by the FCC in order to empower consumers against "bill shock." Bill shock is described as what a consumer experiences when he or she receives a bill for his or her cellular phone that is much higher than expected, usually on account of roaming charges. This Note will argue in favor of rulemaking by the FCC and explain how the consumer will be empowered against the confusion of the current system.
Opportunistic Discipline: Using Eurasian Integration To Improve Sanctions Against Belarus, Ilya Zlatkin
Opportunistic Discipline: Using Eurasian Integration To Improve Sanctions Against Belarus, Ilya Zlatkin
Richmond Journal of Global Law & Business
No abstract provided.
The Brussels Effect, Anu Bradford
The Brussels Effect, Anu Bradford
Faculty Scholarship
This Article examines the unprecedented and deeply underestimated global power that the EU is exercising through its legal institutions and standards, and how it successfully exports that influence to the rest of the world. Without the need to use international institutions or seek other nations' cooperation, the EU has a strong and growing ability to promulgate regulations that become entrenched in the legal frameworks of developed and developing markets alike, leading to a notable "Europeanization" of many important aspects of global commerce. The Article identifies the precise conditions for and the specific mechanism through which this externalization of EU's standards …
Rethinking Merger Efficiencies, Daniel A. Crane
Rethinking Merger Efficiencies, Daniel A. Crane
Articles
The two leading merger systems-those of the United States and the European Union-treat the potential benefits and risks of mergers asymmetrically. Both systems require considerably greater proof of efficiencies than they do of potential harms if the efficiencies are to offset concerns over the accumulation or exercise of market power The implicit asymmetry principle has important systemic effects for merger control. It not only stands in the way of some socially desirable mergers but also may indirectly facilitate the clearance of some socially undesirable mergers. Neither system explicitly justifies this asymmetry, and none of the plausible justifications are normatively supportable. …
Toward A Unified Theory Of Exclusionary Vertical Restraints, Daniel A. Crane, Graciela Miralles
Toward A Unified Theory Of Exclusionary Vertical Restraints, Daniel A. Crane, Graciela Miralles
Articles
The law of exclusionary vertical restraints-contractual or other business relationships between vertically related firms-is deeply confused and inconsistent in both the United States and the European Union. A variety of vertical practices, including predatory pricing, tying, exclusive dealing, price discrimination, and bundling, are treated very differently based on formalistic distinctions that bear no relationship to the practices' exclusionary potential. We propose a comprehensive, unified test for all exclusionary vertical restraints that centers on two factors: foreclosure and substantiality. We then assign economic content to these factors. A restraint forecloses if it denies equally efficient rivals a reasonable opportunity to make …
Competition And Regulation In The Insurance Sector: Reassessing The Mccarran-Ferguson Act, Susan Beth Farmer
Competition And Regulation In The Insurance Sector: Reassessing The Mccarran-Ferguson Act, Susan Beth Farmer
Faculty Scholarship
This article was presented at a symposium entitled “Public and Private: Are the Boundaries in Transition?” sponsored by the American Antitrust Institute on June 24, 2010. It proposes a different paradigm, which more precisely describes regulation and competition in the insurance sector. This relationship is the shifting boundary between state and federal regulation instead of a boundary between the public and private sectors. The McCarran-Ferguson Act was adopted to protect firms acting in the business of insurance from federal antitrust scrutiny, but its language and impact goes far beyond federal competition law. So broad is the exemption that the modern …
Introduction: Expansion And Contraction In Monopolization Law, Michael S. Gal, Spencer Weber Waller, Avishalom Tor
Introduction: Expansion And Contraction In Monopolization Law, Michael S. Gal, Spencer Weber Waller, Avishalom Tor
Journal Articles
This article introduces a special symposium issue of the Antitrust Law Journal based on a conference on monopolization. It argues that monopolization law has been experiencing simultaneous expansion and contraction processes that are not wholly contradictory but at least partly complementary. Specifically, the authors suggest that the contraction of monopolization law in the United States and the EU might serve to facilitate its expansion and increased importance worldwide, providing other antitrust regimes with more focused and effective tools to address the challenges involved in regulating dominant firms. Moreover, monopolization law's increased reach internationally also has made its refinement and rationalization …
Intel's Alleged Schemes Affected U.S. Consumers, Robert H. Lande
Intel's Alleged Schemes Affected U.S. Consumers, Robert H. Lande
All Faculty Scholarship
This short piece explains how the first unit discounts or rebates allegedly given by Intel on their X86 chips could harm competition, innovation, and PC purchasers in this crucial $33 billion/year market. For these reasons, their discounts or rebates could violate European Competition law and U.S. Antitrust law.
Microsoft Tying Consumers' Hands - The Windows Vista Problem And The South Korean Solution, Daniel J. Silverthorn
Microsoft Tying Consumers' Hands - The Windows Vista Problem And The South Korean Solution, Daniel J. Silverthorn
Michigan Telecommunications & Technology Law Review
Currently, more than ninety percent of the world's PCs operate under Windows. To cement its market power, Microsoft has engaged in controversial business practices. Those practices have led to adverse antitrust decisions in the United States, the European Union (EU), and South Korea. Many of these decisions, both judicial and administrative, revolve around Microsoft's bundling, or "tying," of certain subsidiary applications with the Windows operating system, including Internet Explorer and Windows Media Player. In doing so, Microsoft arguably gains a greater than deserved market share with these bundled applications, inhibiting fair competition in the software marketplace. The United States, EU …
The Privacy Gambit: Toward A Game Theoretic Approach To International Data Protection, Horace E. Anderson
The Privacy Gambit: Toward A Game Theoretic Approach To International Data Protection, Horace E. Anderson
ExpressO
“Privacy” is one of the fastest growing areas of the law, due in part to the explosion of the Internet over the past decade. When we speak of privacy in the Internet age, we typically mean data protection, the regulation of the use of personal information about individuals by private interests, such as corporations. Unfortunately, much of the discourse on the subject adopts a framework more suitable to traditional privacy, an inviolable “right to be let alone” by the state. Rather than create a sacrosanct right against the government, the modern incarnation of privacy actually creates a quasi-property right, where …
Transparency In Global Merger Review: A Limited Role For The Wto?, Keith R. Fisher
Transparency In Global Merger Review: A Limited Role For The Wto?, Keith R. Fisher
ExpressO
This article identifies certain problems faced by parties to transnational merger transactions in view of the global proliferation in recent years of competition (and, specifically, merger review) laws. After considering the pros and cons of merger remedies (both structural and behavioral) that may be offered to mitigate potentially anticompetitive effects and illustrating (through a case study of the GE/Honeywell transaction) the pitfalls of divergent market definition even as between two legal regimes employing substantially similar standards, the article reviews and critiques proposals for establishing a supranational competition authority under the aegis of the World Trade Organization. While rejecting the WTO …
My Summer Vacation At The European Commission, Jonathan Baker
My Summer Vacation At The European Commission, Jonathan Baker
Scholarly Articles in Law Reviews & Journals
Among the more than 100 jurisdictions with active competition policy regimes today, the United States has the distinction of starting first, creating the most extensive set of judicial precedents, and possessing the largest and most experienced enforcement institutions. Antitrust institutions in the United States have long stood at the summit on any scale of international prestige and influence in the competition policy field. Yet any such ranking would also undoubtedly indicate that during the last decade or so, the antitrust institutions of the European Union have grown in size and sophistication to the point where they are comparably respected and …
Chronopost V. Ufex: The Paradoc Of The Competing Monopolist Symposium On European Competition Law , Alessandra Fratini, Andrea Carta
Chronopost V. Ufex: The Paradoc Of The Competing Monopolist Symposium On European Competition Law , Alessandra Fratini, Andrea Carta
Northwestern Journal of International Law & Business
On July 3, 2003, in the Chronopost judgment, the European Court of Justice ("ECJ" or "the Court") defined the conditions under which a public undertaking, enjoying a legal monopoly for the provision of services of general interest, can provide services to its subsidiaries without infringing Article 87(1) of the EC Treaty. The impact of this judgment on European Community ("EC") state aid policy and public services is potentially large, in both legal and practical terms. The ruling casts light on the real dilemma underlying the application of state aid rules to the circumstances of the case: how to allow public …
The State Of E.C. Competition Law: Fiften Years Ago And Today, The Symposium On European Competition Law , Frank Fine
The State Of E.C. Competition Law: Fiften Years Ago And Today, The Symposium On European Competition Law , Frank Fine
Northwestern Journal of International Law & Business
The European Commission is achieving ever greater rationalization and efficiencies in the field of merger control, thereby maximizing commercial benefits while minimizing regulatory hurdles. The Commission appears to be on a completely different track when it comes to non-merger arrangements, such as strategic alliances, distribution agreements, technology licenses, joint selling agreements and joint purchasing agreements. While the Commission is seeking to maximize legal certainty for companies planning concentrations, in the other spheres of business activity which fall within the ambit of Articles 81 and 82, including those noted above, the Commission has decided that the legal certainty afforded by the …
New E.C. Merger Control Test Under Article 2 Of The Merger Control Regulation, The Symposium On European Competition Law , Alexander Riesenkampff
New E.C. Merger Control Test Under Article 2 Of The Merger Control Regulation, The Symposium On European Competition Law , Alexander Riesenkampff
Northwestern Journal of International Law & Business
On November 25, 2003, the Council reached a political accord on amending the Merger Control Regulation. On January 20, 2003, the Council formally adopted the amendment as new Regulation No.139/2004. Article 2, Sec. 3 of the new regulation provides: "A concentration which would significantly impede effective competition, in the common market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position, shall be declared incompatible with the common market." This article begins by outlining the legislative history of the new Article 2. That preface is followed by the identification …
E.U. State Aid Developments In 2003: More Complexity, Less Certainty Symposium On European Competition Law , Dennis Oswell, Esfandiar Vahida
E.U. State Aid Developments In 2003: More Complexity, Less Certainty Symposium On European Competition Law , Dennis Oswell, Esfandiar Vahida
Northwestern Journal of International Law & Business
There was a time when observers had the impression that European companies could think of no better gift from the government than a subsidy of some sort. Scrutiny of such governmental largess at the E.U. level was perceived as lax and any consequences for violating the E.U. competition rules against such handouts were seen as remote and timid. Times have changed. As the European Commission (the "Commission") stiffens its resolve to police and punish unlawful State intervention in the marketplace, governmental subsidies to favored undertakings, broadly referred to in the European Union as "State aid," are fast becoming gifts that …
New Ec Merger Regulation: A First Assessment Of Its Practical Impact, The Symposium On European Competition Law , Werner Berg
New Ec Merger Regulation: A First Assessment Of Its Practical Impact, The Symposium On European Competition Law , Werner Berg
Northwestern Journal of International Law & Business
In the late evening of November 27, 2003, the Council of Ministers reached a political agreement on the amended text of the European Community Merger Regulation ("ECMR"), which is due to enter into force on May 1, 2004, the date for enlargement of the European Union. In the following article, the New ECMR will be assessed from a practitioner's perspective. Since the new substantive test is being dealt with in another contribution to this Symposium, this analysis focuses on the jurisdictional and procedural issues
Current Issues Of E.U. Competition Law: The New Competition Enforcement Regime, The Symposium On European Competition Law , Philip Lowe
Current Issues Of E.U. Competition Law: The New Competition Enforcement Regime, The Symposium On European Competition Law , Philip Lowe
Northwestern Journal of International Law & Business
On May 1, 2004, two major reforms of the EC competition enforcement regime are expected to enter into force: the modernization of antitrust enforcement, based on Regulation 1/2003,1 and the review of the European merger control system. In this contribution, I will outline the main principles underlying these reforms. In Part I, I will focus on the instruments the Commission intends to adopt early in 2004 in order to guarantee the efficient functioning of Regulation 1/2003, the so-called modernization package. Subsequently, in Part II, I will present the guiding principles of the future merger control in Europe, as they result …
E.U. Competition And Private Actions For Damages, The Symposium On European Competition Law , Georg Berrisch, Eve Jordan, Rocio Salvador Roldan
E.U. Competition And Private Actions For Damages, The Symposium On European Competition Law , Georg Berrisch, Eve Jordan, Rocio Salvador Roldan
Northwestern Journal of International Law & Business
There are numerous reasons why private enforcement of E.U. competition law remains underdeveloped in Europe. The main reason is perhaps that it is not regulated by E.U. law but by Member State law. This in itself creates legal uncertainty. A system that creates optimal conditions for individuals to challenge infringements of competition rules before national courts ensures a high level of compliance. It is therefore no surprise that the European Commission ("Commission") is keen to see the general use of private enforcement, and in particular of actions for damages, in Europe increase. This paper focuses on one particular aspect of …
Last Of Its Kind: The Review Of The Technology Transfer Block Exemption Regulation, The Symposium On European Competition Law , Fiona Carlin, Stephanie Pautke
Last Of Its Kind: The Review Of The Technology Transfer Block Exemption Regulation, The Symposium On European Competition Law , Fiona Carlin, Stephanie Pautke
Northwestern Journal of International Law & Business
On October 1, 2003, the Commission published a formal proposal for a new technology transfer block exemption ("Draft TTBE") together with detailed draft guidelines ("Draft Guidelines")5 which explain how the new regulation will be interpreted and how Article 81 will be applied to agreements that fall outside the revised regulation's safe harbor. These proposals unleashed a barrage of criticism from industry and seem likely to result in some amendments to the proposed texts before their adoption in March or April 2004. The new package is due to enter into force on May 1, 2004. This article discusses the Commission's proposals …
Combinations, Concerted Practices And Cartels: Adopting The Concept Of Conspiracy In European Community Competition Law Symposium On European Competition Law , Julian M. Joshua, Sarah Jordan
Combinations, Concerted Practices And Cartels: Adopting The Concept Of Conspiracy In European Community Competition Law Symposium On European Competition Law , Julian M. Joshua, Sarah Jordan
Northwestern Journal of International Law & Business
This article charts the progress of, and the vicissitudes faced by, the incorporation into the European Community legal order of the peculiarly common law concept of conspiracy as the vehicle not only for analytical purposes, by characterizing full-blown cartels as "agreements" in the sense of Article 81 of the EC Treaty, but also to resolve the multiplicity of evidential issues presented by complex, pernicious and secretive behavior. The article also shows how the uncovering of deliberate and secretive business delinquency, practiced at the highest levels in some of Europe's most respected corporations and summed up by the negative connotations of …
Role Of Judicial Review In Merger Control, The Symposium On European Competition Law , Mark Clough
Role Of Judicial Review In Merger Control, The Symposium On European Competition Law , Mark Clough
Northwestern Journal of International Law & Business
This article explains the role of judicial review in European Community ("EC") Merger Control ("ECMR") by reference to the Airtours case and three other important recent judgments of the European Court of First Instance ("CFI") (Schneider, Tetra Laval and Lagardére), all decided in 2002. Article 230 of the EC Treaty, which governs actions for annulment of acts adopted by the EC Institutions "on the grounds of lack of competence, infringement of an essential procedural requirement, infringement of this [EC] Treaty or of any rule of law relating to its application, or misuse of powers," is considered only in the context …
European Community Compulsory Licensing Policy: Heresy Versus Commen Sense Symposium On European Competition Law , Frank Fine
European Community Compulsory Licensing Policy: Heresy Versus Commen Sense Symposium On European Competition Law , Frank Fine
Northwestern Journal of International Law & Business
There is a growing trend to limit the rights of intellectual property owners when the public interest warrants. Until very recently, this phenomenon has been manifested only at a transnational level.1 For example, the World Trade Organization, as recently as November 2001, in its Doha Agreement ("Doha"),2 enabled certain nations of the Asian and African subcontinents to obtain compulsory licenses to manufacture and distribute domestically certain anti-retroviral drugs by declaring a state of national health emergency. Doha raises an intriguing question: if limited intrusions into valuable intellectual property rights may be justified on public health grounds, should not such intrusions …
The Role Of Efficiencies In Telecommunications Merger Review, Calvin S. Goldman Q.C., Ilene Knable Gotts, Michael E. Piaskoski
The Role Of Efficiencies In Telecommunications Merger Review, Calvin S. Goldman Q.C., Ilene Knable Gotts, Michael E. Piaskoski
Federal Communications Law Journal
As a result of the recent telecommunications industry slowdown and the rise of globally integrated communications networks, mergers and acquisitions have become a commonplace occurrence throughout the developed world. In this article, Calvin Goldman, Michael Piaskoski and Ilene Gotts review recent merger and acquisition activity and discuss how the decisions to allow or deny “M&A” are viewed by regulatory agencies in the United States, the European Union, and Canada. The first part of this article addresses these three parties’ approaches to M&A consideration and how the concept of “efficiencies” generated by consolidation enters those deliberations. The authors then explore the …
The European Union’S Microsoft Case: No Time For Jingoism, Albert A. Foer, Robert H. Lande
The European Union’S Microsoft Case: No Time For Jingoism, Albert A. Foer, Robert H. Lande
All Faculty Scholarship
No abstract provided.
The Regulation Of Interactive Television In The United States And The European Union, Hernan Galperin, Francois Bar
The Regulation Of Interactive Television In The United States And The European Union, Hernan Galperin, Francois Bar
Federal Communications Law Journal
The broadcasting industry is rapidly entering the era of digitization, distributed intelligence, and interactivity. The case of interactive television offers an opportunity to investigate how desirable policy goals should be implemented in the post-convergence environment. This Article first reviews the evolution of the broadcasting industry through three successive models: the traditional "Fordist" television model, the current multichannel television model, and the emerging ITV model. Second, it characterizes the basic components of ITV and explores the concerns raised by the evolution of multichannel video programming distributors into ITV platform operators. Next, the Article reviews how regulators in the United States and …
Global Antitrust And The Evolution Of An International Standard, William Sugden
Global Antitrust And The Evolution Of An International Standard, William Sugden
Vanderbilt Journal of Transnational Law
This Note explores recommendations for developing a global antitrust regime and ultimately rejects those suggestions in favor of more traditional nationally-based applications of antitrust rules. Part II introduces an economic model of global antitrust to show the systemic difficulties inherent in creating a global regime. Part III contrasts the difficulties in creating a global regime with the greater historical success of developing regional antitrust authorities. Part IV tracks the history of the extraterritorial application of antitrust laws by the United States and the European Union. Part V argues that the path to effective global antitrust lies not in the creation …
The Boeing-Mcdonnell Douglas Merger: Competition Law, Parochialism, And The Need For A Globalized Antitrust System, Kathleen Luz
The Boeing-Mcdonnell Douglas Merger: Competition Law, Parochialism, And The Need For A Globalized Antitrust System, Kathleen Luz
Faculty Scholarship
On July 1, 1997, the Federal Trade Commission (FTC) closed its investigation of the merger of the Boeing Company (Boeing) and the McDonnell Douglas Corporation (McDonnell Douglas), essentially approving the merger. The proposed $14 billion merger was quite significant, as it would unite the first and third largest civil aircraft companies in the world. Although the proposed merger had passed muster under U.S. antitrust laws, Boeing still faced the obstacle of gaining approval from the European Commission (EC), the antitrust enforcement agency of the European Union (EU). The EC initially sought to reject the merger and to levy heavy penalties …