Antitrust and Trade Regulation Commons^™

Report On The Seminar ‘Economic Freedom And Market Regulation – In The Light Of The Impact Of Eu And National Market Regulators On The Activities Of Entrepreneurs’, Wpia Ue, Warsaw, 23.05.2020, Marta Rutynowska

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

No abstract provided.

On An Attempt To Interpret The Scope Of The Duty To Suspend A Concentration In Eu Competition Law. Commentary On The Judgment Of The Court Of Justice Of The European Union Of 31 May 2018 In The Case C-633/16 – Ernst & Young Versus Konkurrencerådet, Aneta Sakowicz

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The purpose of this article is to discuss the judgment of the CJEU of 31 May 2018 in case C-633/16, Ernst & Young P / S v. Konkurrencerådet due to its significance for the qualification of specific behaviors of the merging-parties within the broadly understood gun-jumping practice. According to the judgment, the approach of the CJEU to the scope of the standstill obligation, as well as to other anti-competitive cooperation of entrepreneurs at the stage preceding the implementation of the concentration, will be presented. The above mentioned issues will be then analyzed and commented on. Furthermore the article will explore …

Acquisition Of A Part Of An Entrepreneur’S Property As A Premise For Notifying The Intention Of A Concentration On The Example Of The Uokik President’S Decision Of 31 December 2019 In The Case Of Dino Polska S.A., Eliza Iwaniszyn

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

No abstract provided.

Decisions On The Derogation Of Both Nord Stream Gas Pipelines As An Element Of The Multilevel Enforcement Of Eu Law, Konrad Zawodziński

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The decisions of the German regulator, Bundesnetzagentur, announced in the second half of May 2020, regarding the derogation from EU rules of the common gas market for Nord Stream and the refusal to grant it to Nord Stream 2, are a consequence of the amendment to the Gas Directive adopted on 17 April 2019, which is in line with a wider context. They contribute to the discourse on the validity of the EU regulatory regime in time and space, and also constitute an important example of the complex application of procedural and substantive law in the case of episodic regulation. …

On The Need For The President Of Uokik To Issue Guidelines On Conditional Clearance Decisions For Mergers Between Undertakings, Jarosław Łukawski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article provides an analysis of whether the current legal regulations concerning conditional clearance decisions in merger control cases, as well as the practice of their application by the President of the Office of Competition and Consumer Protection, justify the need for the Polish antitrust authority to publish detailed guidelines on conditional consents. The analysis has been conducted on the basis of the position of the case law and doctrine regarding the need for the Polish antitrust authority to publish guidelines on the provisions of competition law as well as practical problems that arise on the grounds of conditional consents …

Neobrandisianism And The Political Content Of Antitrust, Jan Polański

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The rise of Big Tech reinvigorated the debate on the role of antitrust enforcement. While in Europe antitrust authorities have taken an active stance on policing the actions of Big Tech, in the United States the emergence of the digital giants provided a platform to voice concerns over the philosophy underlying modern antitrust. The prevailing view that antitrust should become more and more economic and less ‘political’ has been questioned by the supporters of the New Brandeis Movement, who argue that ‘antitrust is dead’. According to Neo-Brandisians, for antitrust to be reborn, a fundamental change in the perception of antitrust …

The Impact Of Soft Law On The Jurisprudence Of Polish Courts With Reference To The Imposition Of Fi Nes For The Use Of Competition-Restricting Practices (Selected Examples), Sabina Famirska

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article analyses the impact of the President of UOKiK’s official Explanations concerning the imposition of fines for practices restricting competition on the case law of Polish courts. First, the author analyses the methodology for determining fines resulting from the President of UOKiK’s Explanations and presents reservations regarding this methodology that appear in literature. She then presents selected judgments of Polish courts, which apply or invoke the methodology applied by the President of UOKiK to a various degree. Finally, the article raises concerns pertaining to the application by courts of methodology taken from a non-binding document.

Libra: A Concentrate Of "Blockchain Antitrust", Thibault Schrepel

Michigan Law Review Online

Blockchains promise to decentralize the economy, bypassing trusts in favor of decentralized communities. The World Economic Forum predicts that 10 percent of the global gross domestic product will be stored on block-chain by 2027. Gartner further prophesizes that blockchain will create $3.1 trillion worth of business value by 2030. Even if that prediction turns out to be too optimistic, blockchain’s legal implications cannot be neglected.

Comment On Us Trade And Investment Agreements Submitted To Ustr, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Comments to USTR Re: U.S.-Kenya Trade Agreement (April 28, 2020): CCSI, in response to the United States Trade Representative’s request for public comment to inform its approach to a U.S.-Kenya Trade Agreement, submitted Comments elaborating on our main points that (1) investor-state dispute settlement should not be included in any U.S.-Kenya agreement and (2) principles that should guide an investment chapter or investment provisions in any such agreement should (a) strategically support cross-border investment that produces positive development outcomes for the U.S. and Kenya, (b) facilitate and support good governance of investment projects, and (c) enhance cooperation to solve challenges …

Artificial Stupidity, Clark D. Asay

William & Mary Law Review

Artificial intelligence is everywhere. And yet, the experts tell us, it is not yet actually anywhere. This is because we are yet to achieve artificial general intelligence, or artificially intelligent systems that are capable of thinking for themselves and adapting to their circumstances. Instead, all the AI hype—and it is constant—concerns narrower, weaker forms of artificial intelligence, which are confined to performing specific, narrow tasks. The promise of true artificial general intelligence thus remains elusive. Artificial stupidity reigns supreme.

What is the best set of policies to achieve more general, stronger forms of artificial intelligence? Surprisingly, scholars have paid little …

Merchant Restraints In Ohio V. American Express—Why The Supreme Court Got It Wrong, Trent Earl

Brigham Young University Journal of Public Law

No abstract provided.

The Virulence Of Free Trade, Ramsi Woodcock

Law Faculty Popular Media

Specialists know that the antitrust courses taught in law schools and economics departments have an alter ego in business curricula: the course on business strategy. The two courses cover the same material, but from opposite perspectives. Antitrust courses teach how to end monopolies; strategy courses teach how to construct and maintain them.

Strategy students go off and run businesses, and antitrust students go off and make government policy. That is probably the proper arrangement if the policy the antimonopolists make is domestic. We want the domestic economy to run efficiently, and so we want domestic policymakers to think about monopoly—and …

Asymmetric Stakes In Antitrust Litigation, Erik Hovenkamp, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

Private antitrust litigation often involves a dominant firm being accused of exclusionary conduct by a smaller rival or entrant. Importantly, the firms in such cases generally have asymmetric stakes: the defendant typically has a much larger financial interest on the line. We explore the broad policy implications of this fact using a novel model of litigation with endogenous effort. Asymmetric stakes lead dominant defendants to invest systematically more resources into litigation, causing the plaintiff's success probability to fall below the efficient level--a distortion that carries over to ex ante settlements. We explain that enhanced damages may reduce the problem, but …

Sherman's Missing "Supplement": Prosecutorial Capacity, Agency Incentives, And The False Dawn Of Antitrust Federalism, Daniel E. Rauch

Cleveland State Law Review

When the Sherman Act passed in 1890, it was widely expected that it would operate primarily as a "supplement" to vigorous state-level antitrust enforcement of state antitrust statutes. This did not happen. Instead, confounding the predictions of Congress, the academy, and the trusts themselves, state antitrust enforcement overwhelmingly failed to take root in the years between 1890 and the First World War. To date, many scholars have noted this legal-historical anomaly. None, however, have rigorously or correctly explained what caused it. This Article does.

Using historical and empirical research, this Article establishes that the best explanation for the early failure …

Redeeming The Supreme Court: The Structure Behind The Baseball Trilogy And The Scope Of The Baseball Antitrust Exemption, Christian L. Neufeldt

Journal of Intellectual Property Law

This article conducts a systematic, methodological, and historical analysis of the baseball trilogy to elucidate its underlying structure. It adds to the existing scholarship by analyzing the later decisions in the context of their predecessors and exposing the interplay within the baseball trilogy. As a result, this article argues, against nearly universal opposition, that the Supreme Court issued well-considered opinions in each case and created a logical structure that underlies the entire trilogy. This article then scrutinizes the different approaches taken by the lower courts to delimitate the baseball antitrust exemption. It uses its structural findings on the baseball trilogy …

The Race To The Middle, William Magnuson

Notre Dame Law Review

How does federalism affect the quality of law? It is one of the fundamental questions of our constitutional system. Scholars of federalism generally fall into one of two camps on the question. One camp argues that regulatory competition between states leads to a “race to the bottom,” in which states adopt progressively worse laws in order to pander to powerful constituencies. The other camp, conversely, argues that regulatory competition leads to a “race to the top,” incentivizing states to adopt progressively better laws in the search for more desirable outcomes for their constituencies. Despite their apparent differences, however, both the …

Externalities And The Common Owner, Madison Condon

Washington Law Review

Due to the embrace of modern portfolio theory, most of the stock market is controlled by institutional investors holding broadly diversified economy-mirroring portfolios. Recent scholarship has revealed the anti-competitive incentives that arise when a firm’s largest shareholders own similarly sized stakes in the firm’s industry competitors. This Article expands the consideration of the effects of common ownership from the industry level to the market portfolio level and argues that diversified investors should rationally be motivated to internalize intra-portfolio negative externalities. This portfolio perspective can explain the increasing climate change related activism of institutional investors, who have applied coordinated shareholder power …

The Inefficiency Of Quasi-Per Se Rules: Regulating Information Exchange In Eu And U.S. Antitrust Law, Kenneth Khoo, Jerrold Tsin Howe Soh

Research Collection Yong Pung How School Of Law

It is well understood that the exchange of information between horizontal competitors can violate competition law provisions in both the European Union (EU) and the United States, namely, article 101 of the Treaty on the Functioning of the European Union and section 1 of the Sherman Act. However, despite ostensible similarities between EU and U.S. antitrust law concerning interfirm information exchange, substantial differences remain. In this article, we make a normative argument for the U.S. antitrust regime's approach, on the basis that the United States’ approach to information exchange is likely to be more efficient than the relevant approach under …

Recommendations And Comments On The Draft Vertical Merger Guidelines, Jonathan B. Baker, Nancy L. Rose, Steven C. Salop, Fiona Scott Morton

Georgetown Law Faculty Publications and Other Works

These recommendations and comments respond to the request by the Federal Trade Commission and the Department of Justice’s Antitrust Division for public comment on the draft 2020 Vertical Merger Guidelines. We commend the agencies for updating the 1984 non-horizontal merger guidelines by recognizing the substantial advances in economic thinking about vertical mergers in the thirty-five years since those guidelines were issued. Our comments emphasize four issues: (i) the treatment of the elimination of double marginalization (“EDM”), particularly that the draft vertical merger guidelines appear inappropriately to make proof of cognizability part of the agencies burden and that they appear to …

No-Fault Digital Platform Monopolization, Marina Lao

William & Mary Law Review

The power of today’s tech giants has prompted calls for changes in antitrust law and policy which, for decades, has been exceedingly permissive in merger enforcement and in constraining dominant firm conduct. Economically, the fear is that the largest digital platforms are so dominant and its data advantage so substantial that competition is foreclosed, resulting in long-term harm to consumers and to the economy. But the concerns extend beyond economics. Critics worry, too, that the large platforms’ tremendous economic power poses risks of social and political harm and threatens our democracy. These concerns have prompted discussions of ways to reinvigorate …