Antitrust and Trade Regulation Commons^™

Patent Pool Outsiders, Michael Mattioli

Articles by Maurer Faculty

Individuals who decline to join cooperative groups — outsiders — raise concerns in many areas of law and policy. From trade policy to climate agreements to class action procedures, the fundamental concern is the same: a single member of the group who drops out could weaken the remaining union. This Article analyzes the outsider problem as it affects patents.

The outsider question has important bearing on patent and antitrust policy. By centralizing and simplifying complex patent licensing deals, patent pools conserve tremendous transaction costs. This allows for the widespread production and competitive sale of many useful technologies, particularly in the …

Unlocking Antitrust Enforcement, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The “Protection Of The Competitive Process” Standard, Tim Wu

Faculty Scholarship

The antitrust law should return to a standard more realistic and suited to the legal system – the “protection of the competitive process.” It posits a basic question for law enforcement and judges. Given complained-of conduct, is that conduct actually part of the competitive process, or is it a sufficient deviation as to be unlawful? In this view, antitrust law aims to create a body of common-law rules that punish and therefore deter such disruptions – hence “protecting the competitive process.”

After Consumer Welfare, Now What? The "Protection Of Competition" Standard In Practice, Tim Wu

Faculty Scholarship

The consumer welfare standard in antitrust has been heavily criticized. But would, in fact, abandoning the “consumer welfare” standard make the antitrust law too unworkable and indeterminate?

I argue that there is such a thing as a post-consumer welfare antitrust that is practicable and arguably as predictable as the consumer welfare standard. In practice, the consumer welfare standard has not set a high bar. The leading alternative standard, the “protection of competition” is at least as predictable, and arguably more determinate than the exceeding abstract abstract consumer welfare test, while being much truer the legislative intent underlying the antitrust laws. …

The American Express Opinion, Tech Platforms & The Rule Of Reason, Tim Wu

Faculty Scholarship

This paper makes two points. First, it describes the opinion as creating a mirror-image of the "per se" rulings, this time favoring defendants instead of plaintiffs. Second, however, it points out the narrowness of the decision. If the American Express opinion had created rules for all two-sided platforms it would have fundamentally changed much of antitrust law, by reaching so much of American commerce. For the concept of a two-sided platform is open-ended enough to conceivably describe businesses as diverse as malls, sports leagues, real estate agents, stock exchanges, and most tech platforms. However, the American Express opinion is narrower …

Competition Law Gone Global: Introducing The Comparative Competition Law And Enforcement Datasets, Anu Bradford, Adam S. Chilton, Chris Megaw, Nathaniel Sokol

Faculty Scholarship

Competition law has proliferated around the world. Due to data limitations, however, there is little systematic information about the substance and enforcement of these laws. In this paper, we address that problem by introducing two new datasets on competition law regimes around the world. First, we introduce the Comparative Competition Law Dataset, which codes competition laws in 130 jurisdictions between 1889 to 2010. Second, we introduce the Comparative Competition Enforcement Dataset, which provides data on competition agencies’ resources and activities in 100 jurisdictions between 1990 and 2010. These datasets offer the most comprehensive picture of competition law yet assembled and …

Competition Law Around The World From 1889 To 2010: The Competition Law Index, Anu Bradford, Adam S. Chilton

Faculty Scholarship

Competition laws have become a mainstay of regulation in market economies today. At the same time, past efforts to study the drivers or effects of these laws have been hampered by the lack of systematic measures of these laws across a wide range of years or countries. In this paper, we draw on new data on the evolution of competition laws to create a novel Competition Law Index (the “CLI”) that measures the stringency of competition regulation from 1889 to 2010. We then employ the CLI to examine trends in the intensity of competition regulation over time and across key …

Antitrust Enforcement Against Platform Mfns, Jonathan Baker, Fiona M. Scott Morton

Scholarly Articles in Law Reviews & Journals

Antitrust enforcement against anticompetitive platform most favored nations (MFN) provisions (also termed pricing parity provisions) can help protect competition in online markets. An online platform imposes a platform MFN when it requires that providers using its platform not offer their products or services at a lower price on other platforms. These contractual provisions may be employed by online platforms offering hotel and transportation bookings, consumer goods, digital goods, and handmade craft products. They have been the subject of antitrust enforcement in Europe but have drawn only limited antitrust scrutiny in the U.S. Our paper explains why MFNs employed by online …

The Ideological Roots Of America's Market Power Problem, Lina M. Khan

Faculty Scholarship

Mounting research shows that America has a market power problem. In sectors ranging from airlines and poultry to eyeglasses and semiconductors, just a handful of companies dominate. The decline in competition is so consistent across markets that excessive concentration and undue market power now look to be not an isolated issue but rather a systemic feature of America’s political economy. This is troubling because monopolies and oligopolies produce a host of harms. They depress wages and salaries, raise consumer costs, block entrepreneurship, stunt investment, retard innovation, and render supply chains and complex systems highly fragile. Dominant firms’ economic power allows …

Amazon – An Infrastructure Service And Its Challenge To Current Antitrust Law, Lina M. Khan

Faculty Scholarship

This chapter maps out facets of Amazon’s power. In particular, it traces the sources of Amazon’s growth and analyzes the potential effects of its dominance. Doing so enables us to make sense of the company’s business strategy and illuminates anticompetitive aspects of its structure and conduct. This analysis reveals that the current framework in antitrust — specifically its equating competition with “consumer welfare,” typically measured through short- term effects on price and output — fails to capture the architecture of market power in the 21st- century marketplace. In other words, the potential harms to competition posed by Amazon’s dominance are …

Competition Merger Review For Cross-Border Mergers And Acquisitions In Indonesia, Zulheri Zulheri

Indonesia Law Review

This article aimed at expressing ideas on a legal construction of competition merger review (CMR) on Crossborder Mergers and Acquisitions (CBM&A) that have Indonesian legal dimension. The problem has been triggered by the lack of CMR guidelines for CBM&A to nurture a fair and sustainable business competition (FSBC). Consequently, the existing guideline is inadequate for reviewing CBM&A proposals which have a multi-jurisdiction dimension character. As a result, merging (gigantic) companies doing business in Indonesia have enormous opportunities to engage in anti-competitive behavior in the domestic market. In its turn, it brings the impact of reducing competition itself whereby national companies …

Legal Succession In Competition Law Proceedings - Commentary To The Judgment Of The Supreme Court Of 6 April 2017, Iii Sk 15/16, Elżbieta Krajewska

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

The commentary summarises the judgment of the Supreme Court, who took the position that the acquiring company is a legal successor of the target company in the competition proceedings, where the decision imposing a fine was addressed to the target company but delivered already to the acquiring company. Due to lack of the specific rules in the Polish Competition Act governing legal succession, the Supreme Court strongly recommended the introduction of such rules.

100 Days Of Act On Contractual Advantage, Piotr Adamczewski

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

The article discusses 100 days of the Act of 15th December 2016 on the unfair use of contractual advantage in the trade in agricultural and food products. The author describes the cases that the President of the Office of Competition and Consumer Protection (referred as the President of the UOKIK) is currently dealing with along with other instruments used as a tool in combating unfair practices. Next issue tackled is the cooperation of the President of the UOKiK with other relevant bodies in the context of handled cases and possible legislation process. Afterwards the author analyses the popularization of the …

Tackling Unfair Trading Practices In The Business-To-Business Food Supply Chain – Legal Solutions In Ireland, Grzegorz Koguciuk

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

The article presents the Irish regulation applied to business relationships in the food supply industry aimed at tackling unfair trading practices applicable in business relationship. The historic background of adopting such rules clarifies that numerous activities have been undertaken in Ireland to achieve efficient solutions and modus operandi to regulate this matter. Subsequently, the characteristics of the adopted regulation are presented – also in comparison to the relevant Polish act – the Act on counteracting unfair abuse of contractual advantage in trading of agricultural and food products. Further, the contracting rules set by the new act for that sector are …

The Statutory Conditions Establishing The Contractual Advantage In The Practice Of Unfair Use Of Contractual Advantage In Food And Agriculture Industry, Agnieszka Staszek, Mateusz Mroczek

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

The new Act on the unfair use of contractual advantage entered into force on 12 July 2017. This new law introduces into Polish legal system a completely new institution prohibiting the unfair use of contractual advantage in relations between the purchaser and the supplier. The article describes the statutory conditions of the existence of a contractual advantage within the meaning of the Act - which are the absence of sufficient (“wystarczających”) and real (“faktycznych”) opportunities to sell (purchase) agricultural or food products to other purchasers (from other suppliers), as well as significant economic disparity between contractors. The authors of the …

Unfair Use Of Superior Bargaining Power By Retail Chains Against Food Suppliers – Examples Of Potentially Forbidden Practices, Antoni Bolecki

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

The aim of the article is: a) presenting a list of practices which may be deemed as unfair use of superior bargaining power by retail chains against food suppliers; b) explaining how of such practices work and why they can be found as illegal.

Effects Connected With A Finding Of Unfairness Of A Contract Term By A Court In An Incidental Proceeding, Bartosz Wyżykowski

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

The article analyses regulations, as well as judical and scientific opinions in regard to the problematic aspects on how the fact that a consumer contract contains one or more unfair terms effects such a conract. The research mainly concentrates on the effects of a judgement of a competent court in the indvidual case of a consumer. Also, very important is the current judicature of the Court of Justice of the European Union and its impact on the interpretation of polish regulations in the subject matter. Morover, subject of consideration are practical difficulties as well as questions regarding the restitutory effects …

Singapore: A Small Country With Liberal Competition Law, Konrad Kohutek

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

This paper presents selected regulations of competition law in Singapore, paying particular attention to legal solutions which are different from those that are applicable in EU or Polish competition law. The issue of the concentration control in Singapore law has been omitted.

Entia Non Sunt Multiplicanda Praeter Necessitate – On The Necessity Of The Enactment Of The Act On Counteracting Unfair Use Of Superior Bargaining Power In The Trade In Agricultural And Food Products, Ilona Szwedziak-Bork

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

The aim of this paper is to underline some essential doubts indicated by some authors and related to the Act on counteracting unfair use of superior bargaining power in the trade in agricultural and food products. Despite ambitious goals concerning protection of public interest and weaker parts in trade relations in agricultural and food sector the Act is considered as a source of interpretative problems, especially for entities to which it is addressed.

Unannounced Inspections Made By The President Of The Office Of Competition And Consumer Protection – New Standard For The Gathering Of Electronic Evidence. Commentary On The Order Of The Polish Court Of Competition And Consumer Protection Of 7 March 2017, Xvii Amz 15/17, Piotr Skurzyński, Maciej Gac

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

The commentary discusses the order of the Polish Court of Competition and Consumer Protection regarding the powers of the Polish Competition Authority (the President of the Office of Competition and Consumer Protection) to search IT systems and hardware (e-mails and hard disks) during dawn raids. This order prohibits the current practice of the President of the Office of Competition and Consumer Protection, according to which electronic data is copied without prior selection and taken from the premises of the inspected undertaking for further analysis at the authority's premises. The order clearly states that the President of the Office of Competition …