Comparative Competition 2016

Premises

The main idea behind this course is the following premise: grosso modo all antitrust jurisdictions agree that cartels should be prohibited, anticompetitive mergers blocked, and abuses of monopoly power tempered, and most have some sort of law to challenge/immunise state action.  These apparent similarities seem to drive a discourse premised on gradual convergence of legal systems.  This is played out both in the EU-level discussions on the convergence of national systems with the European one, and at the global level with the International Competition Network leading the identification of ‘superior practices’ and a soft codification of antitrust standards.  In this discourse there seems to be something missing – comparative law should be a bit richer than this, surely! For example comparatists look for functional equivalents (does art 102 deal with attempted monopolization covered by section 2 of the Sherman Act?), or look for differences and the reasons for these differences (recall the legal families tradition of comparative scholarship).  That is to say, there ought to be more to comparative (antitrust) law than designing convergence tools, or at least we have to ask ourselves why it is that much of the discussion is based upon achieving convergence.

On the basis that there should be more in comparative antitrust, I have designed the course as a search for this.  We might find zilch. Even so, I hope we encounter some interesting readings along the way that help us think about how competition law is perceived across countries.

A methodological note

Bar from the first session, we rely on secondary literature only. This is because it is invidious to try and learn several languages and legal systems in depth so as to be able to do comparisons by ourselves. So I have decided to rely on secondary sources from people who are hopefully more able to tell us something about other legal systems than we are.

We mix secondary literature on national laws with literature on comparative law more generally, trying to see how the latter can help us shape a comparative law method for antitrust.

Seminar 1 – US antitrust (11 January 2016)

The purpose of this seminar is to use limited resources to draw a picture of the development of US antitrust from the beginnings to present-day.  The two judgments that I selected represent two ‘eras’ of Supreme Court adjudication in antitrust matters, and the paper tries to bridge the divide between the old and the new era.

Brown Shoe v US 370 U.S. 294 (1962)

Verizon v Trinko 540 U.S. 398 (2004)

Fox and Sillivan ‘Antitrust – Retrospective and Prospective: Where are We Coming From? Where are We Going?’ (1987) 62 New York University Law Review 936

Seminar 2 – EU competition law (18 January 2016)

The readings selected this week are chose with the following rationale in mind – Amato’s book is the result of a seminar he taught at EUI and at NYU, and it is deliberately trying to compare the two systems as they were, just as the EU system was moving towards a ‘more economic approach’ to antitrust. Fox’s paper is a comparison from the US perspective, which mirrors Amato’s.  Instead, Hylton’s paper tries to lay out some markers for what counts when comparing the two jurisdictions.  The purpose of the seminar is to try and find out what distinguishes the two systems and what might account for these differences.

Amato Antitrust and the Bounds of Power (1997) chs. 5 and 7

Fox ‘We Protect Competition, You Protect Competitors’ (2003) 26(2) World Competition 149

Hylton ‘Antitrust Enforcement Regimes: Fundamental Differences’ Boston University School of Law Working Paper N.12/41 (2012)

Seminar 3 – a comparative competition law research agenda (25 January 2016)

In this seminar we look at two papers by David Gerber, written some six years apart. Gerber is one of the most interesting scholars writing on antitrust, taking the long view and not reacting to short term sensational issues.  He has also written about comparative law more generally and the two papers try and chart agendas for comparative antitrust.  I have also added a paper by William Twining, suggesting his agenda for comparative law. The idea here is to think about what comparative law might do for antitrust, and we can use the material from the two preceding seminars to discuss this.

Gerber ‘Comparative Antitrust Law’, in Reimann and Zimmermann (eds) The Oxford Handbook of Comparative Law (2006) (available as e-book)

Gerber ‘Comparative Law and Global Regulatory Convergence: the example of competition law’ in Adams and Bomhoff (eds) Practice and Theory in Comparative Law (2012)\

Twining ‘Diffusion of Law: A Global Perspective’ (2004) 49 Journal of Legal Pluralism 1

Seminar 4 – Antitrust in Asia (1 February 2016)

Geographically the seminar looks at Asia. Methodologically I want to discuss the paper by Michael Dowdle (which is related to the two chapters of the book) and his approach to how one might compare antitrust across jurisdictions. Dowdle uses the ‘Varieties of Capitalism’ approach as a springboard to challenge some of the ways in which antitrust law is discussed. The other two papers are linked to this one.

Dowdle  ‘On the Public-law Character of Competition Law: A Lesson of Asian Captialism’ (2015) 38(2) Fordham International Law Journal 300

Vande Walle, ‘Competition and Competition Law in Japan: between Scepticism and Embrace’, in Michael W. Dowdle, John Gillespie and Imelda Maher (eds), Asian Capitalism and the Regulation of Competition: Towards a Regulatory Geography of Global Competition Law (CUP 2013) 123–43

Gillespie ‘Localising Global Competition Law in Vietnam: A Bottom-up Perspective’ (2015) 64 International and Comparative Law Quarterly 935

Seminar 5 – South Africa (8 February 2016)

South Africa provides an interesting case study because its 1998 competition legislation sought to widen the goals of antitrust beyond those found in the orthodox models on which it drew. It allows us to look into the role of development in competition law enforcement. The readings are based on case studies.

Makhaya and Roberts ‘Expectations and outcomes: considering competition and corporate power in South Africa under democracy’ (2013) 40, No. 138, Review of African Political Economy 556

Griffiths and Gumble ‘The public interest test in the South African merger control regime’ (2015) Journal of Antitrust Enforcement 408

Klug ‘Access to Medicines and the Transformation of the South African State: Exploring the Interactions of Legal and Policy Changes in Health, Intellectual Property, Trade, and Competition Law in the Context of South Africa’s HIV/AIDS Pandemic’ (2012) 37(2) Law & Social Inquiry 297

You might also find of interest the review of the first 15 years of competition law enforcement in South Africa by the Competition Commission and the Competiion Tribunal, available here: http://compcom.co.za.www15.cpt4.host-h.net/wp-content/uploads/2014/09/15-Years-of-Competition-Enforcement.pdf

Seminar 6 – China: overview of main issues (15 February)

These three papers will give us enough of an overview to consider the main debates about the implementation of competition law in China, in particular the relationship between the economic system and competition law and issues related to the competition authorities.

Zheng ‘Transplanting Antitrust in China: Economic Transition, Market Structure and State Control’ (2010) 32(2) University of Pennsylvania Journal of International Law 643

Ng ‘The independence of Chinese competition agencies and the impact on competition enforcement in China’ (2015) Journal of Antitrust Enforcement 1

Zhang ‘Taming the Chinese Leviathan: Is Antitrust Regulation a False Hope?’ 51 Stanford Journal of International Law 195 (2015)

Seminar 7 – China – Merger Policy (22 February)

China merits two seminars, but in this one I would also like to consider merger policy more generally. We will have noted the special approach in South Africa.  Try and look at your own jurisdiction & consider how far merger control is led by other considerations (e.g. why can France block the acquisition of certain nationally owned firms?)

Choi and Youn ‘The Enforcement of Merger Control in China: A Critical Analysis of Current Decisions by MOFCOM’ (2013) 44 IIC 948

Sokol ‘Merger Control under China’s Anti-Monopoly Law’ (2013) 10 New York University Journal of Law and Business 1

Ezrachi and Han ‘Merger remedies—the Chinese experience’ (2015) Journal of Antitrust Enforcement supplement 1 p.69

Seminar 8 – Unilateral Conduct (29 February 2016)

The papers for this seminar look at debates on the harmonisation of unilateral conduct rules (abuse of dominance, monopolization). The ICN paper is background information, it stands out as the only time the ICN asked itself a question about the aims of competition law. the two papers in the Antitrust LJ reflect on how unilateral conduct rules might be harmonised, while the final paper looks into the confusion between unilateral conduct and other, similar rules.

International Competition Network, Report on the Objectives of Unilateral Conduct Laws, Assessment of Dominance/Substantial Market Power, and State-Created Monopolies (2007)

http://www.internationalcompetitionnetwork.org/uploads/library/doc353.pdf

Weber Waller and Tasch ‘Hormonising Essential Facilities’ (2010) 76(3) Antitrust Law Journal 741

Padilla and Gal ‘The Follower Phenomenon: Implications for the Design of Monopolization Rules in a Global Economy’ (2010) 76(3) Antitrust Law Journal 899

Wakui and Cheng ‘Regulating abuse of superior bargaining position under the Japanese competition law: an anomaly or a necessity?’ (2015) 3 Journal of Antitrust Enforcement 302

Seminar 9 – Regional agreements (7 March 2016)

There are a multitude of regional agreements that include competition provisions. The first two papers below give an account of some of these, and the other two papers try and provide a global assessment.

Bakhoum and Molestina ‘Institutional Coherence and effectiveness of a regional competition policy: the case of the West African Economic and Monetary Union’ in Drexl et al Competition Policy and Regional Integration in Developing Countries (2012)

Sekine ‘Competition Related Provisions in East Asian FTAs: Their Trends and the Possible Impact of Megal FTAs’ (2015) available from: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2679300

Drexl ‘Economic integration and competition law in developing countries’ in Drexl et al Competition Policy and Regional Integration in Developing Countries (2012)

Gal ‘Regional Competition Law Agreements: An important step for antitrust enforcement’ (2010) 60 University of Toronto Law Journal 239

Seminar 10 – Global antitrust (14 March 2016)

For this seminar I picked an economics paper which tries to do some comparative law. Gerber contextualises current initiatives within a framework he develops, which is also analaysed by Bakhou. Hollman & Kovacic have a close look at the ICN.

Budzinski ‘International Antitrust Institutions ‘in Blair and Sokol (eds) The Oxford Handbook of International Antitrust Economics (2014)

Gerber Global Competition Chapter 9 (available electronically)

Bakhoum ‘Interfacing the “local” with the “global”: A developing-countryperspective on “global competition”’ Max Planck Institute for Intellectual Property and Competition Law Research Paper No. 13-02

Hollman and Kovacic ‘The International Competition Network: Its Past, Current, and Future Role’ Minnesota Journal of International Law, Vol. 20, p. 274, 2011

Further reading. The most fascinating paper (now a bit dated) is  Djelic and Kleiner ‘The iinternational competition network: moving towards transnational governance’ in Djelic and Sahlin-Andersson (eds) Transnational Governance (2006). I will circulate a copy shortly.

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