The Goals and Uses of Competition Law

2020 ◽  
pp. 17-28
Author(s):  
David J. Gerber
Keyword(s):  
Economic Development ◽  
Economic Freedom ◽  
Competition Law ◽  
Consumer Welfare ◽  
Competition Laws ◽  
The Law

All competition laws have goals, and these goals direct decisions about what the law is and how it should be enforced. Some goals are set out in statutes; others are set by competition law institutions and courts (these are usually consistent with the formal statutory goals, but not always) formal government goals. In order to understand a specific competition law regime, it is necessary to identify the goals that shape them. Some goals are economic. These include efficiency, consumer welfare, and economic development. Other goals include fairness, privacy, and economic freedom. This chapter identifies each of these goals, probes the reasons for them, traces relationships among them, and follows some of their consequences. A key question here is: What factors determine how much influence stated goals will have on the decisions of institutions? Some institutions and individuals pursue goals that are not stated, but rather serve their own interests (e.g., corruption). The chapter refers to these goals, their origins, and their influence.

Anticompetitive Agreements

2020 ◽  
pp. 49-64
Author(s):  
David J. Gerber
Keyword(s):  
Economic Development ◽  
Economic Analysis ◽  
Competition Law ◽  
Consumer Welfare ◽  
Consumer Prices ◽  
Limited Enforcement ◽  
The World ◽  
Competition Laws ◽  
Global Patterns ◽  
Case Based

Chapters 5, 6, and 7 examine the targets of competition law. Key questions: Why is the conduct considered harmful? How is it pursued—for example, which remedies are used? What are the incentives and obstacles in pursuing the conduct? Where is enforcement likely—global patterns? Chapter 5 answers these questions for the two types of anticompetitive agreements. The first type includes horizontal agreements—that is, agreements between competitors. These are the most commonly pursued and heavily penalized violations in the world. Where such an agreement influences a market, it necessarily restrains competition, reducing efficiency, harming consumer welfare, impinging on economic freedom, and interfering with economic development. All competition laws target them, but they also allow justifications such as the need for cooperation in research, and competition laws vary significantly in the extent to which they allow such justifications. Vertical restraints—for example, between a manufacturer and a distributor—have a very different profile. They include, for example, agreements to fix consumer prices and to divide markets. Economists call for case-based analysis to determine their effects, and often such effects are difficult to prove, so competition laws in which economic analysis is central typically face limited enforcement against them. Many other competition laws contain specific rules condemning them.

Is protecting sunk investments an economic rationale for antitrust law?

2020 ◽  
Author(s):  
Darryl Biggar ◽  
Alberto Heimler
Keyword(s):  
Alternative Hypothesis ◽  
Competition Law ◽  
Consumer Welfare ◽  
Antitrust Law ◽  
Market Participants ◽  
Specific Investments ◽  
Trade Offs ◽  
Trading Partners ◽  
Competition Laws ◽  
Economic Foundation

Abstract In recent years, the economic foundation of antitrust law is increasingly being called into question. The hypothesis that antitrust law seeks to promote consumer welfare has historically been extremely popular but in recent years has come under attack. In part, this is due to the fact that neither the law, nor the decisions of competition law enforcers, can be fully explained as consistent with a strict consumer welfare standard. Neither do competition laws promote a textbook concept of total economic welfare, neither in their wording, nor in the way they are enforced. Some commentators argue that competition law should protect the competitive process, but this approach lacks a foundation in welfare economics and therefore lacks the ability to make basic trade-offs between desirable goals. This article puts forward an alternative hypothesis, which focuses on the sunk, relationship-specific investments made by market participants. We propose that an important, and overlooked, role of competition law is to protect trading partners from the threat of hold-up, where it is unreasonable for the parties to use conventional mechanisms to protect those sunk investments themselves. This approach can help to explain features of competition law and law enforcement that cannot be explained by the traditional consumer welfare or total welfare frameworks. We suggest that this approach offers promise as providing a consistent, comprehensive, economic foundation for competition law.

scholarly journals Pravo mjerodavno za povrede prava tržišnog natjecanja

2018 ◽  
Vol 39 (1) ◽  
pp. 183-214 ◽  
Author(s):  
Ivana Kunda
Keyword(s):  
Legal Theory ◽  
Competition Law ◽  
Public Interests ◽  
Eu Legislation ◽  
National Competition ◽  
Competition Laws ◽  
Scope Of Application ◽  
The Law ◽  
Contractual Obligations ◽  
The Eu

<span>Issues arising in the context of determining the law governing competition law breaches are numerous and complex. The situation is no different following the harmonisation of the national rules as a result of the recently adopted Directive on damages for infringements of the competition law provisions. This paper is aimed at scrutinising various such issues, in particular it deals with interpretation of the concepts found in Article 6(3) of the Rome II Regulation on the law applicable to non-contractual obligations and the related aspects of interaction between EU and national competition laws. From the scope of application ratione materiae of the mentioned conflict-of-law provision and defining the “market” as an essential component of the connecting factor lex mercati, to the functioning of the general provisions aimed at protecting public interests, the author presents the opposing views expressed in legal theory and points out the principles which should be taken into account in the course of the analysis. Additional emphasis is put on the thorny questions which originate from erroneous translation of the EU legislation into the Croatian language.&nbsp;</span>

Competition Law in Developing Countries

2020 ◽  
Author(s):  
Cheng Thomas K
Keyword(s):  
Developing Countries ◽  
Economic Development ◽  
Law Enforcement ◽  
Developing Country ◽  
Competition Law ◽  
Competition Law Enforcement ◽  
Competition Laws ◽  
The Relationship

This book explores the relationship between competition law and economic development, which takes on growing importance as more and more developing countries have adopted competition law in recent years. The work tackles two principal questions. The first is whether competition law enforcement promotes growth, which helps to determine how seriously developing countries should enforce their competition laws. The second is how developing countries should craft their competition law rules in light of the need to incorporate development concerns, the need to reflect the special economic characteristics of developing countries, and the need to improve the administrability of competition law rules to suit the enforcement capacity of developing country authorities.

Abuse of Dominance in Digital Platforms: An Analysis of Indian Competition Jurisprudence

2020 ◽  
pp. 1-27
Author(s):  
Tilottama Raychaudhuri
Keyword(s):  
Supreme Court ◽  
Competition Law ◽  
Ongoing Debate ◽  
Digital Platforms ◽  
Competition Commission ◽  
Competition Laws ◽  
Areas Of Concern ◽  
The Law ◽  
Abuse Of Dominance ◽  
Competition Enforcement

An ongoing debate in competition jurisprudence today is with respect to the enforcement of competition law in digital markets. Digital markets are newer markets in context of which traditional tools of competition law have to be understood and applied. Though the challenges of competition enforcement in digital markets are manifold, this paper focusses on the assessment of dominance and abuse in platform markets, particularly in light of the 2019 Supreme Court judgement in the Uber matter. The Supreme Court’s opinion that loss-making pricing can be an indicator of dominance is inconsistent with the Competition Commission of India’s (CCI) views, which had cautioned against this circular interpretation of dominance and put the issue to rest. The author submits that conflicting interpretations such as these erode the certainty of the law. Competition laws can be flexible but not uncertain or unpredictable. The author identifies areas of concern in digital platforms that are yet unresolved and need to be addressed urgently by guidelines/amendments before the law on this issue becomes incoherent.

1. Competition policy and economics

2018 ◽  
Author(s):  
Richard Whish ◽  
David Bailey
Keyword(s):  
Market Power ◽  
Market Share ◽  
Competition Policy ◽  
Competition Law ◽  
Consumer Welfare ◽  
Market Definition ◽  
Economic Context ◽  
Competition Laws ◽  
Competition Process

This chapter provides an overview of competition law and its economic context. Section 2 describes the practices that competition laws attempt to control in order to protect the competition process. Section 3 examines the theory of competition and gives an introductory account of why the effective enforcement of competition law is thought to be beneficial for consumer welfare. Section 4 considers the expected functions of a system of competition law. Section 5 then introduces two key economic concepts, market definition and market power, that are important to a better understanding of competition policy. The chapter concludes with a table of market share figures that are significant in the application of EU and UK competition law.

6. Who enforces the law?

2021 ◽  
pp. 55-62
Author(s):  
Ariel Ezrachi
Keyword(s):  
Competition Law ◽  
Competitive Environment ◽  
Department Of Justice ◽  
Federal Level ◽  
The Public ◽  
Primary Responsibility ◽  
The Us ◽  
Antitrust Laws ◽  
Competition Laws ◽  
The Law

‘Who enforces the law?’ identifies who enforces competition and antitrust laws. In most countries, competition and antitrust laws can be utilized by the public enforcer (the competition agency) that is tasked with maintaining a competitive environment, or by private entities that use the competition provisions to protect their commercial interests, or to claim damages for loss caused by violation of competition law. In the US, at the federal level, two agencies share responsibility for competition enforcement. These are the Federal Trade Commission’s Bureau of Competition (FTC) and The Antitrust Division of the Department of Justice (DOJ). Meanwhile, EU law grants the European Commission primary responsibility for enforcing EU competition laws.

scholarly journals Is the Consumer Welfare Obsolete? A European Union Competition Law and Competition Perspective

Prolegómenos ◽  
2021 ◽  
Vol 24 (47) ◽  
pp. 55-78
Author(s):  
Frédéric Marty
Keyword(s):  
Competition Law ◽  
Consumer Welfare ◽  
The United States ◽  
Eu Competition Law ◽  
History Of ◽  
Competition Laws ◽  
Competition Process ◽  
Market Practice ◽  
Sole Criterion ◽  
More Economic Approach

In 2005, the European Commission advocated for a more economic approach to enforcing competition laws. The sole criterion for assessing the lawfulness of a market practice should be the appraisal of its net effect on consumer welfare. The Court of Justice was reluctant to adopt such an approach until its 2017 Intel Judgment. Its endorsement—which is debatable insofar as the judgment may give rise to different interpretations—may appear paradoxical in that it is concomitant with a sharp challenge to the consumer welfare criterion in the United States. The purpose of this article is to retrace the history of this criterion, particularly its adoption in the context of EU competition law. We aim to show that the criticisms of the effects-based approach can be addressed not by moving away from the consumer welfare criterion but by integrating it into a broader perspective that also takes into account the protection of the competition process itself.

The relevant market in competition law: a legal concept

2019 ◽  
Vol 7 (2) ◽  
pp. 158-176
Author(s):  
Viktoria H S E Robertson
Keyword(s):  
Law And Economics ◽  
Competition Law ◽  
Market Definition ◽  
Relevant Market ◽  
Legal Concept ◽  
Normative Force ◽  
Economic Concept ◽  
Competition Laws ◽  
The Law ◽  
Concept Building

Abstract In competition law, the relevant market acts as a filter that delineates that part of commerce within which competition law assesses companies’ market behaviour. This contribution considers how competition law can reconcile the legal concept of the relevant market with its economic roots. It argues that for market definition—like for many an economic concept—a spectrum opens up between law and economics. On the economics side of the spectrum, economics may take on a more determinative role almost amounting to normative force. This places considerable pressure on the integrity of economics. On the law side of the spectrum, the relevant market is looked at through the prism of the law and is seen as a legal concept building upon an economic one. Here, economics is assigned an interpretive role. A plethora of different positions are possible along the spectrum, and different actors may place themselves at different locations under different circumstances or at different points in time. If it is acknowledged that the relevant market concept acquires a distinct legal conception through its incorporation into the competition laws, then this has far-reaching repercussions on our entire conception of competition law. This view effectively calls into question not only competition law’s understanding of the relevant market, but also the prevailing understanding of other shared legal and economic concepts.

An Essay: Can Competition Law and Policy Be Made Relevant for Inclusive Growth of Developing Countries?

2020 ◽  
Vol 65 (1) ◽  
pp. 164-172
Author(s):  
Frederic Jenny
Keyword(s):  
Developing Countries ◽  
Economic Development ◽  
Competition Law ◽  
Recent Experience ◽  
Inclusive Growth ◽  
African Countries ◽  
Law And Policy ◽  
National Competition ◽  
Competition Laws ◽  
Sub Saharan

In their book Making Markets Work for Africa, Eleanor Fox and Mor Bakhoum argue that competition law and policy can be made more relevant for the inclusive growth of developing countries if a bottom-up approach is followed. They suggest that the most detrimental obstacles to competition faced by each country differ with their stage of economic development and that national competition laws should therefore be designed so as to allow each country to address the specific challenges it faces. This essay discusses the approach of the authors and points to some areas where further research is warranted in light of the recent experience of Sub-Saharan African countries.

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