scholarly journals Suitability of the Remedy of Divestiture in Non-Merger Cases: A South African Perspective

Obiter ◽  
2021 ◽  
Vol 42 (1) ◽  
pp. 84-104
Author(s):  
Phumudzo S Munyai
Keyword(s):  
Law Enforcement ◽  
South African ◽  
Competition Law ◽  
Economic Conditions ◽  
Legal Authority ◽  
High Concentration ◽  
Competition Law Enforcement ◽  
African Perspective ◽  
Abuse Of Dominance ◽  
Concentration Levels

This article considers the suitability of the remedy of divestiture in non-merger cases, particularly in markets where high concentration levels may embolden incumbents to engage in abusive conduct. The article observes that the prevailing practice in competition-law enforcement is that, while divestiture is an acceptable remedy in merger cases, it is generally eschewed in non-merger cases. The article argues that economic conditions in South Africa provide justification for the use of the divestiture remedy in non-merger cases, particularly in cases of abuse of dominance in concentrated markets. The article observes that there is sufficient legal authority and history supporting the use of the remedy in non-merger cases.

On the concepts of legal standards and substantive standards (and how the latter influences the choice of the former)

2019 ◽  
Vol 7 (3) ◽  
pp. 365-385 ◽  
Author(s):  
Yannis Katsoulacos
Keyword(s):  
Law Enforcement ◽  
Time Use ◽  
Competition Law ◽  
Optimal Choice ◽  
Legal Standards ◽  
Competition Law Enforcement ◽  
Per Se ◽  
The Relationship ◽  
Abuse Of Dominance ◽  
Over Time

Abstract The substantial literature on the optimal choice of legal standards (LSs) in Competition Law enforcement concentrates on the factors that influence this choice given the Substantive (or Liability) Standard adopted by courts and competition authorities (CAs). Generally, this literature assumes that the substantive standard (SS) is welfarist. However, in reality, courts and CAs in different countries and over time use different criteria for establishing liability and, very often, these criteria are not welfarist. This article’s main objective is to clarify the relationship between legal and SSs and show the important influence of the latter on the choice of the former: our analysis shows that while efects-based LSs are compatible with non-welfarist SSs, under the latter courts and CAs will be much more likely to use Per Se LSs. This occurs as under non-welfarist SSs the strength of the presumption of illegality will be higher. This influence may be considered as being mainly responsible for differences in the LSs adopted in European Union and in North America (USA and Canada) or UK, especially in relation to abuse of dominance cases.

A Solution to the Problems? Regulation 1/2003 and the modernization of competition procedure

2003 ◽  
Vol 1 (2) ◽  
pp. 107-135 ◽  
Author(s):  
Frank Montag ◽  
Andreas Rosenfeld
Keyword(s):  
Law Enforcement ◽  
Competition Law ◽  
Basic Principles ◽  
Radical Reform ◽  
Competition Law Enforcement ◽  
Ec Competition Law

Abstract On 16th December 2002 the Council adopted Regulation (EC) No. 1/2003 on the implementation of rules on competition laid down in Articles 81 and 82 of the Treaty. This Regulation will not only replace the 40-year-old Regulation 17/ 62 but constitutes a radical reform of EC competition law enforcement. The purpose of this article is to analyse the basic principles of the new Regulation and the implications for current and future competition proceedings.

Super platforms, big data, and competition law: the Japanese approach in contrast with the USA and EU

2020 ◽  
Author(s):  
Toshiaki Takigawa
Keyword(s):  
Big Data ◽  
Law Enforcement ◽  
Competition Law ◽  
Digital Platforms ◽  
Competition Law Enforcement ◽  
Essential Facility ◽  
Share Data ◽  
The Usa ◽  
Data Portability ◽  
Efficiency Effects

ABSTRACT This article examines antitrust issues concerning digital platforms equipped with big data. Recent initiatives by the Japanese competition agency are highlighted, comparing them with those by the USA and EU competition authorities. First examined is whether competition among platforms would result in a select few super platforms with market power, concluding that AI with machine learning has augmented the power of super platforms with strong AI-capability, leading to increased importance of merger control over acquisitions by platforms. Next scrutinized is the argument for utility-regulation to be imposed on super platforms, concluding that wide support is limited to data portability, leaving competition law as the key tool for addressing super platforms, its core tool being the provision against exclusionary conduct, enforcement of which, initially, concerns whether to order super platforms to render their data accessible to their rivals. Passive refusal-to-share data needs to be scrutinized under the essential facility doctrine. Beyond passive refusal, platforms’ exclusionary conduct requires competition agencies to weigh the conduct’s exclusionary effects against its efficiency effects. Finally addressed is exploitative abuse, explaining its relation to consumer protection, concluding that competition law enforcement on exploitative abuse should be minimized, since it accompanies risk of over-enforcement.

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