Competition Rules for the 21st Century

Name: Competition Rules for the 21st Century | Principles from America's Experience
Brand: Kluwer Law International
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Principles from America's Experience

Ky P. Ewing(Autor*in)

Kluwer Law International (Verlag)

2. Auflage

Erschienen am 19. September 2006

762 Seiten

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Beschreibung

Originally written to wide acclaim in 2001, Ky Ewing's magisterial work on international competition law is here updated to take stock of the prodigious expansion of anti-cartel enforcement throughout the world in the intervening years, and of the extraordinary success of the International Competition Network of agencies, now encompassing 97 competition agencies from an initial beginning in the Fall of 2001 - as an outgrowth in part of the judgments and recommendations of this able practitioner, espoused at the 2001 Ditchley Park conference of which Ewing was a co-chair. Yet the work's fundamental thesis has not changed: that re-evaluation of competition policies in the light of empirical evidence is fundamental to assuring that competition law delivers what it promises: freer markets and greater economic growth.

Although the book has been highly regarded as a major reconsideration of the foundations of competition law and policy, it has also proven enormously valuable for its wealth of information and practical guidance. Among its most useful features (some new to the second edition) are the following:

- - a vast amount of statistical and other information about public competition law enforcement agencies and their resources around the world;

- - in-depth analysis of the differences in competition law regimes and the various economic and legal theories from which they derive;

- - detailed attention to jurisprudence and legal commentary over many decades;

- - probing of the meaning of 'low' and 'fair' as applied to prices;

- - suggestions for carrying out re-evaluation of policies on the basis of empirical evidence;

- - formulation of a model new U.S. competition law preempting state laws; and

- - guidelines on distinguishing useful collaboration from collusive activity.

Nine new appendices have been added to this edition, covering such informative material as new statistical data about U.S. enforcement, details on the dramatic cooperation now taking place among nations in anti-cartel enforcement, and suggestions on how companies and practitioners should respond to multinational investigations.

This new edition of a highly thoughtful and thought-provoking classic should be on the shelves of all competition lawyers and economists, irrespective of whether they are legislators, law enforcers, private attorneys or scholars, in developed, developing, or transition economies. Based on the distinguished author's half-century of outstanding experience in public and private competition law enforcement, it is an excellent guide for both newcomers and experts in the field. Conscientious use of this book will go a long way toward achieving the efficient and harmonious economies upon which many countries are staking their prosperity or even survival.

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Inhalt

Cover
Half Title Page
Title Page
Copyright Page
Dedication
Table of Contents
FOREWORD TO SECOND EDITION-2006
FOREWORD TO FIRST EDITION
PREFACE
Chapter One INTRODUCTION: THE CHALLENGE OF PROLIFERATING COMPETITION LAWS
Chapter Two THE SITUATION TODAY: A BROAD LOOK AT DIFFERENCES IN CURRENT LAWS
2.1 STATISTICAL DATA SHOW WIDE DIFFERENCES AMONG NATIONS
2.2 THE PROBLEMS ARE REAL AND NEED SOLUTIONS
2.2.1 MERGER CONTROL
2.2.2 COORDINATION OF ANTI-CARTEL ENFORCEMENT
2.2.3 JOINT VENTURES AND STANDARDS-SETTING
2.2.4 MONOPOLIZATION (ABUSE OF DOMINANT POSITION) RULES
2.2.5 DISTRIBUTION RULES
2.2.6 ECONOMIC SECTORS IMMUNIZED FROM COMPETITION
2.2.7 CAPACITY BUILDING AND TECHNICAL ASSISTANCE FOR DEVELOPING COUNTRIES
2.3 GOVERNMENTS AND WORLD ORGANIZATIONS CONTINUE TO ENCOURAGE PROLIFERATION OF LAWS, WITHOUT TAKING RESPONSIBILITY FOR HARMONIZATION
Chapter Three HISTORY OF GOVERNMENT ATTEMPTS TO COMBAT RESTRAINTS OF TRADE-AN ANCIENT EFFORT WITH FAMILIAR TENSIONS
3.1 COMPETITIVE CONCERNS STRETCH BACK AT LEAST TO 3000 B.C.
3.2 FURTHER HISTORY OF THE U.S., GREAT BRITAIN, AND GERMANY-DIVERGENT PATHS WITH DIFFERENT SYSTEMS
3.2.1 GREAT BRITAIN
3.2.2 GERMANY
3.2.3 THE UNITED STATES
3.3 A SPECIAL LOOK AT THE HISTORY OF THE CONCENTRATION THESIS IN THE U.S.
3.3.1 THE CORE IDEA OF MORE THAN ONE COMPETITOR AND THE CONCENTRATION THESIS
3.3.2 PRESUMPTIONS OF ILLEGALITY BASED ON THE CONCENTRATION THESIS
3.3.3 WHY RE-EXAMINATION IS NEEDED
3.3.3.1 The New Learning
3.3.3.2 The Admonition of the Supreme Court
3.3.3.3 The Actual Practice of the Agencies
3.4 THE INTERTWINING OF ECONOMIC STUDIES WITH PUBLIC POLICY DETERMINATIONS BY COURTS AND ANTITRUST AGENCIES-A ROUGH CHRONOLOGY
3.4.1 1890 THROUGH THE 1940'S
3.4.2 THE 1950 CELLER-KEFAUVER AMENDMENT TO THE CLAYTON ACT § 7 AND BROWN SHOE
3.4.3 THE 1955 BARNES/OPPENHEIM COMMITTEE
3.4.4 1955 GEORGE STIGLER'S ARTICLE ON MERGERS AND PREVENTIVE ANTITRUST
3.4.5 1956-1962 - BROWN SHOE
3.4.6 1963 - U.S. V. PHILADELPHIA NATIONAL BANK
3.4.7 1967 AND 1968 - THE NEAL TASK FORCE AND THE TURNER GUIDELINES
3.4.8 MAY 30, 1968 - THE TURNER GUIDELINES
3.4.9 JULY 5, 1968 AND MAY 21, 1969 - THE NEAL TASK FORCE REPORT
3.4.10 1970 - THE STIGLER TASK FORCE
3.4.11 1972 - THE HART BILL FOR GOVERNMENT TO DE-CONCENTRATE INDUSTRY
3.4.12 1972-1980 - CONGRESS AND THE CONTINUING 1968 TURNER GUIDELINES
3.4.13 1982 - THE BAXTER GUIDELINES
3.4.13.1 The Baxter Guidelines Accepted the Concentration Thesis
3.4.13.2 Comparison of the Concentration Levels (and Increase Levels) in the 1968 and 1982 Guidelines
3.4.13.3 The 1983 Scarbrough-Pfunder Comparative Study of the 1968 and 1982 Guidelines
3.4.14 THE 1984, 1992 AND 1997 AMENDMENTS TO THE BAXTER GUIDELINES
3.4.15 1993-2000 DAUBERT AND PROGENY-ADMISSIBILITY OF EXPERT TESTIMONY
3.4.16 1993-1994 CORPORATE AND INDIVIDUAL LENIENCY POLICIES OF THE ANTITRUST DIVISION
3.4.17 1997 ICPAC CREATED-TO REPORT IN 2000
3.4.18 1999 CALIFORNIA DENTAL - DECRYING SHORT-CUTS AND ASSUMPTIONS
3.4.19 2002 ANTITRUST MODERNIZATION COMMISSION CREATED TO REPORT IN 2007
3.4.20 2004 THE ANTITRUST CRIMINAL PENALTY ENHANCEMENT AND REFORM ACT OF 2004
3.4.21 2004 SUPREME COURT'S DECISION IN TRINKO
3.4.22 2001-2004 DISTRICT COURTS' DISCOUNTING OF CUSTOMER EVIDENCE
3.4.23 2004-2006 DECISIONS ON FOREIGN SUITS IN EMPAGRAN
3.4.24 2005 SENTENCING COMMISSION INCREASES PENALTIES
3.4.25 2006 SUPREME COURT'S DECISION ON JOINT VENTURES-TEXACO V. DAGHER
3.4.26 2006 SUPREME COURTS DECISION ON THE ROBINSON-PATMANACT IN VOLVO
3.4.27 2006 SUPREME COURT'S DECISION IN ILLINOIS TOOL WORKS V. INDEPENDENT INK
3.4.28 2006 DOJ AND FTC PUBLISH COMMENTARY ON THE HORIZONTAL MERGER GUIDELINES
3.5 ECONOMIC STUDIES 1968-2001
3.5.1 1968 - BORK AND SHERWOOD - DISSENTS TO THE NEAL REPORT
3.5.2 1970 - JOHN S. MCGEE
3.5.3 1974 - INDUSTRIAL CONCENTRATION-THE NEW LEARNING (A DISCOURSE AMONG ECONOMISTS AND POLICY MAKERS)
3.5.4 1976 - LAWRENCE WHITE
3.5.5 1978 -JOHN KWOKA
3.5.6 1982 - DAVID RAVENSCRAFT
3.5.7 1984 - RICHARD POSNER AND FRANK EASTERBROOK
3.5.8 1989 - RICHARD SCHMALENSEE AND ROBERT WILLIG
3.5.9 1990 - F.M. SCHERER AND DAVID ROSS
3.5.10 1998 - BARRY HARRIS AND DAVID SMITH
3.5.11 1999 - TIMOTHY J. MURIS
3.5.12 2003 -TIMOTHY MURIS
3.5.13 2000-2006 VARIOUS ECONOMIC STUDIES
3.5.13.1 Pautler, Paul A., "Evidence on Mergers and Acquisitions," a Federal Trade Commission Bureau of Economics Paper dated September 25, 2001
3.5.13.2 Kelly, Trish
Gosman, Martin L., "Increased Buyer Concentration and its Effects on Profitability in the Manufacturing Sector," 17 Review of Industrial Organization 41-59 (2000):
3.5.13.3 Frech, H.E. III
Mobley, Lee Rivers, "Efficiency, Growth, and Concentration: An Empirical Analysis of Hospital Mergers," 38 Economic Inquiry 369-84 (2000):
3.5.13.4 Ekelund, Robert B., Jr.
Ford, George S.
Koutsky, Thomas," Market Power in Radio Markets: An Empirical Analysis of Local and National Concentration," 43 Journal of Law and Economics 157-84 (2000):
3.5.13.5 Baker, Jonathan B., "Horizontal Merger Analysis Grows Up: A Review of Chapter 5 of Richard Posner's Antitrust Law (2d. ed. 2001), The Antitrust Source, www.antitrustsource.com (January, 2002)
3.5.13.6 Boetal, Brenda Lynn, "An Economic Analysis of the U.S. Swine Industry: Capital Investment Rigidity, Food Health Concerns, Generic Advertising and Processor Concentration," PhD. Dissertation, University of Minnesota, 2003:
3.5.13.7 Dickson, Vaughan A.
Sun, Yingfeng, "Revisiting the Price Effects of Rising Concentration in U.S. Food Manufacturing," 2 Journal of Agricultural and Food Industrial Organization 1-15 (2004):
3.5.13.8 Newmark, Craig M., "Price-Concentration Studies: There You Go Again," paper prepared for the DOJ/FTC Merger Workshop, revised February 14, 2004:
3.5.13.9 Dumont, Beatrice, "L'efficacite du Controle Communautaire des Concentrations: Une approche par la methode evenementielle" (The Effectiveness of European Merger Control: An Event Study Approach. With English Summary), 70 Recherches Economiques de Louvain (Louvain Economic Review) 317-40 (2004):
3.5.13.10 2006 Lawrence J. White
3.5.14 FURTHER RE-EXAMINATION OF THE CONCENTRATION THESIS BY GOVERNMENT ENFORCERS IS OVERDUE
Chapter Four WHAT WE CAN LEARN FROM HISTORY
4.1 BROAD HISTORICAL LESSONS
4.2 SPECIFIC LESSONS ON DIFFICULT SUBJECTS
4.2.1 BELIEVE IN THE "FREE MARKET" AND AVOID THE "INTERVENTIONIST" APPROACH
4.2.2 GET THE PURPOSE OF COMPETITION-POLICY RIGHT
4.2.3 ILLUSTRATIONS OF IMPROPER PURPOSES
4.2.3.1 Keeping Prices "Fair"
4.2.3.2 Keeping Prices "Low"
4.2.3.2 The Moralist Rationale: Protecting Small, Yeoman Enterprises
4.2.3.3 Regulation of the Largest Firms: "Big Is Bad" or "Big Business Must Be Controlled"
4.2.3.4 Redistribution of Wealth
4.2.4 PROMOTION OF "COMPETITION AS THE ECONOMIST UNDERSTANDS THE TERM"
4.2.4.1 The "Consumer Welfare" Standard
4.2.4.2 An Illustration of the Economic Model
4.2.4.3 Efficiency, Not Competition Per Se, Is the Goal We Seek
4.2.5 DEFINE THE "RELEVANT MARKET" CORRECTLY
4.2.5.1 Ambiguity In the Word "Market"
4.2.5.2 Thinking About Relevant Antitrust "Markets
4.2.5.3 The Court's Failures and the Emergence of the SSNIP Test
4.2.5.4 Challenges to the Improper Use of the "Small But Significant and Non-Transitory Increase in Price" Test
4.2.5.5 Michael Porter's "Five Forces/Diamond" Approach-A Business School Alternative to Examining Markets
4.2.6 GET THE PRIORITIES STRAIGHT
4.2.6.1 Cartel Behavior
4.2.6.2 Joint Ventures
4.2.6.3 Mergers and Notification Regimes
4.2.6.4 Monopolization (Abuse of Dominance) Rules
4.2.6.5 Distribution Rules
4.2.7 GET THE ENFORCEMENT MECHANISMS RIGHT
4.2.8 AVOID ENFORCEMENT CONFLICTS (NEXUS, COMITY, AND ABSTENTION)
Chapter Five LOOKING FORWARD FROM ANTITRUST HISTORY
5.1 THE BROADEST LOOK AT WHERE WE ARE NOW
5.1.1 WHERE THE U.S. IS NOW
5.1.2 LOOKING FORWARD TO BROAD REFORMS IN U.S. COMPETITION POLICY
5.1.3 THE CHALLENGE OF THE U.S. ANTITRUST MODERNIZATION COMMISSION
5.1.3.1 The Set-Up and Personnel of the Commission
5.1.3.2 The Real Challenge: Avoiding the Easy Road
5.1.3.3 The Modernization Commission's Requests for Public Comment
5.1.3.4 The Real Challenge: Taking the Long Look and Hard Road
5.1.3.5 Thirteen Major Tasks for the Modernization Commission-A Challenge to Its Agenda and Its Report
5.1.3.6 Clarify The Purpose And Underlying Premises Of A National Competition Law
5.1.3.7 Create a New National Competition Statute, Pre-empting State Laws
5.1.3.8 Create A Coherent National Policy, Repealing Conflicting Laws Such As The Export Cartel Acts and The Robinson-Patman Act
5.1.3.9 Simplify the Statutory Language By Creating a New Substantive Law in Plain English
5.1.3.10 Reconsider Whether We Need A Separate Merger Control Regime
5.1.3.11 If Merger Control Is To Be Continued, Reconsider the Elaborate Hart-Scott-Rodino Requirements and Adopt Simplified New Rules
5.1.3.12 Revisit and Rationalize Enforcement Entities
5.1.3.13 Investigate and Rationalize Remedies for Violations of the National Competition Act
5.1.3.14 Eliminate or Narrow The Exemptions and Immunities From The Competition Law
5.1.3.15 Suggest Clearer Rules For The Antitrust-Intellectual Property Interface
5.1.3.16 Selectively Repeal Various Statutory Provisions (If Less Than Full Overhaul Is Recommended)
5.1.3.17 Set Out Enforcement Priorities And Transparency Requirements
5.1.3.18 Recognize The Need For Interaction Between The U.S. And Other Competition Agencies In The World
5.2 THE WAY FORWARD INTERNATIONALLY-THE INTERNATIONAL COMPETITION NETWORK (ICN)
5.2.1 THE ORIGINS AND PURPOSES OF THE ICN
5.2.2 THE EXTRAORDINARY SUCCESSES OF THE ICN SO FAR
5.2.3 MOVING THE ICN FORWARD TO MORE SUCCESSES
5.2.4 FIVE MAJOR CONCERNS NEED TO BE TACKLED BY THE ICN
5.2.4.1 Unilateral Conduct
5.2.4.2 Coordination Of Anti-Cartel Enforcement And Leniency Programs
5.2.4.3 The Interface Of Competition Policy With Intellectual Property Protections
5.2.4.4 Bringing The Competition Rules Of China And India Into Harmony With Those Of The Rest Of The World
5.2.4.5 Helping New Regimes Avoid Adopting a "Mixing-Bowl" Approach
5.3 THE WAY FORWARD-CONTINUOUS RE-EVALUATION IS NEEDED: RESEARCH UTILIZING THE AMAZING ELECTRONIC DATABASES AVAILABLE GLOBALLY ON COMPETITION ISSUES
Chapter Six PRINCIPLES FOR CRAFTING COMPETITION POLICY ENFORCEMENT IN THE 21 CENTURY
6.1 THE PRINCIPLE OF FOCUSED PURPOSE
6.2 THE PRINCIPLE OF RIGOROUS FACTUAL EXAMINATION
6.3 THE PRINCIPLE OF RIGOROUS EVALUATION OF THE COMPETITIVE PROCESS
6.3.1 THE DIMENSIONS (NATURE) OF THE COMPETITIVE PROCESS INVOLVED
6.3.2 THE INNOVATION POTENTIAL IN THE PARTICULAR PROCESS OF COMPETITION
6.3.3 THE MATERIALITY OF BAD AND GOOD EFFECTS OF THE ACT OR TRANSACTION BEING EXAMINED
6.3.4 THE TIME PERIODS INVOLVED IN THE EFFECTS
6.4 THE PRINCIPLE OF BALANCING GOOD AND BAD EFFECTS, AND LONG- AND SHORT-TERM INTERESTS, WITH THE COSTS OF GOVERNMENT INTERVENTION
6.5 THE PRINCIPLE OF AVOIDING PRESUMPTIONS TO JUSTIFY GOVERNMENT INTERVENTION
6.6 THE PRINCIPLE OF NON-DISCRIMINATION
6.7 THE PRINCIPLE OF TRANSPARENCY
6.8 THE PRINCIPLE OF ACCOUNTABILITY
6.9 THE PRINCIPLE OF MINIMALIST INTERVENTION
6.10 THE PRINCIPLE OF HUMILITY
6.11 THE ELEVENTH COMMANDMENT: REGULARLY RE-EVALUATE POLICIES
CONCLUSION
APPENDIX I Final Compilation of Responses from the Survey of Governments on Competition Agency Budgets, Personnel, and Enforcement Efforts April 2002
APPENDIX II Charts Based on Final Compilation of Responses from the Survey of Governments April, 2002
APPENDIX III The Merger Guidelines v. Economics: A Survey of Economic Studies
APPENDIX IV STATISTICAL EXCERPTS
APPENDIX V STATISTICAL EXCERPTS
APPENDIX VI Merger Challenges Data, Fiscal Years 1999-2003
APPENDIX VII Selected Tables From FTC Horizontal Merger Investigation Data Fiscal Years 1996-2003
APPENDIX VIII SELECTED TABLES FROM
APPENDIX IX The Twentieth Annual NATIONAL INSTITUTE ON WHITE COLLAR CRIME
APPENDIX X "AN UPDATE OF THE ANTITRUST DIVISION'S CRIMINAL ENFORCEMENT PROGRAM
APPENDIX XI International Competition Network Cartels Working Group Subgroup 1 - general framework
APPENDIX XII MAKING THE DECISION: WHAT TO DO WHEN FACED WITH INTERNATIONAL CARTEL EXPOSURE
APPENDIX XIII A STATEMENT OF MISSION AND ACHIEVEMENTS
APPENDIX XIV Implementation of the Recommended Practices for Merger Notification and Review Procedures
REFERENCES
INDEX
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