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.

This book discusses the role of public policy in Article 81 of the EC Treaty. The Commission and (recently) the Court of First Instance have said that the sole objective of Article 81 EC is consumer welfare. Many competition lawyers and economists support this view. Writing in a crisp, plain style, author Christopher Townley demonstrates that public policy considerations are still relevant in that provision. He also examines how and where they are currently considered and then he suggests why, how, and where this might be changed. The book explains how some of the most complex competition law cases can be understood and it offers a framework for those fighting or deciding such cases in the future. As such, it will be of interest to European competition lawyers, both academics and practitioners (furnishing them with a framework for hard cases), as well as students seeking a deeper understanding of how the European competition rules work and how they interact both with European Union and Member State public policy goals. The book will also help competition economists by revealing the mechanisms through which public policy considerations impact the consumer welfare test in European law.

Despite great strides in enforcement of the cartel prohibition of article 81 EC and major merger control reform, EC competition law still lacks clear standards for anti-competitive abuses under article 82 EC. In a masterful engagement with this issue, the thoughtful and original analysis in this book focuses on tying and bundling. Although these ubiquitous business practices are primarily addressed under article 82 EC as constituting abusive behavior, a wealth of economics literature emphasizes their strategic and efficiency motivations. However, there is a balance to be found, as this book ably demonstrates. In the course of the analysis, the author zeroes in on such central questions as the following: What tests are available to determine whether two products are distinct or not? Under which circumstances is anti-competitive leveraging feasible? Which efficiency motivations should be accepted? How does one valuate the possible efficiencies in the short run and the risk of leveraging effects in the long run? What factors should be considered when answering the separate product issue? What are the implications for the burden of proof under article 82 EC? Does the application of a more effects-based approach under article 82 also affect the dominance analysis? In his examination of the various responses to these probing questions, the author is able to formulate a very useful diagnosis of what factors determine whether a tied or bundled entity is likely to engender anti-competitive effects. The presentation is supported throughout by detailed reference to relevant legal-economic doctrine, laws, and judicial interpretation by European and U.S. courts, the European Commission, and antitrust agencies. In its development of effects-based tests for assessing tying and bundling practices, this important book will be of special value to policymakers and regulatory officials involved in enforcement of EC or Member State competition law. It will also be welcomed by academics in both law and economics as a truly cogent and workable approach to the solution of one of the most vital and intriguing debates in the antitrust field.

Dozens of cases worldwide continue to challenge Microsoft Corporation's superdominance of the global digital network economy, focusing in particular on the multi-tying practices that leverage Microsoft's market power into adjacent markets and reinforce its dominance. This is the first book to analyze this international line of cases, detailing both grounds for legal action (including unfair competition, restriction of consumers' freedom of choice, abusive pricing) as well as Microsoft's defenses and administrative settlements. The author also demonstrates the serious economic repercussions of Microsoft's monopoly, such as accumulation of inefficiency and stifling of innovation in this crucial sector of twenty-first century economy and society.Through an in-depth analysis of the Korea Fair Trade Commission (KFTC) case - which led to a December 2005 decision, currently under appeal at the Seoul High Court, condemning three fundamental tying practices embedded in Microsoft's global business strategy - the author clearly establishes the precise nature of Microsoft's anticompetitive practices, complete with clear technical descriptions of the underlying applications and digital media systems. The discussion develops valuable guidelines on such core issues as the following: network effect, tipping effect, and lock-in effect; separability of Microsoft's tied and tying products; forced purchase by consumers of multiple tied products; Microsoft's reinforcement of market entry barriers; Microsoft's "normal business practice" defense; and cumulative damage to consumers' interests.The book's ultimate legal and economic assessment clarifies ways in which government competition authorities can select from globally available options on a case-by-case basis, enforce re-pricing measures, avoid belated remedies, and continuously monitor new types of anticompetitive conduct.In its analytic rigor, focus on important economic issues, and its unwavering commitment to fair competition, this book will be of immeasurable value to practitioners and policymakers at every level concerned with the digital network economy, now and in the years to come.

This publication provides an unparalleled comparative analysis of two "hot topics" in the field of antitrust and unfair competition law with regard to a number of key countries. The first part of the book examines the prohibition of abuse of a dominant position and globalization in relation to two broad questions: first, whether there is consistency between the approaches of different jurisdictions to the notion of abuse, and, second, whether there are too many restrictions on legal rights and business opportunities resulting from the prohibition of abuse of dominance. The international report drafted by Professor Pinar Akman reveals that there are as many similarities as differences between the approaches of the twenty-one jurisdictions studied and presented in this book. This is an invitation to read the excellent international report as well as the reports on specific jurisdictions in order to grasp the variety of arguments and approaches of this antitrust area, which may, on the surface, appear alike. The second part gathers contributions on the question of protection and disclosure of trade secrets and know-how from various jurisdictions. The need for adequate protection of trade secrets has increased due to digitalization and the ease with which large volumes of misappropriated information can be reproduced. The comprehensive international report, prepared by Henrik Bengtsson, brings together these reflections by comparing various national positions. The book also discusses the resolutions passed by the General Assembly of the International League of Competition Law (LIDC) following a debate on each of these topics, and includes proposed solutions and recommendations.

European competition law has been increasingly subject to two complementary forces: decentralisation and harmonisation. In the course of this process, certain procedural elements have come to the fore as constituting impediments to the enforcement of Articles 81 and 82 EC in terms of actions for damages. While ECJ case law appears to establish a type of 'minimum' enforcement in this area, the far-reaching analysis presented in this book shows how an 'adequate' or even 'optimal' degree of enforcement may be achieved by effecting a choice between competing procedural solutions. Focusing on rules of civil procedure used by the ordinary courts of England, France, and Germany, the authors show how basic principles - such as protection of the rights of the defence, legal certainty, and proper conduct of the procedure - facilitate the application of the doctrines of effectiveness and non-discrimination to those elements of the national procedure which impede in some manner the effective enforcement of Articles 81 and 82 EC. Their in-depth analysis ranges over procedural aspects of such elements as rules of evidence, costs, expert testimony, injunctions, burden of proof, limitations, and forms of compensation, ultimately leading them to propose clear modifications of certain rules of national procedure that go a long way toward ensuring adequately effective enforcement. This remarkable book breaks through an impasse in European competition law. It serves to steady the balance which has been sought between the different actors of the procedure in each of the national systems studied. For practitioners and jurists it offers a particularly useful approach to the handling of cases involving European competition law, and also serves as a guide by reason of its clear presentation, its clarification of doctrine, and its analysis of national and European case law.

Bargaining, negotiation and civil penalty sanctions together constitute central techniques used by regulators in securing compliance with the law. This book is a timely exploration of these practices, constructing a principled framework for evaluating their legitimacy and thereby drawing into sharper focus the importance of the constitutional principles in regulatory compliance. Although Australian competition law provides the focal point of the book, its analysis and critique is equally applicable to other competition law regimes and to other areas of business regulation. While there are numerous empirical studies of regulatory enforcement, this book introduces a normative dimension to the debate by seeking to identify whether there are certain principled and ethical limits that inform and circumscribe the limits of legitimate enforcement practice. It is likely to be of interest to scholars in the fields of public law, criminology, economics, and regulation, and may also be of considerable assistance to legal practitioners in providing a principled, legal foundation from which to draw in their dealings with regulators.

The obligations of international trade law hinge upon the question of what constitutes 'like products'. Trade disputes will often involve an examination of whether the products in question are in competition with one another. The most common term used for this test is to ask whether they are 'like products' - that is to ask whether products are sufficiently similar for consumers to see them as substitutable - and thus whether they are subject to the rules of the WTO and GATT. This book seeks to develop consistent principles and an effective definition for this central issue of world trade law.

The Review of the CISG is published once yearly and features articles written by prominent legal scholars in the field of international sale of goods from around the world. In addition to scholarly writings analyzing the various articles of the CISG, the book seeks to compile translations of recent decisions as well as commentaries of notable cases relating to the CISG. The Review of the CISG provides both a forum for legal discussion within the international legal community in the area of international sales law and as an authoritative source of reference for international scholars.

Although the question posed by the title of this book has generated considerable debate, the essential issue remains open and largely blurred. While some believe that there is no so-called 'small market problem', others discern discrimination against small market companies (i.e., companies with a strong position in their home markets but a modest position in the European and global markets) and a consequent need for changes in competition law. The author of this enormously helpful work here sets the stage for meaningful discussion by analysing the EC Merger Regulation's objectives, economic foundations, and application practice to present a reasoned view of the issues that can be considered relevant for such a discussion. Considering their effect on the 'small market problem', the author scrutinizes such factors as the following: - the Commission's methodology for delineating relevant markets in merger assessments; - unnecessary prohibition caused by overestimation of the market power of small market mergers; ‒ erroneous approval of cases that should actually be prohibited; ‒ impact of the so-called 'Harvard' and 'Chicago' schools of competition theory and their key policy implications; ‒ process-related alternative views of competition and new synthesizing approaches; ‒ relevant criteria for a proper analysis of market power; ‒ concentration measures and market shares; ‒ barriers to entry; ‒ price and profitability analyses; and ‒ product definition vs. geographic definition of markets. In a final chapter, the author presents some tentative conclusions, normative in nature, concerning the problem and the relevant issues relating to it. As the first in-depth analysis of the issues that are actually involved - with its particular diagnosis of the assessment of market power in considering the relevant issues for the problem - this study brings into salience the terms of the debate on the 'problem', and thus takes a giant step forward towards defining what needs to be done. Competition lawyers, policymakers, and academics in in Europe and elsewhere will find the discussion of great value.

Conventional wisdom holds that robust enforcement of intellectual property (IP) right suppress competition and innovation by shielding incumbents against the entry threats posed by smaller innovators. That assumption has driven mostly successful efforts to weaken US patent protections for over a decade. This book challenges that assumption. In Innovators, Firms, and Markets, Jonathan M. Barnett confronts the reigning policy consensus by analyzing the relationship between IP rights, firm organization, and market structure. Integrating tools and concepts from IP and antitrust law, institutional economics, and political science, real-world understandings of technology markets, and empirical insights from the economic history of the US patent system, Barnett provides a novel framework for IP policy analysis. His cohesive framework explains how robust enforcement of IP rights enables entrepreneurial firms, which are rich in ideas but poor in capital, to secure outside investment and form the cooperative relationships needed to transform a breakthrough innovation into a marketable product. The history of the US patent system and firms' lobbying tendencies show that weakening patent protections removes a critical tool for entrants to challenge incumbents that enjoy difficult-to-match commercialization and financing capacities. Counterintuitively, the book demonstrates that weak IP rights are often the best entry barrier the state can provide to protect entrenched incumbents against disruptive innovators. By challenging common assumptions and offering a powerful integrated framework for understanding how innovation happens and the law's role in that process, Barnett's Innovators, Firms, and Markets provides important insights into how IP law shapes our economy.

Protecting economic competition has become a major objective of government in Western Europe, and competition law has become a central part of economic and legal experience. National competition laws have long helped shape the relationship between government and the economy, and their influence has grown dramatically during the last decade. Competition law has also played a key role in the process of European integration, and is likely to do so in the future. Yet, despite its importance, images of European experience with competition law often remain vague and are sometimes dangerously distorted. This book examines that experience, analysing the dynamics of European competition law systems, revealing their impacts and assessing the political and economic issues they raise.

The increasing importance attached to the economic and social cohesion of the European Union since the 1980s, and the role of competition policy in achieving this objective, has special significance for the control of regional aids, given the general ban on State aid. Regional aids are considered to have the potential to contribute to economic and social cohesion and to undermine its attainment. The notion of competition policy as an instrument of economic and social cohesion has become a standard part of Commission rhetoric in defence of its actions. This book is concerned with the influence of EU competition policy on the regional policies of the Member States. It focuses on how the European Commission has interpreted the derogations from the State aid ban to enable the conduct of regional aid policies. The book takes both a historical perspective, tracing the evolution of policy, and a thematic one, examining in particular the relationship between EU competition and cohesion policies and the treatment of aid to very large projects. The author clearly demonstrates that, in reality, the competition policy control of regional aids is of much longer standing than the community's explicit regional aid policy and, in many respects, of arguably greater influence. She shows how competition policy has for almost thirty years shaped the design, scope and implementation of national regional aid policies; in no EU country has regional policy been unaffected by Commission intervention in the name of competition policy. Moreover, the policy principles developed for the EU now apply extraterritorially to members of the European Economic Area and to the current applicant countries. The study'soverall perspective is policy-oriented. It considers both the impact of Commission intervention in the past and the implications of policy for the future, especially in the context of enlargement and a wider Europe. It will be an invaluable resource for all policymakers and practitioners active in the fields of economic development, regional policy and State aid law at European, national and subnational levels.

Approaching the theme from an antitrust perspective and focusing on telecommunications and television broadcasting, this volume examines how traditional European competition law doctrines and principles can be applied to this converging sector. The application of antitrust rules to the communications sector is often one of the most controversial areas of law and policy. The shift towards a more competition law oriented form of regulation is one of the main principles inspiring the recent reform of European sectorial regulation enshrined in the 2002 Electronic Communication Package. The Package was adopted in 2002 and is in the process of being implemented throughout the Union. This monograph provides a detailed description of the new regulatory package and highlights the interplay between regulatory provisions and EC competition law. It then follows the pattern of a typical antitrust analysis containing chapters on the definition of relevant market in the sector and various forms of abuses of market power. The book also critically examines the Commission's practice and policy in the field of merger control and considers its relationship with wider regulatory policies. Finally it analyses the sector from the perspective of the "European" public interest and the changed nature of communications as a public service.

Of the major industries formerly characterized by a high degree of state monopoly control, telecommunications is proving to be increasingly susceptible to market failure. The fundamental causes of this difficulty, according to the author of this far-reaching analysis, are two-fold: abusive behaviour of incumbents aimed at foreclosing competitors, and the regulatory challenges posed by the technological convergence of the telecommunications, media, and IT sectors. The answers, Dr. Nikolinakos shows with extraordinary rigour and detail, lie in the enforcement of specially-crafted competition rules and proportionate, targeted sectoral regulation. This book presents the most thorough going model yet offered to ensure the emergence of a genuinely competitive electronic communications industry in Europe. In the course of its in-depth analysis, the discussion focuses on such factors as the following: EU telecommunications policy as revealed in liberalization and harmonization legislative measures; the EU electronic communications framework; case law covering issues of refusal to supply and the essential facilities doctrine; application of Article 82 EC to bottlenecks; specific types of an undertaking s unilateral behaviour that may often occupy NRAs and competition authorities in the context of their ex post competition law investigations under Article 82 EC; strategic alliances and mergers in the move toward multimedia; access to premium content and the emergence of new media; the scope of content regulation in the online environment; and broadband (regulation of local loop unbundling and bitstream access). The book also provides practical guidance on issues concerning the complicated market definition and analysis mechanism promulgated by the European Commission's Recommendation and Guidelines. Numerous legislative and policy documents are presented in full detail, with analysis taking into account the comments delivered by all interested parties (e.g., the European Commission, national competent authorities, and market players such as fixed incumbent operators, alternative operators, internet service providers, mobile operators, cable operators, associations of undertakings, and associations of consumers). No other book will provide interested readers with such crucial insight into the reasons behind the Commission s strategy and the often contradictory interests of market players. Because the argument is scrupulously grounded in informed awareness of existing and emerging realities, this landmark volume will quickly establish itself as a resource to be consulted and followed for many years to come.

This book consists of contributions exploring from different perspectives the 'images' of the consumer in EU law. The images of the consumer form the foundation for various EU policies, more or less directly oriented towards the goal of consumer protection. The purpose of the volume is to establish what visions of the consumer there are in different contexts of EU law, whether they are consistent, and whether EU law's engagement with consumer-related considerations is sincere or merely instrumental to the achievement of other goals. The chapters discuss how consumers should be protected in EU contract, competition, free movement and trade mark law. They reflect on the limits of the consumer empowerment rationale as the basis for EU consumer policy. The chapters look also at the variety of concerns consumers might have, including the cost of goods and services, access to credit, ethical questions of consumption, the challenges of excessive choice and the possibility to influence the content of regulatory measures, and explore the significance of these issues for the EU's legislative and judicial process.

This book explores the relationship between market entry analysis in competition law and the study of the determinants of aggregate investment. Macroeconomic and social characteristics, such as widespread corruption, political instability, and low levels of education are associated with lower investment rates. Progress on these indicators on the other hand is also strongly associated with sustained growth and higher investment rates. This book analyzes the interaction between these macro variables and the market-specific analysis typical in antitrust cases. Against this background, representative decisions of four Latin American competition authorities - Mexico, El Salvador, Colombia, and Chile - on unilateral conduct are analyzed, focusing on market power assessment. The analysis shows that there is little to no explicit or implicit consideration of the impact of the macroeconomic environment on market dynamism and therefore on market power. This book also explores the influence that EU and US competition law have in the standards to prove ease of market entry developed by the Latin American authorities. Although most of the Latin American authorities share a lack of reliance on market forces, which is characteristic of EU competition law, this book argues that market entry analysis still needs to be adjusted to fit the socio-economic context that affects investment within the country and the degree to which each particular market is affected. Finally, the book proposes a framework on how the macro characteristics covered can be incorporated into competition law enforcement.

Antitrust laws and proceedings in Europe, both at the Community and national levels, shape the European and international business landscape profoundly. It is therefore essential that business leaders and legal practitioners remain informed of the most important antitrust law developments and their effect on the business world. "Antitrust Developments in Europe, 2005" provides a comprehensive and practical commentary on the past year's major developments in EC and national antitrust law. Topics covered include: vertical restraints; horizontal agreements; abuse of market power; mergers & acquisitions; joint ventures; state aid; and policy and procedures. The insightful and concise analysis of major antitrust actions contained in this yearbook will be invaluable to antitrust legal practitioners, in-house counsel, businesspeople and others with an interest in the field. Cleary, Gottlieb, Steen & Hamilton, with one of the most sophisticated and highly-respected European antitrust law practices, has systematically and meticulously monitored antitrust developments in Europe since the early 1970s. This volume represents the combined efforts and expertise of Cleary Gottlieb's antitrust practitioners in this rapidly-changing field.

Eleonora Poli analyses how ideas and material interests have come to determine the evolution of antitrust policies in the USA, EU, Japan and BRICS. She argues that three major economic crises together with market globalisation have changed governments' perceptions of market competition, giving rise to a neo-liberal global phase.

This book examines the domestic and international dimensions of European Union (EU) competition policy, particularly mergers, anti-competitive practices and state aids. The authors argue that important changes in EU competition policy are having profound effects on the global political economy, and these changes are best understood as European Commission responses to new domestic and international pressures. Using a two-level game analytical framework that is both intra-EU and global in scope, Damro and Guay investigate a wide variety of domestic and foreign public and private actors that interact in crucial ways to determine the development and implementation of EU competition policy. They address this broad question: In what ways do changing external and internal factors affect the evolution of the EU's competition policy and the role that the Commission plays in it? Among the conclusions is that the EU - and particularly the European Commission - has become a leading global regulator.

This is the thirteenth in a series on EU Competition Law and Policy produced under the auspices of the Robert Schuman Centre of the European University Institute in Florence. The volume contains the written contributions of numerous competition policy experts, together with the transcripts of a roundtable debate which examined the subject of "settlements" between enforcers of competition law and defendant companies in cartel cases and in other types of antitrust cases. The Workshop participants included: -- senior judges from major jurisdictions (the European Union, Germany and the United States); -- senior enforcement officials and policy makers from the European Commission, from the national competition authorities of certain EU Member States and from the US Department of Justice and the US Federal Trade Commission; and -- renowned international international academics, legal practitioners and professional economists. In an intense, intimate environment, this group of experts debated a number of legal and economic issues pertaining to two broad lines of discussion: 1) settlements and plea agreements in cartel cases, including their links with leniency programs and with private enforcement; and 2) settlements in "commitment" cases decided under Article 9 of Regulation 1/2003 and under comparable procedures of national law.

Competition litigation is expected to increase dramatically in light of the application of the modernised competition law regime and new procedural rules. EU Competition Law: Procedures and Remedies (EU Competition Law Library) provides essential practical reference on the enforcement of competition law by EU and national courts and competition authorities. It derives from a section in the looseleaf Law of the EU (Vaughan & Robertson, eds), and is made available here for the benefit of those who don't subscribe to the looseleaf. The authors offer their expert knowledge of the practice and procedure of these bodies and the substantial and growing body of case law.