International Antitrust Law & Policy: Fordham Corporate Law 2005

Price: $125.00 660 pages. 1 Hardcover Volume. Published May 2006.
ISBN-13: 978-1-57823-212-3 / ISBN-10: 1-57823-212-0

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Book Overview

Foreword
Summary Table of Contents
Table of Contents
Welcome and Opening Remarks
 
Chapter 1
BRAZILIAN COMPETITION POLICY SYSTEM
by Elizabeth Farina

 
I.   Introduction
II.  Benefits of Antitrust Enforcement, Measurement and Justification of Antitrust Structure in a Developing Country
III. Judicial Review
IV. Independency and Relationship Between the Competition Authority and Government
 
Chapter 2
THE POLICY OF COMMITMENTS IN ANTITRUST LAW: FIRST STEPS AND FIRST 
UPDATE ON THE FRENCH CASE
by Bruno Lasserre
 
I.  Introduction
II. The Appearance of a New Market Regulation Instrument: The Commitments Procedure
A. Commitments: Continued Moves to ModernizeCompetition Law
B. Commitments: The Need to Adapt the National Procedural Framework
III. Adoption of the New Instrument: A Successful Start
A. A Clearly Attractive Procedure
B. A Promising Procedure
 
Chapter 3
ENFORCEMENT AUTHORITIES
by Philip Lowe
 
I.   Cartels
II.  Sector Inquiries
III. Article 82 – Abuse of Dominance
IV. Bringing Down State Barriers
A. Competition Screening
B. Professions
V. Enforcement Action Against State Measures
A. Article 10, in Conjunction with Article 81 or 82 of the EC Treaty
B. Article 86 of the EC Treaty
VI.   Private Enforcement
VII. Conclusion
 
Chapter 4
ENFORCEMENT AUTHORITIES ROUNDTABLE
Paul Victor, Presider
Hon. Thomas O. Barnett
Ulf Böge
Elizabeth Maria Mercier Querido Farina
Mario Monti
Bruno Lasserre
Philip Lowe
Hon. Deborah Platt Majoras
 
Panel Discussion
 
Chapter 5
STANDARDS OF PROOF AND STANDARDS OF JUDICIAL REVIEW 
IN EU COMPETITION LAW
by Hubert Legal
 
Chapter 6
STANDARDS OF PROOF AND STANDARDS OF
JUDICIAL REVIEW IN EC MERGER LAW
by Tony Reeves and Ninette Dodoo
 
I.   Introduction
II.  The Distinction Between Standard of Proof and Standard of Review
III. Standard of Proof
A. General Principles
B. Standard of Proof in Merger Cases
IV.  Standard of Review
A. Appeal/Judicial Review
B. Errors of Law
C. Errors of Fact
D. Error of Appreciation
E. The Impact of Tetra Laval
V.  Conclusion
 
Chapter 7
STANDARDS OF PROOF AND JUDICIAL REVIEW: 
A U.S. PERSPECTIVE
by Richard M. Steuer
 
I.  Introduction
II. Standard of Proof
A. Criminal or Civil
B. Court or Agency
C. Stage of Proceeding
D. Nature of Offense
III. Standard of Review
A. Criminal or Civil
B. Court or Agency
C. Stage of Proceeding
D. Nature of Offense
IV. Conclusion
 
Chapter 8
STANDARDS OF PROOF AND STANDARDS OF JUDICIAL REVIEW IN EC COMPETITION 
LAW ROUNDTABLE
Tony Reeves, Presider
Hubert Legal
Theofanis Christoforou
Richard M. Steuer
 
Panel Discussion
 
Chapter 9
OBSERVATIONS ON NEGOTIATING GOVERNMENT ANTITRUST SETTLEMENTS IN THE UNITED STATES
by James R. Atwood


 
I. The Interplay of U.S. Government Settlements and Private Treble Damage Litigation
A. Criminal Investigations
B. Civil Investigations
II. Some Issues Unique to Investigations of International or Foreign Conduct
 
Chapter 10
PRIVATE ENFORCEMENT OF COMMISSION COMMITMENT DECISIONS:
A STEEP CLIMB NOT A GENTLE STROLL
by John Davies and Manish Das
 
I.   Introduction
II.  The Relevance of Direct Effect
III. Should Commitment Decisions be Capable of Direct Effect?
A. The Binding Nature of Commitment Decisions
B. The Principle of Effectiveness ("Effet Utile")
C. Does a Commitment Decision Create Rights in Favour of Third Parties?
D. Are Commitments Unconditional and Sufficiently Precise?
E. Conclusion and Direct Effect
F. Can Article 10 EC Treaty Help
G. Procedural Problems
IV. Conclusion
 
Chapter 11
SETTLEMENT OF COMPETITION CONDUCT VIOLATIONS AT THE UNITED STATES 
ANTITRUST AGENCIES AND AT THE EUROPEAN COMMISSION - SOME OBSERVATIONS
by Daniel P. Ducore
 
I.    Settling Cases at the United States Federal Trade Commission
II.   Conduct Remedies for Competition Violations
III.  Procedures for Settling Competition Violations
IV.   Remedies for Violations of FTC Orders
V.    U.S. Settlements and European Commission Commitments
VI.   Two Recent EC Settlements
VII.  Fines, Criminal Penalties, and Other Monetary Relief
VIII. Some Implications of Settling With the Enforcement Agencies
 
Chapter 12
SOME ELEMENTS TO ENHANCE DAMAGES - ACTIONS FOR BREACH OF THE COMPETITION 
RULES IN ARTICLES 81 AND 82 EC
by Dr. Sven Norberg
 
I. Introduction
II. Issues Addressed in this Paper
A. General
B. Fault Requirement
C. The Passing-on Defence and the Indirect Purchaser
D. Recent Amendments to the Swedish Competition Act
E. Protection of Consumer Interests
III. Some Conclusions
 
Chapter 13
COMMITMENT DECISIONS AND SETTLEMENTS WITH ANTITRUST AUTHORITIES AND PRIVATE
PARTIES UNDER EUROPEAN ANTITRUST LAW
by John Temple Lang
 
I. Introduction
Part I
A. Undertakings in Pre-Regulation 1/2003 Cases
B. Conditions in Decisions Under Article 81(3)
 
Part II
A. Regulation 1/2003 on Commitment Decisions
B. The Commission’s Practice on Commitment Decisions So Far
C. The Commission’s Principal Commitment Cases Publicly Known So Far
 
Part III
A. Companies’ Reasons for Offering Commitments
B. The Commission’s Reasons for Considering Commitments
 
Part IV
A. Procedure: The Statement of "Concerns"
B. The Parties’ Access to the Commission’s File When Commitments Are Envisaged
C. Publication of Proposed Commitments
D. The Rights of Third Parties
E. Safeguards within the Commission
F. Decision for Limited Periods
G. Commitments in Multiparty Cases
H. Commitments and Leniency Applications
I. Can an Offer of a Commitment Be Withdrawn?
 
Part V
A. Terms of Commitments
B. Legal Consequences of Commitment Decisions: Conduct within the Scope of the Commitment
C. Legal Consequences of Commitment Decisions: Does the Commission Have to conclude 
    that the Company Will Be Doing Nothing Illegal If It Fulfills Its Commitments?
D. Enforcement of Commitment Decisions
E. Commitments in Specific Situations: Article 81 Cases
F. Commitments in Article 82 Cases – Pricing
G. Commitments – Price Squeezes
H. Commitments – High Technology Industries
I. Commitments in Regulated Industries
J. Commitments Instead of Interim Measures
K. Structural and Behavioural Commitments
L. Informal Commitments After Reg. 1/2003
 
Part VI
A. Judicial Review of Commitment Decisions
B. Interim Measures When a Commitment DecisionIs Challenged
C. After the Commitment Decision: Changed Circumstances, and Amending and 
    Terminating Commitments
D. What Assurance has the Company that the Commission Will Not Change Its Mind?
E. Judicial Review of a Commission Refusal to Accept a Commitment
 
Part VII
A. Article 10 EC and the duties of National Antitrust Authorities and Courts under Commitment 
    Decisions: Conduct after the Decision
B. Arbitration
C. Commitment Decisions by National Antitrust Authorities
D. The European Economic Arena
E. The Territorial Scope of National Commitment Decisions
F. Commitment Decisions Based Only on National Law
G. Some National Legislation on Commitment Decisions
H. Some National Commitment Cases
I. Commission Commitment Cases and U.S. Civil Consent Decrees Involving the Same Parties
 
Part VIII
A. Settlement of Private Actions
B. Tactics and Aims of Plaintiffs in Settlements
C. Tactics for Defendants in Settlements
D. Consequences of Commitments for Existing Contracts
 
Part IX
A. Some Concerns about Commitment Decisions Procedures
B. Possible Safeguards
C. Suggestions for Companies and for the Commission
D. Conclusion: A Popular Invention
 
Chapter 14
THE FRENCH APPROACH TO SETTLEMENTS IN
ANTITRUST PROCEDURES
by Didier Théophile
 
I. Introduction
II. The Negotiated Settlement (Article L.464-2 III)
A. Two Conditions for a Negotiated Settlement
B. Procedural Aspects
C. Calculation of the Fine
III. The commitment Procedure (Article L.464-2 I)
A. A Flexible Approach
B. Procedural Aspects
IV. First lesson to be Drawn From the French Practice
A. Comparison of Commitment Decisions and Negotiated Settlement Decisions
B. French Settlements Proceedings in Light of Article 9 of Regulation 1/2003
V. Conclusion
 
Chapter 15
SETTLEMENTS OF GOVERNMENT CIVIL PROCEEDINGS
AND PRIVATE ACTIONS ROUNDTABLE
John Davies, Presider
James R. Atwood
Daniel P. Ducore
Sven Norberg
John Temple Lang
Didier Théophile
 
Panel Discussion
 
Chapter 16
TACKLING EXCLUSIONARY PRACTICES TO AVOID EXPLOITATION OF MARKET POWER: 
SOME PRELIMINARY THOUGHTS ON THE POLICY REVIEW OF ARTICLE 82
by Neelie Kroes
 
I.   Article 82
II.  Dominance
III. The Concept of Abuse
IV.  Price Based Abuses
V.   Article 82 and Intellectual Property Rights
VI.  Efficiencies
VII. Concluding Remarks
 
Chapter 17
JUDICIAL REMEDIES UNDER EC COMPETITION LAW: COMPLEX ISSUES ARISING FROM 
THE "MODERNISATION" PROCESS
by Damien Geradin and Nicolas Petit
 
I.  Introduction
II. Acts That Can Be Challenged within the Context of EC Competition Law Post-Modernisation
A. Establishing Whether an Act Is Challengeable within the Meaning of Article 230 EC
B. Acts Open to Challenge within the Field of Competition Law Post-Modernisation
III. Those Having the "Quality to Act" in Annulment
A. Decisions Where Applicant Is Not the Addressee
B. Acts of a General Nature
IV. The Modalities of an Annulment Action
A. Lodging and Appeal
B. The Content of an Appeal
V. Judicial Actions Parallel and Subsequent to Article Proceedings
A. Increased Parallel Appeals Where the Community Courts Have Full Jurisdiction
B. Appeals for Indemnity
VI. The Effectiveness of an Annulment Action
A. Intensity of Judicial Review
B. The Expedience of Judicial Review
C. The Alternatives to the Current System of Judicial Review
VII. Conclusion
 
Chapter 18
COMPETITION LAW ENFORCEMENT IN SWEDEN
AND IN THE EU – PRESENT TRENDS
by Christer A. Holm
I. Criminalization of Competition Law
A. History of Criminalization Rules in Sweden
B. Criminalization – The Proposed Model
C. Answers to the Proposal
D. EC Legal Aspects
E. Conclusion
II. Other Signs of the Greater Impact of EC Competition Law in Sweden
A. Right to Claim Damages
B. Class Action
C. Inspections in Private Homes and Other Premises
D. Arbitration
E. AstraZeneca and Article 82
 
Chapter 19
TOWARDS A "SMART" ARTICLE 82
by Trevor Soames
 
I.   Introduction
II.  The Great Reform Project
III. Implications for Article 82
IV. Review of Article 82
V.  Guidelines
VI. Conclusion
 
Chapter 20
EC COMPETITION ENFORCEMENT LAW AND POLICY ROUNDTABLE
Trevor Soames, Presider
Neelie Kroes
Damien Géradin
Christer A. Holm
Panel Discussion
 
Chapter 21
PUBLIC OR PRIVATE PROVISION OF INFRASTRUCTURE SERVICES? IF PRIVATE, 
FIXED TERM CONCESSIONS OR FULL PRIVATIZATION?
by Alberto Heimler
 
I.  Introduction
II. Concessions or Public Provision?
A. Public Versus Private Provision of Public Services
III. Fixed Term Auctions, Privatization and Efficiency
IV. Concessions, Auctions and Renegotiations: Some Practical Experience
A. Aggressive Bidding
B. Faulty Contract Design
C. Government Failure to Honor Contract Clause
D. Defective Regulation
V. Auctions or Beauty Contests?
VI. Public Services and Competition
VII. Conclusions
 
Chapter 22
PRIVATIZATION OF INFRASTRUCTURE
by Hal Moore and Sarah Ward
 
I. Concessions
II. Water War: Cochabamba, Bolivia
A. Background
B. Terms of the Contract 
C. Life Under the Concession
D. Regulatory Response
E. Epilogue
III. Manila
A. Background
B. Terms of the Contract
C. Life Under the Concession
D. Regulatory Response
E. Epilogue
IV. Buenos Aires
A. Background
B. Terms of the Contract
C. Life Under the Concession
D. Regulatory Response
E. Epilogue
V. Conclusion
 
Chapter 23
PRIVATIZATIONS/CONCESSIONS AND COMPETITION POLICY ROUNDTABLE
Merit E. Janow, Presider
Alberto Heimler
Frédéric Jenny
Harold F. Moore
 
Panel Discussion
 
Chapter 24
COMPETITION POLICY, ECONOMICS, AND ECONOMISTS:
ARE WE EXPECTING TOO MUCH?
by Andrew I. Gavil
 
I.  Introduction
II. What Are the Sources of Economic Wisdom for Antitrust 
     Law and Policy, and How Do They Gain Access to Antitrust Law?
A. The Institutions of Antitrust Law and Policy
B. Access Points for Economic Ideas Common to Agencies and Courts
C. Access Points for Economic Ideas Unique to Agencies and Courts 
III. What Filters or Institutional Checks and Balances Are in Place to Ensure that Parties, Courts and 
      Agencies Get the Economics "Right"?
A. Checks and Balances on Economic Ideas Before Courts and Antitrust Agencies
B. The Daubert Decision and Its Implications for Antitrust
IV. What Lessons Does the U.S. Experience Offer for Those Who Would Similarly Seek to Translate
      Economic Ideas into Competition Policy?
A. The Daubert Paradox: Can Courts Demand Too Much of Economics and Economists?
B. Can the Economic Analysis of Commentators and Courts Exceed Their Own Expertise?
V. Conclusion
 
Chapter 25
MAKING ECONOMICS MORE USEFUL IN COMPETITION CASES: PROCEDURAL RULES GOVERNING 
EXPERT OPINIONS
by Gregory J. Werden
 
I.   Introduction
II.  Reports by Economic Experts
III. Qualifications
IV.  Reliability
V.   "Fit"
VI.  Other Procedures for Making Economics More Useful
VII. Lessons for Competition Authorities
 
Chapter 26
ECONOMIC EXPERTS BEFORE AUTHORITIES AND COURTS ROUNDTABLE
Frédéric Jenny, Presider
Andrew I. Gavil
Derek Ridyard
Lars-Hendrick Roeller
Gregory Werden
 
Panel Discussion

Book Overview