Legal Principles in Antitrust Enforcement

We study antitrust enforcement that aims to channel price‐fixing incentives of cartels through setting fine schedules and detection levels. Fines obey legal principles, such as the punishment should fit the crime, proportionality, bankruptcy considerations, and minimum fines. Bankruptcy considerations limit maximum fines, ensure abnormal cartel profits, and impose a challenge for optimal antitrust enforcement. We derive the fine schedule and detection level that are constrained‐optimal under legal principles and sustainability of cartel prices. This fine schedule lies below the maximum fine, makes collusion on lower prices more attractive than on higher prices, and, hence, relates to the body of literature on marginal deterrence.     

Entrepreneurial finance and economic growth

This paper develops a theory of the centralization of firms engaged in multi-market collusive agreements. A centralized organization (called the unitary or U-form) allows price coordination across several markets, whereas with decentralized (the multidivisional or M-form) firms the probability that the antitrust authority will find evidence of collusion on one market while investigating the other is lower. We show that the firm’s choice of internal structure depends to a large extent on product substitutability and the instruments used by the antitrust authority.     

算法合谋的反垄断规制及工具创新研究

在数字经济领域,数字商务企业采用算法定价会明显提高合谋的可能性和可实施性,具有较大的价格合谋风险,因而成为反垄断法关注的重点。学理上,尚待明确的问题有:算法定价促进合谋的内在机理和类型化机制;如何创新反垄断执法体制以有效规制自主学习算法;在反垄断事后执法无效情况下,是否需要以及如何实行事前规制等。研究表明:算法合谋的反垄断规制宜坚持分类治理原则,采取事后反垄断禁止为主并辅之以事前规制的政策组合,反垄断政策工具创新应主要针对自主学习算法合谋。算法合谋反垄断规制政策需重新界定构成非法合谋的"协议"要件,明确当事企业的主体责任,重在采取以"软执法"为主的反垄断执法体制。事前规制政策应坚持"基于设计来遵守法律"的原则,强化算法审查机制和审查能力建设,并将提升算法透明度和可问责性作为重点。     

Antitrust Enforcement and Nonenforcement as a Barrier to Imports – with Illustrations from the Japanese Film Dispute

The role of antitrust in opening foreign markets to imports is a strong yet often unpredictable undercurrent in international trade disputes. The U.S. government may seek to protect its exporters who are denied access to a foreign market either by enforcing U.S. antitrust laws or by using trade law remedies against the importing country for not enforcing its antitrust laws. Both actions raise issues of extraterritorial jurisdiction and comity.The primary goals of antitrust law and trade law are sometimes complementary but often diverge. Antitrust is primarily intended to benefit consumer welfare, while the purpose of trade law is to gain access to foreign markets for the benefit of domestic enterprises and their workforces. Consequently foreign market access pursued under antitrust law can raise novel issues when there is no apparent injury to domestic consumer welfare suffers from too little competition, whereas trade law pursue market access strictly as principles of fairness that have no necessary relationship with consumer welfare anywhere.This paper examines two aspects of antitrust law – (1) non-enforcement by the importing country, and (2) enforcement of U.S. law to compel access to the foreign market – and discusses the current dispute between Eastman Kodak Co. and Fujji Photo Film Co. as an illustration of the issues introduced above.     

Competitive prices as optimal cartel prices

In a linear oligopoly model with antitrust enforcement, the optimal cartel price converges to the competitive equilibrium price. The set of sustainable cartel prices does not shrink to the competitive price. We identify necessary conditions for this counter-intuitive convergence result.     

On prices’ cyclical behaviour in oligopolistic markets

We revisit the discussion about the relationship between price’s cyclical features, implicit collusion and the demand level in an oligopoly supergame where a positive shock may hit demand and disrupt collusion. The novel feature of our model consists in characterising the post-shock noncooperative price and comparing it against the cartel price played in the last period of the collusive path, to single out the conditions for procyclicality to arise both in the short and in the long-run. This poses an issue in terms of an antitrust agency’s ability to draw well defined conclusions on the firms’ behaviour after the occurrence of the shock, with particular reference for the litigation phase after a cartel breakdown.     

反垄断调查的一个鉴别：一致性定价行为背后的差异与合谋

如何区分成本上涨时企业同时涨价的行为究竟是价格合谋还是寡头竞争的企业正常的价格调整行为？这是反垄断执法机构面临的一个难题。本文通过数理模型证明了无论企业进行伯川德竞争还是古诺竞争，寡头竞争的企业的定价随着成本的变化存在一个连续调整路径，而组成卡特尔的企业的定价则会随着成本的变化出现一个不连续的跳跃。因此反垄断执法机构在观察到企业的一致性定价行为之后，如果能从以往的价格监测纪录中发现这些企业在成本下跌时，价格存在着更大幅度的下调，则可以据此怀疑这些企业存在着价格合谋，应开展更深入的调查来搜集这些企业违反《反垄断法》的全面证据。     

Strictness of leniency programs and asymmetric punishment effect

We analyze the impact of leniency programs on the behavior of firms participating in illegal cartel agreements in a two-stage repeated game model. Our approach takes into account asymmetric punishment effect and allows to discuss the design of leniency programs in the setting with asymmetries. The main contribution of the paper is that we consider heterogeneous firms. This heterogeneity results in additional costs in case of disclosure of the cartel, which are caused by asymmetric punishments. Next, following current antitrust rules, we analyze effects of the strictness of leniency programs, which reflects the likelihood of getting a complete exemption from fine even in case many firms self-report simultaneously. Our main conclusion is that leniency programs work better for small companies, since a lower rate of law enforcement is needed in order to induce self-reporting by smaller firms, while big firms are less likely to start a cartel in the first place given the possibility of self-reporting in future. Finally, we analyze optimal enforcement strategies of the antitrust authority and conclude that the authority with limited resources should implement more generous leniency rules the more cartelized the economy is.     

Domestic and international research joint ventures: The effect of collusion

We analyze the effect of research joint ventures (RJVs) on consumer welfare in an international context when collusion can occur. Our results suggest that antitrust authorities should distinguish between domestic and international RJVs and be more benevolent with international RJVs.     

Antitrust Enforcement and Non-Enforcement as a Barrier to Import in the Japanese Automobile Industry

Foreign automobile manufacturers long have found it difficult to compete in the Japanese automobile market. For decades, governmentally imposed restraints prevented foreign manufacturers from gaining a foothold in the Japanese market. In recent decades, these governmental restrictions have been replaced by private restraints which create equally formidable barriers to entry. Many private restraints persist despite repeated informal investigations and administrative guidance by the Japan Fair trade Commission (JFTC). The endurance of these private restraints raises the question of what mechanisms may be available to make the Japanese automobile market more contestable. While vigorous and transparent enforcement of Japan's Antimonopoly Law by the JFTC is the preferred mechanism, other mechanisms for alleviating these private restraints include the extraterritorial enforcement of U.S. antitrust laws by U.S. antitrust enforcement authorities, mediation by the OECD or the enforcement of an international competition code in an international forum.     

纵向结构与投入品竞价合谋的悖论分析--日资配件企业“垄断协议”案的若干思考

2013年以来，跨国公司主导的价格合谋和价格歧视受到了中国反垄断机构的调查和处罚。文章以汽车配件行业中“日资企业”的价格垄断案为线索，构建了一个纵向股权关联下投入品价格合谋和集团内转移定价的理论模型，通过静态比较分析发现：关联企业之间的价格投标合谋并不符合“利润最大化”的目标，而是跨国公司作为实际控制人在上下游股权比例和盈利能力不对等的条件下，将下游整车合资企业的利润转移到上游配件企业的一种手段。文章从股权比例和企业运营模式的层面论证了利润转移假说的合意性，并结合主要细分市场的结构和利润关系，对“结构－合谋”原理所面临的现实矛盾进行了深入分析。文章的主要政策建议是：中国汽车产业的反垄断立法要实现从行为惩罚到规则干预的转化，要适当增加产业组织分析的证据以提高执法的科学水准，需要更多地使用合理推定原则以避免对企业理性行为的不当干预。     

Pure numbers effects, market power, and tacit collusion in posted offer markets

This paper studies the effects of seller concentration and static market power on tacit collusion in extensively repeated laboratory posted-offer markets. Contrary to the implications of some earlier research, we find that tacit collusion does not become pervasive with extensive repetition. In a ‘strong no-power’ design persistently competitive outcomes are observed in markets with three or four sellers. Even duopolies are frequently competitive in this design. Unilateral market power raises prices, as predicted. However, static Nash predictions fail to organize outcomes across power treatments, because tacit collusion moves inversely with concentration. Excess capacity appears to explain observed tacit collusion levels.     

When imperfect collusion is profitable

This paper studies cartel stability under the assumption that member firms can choose intermediate degrees of collusion as well as the joint-profit-maximizing solution in determining the quota to be produced by each firm. After showing that firms can increase the number of participants by decreasing the degree of collusion, I prove that individual members' profits are maximized when firms choose a (possibly low) degree of collusion such that all firms in the industry want to take part in the cartel. More precisely, if the number of firms in the industry is four or less, then all of them want to take part in the cartel even if the maximum degree of collusion is chosen (i.e., the monopoly output is produced); if the number of firms is greater than four, firms will still create an industry-wide cartel but they will produce a higher quantity than the monopoly output.     

Collusive behaviour under cost asymmetries when firms compete in supply functions

This paper investigates the effect of cost heterogeneity in cartel formation and its sustainability over time when firms compete in supply functions under uncertainty. We find that cartel formation and collusion sustainability are hindered as cost differences increase. Efficiency losses caused by collusive behaviour are shown to decrease as asymmetry increases and, therefore, welfare losses also decrease. We compare our results with those obtained under Cournot and Bertrand competition.     

State antitrust enforcement in the US and implications for small business entry and relocation

This article examines the impact of the important, yet little studied, state-level antitrust enforcement activity on entry and relocation behaviour by small US firms. Feinberg and Husted (2011) have shown that this enforcement, especially nonhorizontal cases, may be viewed by potential entrants as a negative aspect of the state business climate. However, they did not pursue a more disaggregate analysis of small firm entry behaviour; nor did they investigate different responses between manufacturing, wholesaling and retailing firms. Another related issue is the extent to which state cases filed in tandem with federal investigations have the same impact on establishment entry as do purely ‘independent’ cases. These considerations are dealt with in this article. The author uses annual state-level data from the Statistics of US Business to examine entry and relocation reactions to state antitrust enforcement by firms within three small-business categories: 1–19 employees; 20–99 employees; 100–499 employees. Generally speaking, the smallest retail and wholesale firms seem to favour vigorous antitrust activity, especially enforcement targeted against cartel behaviour by suppliers. The largest small-firm retailers and wholesalers (those with 100–499 employees) seem somewhat threatened by such activity, especially the more controversial nonhorizontal enforcement. However, it must be acknowledged that the effects on entry or relocation of small firms – both positive and negative – are quite small.     

Bidder collusion

We analyze bidder collusion at first-price and second-price auctions. Our focus is on less than all-inclusive cartels and collusive mechanisms that do not rely on auction outcomes. We show that cartels that cannot control the bids of their members can eliminate all ring competition at second-price auctions, but not at first-price auctions. At first-price auctions, when the cartel cannot control members’ bids, cartel behavior involves multiple cartel bids. Cartels that can control bids of their members can suppress all ring competition at both second-price and first-price auctions; however, shill bidding reduces the profitability of collusion at first-price auctions.     

JAPANESE ANTITRUST: RECONCILING THEORY AND EVIDENCE

Japanese antitrust law exempts a variety of vertical and horizontal restraints that remain closely regulated in the United States. Despite these dissimilar antitrust environments, however, market concentration, firms' exercise of market power, and deadweight loss from monopoly are highly similar in the two countries. The hypothesis that antitrust alters the relative mix of price to non-price competition rather than the absolute level that competition assumes might explain this empirical puzzle. Thus, this paper studies Japanese antitrust exemptions for resale price maintenance and export cartel associations to illustrate how adopting vertical and horizontal restraints has allowed Japanese firms to substitute towards forms of non-price competition better tailored to industry characteristics.     

Oil explains all: desirable organisation of the Russian fuel markets (on the data of three waves of antitrust cases against oil companies)

This article considers the mutual influence of antitrust enforcement in the petroleum product markets and competition legislation in Russia. An analysis of infringement decisions by the Russian competition authority allows us to understand the perceived goals of economic policy in this sector. The shift from antitrust investigations and infringement decisions to a very specific set of remedies is explained by the desire to maintain low retail prices under increasing concentration without price subsidisation or promotion of entry at the refining stage of the value chain. The article highlights the specific use of antitrust legislation to maintain low fuel prices and support independent retailing companies. We also note the limitation this policy faces. The goals and effects of antitrust enforcement in the industry explain, in turn, the specific path of competition legislation development in Russia.     

ON THE SUSTAINABILITY OF COLLUSION IN A DIFFERENTIATED OLIGOPOLY WITH A CARTEL AND A FRINGE

We discuss the effects of the existence of non‐colluding (fringe) firms on cartel sustainability. We obtain, using trigger strategies, that with product differentiation collusion is always more easily sustained when firms compete in prices than when firms compete in quantities. This is true basically because (i) price competition is more intense than quantity competition, and (ii) fringe firms exacerbate the fact that cartel firms have more incentives to deviate from the agreement under quantity competition. This result reverses previous findings where, in the absence of fringe firms, product differentiation plays a crucial role in determining the effectiveness of price or quantity competition in sustaining collusion.     

Product Market Integration and Union Collusion

This paper investigates the effects of product market integration on the incentives and scope for union collusion across borders. In the absence of binding agreements, the impact of this process on the unions’ willingness to collude depends both on the degree of product market integration and on the degree of substitutability among traded goods. Where trade barriers across countries are relatively low, implicit cross‐border collusion among unions is more difficult the more integrated are product markets and the less substitutable are traded goods.