Anti-competitive agreements in Russian courts (2008–2012): antitrust law implementation and interpretation

This article analyses antitrust enforcement practice in Russian courts in the area of competition-restricting agreements. The analysis is based on the court decision database of litigations with the Russian competition authority (the Federal Antimonopoly Service (FAS)). In the database litigations that officially started in the period 2008–2012 were included. Final court decisions were evaluated, taking into account litigation duration (sometimes up to 3 years). The database contains 400 cases, including 236 horizontal agreements and 164 other agreements (mostly vertical agreements). Based on the evidence of this database, important features and problems of the interpretation and implementation of competition law in Russia and priority areas of enforcement were identified. Antitrust policy was analysed taking into account the risks of type 1 and type 2 errors, including the problem of flexibility of prohibitions (per se vs Rule of reason (ROR) approaches), standards of proof and the problem of consistency of enforcement.     

Private enforcement,corruption, and antitrust design

We examine how the rationale for enabling versus precluding private antitrust enforcement depends on whether antitrust enforcement is corruption-free or plagued by corruption. Corruption in courts affects the incentives to bring forth private antitrust lawsuits. This, in turn, along with corruption in antitrust agency enforcement, alters the incentives to commit antitrust violations. The social welfare effect of enabling private antitrust enforcement in the presence of corruption depends on whether corrupt officials in the ensuing bribery contests favor a particular firm and if so which one and to what extent. Under some circumstances, corruption actually increases the social desirability of private antitrust enforcement relative to the no-corruption scenario. Our analysis highlights that the effects of a given legal arrangement for antitrust enforcement critically depend on the corruption environment and, thus, that the appropriate design of antitrust institutions is context-specific.     

Legal tradition and antitrust effectiveness

This article uses cross-country data to empirically investigate through which channel legal origin can influence antitrust effectiveness. The evidence shows that the adaptability channel (legal flexibility) is more important for explaining antitrust effectiveness than the political channel (authority independence). The evidence also suggests that countries in which a judicial decision is a source of law will provide more legal flexibility and will adapt more easily to changing economic circumstances. They will therefore also have better enforcement of antitrust rules. On the other hand, a legal tradition that takes no formal notice of legal precedent will make the competition environment much less predictable. To the extent that these findings are true, one would expect competition agencies in Common law countries to perform better than those in Civil law countries.     

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。     

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.     

反垄断法私人实施的法经济学分析

反垄断法的实施分为公权实施和私人实施两种,美国反垄断法私人实施的情况比较普遍,我国传统上看重的是公权力的实施作用,而忽略私人力量对反垄断法的实施.反垄断法私人实施在经济学上要满足几个条件,如信息不对称、激励机制、成本/效益最大化.通过对美国反垄断法私人实施条件的分析,指出了我国目前反垄断法私人实施的不足和有待改进的地方,如起诉主体、激励机制的设计以及私权与公权力之间的协助关系.     

NEW INSIGHTS INTO THE DECLINE OF ANTITRUST ENFORCEMENT

The total number of cases that the Antitrust Division has filed during the past decade has increased, but the number of significant criminal price-fixing cases has declined. Policy changes have had significant effects on other areas of enforcement. This paper argues, however, that the decline in this dimension of antitrust enforcement can be explained by a 1974 act of Congress that increased criminal penalties for price-fixing violations from the misdemeanor level to the felony level. According to this argument, the stiffer penalties' deterrent impact has reduced the supply of antitrust violations. In this respect, the analysis highlights the flaws in measuring the strength of enforcement from the frequency of cases filed. In addition, the paper reports empirical evidence from a multinomial logit model of defendant plea choice indicating that the felony penalties encourage defendants to plead not guilty more frequently. Furthermore, data on the outcomes of criminal antitrust cases reveal that the government has greater difficulty in obtaining convictions when felony penalties apply. From the viewpoint of enforcers, these findings imply that detecting and prosecuting significant price-fixing violations is more difficult. This, in turn, helps explain the reduction in related private enforcement.     

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.     

State enforcement of federal standards: Implications for interstate pollution

This paper explores the relationship between interstate air pollution and the division of power between federal and state agencies in setting and enforcing standards. In the context of the US Clean Air Act we argue that the EPA is able to monitor the adoption of technology-based standards more closely than it can monitor state-level enforcement, and that this causes an effective division of control between federal and state agencies. Our analysis offers three main insights into the interstate pollution problem in this setting. First, states have an incentive to enforce standards less stringently on firms located close to downwind borders, and this leads to excessive interstate pollution in equilibrium. Second, there can arise an inherent substitutability in the regulatory problem between strict standards and compliance effort, and this creates a strategic linkage between the federal policy on standards and state policies on enforcement. In particular, a tighter federal standard can induce less selective enforcement but can also lead to less enforcement overall. Third, states will attempt to neutralize the impact of location-based federal standards (that specifically target interstate pollution) in a way that actually exacerbates the underlying enforcement problem.     

行政法规适用之商榷——以一起娱乐场所无照经营案为例

对娱乐场所无照经营行为有关执法部门应当依法进行处罚,但国务院分别制定了《娱乐场所管理条例》与《无照经营查处取缔办法》两个行政法规,两者处罚规定似有冲突。综合法理,可以适用《办法》依法进行处罚。为适用法律准确明晰,建议修改《娱乐场所管理条例》。     

INTERNATIONAL ANTITRUST ENFORCEMENT AND MULTIMARKET CONTACT*

This article analyzes cartel formation and international antitrust enforcement when multinational firms operate in several jurisdictions with local antitrust authorities. We are concerned with how the sustainability of collusion in one local market is affected by the existence of collusion in other markets when they are linked by a negative demand relationship. The interdependence of cartel stability across markets leads to potential externalities in antitrust enforcement across jurisdictions. Local antitrust enforcement equilibrium enforcement may exhibit a nonmonotonicity in the degree of market integration. We compare it with globally optimal antitrust enforcement policy and discuss the role of international antitrust coordination.     

我国证券市场执法活动对股市参与影响的实证研究

利用我国31个省(直辖市、自治区)2000～2006年的面板数据,采用一阶差分广义矩阵法(GMM)实证研究我国证券市场执法活动对股市参与的影响。研究发现:单就投资者利益保护而言,强化以法院为中心的执法活动更能达到保护中小股东利益的目的,而以监管机构为中心的执法活动对于引导公众的行为没有显著作用;投机性太强、对市场和公司缺乏正确解读是导致大量股民长期被深度套牢的重要原因。这些结论可以为我国股票市场现阶段的改革与发展提供一定的参考作用。     

The United States’ higher education antitrust exemption and college enrollment

This study examines the effect of the higher education antitrust exemption on enrollment of financial aid applicants at highly selective private colleges. The antitrust exemption, used since 2002, was extended to 2022 by the U.S. Congress in 2015, allowing colleges with need-blind admission policy to use common standards without discussing or comparing individual awards. Our findings, which are contrary to earlier studies, suggest that the likelihood of enrollment at the colleges implementing the antitrust exemption increased compared to those that did not. Concerns about the adverse effect of the exemption on enrollment, therefore, seems to be unwarranted. Moreover, the common standards used by need-blind colleges do not seem to increase college access for low income students. These findings can be useful to policy makers who soon have to consider extending the exception beyond 2022.     

Can judicial efficiency improve territorial attractiveness to FDI? The Italian experience

This paper explores the role that judicial efficiency may play as a determinant of inward FDI at sub-national level. Italy is an ideal case to deal with this still unexplored issue since the same law apply in all the national territory, but the degree of law enforcement varies considerably across different courts. We found that judicial efficiency affects positively FDI inflows. This result, though heterogeneous across different economic sectors, is robust to different specifications and sample selections. Our results have interesting policy implications, since they highlight the importance of non-targeted FDI policies as factors driving inward flows.     

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.     

Courts and Firm Investments in Real Property

The legal environment and rule of law are important for business, but existing studies often treat rule of law holistically. This article examines the role of courts, specifically the speed of court decisions, the enforcement of edicts, and the impartiality of decision-making as perceived by firms of various sizes, and the impact this has on firm investments in real property. The article analyzes a panel of 6,300 firms from 27 countries in the period from 2002 to 2009 to find that (i) firm size affects perceptions positively, while (ii) paying bribes affects perceptions negatively. At the same time, (iii) a firm’s connections to the government have no apparent impact. More importantly, while all three components have a positive correlation with the amount firms invest in land and machinery, the speed of courts has the greatest significance and the highest marginal effect. Firms perceiving courts to be quick invest nearly four times as much as the average real property investment. This finding suggests that policymakers should focus on reducing backlogs in the court system, perhaps by encouraging more arbitration or staffing more clerks.     

Free From What? Classical Competition and the Early Decades of American Antitrust

ABSTRACT

Classical economists characterised free competition as, alternatively, freedom of contract and freedom to trade. These notions were still at centre stage of the economic discourse during the Gilded Age and early Progressive Era, notwithstanding the dramatic rise in industrial size and concentration. In particular, they played a key role during the so-called formative era of American antitrust (1890–1914). The essay argues that the history of economic thought may offer an essential, though seldom recognised, perspective for understanding the rationale behind some of the Sherman Act’s early case law. As it turns out, US courts were still framing their discourse in terms of the two classical images of free competition. Proposals for antitrust reform would in turn stem from the difficult reconciliation between these images and the new reality of Corporate America.     

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.     

研发市场界定的适用困境及应对策略

研发市场是经营者在特定产品和技术竞争中形成的市场范围。由于研发活动的不确定性，反垄断执法机关在界定研发市场时难以准确厘定市场边界，更深层次的原因在于维持竞争与激励研发的关系尚不明晰。研发竞争中的垄断行为难以通过相关市场界定的方式判断其违法性，需要结合具体案情和市场条件，动态分析涉案行为是否损害产品或技术研发竞争。     

欧盟合并控制竞争执法中创新损害问题研究

创新是欧盟竞争法中重要的非价格竞争要素之一，在分析企业合并对创新的影响时，欧盟委员会传统上主要从与特定及明确产品市场相关联的潜在竞争角度进行评估。近几年的执法实践表明，欧盟竞争执法范围已经扩展到具有动态性的创新竞争领域，开始关注无形的创新损害，并通过个案审查逐渐在理论基础、制度依据、执法政策、分析框架和方法等方面形成相对体系化的应对方案。欧盟应对创新问题的竞争执法经验为当下我国反垄断法修订以及执法完善提供了良好参考。