成本节约的不确定性、效率抗辩与并购评估审查

横向并购可能给参与并购的企业带来成本节约而产生效率效应,同时也可能产生反竞争效应。在横向并购反垄断审查的效率抗辩中,并购企业只要能够证实成本节约的效率效应能够抵消反竞争效应进而增进社会总福利水平,就可以获得反垄断当局的批准。然而,成本节约及其实现程度具有不确定性,成本节约的不确定性不仅会影响消费者剩余和社会总福利水平,而且将对效率抗辩和反垄断当局并购审查的判定规则产生影响。本文以Cournot模型为基础,系统分析了成本节约的不确定性对于横向并购反垄断评估审查中效率抗辩、判定规则和预期消费者福利的影响,为反垄断当局在并购评估审查中如何考虑效率因素提供决策参考。     

Quis Custodiet Ipsos Custodes? or Measuring and Evaluating the Effectiveness of Competition Enforcement

Summary  This article surveys, discusses and classifies methods for ex-post evaluation of the efficiency of competition authorities: court appeals, peer reviews, case studies, event studies, (authorities’ own) bottom-up calculations of consumer gains, deadweight-loss estimates, cross-country panel studies etc. Based on empirical estimates from other types of studies and on a simple oligopoly model, one conclusion is that many bottom-up calculations are based on exaggerated estimates of gains from cartel enforcement, relative to those from merger enforcement. Another conclusion is that authorities’ ex-post self evaluations are of limited value, relative to external evaluations. “Who watches the guardians?”, by Juvenal, 2nd century Roman poet and critic.     

Competition Policy: What are the Costs and Benefits of Measuring its Costs and Benefits?

Summary  Competition authorities are increasingly measuring the effects of their enforcement actions, seeking a robust justification for the proliferation of competition policy. We highlight the importance of identifying the right counterfactual against which to measure effects, and set out the relevant categories of costs and benefits. We then explore how a balance can be struck between the benefits and inherent limitations of these measurement exercises. Relatively crude analyses of cartel action benefits can be sufficient to achieve public legitimacy for competition policy. Assessing the effects of merger and conduct inquiries is often ambiguous, but could be used to improve decision-making processes. Director and Managing Consultant, respectively, at Oxera, Oxford and London. The valuable comments of Fod Barnes, Kerry Hughes and an anonymous referee are gratefully acknowledged. The opinions expressed in this article are those of the authors alone.     

Art of the Deal: The Merger Settlement Process at the Federal Trade Commission

This paper models the modern merger review process in which an enforcement agency, here the Federal Trade Commission (FTC), interacts with the acquiring firm to determine the outcome of antitrust regulation. Our empirical implementation of a game theoretic analysis tests whether decisions are driven by the costs and benefits of the proposed enforcement initiative as well as whether firms' responses are colored by competitive and institutional considerations. With respect to firms, the results suggest that mergers are driven by the opportunity to capture efficiencies, In contrast, the structural (anticompetitive) characteristics of mergers do not seem to impact firms' litigation decisions. Firms, however, are deterred from fighting the FTC by the potential negative impact on their reputations. In addition, “hostage effects” associated with the size of the noncontroversial portion of acquisitions held up by the FTC's competitive concerns also affect firm decisions.     

加拿大并购反垄断审查中的效率因素分析——以Hillsdown Holdings并购案为例

加拿大反垄断当局对并购进行反垄断控制的法律依据是《竞争法》和《并购实施指南》,其并购反垄断控制政策要求并购可能带来的效率在加拿大境内实现的部分能够补偿该项并购给加拿大生产者和消费者带来的福利净损失,并对能够纳入反垄断当局评估分析的效率因素进行详细界定。由于效率难以观察和证实,在早期的司法实践中,效率因素对于竞争管理局的并购评估审查判定影响有限。20世纪90年代以后,加拿大反垄断当局对于效率的态度逐步趋于友好,效率因素对于反垄断当局最终判定的影响越来越大。     

An Economic Analysis of Leniency Programs in Antitrust Law

Within a dynamic market environment the forces that drive the effectiveness of leniency programs in antitrust law are analyzed. This effectiveness unambigously is enhanced by (i) increasing the reduction in fine payments in return for reporting a cartel, and (ii) increasing the expected per-period cartel detection probability for any (future) period. Increasing fine payments for violating antitrust law also enhances the programs' effectiveness provided that the reduction in fine payment in return for reporting is large enough. The effectiveness of leniency programs is not influenced by the length of the period of limitation that comes with violating antitrust laws.     

反垄断法中宽恕制度之消极适用主体研究——以卡特尔主要作用者的认定标准为中心

由于卡特尔行为具有严重的危害性和秘密性,许多国家采用宽恕制度来打击和威慑此类反竞争行为。出于公平考虑和防止宽恕制度被不当利用,各国反垄断法执行机构往往规定卡特尔主要作用者不能适用宽恕待遇。目前大体存在两种类型的卡特尔主要作用者认定标准即领导者适用标准和胁迫者适用标准。由于卡特尔领导者适用标准中领导者、发起者等在实践中很难界定以及该标准受到理论上的责难,一些原先采用该标准的国家后来采用了胁迫者适用标准,而另外一些采用卡特尔领导者适用标准的国家则对该标准进行修正。从最新的修正情况来看两标准存在趋同迹象。     

威廉姆森的兼并福利权衡模型与启示

本文针对当前关于兼并与反垄断的争议 ,详细介绍了著名的威廉姆森福利权衡模型 ,并就中国的国情进行了探讨 ,提出了一些建议。     

The Economic Effect Of Competition Law Enforcement: The Case Of The Netherlands

Summary  In this paper we try to bridge the gap between the outcome ambitions of competition policy in terms of welfare gains and consumer surplus and the longer term effects of competition policy on growth and employment. First of all, an overview is given of the different definitions of welfare. We explain why maximising the consumer surplus is an important part of the mission statement for most competition authorities. In the second part of the paper we estimate the impact of the introduction of the competition law on economic development. The effects of antitrust policies, merger control and energy regulation on the consumer surplus appear substantial. This increase in consumer surplus can be interpreted as a cut in the “market power wedge” which, from a modelling point of view, is comparable to a cut in the tax wedge. A model simulation for the Netherlands shows that the economy responded positively to this increase in the consumer surplus. We find that production has grown by an extra 0.5% and that employment has increased by 0.4% as a result of the enforcement of the Competition Law. The authors are respectively Chief Economist of the NMa and senior advisor at the Office of the Chief Economist of the NMa. This paper is the background paper for the presentation with the same title at the conference “Measuring the Economic Effects of Competition Law Enforcement”, held in The Hague, 17 and 18 October 2007. The authors would like to thank two anonymous reviewers for their valuable comments and suggestions.     

Sanctions and Leniency to Individuals,and its Impact on Cartel Discoveries: Evidence from the Netherlands

Many competition authorities employ a leniency programme to fight cartels. We examine the impact of the introduction of sanctions and leniency for individuals responsible for the cartel, on the number of cartel discoveries. In our empirical study of the Dutch leniency programme, we find that this did not lead to more cartels being desisted as the number of cartel discoveries decreases over time. An analysis of characteristics of cartel members shows harsher enforcement after the revision, which indicates that the decrease in cartel discoveries is in line with higher cartel deterrence. Nevertheless, the number of cartel cases involving leniency actually decreases after the revision.     

大型互联网平台扼杀式并购规制的完善与变革

互联网平台发展壮大的同时垄断问题也引起全世界反垄断执法机构的关注。尽管《反垄断法》的修订回应了公众对数字领域垄断问题的部分关切,但传统事先申报标准无法满足互联网平台反垄断执法需求,且实质性审查制度在新业态下陷入失灵,大量大型平台企业并购初创企业案件长期逃脱反垄断审查。为此,可以通过修正申报标准、完善相关市场界定、重塑反竞争评估、优先适用行为性限制条件以及构建长效监管机制来规制扼杀式并购行为。     

论我国反垄断执法承诺制度中的第三人权益保护

承诺制度是反垄断执法中的重要措施及制度之一,目前大多数国家都将其纳入反垄断法中,该制度的优势也已在世界范围内被实践证明。我国《反垄断法》的第45条也将该制度吸纳其中,但该制度却未将有利害关系的第三人权益保护纳入调整范畴中,致使该制度在执行过程中面临种种困难。本文在提出第三人权益保护的必要性基础上,分析了我国反垄断执法承诺制度中第三人权益保护的现状及不足,并结合域外经验和中国国情,从立法、执法、司法的角度对我国承诺制度中第三人权益的保护提出制度完善建议,以期为该领域的研究提供具有可行性的参考和借鉴。     

Assessing the Impact of Antitrust Intervention by the Italian Competition Authority

Summary  In the last 2 years the Italian Competition Authority conducted several impact analyses, two of which – regarding baby milk and fresh milk markets – are presented here. A few lessons can be learned from these analyses. First, uncovering a cartel and imposing fines by themselves do not necessarily interrupt the effects of the anticompetitive behaviour. Second, by disclosing new information to the general public, an investigation can make the market more transparent so as to increase the probability of a successful entry. Third, in complex markets, remedies that have been imposed in clearing mergers may work out in unexpected ways. Fourth, mergers involving nationwide sellers should not be assessed only by watching the local relevant markets, as the incentive structure for coordination can be modified also at national level. Fifth, it seems advisable to appoint an independent trustee when divestures are imposed. Italian Competition Authority. The views expressed in the article are those of the author and do not involve the responsibility of the Italian Authority. I want to thank Fabio Massimo Esposito and an anonymous referee for comments and observations. All remaining errors are my own.     

THE GLOBAL BANK MERGER WAVE: IMPLICATIONS FOR DEVELOPING COUNTRIES

This paper reconsiders causes and implications of the global bank merger wave, especially for developing economies. Previous studies of the global bank mergers—that is, mergers between banks from different nations—had assumed that these combinations are efficiency‐driven, and that the U.S. case defines the paradigm for all other nations' banking systems. This paper argues that the U.S. experience is unique, not paradigmatic, and that bank mergers are not efficiency‐driven; instead, this merger wave has arisen because of macrostructural circumstances and because of shifts over time in banks' strategic motives. This paper argues that large, offshore banks often engage in cross‐border mergers because they want to provide financial services to households and firms that have reached minimal threshold wealth levels. For developing economies, this suggests that cross‐border acquisitions of local banks by offshore banks will have mixed effects; and it cannot be assumed that the net social impact is positive.     

不完全信息下跨国兼并模型分析

本文主要通过对不完全信息跨国兼并模型的分析,发现如果没有政府干预,外国企业只要具有成本上的优势,跨国兼并的发生是不可避免的。其中不完全信息并不是市场实现兼并的障碍,而政府在维护、平衡市场兼并效率和社会福利的关系方面中扮演着重要角色。     

专利联营反垄断执法的困境及对策

作为一种重要而复杂的产业组织形式,专利联营反垄断执法的经济理论基础是锌铜双占理论和交易费用理论。由于现行法律法规不健全,以及相关经验的缺乏,我国专利联营反垄断执法面临着严峻的挑战。对此,我国有必要采取相应的对策。     

Assessing the Determinants of NCAA Football Violations

What are the factors that cause members of the National Collegiate Athletic Association (NCAA) intercollegiate sports cartel to cheat? We develop a model that reflects the multi-institutional aspects of the decision process involved in the determination of major football program NCAA violations including university performance and incentives, rival behavior, and NCAA enforcement. Prior research is prone to omitted variable bias since studies have typically focused on only one of those components. The data sample includes all major football programs from 1981 to 2011, with 3,420 annual institution observations. Our empirical results confirm the multidimensional aspects of the cheating calculus. University characteristics and leadership, conference rivals, public/private university status, and different NCAA enforcement regimes are all significant contributors to the decision to cheat on the NCAA cartel.     

银行购并对绩效的影响——以美国的银行为例

金融业的购并是资本市场值得研究的热点。自上世纪90年代初开始,美国银行业就拉开了新一轮的购并的序幕。本文以美国银行业为例,研究了90年代以来美国银行业的演化特点,在从理论上阐明购并的效应以后,以花旗银行和美洲银行为例,对美国银行业购并的绩效进行了研究,这对研究中国的银行业购并具有重要意义。     

Ex-Post Evaluation of Competition Law Enforcement Effects in the German Packaging Waste Compliance Scheme Market

We provide an ex-post evaluation of the impact of competition law enforcement activities in the German packaging waste compliance scheme market. Until 2003, the non-profit compliance scheme DSD enjoyed a monopoly in the market. Numerous antitrust cases, however, paved the way for competitive market structures. We show that these enforcement activities resulted in a series of market entries since 2004, a corresponding drop in DSD’s market share, increased innovation and substantial efficiencies. Furthermore, we apply a difference-in-differences approach to show that prices decreased by 63% and to estimate the aggregated consumer welfare gains achieved by 2011 at a total of €13 billion. In the given case imposing a non-profit obligation on the monopolist did not substitute for the efficiency-enhancing effects of competition.     

The Economic Effects of Special Purpose Entities on Corporate Tax Avoidance

This study provides the first large-sample evidence on the economic tax effects of special purpose entities (SPEs). These increasingly common organizational structures facilitate corporate tax savings by enabling sponsor firms to increase tax-advantaged activities and/or enhance their tax efficiency (i.e., relative tax savings of a given activity). Using path analysis, we find that SPEs facilitate greater tax avoidance such that an economically large amount of cash tax savings from research and development (R&D), depreciable assets, net operating loss carryforwards, intangible assets, foreign operations, and tax havens occur in conjunction with SPE use. We estimate that SPEs help generate over $330 billion of incremental cash tax savings, or roughly 6 percent of total U.S. federal corporate income tax collections during the sample period. Interaction analyses reveal that SPEs enhance the tax efficiency of intangibles and R&D by 61.5 percent to 87.5 percent. Overall, these findings provide economic insight into complex organizational structures supporting corporate tax avoidance.