The New Competition Law in Thailand: Lessons for Institution Building

The new competition law in Thailand, which replaces the totally ineffective 1979 anti-monopoly law, aims to enhance the competitive process by improving the enforcement mechanism. Unfortunately, the Trade Competition Commission's rulings on the first two complaints about allegedly illegal conduct by two large companies with obvious market power were disappointing. Although political pressure was a significant factor affecting the decisions, this paper argues that there were also other important issues. The complex legal, business, and economic problems in both cases, the weakness of the competition law, poor institutional design, inadequate resources and lack of experience among the officials involved have all contributed to the unfortunate decisions, and will certainly affect the performance of competition law enforcement in the future.     

Competition Policy under Laissez-Faireism: Market Power and its Treatment in Hong Kong

The paper describes the current competition policy framework in Hong Kong: how it came into existence, what business practices are prohibited, and how the enforcement system works. Recent cases in the telecommunications industry are used to illustrate the sectoral approach, a unique feature of Hong Kong's competition policy. We argue that a sectoral approach faces two fundamental drawbacks. First, due to having different ``rules of the game' for different sectors, the allocation of resources may be distorted in the long run. Second, since the relevant regulatory agencies perform dual roles both as competition policy enforcer and as traditional regulator of natural monopolies, the impartiality of their competition decisions may not be credibly conveyed to the public. We also address other specific problems associated with the sectoral approach, such as the exclusion of structural issues, narrow coverage of sectors, and the lack of public enforcement. We conclude that an overall competition law can better promote competition and economic efficiency in Hong Kong.     

Predatory pricing and foreclosure in telecommunications

The growing worldwide trend towards deregulation in the telecommunications industry is raising concerns about anticompetitive behaviour by the dominant carriers. This article reviews some of these concerns and gives examples of alleged anticompetitive behaviour by Canadian carriers. The author assesses the conditions under which predatory activities and foreclosure are likely to occur, and concludes that they may be made even more likely by regulation. He offers an evaluation of some alternative policy approaches.     

Merger law,policy, and enforcement guidelines in Canada

The paper describes Canada's merger law, policy, and enforcement activity. The contents of Canada's recently issuedMerger Enforcement Guidelines are explained, analyzed, and compared to the U.S. Merger Guidelines. The roles of concentration, market share, entry conditions, and efficiency defenses in Canadian merger cases are assessed. Reference is made to some recent decisions of Canada's Competition Tribunal, a body created as a part of the major competition policy reforms contained in the 1986 Competition Act.     

On the Consistency of Merger Policy

This paper presents a way to get around the information problem facing outside analysts who want to scrutinize competition authorities' decisions. A formal model of how decisions are taken is applied to infer information that is available to the authorities but not to the outside analyst. If the information thus inferred from several decisions is incompatible, it is claimed that the policy executed by the competition authorities is inconsistent. A case study is presented of two recent decisions by the Norwegian Competition Authority on proposed mergers in the Norwegian insurance industry, indicating they most likely were mutually inconsistent.     

The Year 2005 at DG Competition: The Trend towards a More Effects-Based Approach

This first review of the European Commission’s Directorate General for Competition (DG COMP) gives an overview on DG COMP’s mandate and the main developments of 2005. The discussion includes institutional and policy developments, as well as the main competition policy decisions and Court judgments in the merger, antitrust, and state aid areas. It is argued that the trend towards a more effects-based analysis in EU competition policy had an impact on the assessment of competition cases, as well as on the development of soft law. For example, the effects-based approach was put high on the agenda with the publication of the Article 82 discussion paper. Similarly, the publication of the State Aids Action Plan (SAAP) launched a “more economic approach” in European state aid assessment. In line with its objective to focus resources on key sectors, two major inquiries were launched in the energy and financial sectors.The views expressed in this article are solely those of the authors and do not in any way represent an official position of the European Commission. Until 1 September 2006, Lars-Hendrik Roeller was the Chief Economist at DG Competition. He is now the President of the European School of Management and Technology (ESMT) in Berlin and a Professor at Humboldt University.     

The Horizontal Merger Guidelines of 1992

The 1992 Horizontal Merger Guidelines of the Department of Justice and the Federal Trade Commission outline an enforcement policy which makes a long overdue break with its predecessors in awarding no decisive or predominant role to market concentration as a criterion of anticompetitive effect. However, the new policy does not provide an adequate substitute criterion: the tests that it prescribes for screening merger proposals are so specified that a potentially large proportion of anticompetitive mergers can escape challenge without showing any promise of improving efficiency. The time is ripe for a comprehensive inquiry aimed at formulating a more satisfactory policy.     

The vertical restraints guidelines of the department of justice

In January, 1985, the Department of Justice issued Vertical Restraints Guidelines intended to clarify the legal status of vertical restraints, which had remained indefinite since the Supreme Court had declared in 1977 that the “rule of reason” was applicable to a large class of these restraints, and to outline an enforcement policy fair to all concerned and economically justified. The guidelines are mainly concerned with the two most controversial types of arrangement: territorial or customer restraints and exclusive dealing arrangements. Separately treated are tying arrangements, where the enforcement policy strictly follows lines indicated by a recent Supreme Court decision. A large part of the text of the guidelines is devoted to a detailed explanation of ways in which a given vertical restraint may be freed from the suspicion of anticompetitive effect. The analysis employs defective tests for anticompetitive impact and does not deal adequately with practices with both good and bad effects. Therefore, the guidelines do not appear to have accomplished their stated purpose.     

Considerations of Countervailing Power

The 2010 Horizontal Merger Guidelines set forth the current antitrust enforcement practices but do not address mergers that result in bilateral monopoly. We show that, given the presence of lawful, enduring market power, such mergers may improve social welfare. As a result, these mergers deserve careful scrutiny before condemning them as anticompetitive. In this paper, we address this issue and suggest an economically sound enforcement policy.     

Do Court Decisions Drive the Federal Trade Commission’s Enforcement Policy on Merger Settlements?

Mergers are generally conglomerate in nature with only minor (if any) horizontal overlaps. Under U.S. law, an enforcement agency may challenge any anticompetitive aspect of the merger and the consequent delay associated with litigation would impose costs on the firm. These costs may give the enforcement agency “leverage” to extract a settlement even when the firm would prevail in court. This paper explores whether the FTC’s decisions to challenge transactions approximate the case law. We find that the representative enforcement regimes of the FTC and the courts are remarkably similar, although the FTC credits efficiencies, while courts consider buyer sophistication as a mitigating factor.     

New Wine into Old Wineskins: Recent Developments in China’s Competition Policy Against Monopolistic/Collusive Agreements

China??s anti-monopoly law contains comprehensive legal rules against monopolistic/collusive agreements. However, the legal standards for defining monopolistic agreements and the applicability of exemption and leniency programs need to be further clarified. Moreover, several coordination problems caused by the special organizational features of China??s antitrust institutions need to be addressed carefully. The Chinese antitrust authorities therefore face tremendous challenges in enforcement given both the intrinsic complications of monopolistic conduct and the existence of some inadequacies in the existing competition policy regime.     

Governing online platforms: Competition policy in times of platformization

This paper argues that a paradigmatic change in competition policy is needed and empirically under way to cope with the challenges posed by economically strong online platforms and their big-data-based business models. Competition policy needs to move further away from its traditional price-oriented emphasis and increasingly focus on non-price competition, on attention markets and zero prices, and on big user data, which has become a new asset class in digital economies.     

Do Merger Efficiencies Always Mitigate Price Increases?

In a Cournot model with differentiated products, we demonstrate that merger efficiencies in the form of lower marginal costs for the merging firms (the insiders) lead to higher post‐merger prices under certain conditions. Specifically, when the degree of substitutability between the two insiders is not too high relative to that between an insider and an outsider, increased efficiencies may exert upward rather than downward pressure on the prices of the merging firms. Our results suggest that in cases where firms engage in quantity competition, antitrust authorities should not presume that efficiencies will necessarily mitigate the anticompetitive effects of the merger.     

Economics at DG Competition, 2011–2012

This paper discusses a selection of cases and important policy developments in the enforcement activities of the Directorate General for Competition at the European Commission during the past year (2011?C2012). In particular, it illustrates the importance of competition policy in the area of financial markets based on the Deutsche B?rse/NYSE Euronext merger decision, discusses the role that the analysis of innovation can play in merger cases based on recent transactions in the hard disk drive industry, and illustrates the rising role of economic analysis in European state aid control.     

Spectrum Licensing,Policy Instruments and Market Entry

Competition policy attempts to address the potential for market failure by encouraging competition in service markets. Often, in wireless communication service markets, national regulatory authorities seek to encourage entry via the spectrum assignment process. Instruments used include the assignment mode (auction or beauty contest), setting aside licenses and providing bidding (price and quantity) credits for potential entrants, and making more licenses (spectrum blocks) available than there are incumbent firms (excess licenses). The empirical analysis assesses the effectiveness of these policy instruments on encouraging entry. The econometric results show that the probability of entry is enhanced by using auction assignments and excess licenses. Furthermore, quantity, but not price, concessions encourage entry.     

The institutional environment and effects of telecommunication privatization and market liberalization in Asia

Are the privatization and market competition models resulting in the leveling of the supply-side playing field, and are they demand driven as expected? Quantitative indicators of network expansion and efficiency provide a partial and inconclusive picture. Instead, an evolutionary property rights framework is favored. Examined in detail are the institutional environments that lead to particular types of property rights which in turn affect network expansion and efficiency. The article offers two conclusions: (a) introducing market competition is slow, messy and difficult to manage but, where present, it is better for growth than privatization alone, and (b) network expansion and efficiency are most noticeable where adequate property rights and enforcement mechanisms are in place. It also conjectures that the “East Asia Model” toward network expansion may not be easily generalizable.     

Vertical Restraints,the <Emphasis Type="Italic">Sylvania</Emphasis> Case,and China’s Antitrust Enforcement

We briefly review the relevant economic theories and legal treatment of vertical restraints, and especially focus on the 1977 landmark case of Sylvania and its possible influence on China’s antitrust enforcement on vertical restraints. China’s competition policy, and particularly its antimonopoly law, does not explicitly instruct with respect to the enforcement approach (per se versus rule of reason) toward vertical restraints. But from an overview of China’s recent antitrust cases, we find that there is a division in the approaches taken by public versus private enforcement: Even though the administrative enforcement is more inclined to the application of per se prohibitions (or the application of the EU-style prohibition-plus-exemption approach), it seems that a rule of reason is the (increasingly) prevailing approach that is taken by the courts.     

Market definition,market power

Market definition and market power are central features of competition law and practice but pose serious challenges. On one hand, market definition suffers decisive logical infirmities that render it infeasible, unnecessary, and counterproductive, and the practice of stating market power requirements as market share threshold tests is incoherent as a matter of empirics and policy. On the other hand, market power is often probative of the desirability of liability, yet the typically assumed functional relationship is unexplored and often implausible. These latter deficiencies are addressed through a ground-up analysis of the channels by which market power can be relevant. It is important to explicitly and simultaneously consider both anticompetitive and procompetitive explanations for challenged practices and to attend to the magnitudes of the social consequences of correct and mistaken imposition of liability in order to identify the various ways and senses in which market power bears on optimal decision-making.     

The Efficiencies Defense in the 2010 Horizontal Merger Guidelines

We analyze the efficiencies defense that is contained in the 2010 Merger Guidelines, which provides the most current statement of the Agencies?? enforcement philosophy and procedure. Most of our attention centers on efficiencies in production, but we also address merger-specific efficiencies that may lead to improved product quality, enhanced services, or even to the introduction of entirely new products. We begin with the analytically clean case of merger-specific efficiencies that are accompanied by monopoly power. From the perspective of either consumer welfare or social welfare, this presents the welfare analysis that should guide merger policy. We, then, examine the errors that may arise due to the restricted role that efficiencies play in Section 7 enforcement. Finally, we close with some policy recommendations.     

Ex ante or ex post competition policy? A progress report

When intervening in markets, say to block a merger, competition authorities are constrained by the limited information they have about the social desirability of the available alternatives. Compared to ex ante control, ex post control is based on the more accurate information that becomes available in the intervening period, but entails temporary losses to social welfare and reversal costs incurred to unscramble the eggs. Through a toy model, we identify situations in which the competition authority finds it optimal to commit to forego the option of ex post review in order to avoid chilling ex ante socially beneficial mergers. On the other hand, the case for ex post review is strengthened if post-merger market conducts can signal the merged firm's private information about the consequences of the merger.