The antitrust implications of electronic business-to-business marketplaces

Electronic marketplaces (e-marketplaces) allow networks of buyers and sellers to conduct business online and to exchange information more efficiently using Internet technology. Despite the benefits that e-marketplaces potentially afford firms, concerns have been raised that these markets may damage competition and potentially violate antitrust laws. This study considers the antitrust legislation related to e-marketplaces and examines the possible antitrust concerns that they raise. Potentially anticompetitive features of e-marketplaces are examined and guidance for firm conduct when creating or participating in an e-marketplace is offered.     

Judicial approaches to economic analysis in Australia

Although Australia has had State and Federal antitrust laws for most of the twentieth century, its antitrust jurisprudence has only developed significantly since the enactment of theTrade PracticesAct 1974. Judges have had to come to grips with economic concepts not readily amenable to syllogistic reasoning and traditional fact finding processes. There has been increasing sophistication in judicial reasoning in the area of competition law. However restrictions placed by the rules of evidence upon the role of expert economists have attracted criticism. A new rule of court enables such testimony to be received by way of argument or submission rather than as evidence. This reflects the evaluative and normative nature of many of the judgments required under competition laws. It also provides an opportunity for a more fruitful and constructive interaction between economists and the judiciary in the application of such laws.     

美国现行反垄断法对软件产业的适用性探析--以搭售和掠夺性定价为例

本文对软件产业的搭售与掠夺性定价行为进行了法律和经济分析。在美国现行的反垄断法体系中，这是属于典型的滥用市场势力的两种行为。但在软件产业却不能凭借传统标准简单地把这两种行为归结为垄断行为，而应从产业本身的特点和竞争环境出发谨慎对待。如一味运用美国现行的反垄断法惩罚软件产业正当的竞争行为，只会从更大程度上抑制竞争，损害消费者福利。在网络经济条件下，反垄断法应该顺应经济和技术的     

The Determinants of State-Level Antitrust Activity

While there has been a considerable literature exploring the determinants of antitrust enforcement in the United States, these studies have been based either on aggregate federal enforcement data over time (exploring cyclical influences) or cross-industry studies, usually for a single year or aggregated over several years. What has never been investigated is the pattern of state-level antitrust litigation. This is somewhat surprising, as this has been a major activity of many state attorneys general. In this paper, we explain state antitrust activity across states, examining a number of the economic and political determinants that have been proposed in the literature.     

European Antitrust Policy 1957–2004: An Analysis of Commission Decisions

This paper provides a survey of  European antitrust law enforcement since its foundation in the Treaty of Rome of 1957 up to and including 2004. We present a complete overview and statistical analysis of all 538 formal Commission decisions under Articles 81, 82, and 86 of the European Community Treaty. We report a range of summary statistics concerning report route, investigation duration, length of the decision, decision type, imposed fines, number of parties, sector classification, nationality, and Commissioner and Director General responsible. The statistics are linked to changes in legislation and administrative implementation, thereby providing an historical overview that summarizes the Commission’s work in the area of antitrust. One or more appeals were filed with respect to 161 of the 538 decisions. We estimate the determinants of the size of the imposed fine and probability of appeal when an infringement has been found.     

Transaction costs and competition policy

This paper evaluates current antitrust policy in light of our current understanding of how transaction costs influence the ability of firms and consumers to deal with market power. The paper shows how the failure to consider transaction costs can lead to erroneous policy decisions. Many models employed today make simplifying assumptions about transaction costs that can lead to biased results in analyzing vertical and horizontal issues. The increased ability to monitor the effect of promotional behavior should cause us to reexamine whether free riding justifications, previously accepted as justifications for various vertical restrictions, still hold. Nash bargaining and Nash-in-Nash models raise concerns about the simplified assumptions assumed in which supposedly high transaction costs restrict the choice and form of the assumed competitive alternatives. The increasing importance of two-sided markets together with an understanding of transaction costs is needed to understand antitrust conduct in those markets. The recent Amex case is likely to lead to confused litigation in these types of markets. Finally, the establishment of property rights for a consumer to his or her data could fail to remedy antitrust concerns that certain dominant firms are immune to competition because consumers do not own their data unless that property right is limited so that consumers cannot exclusively sell their data to one firm.     

The Supreme Court and Beer Mergers: From <Emphasis Type="Italic">Pabst/Blatz</Emphasis> to the DOJ–FTC Merger Guidelines

The beer industry in the U.S. has undergone significant structural change in the post-WWII period. The industry also was the object of prominent antitrust challenges to horizontal mergers proposed during this time frame. This paper documents the trend of increasing seller concentration in the brewing industry and assesses the role that mergers played in this structural transformation. We also analyze the change in merger policy that has taken place since the Supreme Court originally addressed mergers in the beer industry as compared to current antitrust enforcement under the DOJ–FTC Merger Guidelines and recent judicial decisions.     

Multi-Market Collusion with Demand Linkages and Antitrust Enforcement

This paper analyzes dynamic cartel formation and antitrust enforcement when firms operate in demand-related markets. We show that cartel prosecution can have a knock-on effect: bringing down a cartel in one market reduces profits and cartel stability and leads to the break-up of the cartel in the adjacent market. Cartel prosecution can also have a waterbed effect: disrupting a cartel increases cartel stability in the adjacent market and induces cartel formation in previously competitive markets. We discuss the impact of dynamic cartel formation on consumer surplus, explore antitrust spillovers, the optimal scope of antitrust interventions and cartel formation with local firms.     

Exports and antitrust: Complements or substitutes?

Conflicting arguments have recently been voiced concerning the impact of antitrust statutes on the export performance of U.S. industries. On the one hand, opponents of vigorous enforcement have argued that antitrust constraints prevent firms from achieving efficiencies, thereby hampering competitiveness on world markets. On the other hand, proponents of antitrust have argued that vigorous enforcement tempers monopolistic pricing, thereby improving export performance. This paper presents an empirical test of these competing arguments. Our results indicate that Sherman Act Section 1 (price-fixing) enforcement has a positive effect on export shares, while Clayton Act Section 7 (merger) enforcement appears to have a negative effect.     

Predatory Pricing and the Speed of Antitrust Enforcement

A common complaint is that in certain industries antitrust action against predation istoo slow to ensure that a true victim can survive until the antitrust process has beenconcluded. This paper discusses, in the context of two recent antitrust cases, the sources of delay in the antitrust process, and different policy reforms aimed at speeding up the process or otherwise protecting a true victim.     

Online RPM and MFN Under Antitrust Law and Economics

The legal framing of a firm’s pricing strategy can determine whether it constitutes online resale price maintenance (RPM) or online most favored nation (MFN). Together, cases that involve online RPM and MFN can be viewed as a natural experiment of how antitrust economics and law may adapt to an online world. Thus far, legal theories that have been inconsistent with economic theories have dictated enforcement across jurisdictions, which has led to confusion that thwarts potentially efficient business practices. This paper distinguishes issues of online RPM from traditional RPM and online RPM from online MFN. We apply the economics learning to RPM and analyze the antitrust cases of online RPM and MFN to date in the United States, Europe, and Australia. Finally, we offer policy recommendations that reduce the confusion in current legal doctrine.     

Is Competition Such a Good Thing? Static Efficiency versus Dynamic Efficiency

Review of Industrial Organization - This paper addresses the rationale for antitrust legislation. It is a striking fact that the legitimacy of antitrust law has been taken for granted inthe United...     

Potential foreign competition in US manufacturing

Trade barriers are falling and firms are competing in increasingly open international markets. The data reveal considerable heterogeneity across industries in the intertemporal path of import-shares. Against this backdrop, we focus on an issue that is increasingly important for competition policy analysis: ‘potential’ foreign competition. Inadequate attention to this aspect could result in a biased picture of total competition, leading to misguided antitrust decisions. Drawing on the conceptual framework outlined by Landes and Posner [Harvard Law Review, 94 (1981) 937], we measure potential foreign competition by the intertemporal response of industry import-share to industry-specific and aggregate economic factors, and our estimates indicate wide variation across industries in this dimension. A particularly striking finding is that highly concentrated industries, which are more likely to be subject to antitrust scrutiny, have a greater degree of potential foreign competition than industries with low concentration, even though the extent of actual foreign competition is similar across these groups of industries.     

A Review of: “ECONOMIC DECISION MODELS FOR ENGINEERS AND MANAGERS” By James L. Riggs McGraw-Hill Book Company 1968 pp.xvi,401 $11.50

This study breaks down the use of capital budgeting procedures between industries. While it is easy to state that the use of capital budgeting analysis has become more sophisticated over the decades, the question remains as to whether different industries have followed the same pattern. Three hundred two Fortune 1,000 companies responded to a survey organized along industry lines. Chi-square independence of classification tests indicated that a null hypothesis of no significant relationship between industry classification and capital budgeting procedures could be rejected in a number of decision-making areas including goal setting, rates of return, and portfolio considerations. Just as industry patterns affect financing decisions (debt vs. equity), they also affect capital budgeting decisions, and this study emphasizes that point.     

Bagging bundle benefits in broadband and media mergers: Lessons from Sky/Vodafone for antitrust analysis

The historic precedents in telecommunications antitrust findings have tended towards finding harm to competition when network operators integrate downstream and bundle the provision of applications and services. The reason for this is that market power in network provision is thought to be extended into the applications market(s). More recently however, proposed mergers have been between telecommunications and media distribution firms, both of whom have some degree of market power, already sell their own services in bundles, and who may or may not have been offering combined bundles already via contractual agreements. Examples include Sky/Vodafone in New Zealand, and Time Warner/AT&T in the United States as well as Vodafone/Unitymedia in Germany and Media Capital/Altice in Portugal. These complex proposed arrangements pose challenges to competition authorities, whose legal and procedural rules and precedents, especially those defining the relevant markets affected by the merger or vertical integration activity, have been developed from the analysis of simpler cases. These precedents may not be sufficient to analyse current cases, characterized by multiple products catering to heterogeneous consumer preferences, and consumers are not constrained to buying only one variant of the products in each of the upstream and downstream markets.We illustrate the challenges by way of a case study of the proposed merger between Sky and Vodafone, declined by the New Zealand Commerce Commission in February 2017. Limitations in existing market definition processes and the evaluation of market power where bundling already occurs risk overlooking complex demand-side interactions that influence the profitability and efficiency of various structural and contractual strategic choices. We propose that classic merger and antitrust analysis based on econometric cost-benefit analysis can be augmented by using simulation and numerical analysis of a range of bundle offers expected to be relevant in decision-making. We develop a simple model and use it to illustrate how it may be used to inform broadband and content mergers, and other complex antitrust cases, such the assessment of the effects of two-sided markets and firm pricing decisions.     

An experimental study of exclusive contracts

This paper reports results from a laboratory experiment based on exclusive contracts that may theoretically lead to inefficient “naked exclusion” of a potential rival. The data indicate that changes in the number of buyers in the market have no significant effect on exclusion rates but the likelihood of inefficient exclusion is decreased both when a larger fraction of signed buyers are needed to deter a rival's entry and when buyers engage in non-binding communication. These results have antitrust implications both in terms of helping to identify “at-risk” market characteristics and suggesting potential competition-enhancing strategies. A sub-game of the experiment where buyers make signing decisions can be illustrated as a coordination game with the unique feature that payoffs are affected by a separate but interested party (the incumbent seller). I find that the height of the potential function and relevant basin of attraction, especially when combined with quantal response estimation, have larger predictive power in this sub-game than several other equilibrium selection criteria.     

Three problems in applying contestability to regulated markets

The theory of contestable markets emphasizes that the ease of entry rather than the number of existing firms forces incumbents to set prices at optimal levels. The policy implications of this work contrast sharply with past U.S. regulatory and antitrust policies, legitimizing increased industry concentration and decreased regulation. This paper explores three factors that influence the desirability of regulation or antitrust policy despite the apparent existence of a contestable market time lags, technological change, and cyclical macroeconomic fluctuations. Time lags enable incumbents to earnsupra-normal profits and take last-minute action to forestall entry. New technologies can create sunk costs that reduce the contestability of a market. Recessions can depress capital markets, raising the cost of exit, while expansion creates opportunities for entry without threatening monopolistic prices. These shortcomings limi the ability of contestability theory to provide guidelines for the regulation of actual industries.     

Optimal antitrust policy under different regimes of fines

This paper shows how antitrust laws against price-fixing can be enforced efficiently in the presence of asymmetric information between the authorities and the industry, and under different regimes of pecuniary punishment. We consider two regimes of fines that are often used in practice. The first involves a fine based on revenues of the industry while the second is related to the damage caused to consumers. The analysis shows that since investigation is costly, it is optimal from a welfare point of view to tolerate some degree of collusion in both cases. Comparing the deterrence levels, we show that no regime is a priori better than the other. In addition, we show that for industries where the possibilities of collusion are small, the first system dominates the second in terms of efficiency. Conversely, for high possibilities of collusion, the second system is better.     

Patterns of abnormal returns and the competitive effects of horizontal mergers

This paper examines the abnormal stock returns of rivals of firms undertaking horizontal mergers that were challenged by the FTC over the period 1981–1987. At the time of merger announcements, the rivals earn positive abnormal return on average; at the time of the antitrust complaints, the rivals earn normal returns. Past studies have argued that this specific pattern of abnormal returns necessarily indicates that mergers could not have reduced competition. This paper finds that this pattern of abnormal returns is a result of the different effects of antitrust complaints on smaller and larger rivals. The evidence suggests that the mergers may have created efficiencies, but the pattern of abnormal returns is not inconsistent with mergers that may also have resulted in higher product prices.     

On Antitrust Enforcement and the Deterrence of Collusive Behaviour

This paper examines an antitrust enforcement policy of using significant price changes in an industry as a sorting mechanism for the allocation of resources devoted to policing collusion. That is, in either responding to complaints or initiating investigations on their own, I examine the issue of whether an antitrust enforcement policy of inferring possible collusion from significant prices changes is effective in deterring collusion given that antitrust officials have no direct knowledge of the costs of individual firms. Using the imperfect information repeated game of Green and Porter (1984), I show that this investigation strategy if coupled with uniform costs being borne by firms, can reduce the expected profits from the collusive agreement: however, unless the punishment is large enough, it will be ineffective in reducing the frequency of collusion. More importantly, it can have the undesirable effect of reducing the output agreed to by firms, if firms choose quantities, or raise collusive prices if firms are choosing price. Moreover, if the enforcement policy is anticipated by firms, the punishment mechanism adopted to support collusion will be altered to offset the policy.