Antitrust & “extreme economic inequality” – new OXFAM paper out

Arguably, most if not all of today’s antitrust enforcers would agree that the world’s competition regimes (African or Asian, American or European, established or recently budding) are fundamentally designed to achieve very few, but important, goals.  Among these goals are the following: (1) economically, to enhance the market’s allocative efficiency & stimulate growth of production and (2) individually, consistent with Bob Bork‘s key insight, to increase consumer welfare (even if the latter may not be a formally stated aim of some regimes).

Today’s release of the OXFAM briefing paper on “Political Capture and Economic Inequality,” tantalizingly entitled “WORKING FOR THE FEW,” brings the second of the two above-stated goals to the fore:

Is the world today better for the [working] consumer than it was 123 years ago, when Senator Sherman and the majority of the U.S. legislature decried the unjust and ill-gotten riches of that era’s robber barons and enacted the Sherman Act?

Robber Baron
Robber Baron, circa 1890

The paper is interesting but too short to be of real academic or legal value in and of itself, in our view.  The infamous photo of the super-yacht on the authors’ blog represents the easy part of what they set out to accomplish – politicizing the issue and driving popular opinion (much akin to the period newspaper cartoon above).

Robber Baron, circa 2014

That said, authors Ricardo Fuentes and Nick Galasso go somewhat beyond the, by now, usual egalitarian quotes (Brandeis’s Depression-era statement: “We may have democracy, or we may have wealth concentrated in the hands of the few, but we cannot have both“) and the well-known head-turner statistics of inequality (e.g., “almost half [of the world’s wealth is] going to the richest one percent; the other half to the remaining 99 percent“), many of which are also found on their blog.

Yet, while they do go a bit deeper than merely scratching the surface with populist platitudes and photos of jetsetter playtoys, they fail to do so on the specific issue of how antitrust fits into the question of global economic inequality.  One need not attempt to un-seat Bork from the academic and judicial pedestals he has reigned over for 4 decades, but one could try a bit harder here…  The OXFAM study simply does not provide any new insights.  To its credit, it does identify the issue – but it does not develop the overall impact of competition law any further than highlighting the one (very particularized) example of the allegedly monopolistic Mexican telecoms sector:

Anti-competition and regulatory failure: the richest man in the world
Weak regulatory environments are ideal settings for anti-competitive business practices. Without competition, firms are free to charge exorbitant prices, which cause consumers to lose out and ultimately increase economic inequality. When elites exploit weak or incompetent anti-trust authorities, price gauging follows as a form of government to big business. By not acting when dominant firms crowd out competition, government tacitly permits big business to capture unearned profits, thereby transferring income from the less well-off sections of society to the rich. Consumer goods become more expensive, and if incomes do not rise, inequality worsens.

Mexico’s privatization of its telecommunications sector 20 years ago provides a clear example of the nexus between monopolistic behavior, weak and insufficient regulatory and legal institutions, and resulting economic inequality.

Mexico’s Carlos Slim moves in and out of the world’s richest person spot, possessing a net worth estimated at $73bn. The enormity of his wealth derives from establishing an almost complete monopoly over fixed line, mobile, and broadband communications services in Mexico. Slim is the CEO and Chairman of América Móvil, which controls nearly 80 percent of fixed line services and 70 percent of mobile services in the country. A recent OECD review on telecommunications policy and regulation in Mexico concluded that the monopoly over the sector has had a significant negative effect on the economy, and a sustained welfare cost to citizens who have had to pay inflated prices for telecommunications.

As the OECD report argues, América Móvil’s ‘incessant’ monopolistic behavior is facilitated by a ‘dysfunctional legal system’, which has replaced the elected government’s right and responsibility to develop economic policy and execute regulation of markets. This system has stunted the emergence of a dynamic and competitive telecommunications market. In fact, many of the regulatory instruments present in most OECD countries are absent in Mexico.

The costs of government failure to curb such monopolistic behavior are large. Mexico has a high level of inequality and has the lowest GDP of all OECD countries. As other OECD countries demonstrate, a more efficient telecommunications (especially broadband) sector can play an important role in driving economic growth and reducing poverty, especially among a large rural population, as in Mexico’s case. The OECD calculates that the market dysfunctions stemming from the telecommunications sector have generated a welfare loss of $129.2bn between 2005 and 2009, or 1.8 percent of GDP per year.

In the end, no matter how deeply or superficially the paper treats its subject, it will likely be of great interest to several of the African competition enforcers that preside over antitrust regimes in which the “public interest” criterion is present (e.g., COMESA, South Africa, and several others).  This means in practice: We at expect the paper to be cited in the near future by a competition authority near you.  So get acquainted with it before it’s too late.

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