economics, event

Global ATR economics conference – end of May

Concurrences, in partnership with NYU Stern, will hold the fourth annual Global Antitrust Economics Conference on Friday, May 31 2019 from 8:30 am to 5:00 pm at NYU Stern School of Business.

There will be four panels:

  • Panel 1: Antitrust in Sports
  • Panel 2: Telecom Mergers
  • Panel 3: Pricing Issues in Pharma: Pay-For-Delay, Product Hopping…
  • Panel 4: In-House Counsel Session: Platforms

You can see confirmed speakers, and register for free at http://globalantitrusteconomics.eventbrite.com

 

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Nominate! 2019 Antitrust Writing Awards (Concurrences / GWU Law)

Nominations for the 2019 Antitrust Writing Awards are open

We are pleased to announce that nominations for the 2019 Antitrust Writing Awards are now open. For the 8th consecutive year, our friends over at Concurrences Review has brought together an impressive jury panel consisting of antitrust enforcers, professors, and in-house counsels to select the Best Articles and Best Soft Laws published and released in the past year.

The deadline for submission is December 2, 2018.

The present Call for Nominations concerns 3 types of publications:

  • Best Articles: Articles published or accepted for publication in 2018, in both academic journals and professional magazines.

  • Best Soft Law: Most innovative non-enforcement tools issued by competition agencies in 2018, such as guidelines, market studies, white books, etc.

  • Best Newsletters: Leading antitrust newsletters published by law firms that stand out for coverage, contents, readership or innovation.

To nominate an Article, Soft Law or Newsletter, and read full eligibility rules, see here: http://awards.concurrences.com

Articles must be submitted before December 2nd.

The Editorial Committee will select 100 Articles, 30 Soft Law and 30 Newsletters.

Winners will be invited to attend the Gala Dinner on March 26, 2019 in Washington, DC in the presence of the Board and Steering Committee Members. To see the full list of Jury Members, click here.

The Antitrust Writing Awards is a joint initiative between Concurrences Review and the George Washington University Law School. Learn more about the Jury, the Awards categories and Rules on the dedicated website here.

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Big Picture, BRICS, economics, event, full article, South Africa

“Emerging Antitrust”: One size doesn’t fit all?

Pro rem publicam

At the Concurrences “Antitrust & Developing and Emerging Economies” conference held at NYU Law last Friday — and aptly sub-titled “Coping with nationalism, building inclusive growth” — the audience was treated to a (rather iconoclastic, yet fascinating) keynote speech by Nobel laureate economics professor Joe Stiglitz, which highlighted what would become a theme woven throughout the four panels of the day: One size does not fit all when it comes to competition-law regimes, according to a majority of the speakers; imposing a pure U.S. or EU-derived methodology without regard to local economic and/or political differences is doomed to fail.  However, as we outline further below, there were also countervailing voices…

Nobel Laureate Joseph Stiglitz: “Revisit all of antitrust!”

In the words of Professor Stiglitz, his advice to developing nations was (perhaps to the chagrin of U.S. government representatives, such as the FTC’s international director, Randy Tritell): “don’t copy the US antitrust laws and presumptions!”  Smaller markets in developing countries are even more susceptible to market power by few large firms.  Competition law can be used in developing countries to advance the public interest, as there are fewer “tools in the toolkit” in those nations, and in his view, all available tools should thus be used.  He referred to the WalMart/Massmart transaction in South Africa in this regard, noting the public-interest conditions imposed there.

On the day’s Mega Mergers panel, SACC Commissioner Tembinkosi Bonakele noted how the outcomes of truly global “mega mergers” all having been positive, “there has been no outright prohibition, there really is no problem that’s too big which could not be remedied by the authorities and the parties.”

Andreas Stargard and Commissioner Tembinkosi Bonakele (South Africa)

Observes Andreas Stargard: “Commissioner Bonakele also pointed to the importance of international merger enforcers cooperating on remedies, in order to allow these positive outcomes to be maintained.  Taking up Professor Harry First’s hypothetical of a joint or ‘merged’ antitrust enforcement agency, Mr. Bonakele considered a combined merger authority for the African continent a possibility, especially in light of the many small jurisdictions which individually lack resources to police cross-border M&A activity.”  Mr. Bonakele expressed the concern that “the smaller, national enforcers certainly feel as if they cannot block a mega deal on their own, so they largely defer” to the established agencies, such as the EC and DOJ / FTC.

In response to Frederic Jenny’s critical introduction of the South African Competition Amendment Act, Commissioner Bonakele commented that the current legal regime lacked the ability to tackle concentration as a market feature in itself, whilst the SACC had a comparatively positive track record on unilateral enforcement issues.  Overall, he disagreed with the moderator that most of the Bill’s changes were drastic, stating simply that it would in fact bring South Africa more in line with other international regimes.

As to the ministerial intervention powers, he identified two concerns, namely the use of the agency’s resources as well as the possible risk of abuse by a minister who could employ the new law to pursue ulterior motives against a firm or a sector.

Counterpoint: public interest or politicization?

Prof. Ioannis Lianos characterized the “slightly fuzzy public interest test” as largely a scheme to enhance the bargaining power of the competition agencies that do apply such a test.

Canadian attorney and former enforcer Lawson Hunter pointed out that the trend of growing political interference in the merger approval process has spread globally, not only in developing nations but also in well-established regimes — often under the guise of national security reviews, which are “obscure, opaque in process, fundamentally political, and without any ‘there there’.”  Merger review has “simply become very broad and less doctrinal.”  “I found it interesting that Mr. Hunter recommended that other antitrust agencies should give more frank input into their sister agencies, if and when those stray from the right path,” said Stargard, who focuses his practice on competition matters across the continent.  “Hunter also pointed to the tendency in emerging antitrust jurisdictions to abuse the remedy process in merger control to address economic issues that lie well outside the actual competition concerns that may have been found — an issue we have also come across, sadly.”

Commissioner Bonakele closed the final panel of the day by addressing the recently ratified South African Competition Amendment Bill: he admitted that there were some “radical” provisions in the law, such as the power to break up companies, as well as the existence of a risk of government using the law’s new national security provision in a protectionist manner. He concluded by stating his personal worry that the law had possibly too much ambition, which could be difficult to implement in reality by the SACC.

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BRICS, event, Meet the Enforcers, mergers, new regime, South Africa

October Antitrust Conference Shines Spotlight on Africa

New York Concurrences conference: Focus on emerging economies, “coping with nationalism and building inclusive growth”

AAT invites its readers to sign up for what promises to be a timely and topical conference in NYC this October 26, 2018, at NYU Law School.  Program below, sign-up with Eventbrite here.  The event features the SACC’s Commissioner Tembinkosi Bonakele as well as professor Simon Roberts from the Univ. of Johannesburg.


08.15 am

Registration & Breakfast

 8:45am

Opening Keynote Speech

Joseph STIGLITZ  

Nobel Prize-Winning Economist | Professor, Columbia University, New York  

9:30am

Competition, Industrial Policy and Developing Countries

Noah BRUMFIELD | Partner, White & Case, Washington DC

Dennis DAVIS | President, Competition Appeal Court of South Africa, Cape Town

Kirti GUPTA | Senior Director, Economic Strategy Qualcomm, San Diego

Frédéric JENNY | Chairman, OECD Competition Committee, Paris

Simon ROBERTS | Professor, University of Johannesburg, Johannesburg

Moderator: Eleanor FOX | Professor, NYU School of Law, New York

 11:00am

Coffee Break

11:15am

Mega Mergers and Developing Countries

Tembinkosi BONAKELE | Commissioner, South Africa Competition Commission, Pretoria

Marcio DE OLIVEIRA JR | Senior Consultant, Charles River Associates, São Paulo

Gönenç GÜRKAYNAK | Partner, ELIG Gürkaynak Attorneys-at-Law, Istanbul

Nicholas LEVY | Partner, Cleary Gottlieb Steen & Hamilton, London

Ioannis LIANOS | Professor, University College London

Moderator: Harry FIRST | Professor, NYU School of Law, New York

 12:45pm

Lunch

1:45pm

BRICS: A Competition Agenda? 

Alexey IVANOV | Director, HSE-Skolkovo Institute for Law and Development, Moscow

Ruchit PATEL | Partner, Ropes & Gray, London

Cristiane SCHMIDT| Commissioner, CADE, Brasília

Xianlin WANG | Professor, Shanghai Jiao Tong University, Shanghai

Moderator: Daniel RUBINFELD | Professor, NYU School of Law

 3:15pm

Coffee Break

3:30pm

Enforcer’s Roundtable: What’s Under the Radar?

Roger ALFORD|Deputy Assistant Attorney General, US DOJ, Washington DC

Tembinkosi BONAKELE | Commissioner, South Africa Competition Commission, Pretoria

Randolph TRITELL | Director, Office of International Affairs, US FTC, Washington DC

Joseph WILSON | Adjunct Professor, McGill University, Montreal | Former Chairman, Competition Commission of Pakistan

Moderator: Frédéric JENNY| Chairman, OECD Competition Committee, Paris

5:00pm

Closing Wrap-up: New York Minute

Eleanor M. FOX | Professor, New York University School of Law

Harry FIRST | Professor, New York University School of Law

5:15pm

Cocktail Reception 

 

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BRICS, event, South Africa

Concurrences: Interview with Commissioner Bonakele

nyuevent960x200-1

Antitrust in Developing Countries: Competition Policy in a Politicised World

Our friends at Concurrences Review are hosting the fourth edition of the joint conference co-organized by Concurrences & New York University School of Law, in New York City on October 27, 2017.

Tickets and more information can be obtained here.

Below is the interview of Tembinkosi Bonakele (Commissioner, South African Competition Commission) by Ioannis Lianos (Professor, University College London). The two will participate in the conference panel “Impact of the New Nationalism on Competition and Economic Development in Developing Countries.”

Interview between Prof. Lianos and Commissioner Bonakele

© Concurrences

Competition authorities are increasingly interested in assessing the effects of mergers or other conduct on innovation. How is this concern over the promotion of innovation affecting the substance of competition law enforcement, and in particular the extraterritorial application of competition law, as innovation is often taking place in the context of global value chains? How should one resolve conflicts over competing visions over the impact of competition on innovation, as it seems to be, for instance, the case between the EU and the US, and possibly BRICS countries?

One of the aims of competition law is to encourage innovation. Firms and individuals are incentivised to innovate due to the protection conferred on their innovations by intellectual property laws (IP). Therefore, at least theoretically, competition and IP laws ought to be complementary. However, the conflicts between competition law and innovation/IP laws are increasingly coming into sharp focus within the context of global value chains. One such example is the recent global mega-mergers in the seeds and agro-chemicals sectors. These mergers illustrate how multinationals can leverage their significant innovation and research resources by extending their IP protections through ‘ever-greening’ of patents, reciprocal IP cross licensing arrangements with close rivals, joint ventures and collaborative research and development. This level of collaboration suggests that the seed/agro-processing markets are likely more concentrated than is currently understood. From a policy perspective, competition authorities in both the EU and US seem supportive of this level of concentration based on the theory that such concentration increases innovation, notwithstanding their (unintended) global unilateral effects to which developing countries are especially vulnerable, given the centrality of agriculture for the sustenance of communities in their economies. The vulnerability of developing countries is further exacerbated by the fact that they are trying to regulate multinationals which have access to resources that dwarf the GDPs of many developing countries, and are able to lobby hard politically, against any interventions aimed at their activities.

Against this backdrop, the way forward for BRICS and other developing countries is to continue efforts to establish their own research platforms to enable the true impacts of the trade-off between innovation and competition law to be better understood from a developing country perspective. Furthermore, there is scope for greater global co-ordination amongst competition law agencies to ensure that global transactions are investigated and remedied in a co-ordinated manner.

Broader public policy concerns, than consumer welfare narrowly defined, are increasingly taken into account by various competition law systems around the world, in both developing and developed countries when assessing mergers and, in some instances, anticompetitive conduct. There is also increasing demand for a broader canvas of principles and values in order to assess business conduct, as this is demonstrated by the development of the concepts of “social” and “green” capitalism. Should competition law authorities explore more systematically this trend and eventually move to a public interest standard in assessing anticompetitive conduct, at least in some economic sectors (for instance involving primary goods, such as food, shelter, or with considerable environmental impact etc.)? What would be the implications for the global governance of antitrust?

Many countries already apply tests beyond the typical competition law tests in merger assessments, but they do not declare those tests in an open and transparent way. In contrast, South Africa’s merger regulation explicitly includes a public interest test and guidelines have been issued setting out how the test will be applied during merger assessment.

Should public interest cover some old and emerging social issues such as green issues or the environmental impact on food security, shelter and so on? I think there is scope for these to be part of an assessment of merger transactions, but their location need not necessarily be with a competition agency and they can be properly assessed through a different regulatory agency in a transparent manner. Countries should be allowed to structure their agencies the way they deem fit.

Within South Africa’s context, in order to address historical inequalities and economic and political imbalances, competition legislation specifically provides for both competition law and public interest standards in the merger assessment process. It bears specific mention that the courts have recently confirmed that both the competition law and public interest tests are of equal prominence in any merger determination process. In a developmental context, economic exclusion exacerbates inequality, poverty and unemployment and competition policy in conjunction with industrial policy (introduced through public interest) can break down barriers to entry and unleash innovation and new entry, which are pivotal to the unleashing of economic growth and development.

Although public interest considerations in merger assessment would appear, largely, the preserve of developing countries, developed countries and most notably, the European Union, seem to be re-considering their stance towards public interest considerations in merger assessment. Moreover, the impact of globalisation appears to be giving rise to a new wave of ‘new nationalism’ in developed countries (and the United States is no exception). This has ushered in more inward looking perspectives to international trade and ironically, may give rise to the use of public interest considerations in ‘tit for tat’ exchanges in transactions taking place within an increasingly geopolitical context. Thus, the implications for the global governance of anti-trust may be convergence.

In recent years the competition authorities of BRICS countries and other large emergent economies have been increasingly active in competition law enforcement, adjudicating high profile cases of global importance. The experience gained may be a source of inspiration for competition authorities in other emergent and developing countries, and could also be an important source of learning and wisdom for the competition authorities in developed countries. Do you consider that BRICS and other larger emergent competition authorities should strive to ensure global convergence with the EU and/or US models of competition law, as this is put forward by some, or should they opt for different models, experimentation being an important source of collective learning for both developing and developed countries? Should convergence, or experimentation, be the main/driving principle for the global governance of competition law? 

In the developed world, competition law is applied within a context in which it is presumed that markets are naturally competitive, self-correcting and don’t require policy interventions to address failures. However, that presumption cannot hold true in a developing country context where markets are undeveloped, highly concentrated, non-inclusive and unemployment and inequality are high. In this ‘developmental context’ competition law is applied within a context in which it is presumed that firms with market power exploit it. Therefore, in developmental context, competition law more than just efficiency, but human and socio-economic development as well.

Rather than seeking convergence with developed country perspectives on competition law, developing countries need to play a more prominent role in understanding how competition law policy can be used to address poverty, inequality and unemployment. This will require developing countries through the auspices of representative regional platforms such as BRICS, to enhance co-operation, share experiences and develop legal and competition law expertise from a developmental perspective.

Thus, it is important to appreciate that approaches to competition law in the developed and developing worlds are diverse and that divergence should be tolerated and informed by context. This does not take away the need for global co-operation and sharing best practices. There are also instances where harmonisation may be desirable, like in regions with or striving for common markets.

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New Frontiers of Antitrust – Paris conference

Concurrences Review will hold the 8th edition of its annual conference “New Frontiers of Antitrust” on Monday 26 June, from 8:30am to 7:00pm, at the Maison du Barreau, Rue de Harlay, Paris, France.

Marc van der Woude, Judge, Vice-President, General Court of the European Union, Luxembourg, will deliver the opening keynote speech.

AAT readers can use the following promotional code to sign up: NFA2017PartnersBlogs at the following site: https://newfrontiersofantitrust2017.eventbrite.fr


 Speakers include:

– Eric Barbier de La Serre, Partner, Jones Day

– Cristina Caffarra, Vice President, Head of European Competition Practice

– Andrea Coscelli, Acting Chief Executive, Competition & Markets Authority

– Isabelle de Silva, Chairperson, Autorité de la concurrence

– Kaarli Eichhorn, Global Executive Counsel – Competition Law & Policy, General Electric

– Carles Esteva Mosso, Deputy Director-General for mergers, DG COMP

– Justus Haucap, Director, Institute for Competition Economics

– Mathew Heim, Vice President and Counsel, Qualcomm

– Laurence Idot, Professor, University Paris II Panthéon-Assas

– Gert-Jan Koopman, Deputy Director-General State aid, DG COMP

– Frédéric Jenny, Chairman, OECD Competition Committee

– Cecilio Madero, Deputy Director-General Antitrust, DG COMP

–  Franck Maier-Rigaud, Professor, IÉSEG School of Management, Paris | Head of Competition Economics Europe, NERA,

– Robert McLeod, Co-Founder & Chief Executive Officer, MLex

– Damien Neven, Senior Consultant, Compass Lexecon

– Mélanie Thill-Tayara, Partner, Dechert

– Wouter Wils, Hearing Officer, European Commission, Visiting Professor, King’s College London

The conference will focus on 4 topics:

– Competition authorities: Towards more independence and prioritisation?
– Mergers and innovation: Do mergers foster innovation?
– State aid and tax ruling: Is there really a competition issue?
– Exploring the politics of competition regulation: How political is competition law?

 

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Antitrust Writing Awards 2017

The 2017 Concurrences Antitrust Writing Awards received nominations for more than 600 papers. The Awards Editorial Committee has selected:

  • 66 academic articles
  • 91 business articles
  • 21 soft laws

Readers can vote online until February 1 for their favorite papers on the Awards website.

Free access to all these articles is temporarily being provided on the Awards website.

Results will be announced by former FTC Commissioner and renowned antitrust scholar Bill Kovacic and the Board members at the Gala Dinner on March 28, in Washington, D.C., the night before the ABA Spring Meeting.

Tickets for the Gala Dinner are available here.

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