Antitrust Bulletin

Sage Publications, Inc.
Publication date:

Latest documents

  • Partial Price-Fixing and Semi-Collusion

    Many cartels do not directly fix the price of products. Instead, the participants may agree on a starting price for negotiations or the price of a component of the overall price. Antitrust investigations reveal that cartel agreements are also often very imperfectly implemented. Antitrust law in the United States and the European Union has typically taken a robust approach to these practices even where economic analysis might be unable to show that such practices always or almost always harm consumer welfare. The decision of the New Zealand Supreme Court in Lodge Real Estate Ltd. v. Commerce Commission offers a New Zealand perspective on the concept of a price-fixing agreement and imperfect collusion. The Court, this article argues, reached the correct decision in Lodge. The decision, however, evidences a pragmatic judgment, rather than the confident deployment of economic learning or foreign case law within the statutory framework of the Commerce Act 1986. The language of sections 30 and 30A of the Act was borrowed from an Australian statute, which in turn had attempted to capture the state of United States price-fixing law in the 1970s. A more formalistic and pre-Chicago approach to antitrust is evident in the language, much of which was inspired by United States v. Socony-Vacuum Oil Co. The case also highlights some of the distinctive features of the competition law in New Zealand. The reluctance to develop to guide in the application of the general provisions of the Commerce Act and requiring a demonstration of an effect on price on the facts may mark a departure from the body of pricing case law in the United States and the European Union and risks undermining the per se prohibition of cartel conduct in the Commerce Act. Without the same depth and breadth of cartel case law, the adoption of a more flexible approach to anticompetitive agreements evident in some decisions in the United States and the European Union could have different effects in a smaller jurisdiction.

  • Predatory Pricing Under the Federal Competition and Consumer Protection Act of 2019 of Nigeria: An Unfinished Business

    Predatory pricing is one of the market practices that are prohibited in competition law. It occurs when a dominant firm sells its product at an unreasonably low price in order to eliminate competitors from the market. The Federal Competition and Consumer Protection Act, 2019 of Nigeria prohibits this practice. This article, therefore, examines predatory pricing under the Act. It argues that the prescription of the cost-based principles of marginal and average cost as sole determinants of predatory pricing under the Act would not provide the Federal Competition and Consumer Protection Commission (FCCPC) and courts with the appropriate legal standard in determining predatory pricing. It suggests that the provision of the law should be reformed to include the principle of recoupment as a legal standard for imposing liability for the practice against defaulting firms. This will assist the FCCPC and courts to distinguish pro-competitive predatory pricing from anticompetitive predatory pricing.

  • Introduction
  • The Coca-Cola Company/Coca-Cola Beverages Africa Merger: Lessons for Robust Regional Competition Enforcement

    This article uses the Coca-Cola Company/Coca-Cola Beverages Africa merger to illustrate the important role that competition policy should continue to play in the regional and continental integration agenda. The case provides an illustrative example that the structure and reach of firms play a pivotal role in the dynamics of value chains, as well as on the extent to which market power can potentially be exerted within and across countries. Competitive rivalry is necessary for innovation and lower prices, but the playing field needs to be leveled in order for entrants and smaller rivals to make and realize investments, build capabilities, and participate effectively. Competition reforms that take a bottom-up approach and account for the varying levels of development of countries play an integral role in opening up markets for entrants and small rivals, which in turn allow for the objectives of the African Continental Free Trade Area to be realized.

  • Introduction
  • Cross-Border Cartels Enforcement Under the Africa Continental Free Trade Area

    Effective enforcement of competition laws on a global scale is a prerequisite for open economies, fair trading conditions, and level playing fields, and ultimately, inclusive economic development for improved and better lives. Improving enforcement co-operation between competition authorities has been a priority for the Organization for Economic Co-Operation and Development, United Nations Conference on Trade and Development, and International Competition Network for many years. This article argues that there is increased scope for competition authorities in Africa to effectively regulate cross-border cartel activities under the Africa Continental Free Trade Area (AfCFTA). It is recognized that for the AfCFTA to meet its general objectives under Article 3 of the AfCFTA framework agreement, States Parties must develop a framework on competition policy which is part of the second phase of the negotiations that will culminate into a Protocol on Competition Policy. Following a review of competition policies and laws of selected African countries in Southern African Development Community, East African Community, Economic Community of West African States, and Common Market for Eastern and Southern Africa, this article suggests an appropriate competition law and policy for Africa, particularly one that will enhance capability to combat cross-border cartels.

  • The Vodafone/Sky Decision and Vertical Mergers in New Zealand

    As Professor Ahdar’s text shows, New Zealand’s competition law has undergone an evolution. Views on various practices have changed and this led to academic disagreements. One area, however, has been free from any controversy and that is vertical mergers. The reason is not uniformity of philosophy—but rather more prosaic. New Zealand has not had any cases. This changed with the Vodafone/Sky merger. This article discusses the Commerce Commission’s decision to decline the merger and how it is in line with current thinking on vertical mergers.

  • Labor Noncompete Agreements: Tool for Economic Efficiency or Means to Extract Value from Workers?

    A number of theoretical arguments have been offered in favor of noncompete provisions in labor agreements. While there has been considerable empirical research on the effects of those provisions, there has been little direct evaluation of the arguments themselves. In this article, I lay out and evaluate three commonly heard arguments, namely, (1) the voluntary nature of labor agreements justifies a strong inference that the terms of those agreements, including noncompete provisions, are beneficial for both workers and firms and that they are economically efficient, 2(A) noncompetes facilitate efficient knowledge transfer from firms to workers, and 2(B) noncompetes encourage efficient firm-sponsored investment in worker training. These arguments, though not entirely without merit, mostly do not survive close scrutiny, and in fact such scrutiny reveals strong arguments that point in the opposite direction. In addition, noncompetes may cause important additional harms that are not measured in conventional economic research.

  • The Politics and Practice of New Zealand Competition Law

    There is a wind of change blowing through global competition law and policy. Four or five years ago, there were signs a front was coming. Progressive commentators were fretting about years of seemingly unchecked market concentration. They were asking whether greater antitrust intervention might soothe rising inequality, prop up wages, and even disband aggregated political power. Some from the vanguard of this movement now occupy the most influential positions in the global antitrust endeavor. In this article, I locate New Zealand’s experience within the international normative debate over the law’s objectives by reference to the country’s modern economic history. And I explain how policy translates into practice at the enforcement coal face in New Zealand. In doing so, I observe that the country’s competition agency, the Commerce Commission, is failing in its duty to investigate and prosecute exclusionary conduct in the jurisdiction.

  • The Centrality of Rivalry

    The aim of this article is to argue that the old-fashioned idea of rivalry remains central to the concept of effective competition and, in turn, to the promotion of the competitive process. Rivalry was the core meaning of competition among the early economists. The concern with vigorous, sustained actual rivalry may have been lost sight of, but it ought not to have been. Rivalry cannot of course be the exhaustive focus for many other factors and influences affect the level of effective competition. But a searching rivalry inquiry provides a valuable initial screen. By reemphasizing the primacy of rivalry, we may also foster the ability of competition law to act not just as a key driver of economic efficiency and growth, but also as a pro-democratic vehicle to check powerful private centers of economic power.

Featured documents

  • Partial Price-Fixing and Semi-Collusion

    Many cartels do not directly fix the price of products. Instead, the participants may agree on a starting price for negotiations or the price of a component of the overall price. Antitrust investigations reveal that cartel agreements are also often very imperfectly implemented. Antitrust law in the ...

  • Characterizing Hard Core Cartels Under Article 101 TFEU

    The prohibition of cartels embodies arguably the sole universal norm of global competition law. Yet a precise understanding of what constitutes a cartel remains elusive, a problem that is exacerbated in the context of Article 101 Treaty on the Functioning of the European Union by the Commission’s...

  • Efficiencies in Antitrust Analysis

    While antitrust scholars continue to debate the goals of antitrust law, including the role of efficiencies in antitrust analysis, these discussions typically recognize that antitrust law does and should consider efficiencies, particularly efficiencies that lead to lower consumer prices. This paper...

  • FTC v. Lundbeck: Is Anything in Antitrust Obvious, Like, Ever?

    In FTC v. Lundbeck, the Eighth Circuit affirmed a bench verdict finding a merger to monopoly, followed by a 1400% price increase, not only legal, but effectively not even subject to antitrust. The result followed from the district court's view that peculiarities in the market for hospital-administer...

  • Public Interest and EU Competition Law

    While European Union (EU) competition law has long been understood as a variety of public interest law, the extent to which the rules can be applied directly to advance noneconomic public interest-oriented goals is more contentious. This contribution considers whether and how such concerns can be...

  • Antitrust’s Neglected Question: Who Is “The Consumer”?

    In a period when debate about the goals, scope, and effectiveness of antitrust policy and law is flourishing, it is timely to revisit the fundamental question of whose interests these instruments are intended to protect. In considering whether antitrust’s primary concern should be with consumer...

  • The Influences of Strategic Management on Antitrust Discourse

    This article examines how antitrust law and policy can benefit from ideas developed in the academic strategy field. Because accurate assessment and prediction of the effects of firm conduct depend in part on understanding individual firm capabilities, knowledge from the strategy field and other...

  • Managing Cartels Through Patent Pools

    This article addresses one aspect of patent pools that has not received much attention—a patent pool’s role in stabilizing a cartel of downstream producers. This article first reviews the problem of cartel cheating. Any potential mechanisms that a cartel can use to increase its stability face three ...

  • SEP Litigation and Huawei

    In the 2015 case Huawei/ZTE, the Court of Justice of the European Union took one of its rare opportunities to rule on the interface of antitrust and patent law. The question before the Court was whether the holder of a standard-essential patent abuses a dominant position by seeking an injunction...

  • State Aid and Direct Taxation and the Big Eruption Between the U.S. and the EU

    This article critically assesses the division that the recent decisions of the European Commission in the field of State aid have exposed between the EU and the U.S. It examines how the two legal orders address the issue of government subsidies and explores the reasons for their different approach. ...

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