bluuebunny/crossref_metadata_2025 huggingface dataset:
GATS Classification of Digital Services  Does The Cloud Have a Silver Lining?
Authors: Willemyns Ines
Published: April 2022

This article removes the ambiguity surrounding the GATS classification of digital services and provides a technical analysis that might guide this (heavily politicized) debate. Digitization principally impacts trade in services, enabling the widespread use of digital services and enabling cross-border supply of services on an unprecedented scale. It is the seemingly new nature of these services that has caused confusion and anxiety among WTO Members. This makes it worthwhile to take a closer look at what these services entail and whether, from the perspective of the GATS, we are actually dealing with a new phenomenon. First, the concept of digital services is clarified. Second, the classification issue is studied. The classification of digital services within the existing WTO services classification has been contested by some Members, who have claimed that such ‘new’ digital services cannot be classified within the existing framework. This opinion is not shared by the author, as the technologically neutral nature of the GATS allows for all services to be covered by this Agreement. Therefore, the way in which services are supplied should not render the GATS inapplicable. Rather, classification of services within the GATS framework should be based on the function of the services. Third, the article applies the proposed approach for a consistent classification to several contested digital services. It entails a legal analysis of how digital services fit within the scope of the GATS and the existing services classification.
Informal Dispute Resolution in Preferential Trade Agreements
Authors: Melillo Margherita
Published: April 2022

Noting that very few disputes have been adjudicated, many scholars have expressed doubts whether the dispute settlement mechanisms of preferential trade agreements (PTAs) will ever be used. This article argues that looking only at the number of formal disputes (i.e. disputes that lead to the adoption of a decision by third party adjudicators) tells an incomplete story about dispute resolution in PTAs (i.e. resolution of disputed issues). Focusing on the PTAs concluded by the European Union (EU), this article contends that the framework established by the PTAs can have a complementary role to litigation. Like the committees at the World Trade Organization, the committees established by the PTAs can foster dialogue and find technical solutions to disputed issues. By looking at the text of the EU PTAs as well as at available documents on their implementation, this article shows how these committees can tackle disputes.
How Government Procurement Measures Can Affect Trade
Authors: Messent James , Gourdon Julien
Published: April 2022

A number of countries used discriminatory government procurement policies as part of stimulus packages designed to alleviate the effects of the global economic crisis. This article collates and updates the evidence related to the size of procurement markets, the level of home bias they exhibit, and the effectiveness of multilateral and bilateral procurement agreements in reducing that bias. The share of procurement in GDP has been increasing gradually since 1995 with clear spikes during 2000–2002 and 2008–2010, the latter in response to the global economic crisis. The analysis presents evidence of domestic bias in government procurement markets, bias which has been increasing over recent years. The analysis in this article suggests that the results of international efforts to address home bias in government procurement have been mixed to date. The World Trade Organization’s Government Procurement Agreement (GPA) is found to reduce discrimination in procurement markets, although available – but limited – evidence does not indicate a significant effect for bilateral agreements. The evidence suggests liberalization of investment barriers undertaken in parallel with trade agreements increases the ability of those agreements to reduce discrimination. This suggests that countries negotiating procurement agreements could also benefit from negotiating investment agreements in parallel.
The Steel and Aluminium Quota Agreements: A Question of Compatibility with WTO Disciplines and Their Impact on the World Trading System
Authors: Lee Yong-Shik
Published: April 2022

In March 2018, the United States adopted measures to increase tariffs on a range of imported steel and aluminium products, justifying the tariffs with its national security concerns under GATT Article XXI. The United States also exempted certain exporting countries, such as South Korea, Brazil, and Argentina, from these tariffs in exchange for quota agreements limiting exports of the steel and aluminium products from these countries. These steel and aluminium quota agreements arguably violate the provisions of Article 11 of the WTO Agreement on Safeguards prohibiting such agreements (‘gray-area measures’). This article reviews the compatibility of the steel and aluminium quota agreements with the Agreement on Safeguards and examines the impact of these agreements on the world trading system.
Reforming Biosecurity Legislation in Developing Countries: Increasing Market Access or Maintaining Unequal Terms of Trade?
Authors: Black Robert
Published: April 2022

This article explores the challenges faced by developing and transitional countries (For the purposes of this article, Former Soviet Union (FSU) countries now mostly in the Commonwealth of Independent States (CIS), with the exception of the Russian Federation itself, are included in the term ‘developing countries’.) in international trade in agricultural goods and other natural resource products in compliance with the normative framework of the World Trade Organisation, and in particular of the Agreement on the Application on Sanitary and Phytosanitary Measures (‘SPS Agreement’). It details the legislative and administrative measures, as justified by ‘scientific evidence’ and ‘risk assessment’, that a WTO member may take to prevent the importation of unsafe food and animal feed, and pests and disease organisms. As well as considering the policy implications and constraints to relevant legislative reform, the article also draws on the author’s experience in biosecurity legislative review and drafting in Africa, Caribbean, Eastern Europe and Central Asia using the umbrella concept of ‘biosecurity’ to reflect on the challenges facing drafting of legislation consistent with the normative international frameworks for biosecurity. Taken into account is the impact of the SPS Agreement on the terms of food trade imposed on developing countries and the connection between international trade and environmental protection.
Asymmetrical Fairness: China’s Use of Antidumping Measures
Authors: Sohn Injoo
Published: April 2022

How and under what conditions do issues of fairness affect a state’s behaviour? This article argues, through the study of China’s behaviour in antidumping (AD) disputes, that there is utility in analysing economic conflict resolution by means of the capacity-based concept of asymmetrical fairness. This study seeks to develop theoretical hypotheses (‘systemic stability’ and ‘deterrence signal’) on the causal mechanism through which asymmetrical fairness can affect the policy choices of trade disputants. This study also presents some conjectures about conditions conducive to the elevation of fairness concerns within government: (1) the availability of punitive mechanisms; (2) unclear distributional implications; (3) domestic norms; and (4) in-group identity. The article concludes by discussing some implications of China’s fairness concern for global economic governance in today’s turbulent international system.

China, America, fairness, anti-dumping, trade conflict, inequality, WTO, governance
Online Platform Providers in the Sharing Economy: Emergence of New Service Suppliers?
Authors: Hur Nany , Kwak Dongchul , Park Jeongjoon
Published: April 2022

The ‘sharing economy’ has grown dramatically with the development of online platforms, challenging both domestic and international economic structure and related policies. While the issue of governance surrounding the online platform industry has become an important issue, thereby necessitating more discussion, even in the WTO, there remains the structural incompatibility of online platform providers with the current international trade regime and the continuing debate regarding how to classify and categorize platform services and their suppliers. This study aims to provide a comprehensive analysis of the status of online platform providers under the international trade regime, focusing on the matters of classification and the likeness of online platform providers based on the norms of trade in services. The article further examines the next question of the applicability of existing international trade norms, including WTO and free trade agreements together with the overview of newly introduced trade norms for online platform providers. Although there are still unresolved questions regarding various kinds of online platforms, the present work urges a continuous effort into defining applicable norms for the sharing economy within the established trade regulatory framework for legal certainty and predictability.

Sharing economy, online platform, GATS, FTA, classification, likeness
Export Restrictions in Times of Pandemic: Options and Limits Under International Trade Agreements
Authors: Pauwelyn Joost
Published: April 2022

Trade saves lives’ could have been the headline. Coronavirus disease 2019 (COVID-19) hit so hard, quickly and across so many nations at the same time, that many countries not only rushed to produce and import, but also imposed export restrictions on protective masks, ventilators and other products they were running out of. On one count, as of 26 April 2020, at least seventy-five governments had banned or limited exports of medical supplies and medicines.

The impact and pros and cons of such export restrictions have been discussed elsewhere. What this contribution seeks to do is to set out the options and limits under international trade agreements.

Section II discusses export restrictions under EU law, first within and then outside the EU. Section III turns to WTO agreements, discussing both obligations in respect of export restrictions, and a number of exceptions explicitly provided for. It also refers to trade remedies as a possible response to export restrictions. Section IV briefly examines preferential trade agreements. Section V concludes, highlighting the importance of transparency and the limits of law and enforcement procedures when it comes to emergency measures, especially those enacted on a temporary basis in the midst of a crisis.

Economists have almost universally condemned the recent surge in export restrictions. The main take-away point when looking at what international law currently provides for is, however, that it offers countries a great deal of leeway to enact such restrictions especially during a pandemic. One question for further research and negotiations is whether this wiggle room ought to be reduced to effectively address the next pandemic. Some recent commitments and proposals have been made in this direction. They are referenced in the conclusion.

Export Restrictions, Public Health, COVID-19, Food Security, Shortages, WTO, EU, International Trade, Dispute settlement
A Trade Policy Agenda for the Diffusion of Low-Carbon Technologies
Authors: Ahmad Zaker
Published: April 2022

This article proposes that the function of trade rules with respect to low-carbon technology diffusion should be to address the identified market-related barriers preventing cross-border dispersion of the necessary technologies. By doing so, it seeks to expand the discussion in the WTO regarding trade, technology transfer, and climate change beyond the traditional confines of intellectual property issues. To that effect, it outlines a new framework against the normative background of Common Concern of Humankind, an emerging legal doctrine. This is further followed by highlighting the key areas of action, which includes - market access reform to reduce costs, process and production measures (PPMs) to increase demand for clean technologies, and making rational and appropriate incentives available domestically and also for exports.

Trade and Climate, Low-carbon technology diffusion, Transfer of technology, Market failure, Technology market reform, Common concern of humankind
US–China Trade War An Impetus for New Norms on Technology Transfer
Authors: Eberhard Tundang Ronald
Published: April 2022

This article argues that the trade dispute between United States (US) and China should be an impetus for new rules and norms regarding technology transfer at the World Trade Organization (WTO). Technology transfer is a desirable outcome under WTO rules, including the Trade-Related Intellectual property Rights Agreement. However, Trade-Related Aspects of Intellectual Property Rights (TRIPs) have failed to effectively promote and facilitate technology transfer. The problem lies in the nature of the intellectual property rights that TRIPs are intended to protect and enforce. Though necessary, by conferring exclusive rights to its holder, intellectual property rights have the unintended consequences of inhibiting competition and technology transfer. Furthermore, it may impede the transfer of technology from developed countries to developing countries where firms often lack the capacity to further innovate the technology it has acquired. This article proposes new norms at the WTO, in particular the TRIPs and SCM Agreement, to improve its efficacy in promoting and facilitating technology transfer.
Informing WTO Reform: Dispute Settlement Performance, 1995-2020
Authors: Saluste Maarja , Mavroidis Petros C. , Hoekman Bernard M.
Published: April 2022

This article presents salient facts on the performance of WTO dispute settlement, using an updated dataset on cases adjudicated between 1992 and mid 2020. The dataset provides a comprehensive compilation of information on WTO disputes, including complainants, respondents and third parties; the substantive matters tabled; the WTO provisions invoked; the claims that are accepted or rejected by adjudicating bodies; the time involved to complete the consultation, panel and appeal (Appellate Body) stages; and the identity of panelists and how they were appointed. We highlight elements of the operation of the system that are salient to WTO reform discussions, while drawing attention to the richness of the dataset by highlighting stylized facts in the hope others will use the data to investigate specific research questions and hypotheses.

WTO, trade disputes, conflict resolution, panels, Appellate Body
Migration, Trade and Investment: Towards a New Common Concern of Humankind
Authors: Cottier Thomas , Shingal Anirudh
Published: April 2022

This article explores linkages between migration, international trade and investment from both economics and legal perspectives. The literature review reveals that the migration-investmenttrade triangle shows complex interdependencies, both in terms of substitution and complementarities, though its components remain largely separated both institutionally and legally. The 2018 Global Compact for Safe, Orderly and Regular Migration addresses a number of trade and investment-related issues. Recent treaty developments also encourage considering the three in a more integrated manner. The article suggests undertaking such an integration effort under the emerging principle of Common Concern of Humankind and sets out a number of preliminary ideas suggesting ways in which migration could be addressed in policies on international trade regulation and in the field of investment protection.

Migration, trade, investment, Global Compact, Common Concern of Humankind
Selective Engagement? Future Path for US– China Economic Relations and Its Implications
Authors: Wang Heng
Published: April 2022

The US–China economic interactions will have profound ramifications for the world. The article explores the following questions: what is the path forward for US–China economic interactions? What are its implications? It argues that selective engagement is the possible future path for US– China economic interactions. Selective engagement involves selective focuses, which currently are an unprecedented emphasis on market access, and delegalized implementation. Selective engagement contrasts sharply with deep free trade agreements that focus on regulatory disciplines and legalized dispute settlement. Selective engagement carries profound implications, ranging from rule vacuum and inconsistency, increased protection and economic disintegration, to the marginalization of multilateralism. Essentially, selective engagement is a ‘different animal’ from previous trade practices, and could be a game changer in international economic order. The US–China interaction is highly mutable, and selective engagement may change over time.

selective engagement, trade war, US–China Phase One agreement, free trade agreements, the Belt and Road Initiative
Old Wine in a New Bottle? Green Industrial Policy and the Use of Safeguards in the Solar Sector
Authors: Meng Fang Mandy
Published: April 2022

Enhancing manufacturing competitiveness in the solar photovoltaics (PV) sector has been a political priority for numerous countries, with green industrial policies often used to effectuate such priorities. In 2018, safeguards were utilized by the United States as a new form of green industrial policies in the solar PV sector, which was quickly followed by India. Safeguards are distinctly different from other widely employed green industrial policies, and their use threatens the multilateral trading system and impedes much-needed efforts to mitigate climate change. This article seeks to advance the literature on the interaction between green industrial policies and the World Trade Organization (WTO) by exploring the legal considerations and policy implications of employing safeguards in the PV Sector. This article discusses why the WTO would likely find that both the US and Indian measures violate the General Agreement on Tariffs and Trade and the Agreement on Safeguards (AS), but perhaps more importantly reveals several deficiencies associated with the WTO rules and institutional difficulties which may curtail the reduction of trade barriers. This article suggests the negotiation of a plurilateral agreement to eliminate the use of safeguards in the solar PV sector and foster a positive synergy between the trade and climate regimes.

WTO, Safeguards, Green Industrial Policy, Solar PV, Trade Protectionism, Climate Change
Let’s Play?: An Examination of the ‘Level Playing Field’ in EU Free Trade Agreements
Authors: Gillis Matilda
Published: April 2022

Free Trade Agreements to which the European Union is a party increasingly contain minimum obligations with respect to taxation, subsidies, and labour and environmental standards. Those obligations have been termed, in a highly pervasive and rhetorically effective metaphor, the ‘level playing field’. This article is directly concerned with the concept of the level playing field. Specifically, it examines the level playing field concept vis-à-vis ‘free trade’, how it has been implemented in recent EU free trade agreements (FTAs), particularly with respect to labour and environmental standards, why the concept seems to be gaining in influence and authority, and what that might mean for the liberal trading regime.

level playing field, WTO law, EU Free Trade Agreements, free trade
Cartel Sanctions and International Competition Policy: Cross-Border Cooperation and Appropriate Forums for Cooperation
Authors: Schoneveld Frank
Published: April 2022

The author takes the practical example of cartel sanctions to test whether international cooperation in competition policy is likely to be useful and effective. After describing the purpose, types and levels of sanctions for cartels he considers jurisdictional issues that may affect the enforcement of those sanctions. A substantial number of other cartel sanction issues for coordination by competition enforcement authorities are discussed, with the conclusion that such coordination is going to be more difficult and complex than might first appear. He demonstrates that international coordination of competition policy in respect of cartel sanctions could have positive outcomes by clarifying issues and avoiding negative outcomes from a competition point of view. Pre-requisites for an appropriate forum to undertake international competition coordination of cartel sanctions are established. The relative merits of the OECD, UNCTAD, WTO and ICN are considered in the light of the functions an international competition forum is likely to be required to perform. The author urges serious consideration of a mechanism whereby (a) the World Trade Organisation (WTO) would establish competition policy rules and provide a dispute settlement mechanism, while (b) the International Competition Network (ICN) would set standards or benchmarks for measuring compliance with the competition policy rules established by the WTO.
Should Private Antitrust Enforcement Be Encouraged in Europe?
Authors: Wils Wouter P. J.
Published: April 2022

The EC antitrust prohibitions are regularly invoked in private litigation as a shield. Private parties also play an important role in public antitrust enforcement through complaints to the competition authorities. However, in marked contrast with the situation in the US, private actions for damages or for injunctive relief are rare. This article argues that this situation is a desirable one. Indeed, from the perspective of ensuring that the antitrust prohibitions are not violated, public antitrust enforcement is inherently superior to private enforcement, because of more effective investigative and sanctioning powers, because private antitrust enforcement is driven by private profit motives which fundamentally diverge from the general interest in this area, and because of the high cost of private antitrust enforcement. There is not even a case for a supplementary role for private enforcement, as the adequate level of sanctions and the adequate number and variety of prosecutions can be ensured more effectively and at a lower cost through public enforcement. It also seems difficult to justify an increased role for private antitrust enforcement in Europe by the pursuit of corrective justice, as there does not appear to be a clear social need for such action, and because truly achieving corrective justice in the antitrust context is in practice a very difficult task.
What Do We Know about Competition Agencies in Emerging and Transition Countries? Evidence on Workload, Personnel, Priority Sectors and Training Needs
Authors: Serebrisky Tomás
Published: April 2022

During 2003, the World Bank sent a needs assessment questionnaire to 48 competition agencies in transition and emerging countries in Africa, Asia, Europe and Latin America. Responses were classified according the World Bank’s analytical regional grouping and the evidence allows a cross-regional comparison of competition agencies’ workloads, personnel, priority sectors and training needs. The view of competition authorities as a homogenous group across countries and regions can be discarded strongly. The analysis of the needs assessment questionnaire shows there are significant heterogeneities among competition agencies’ mandates, exempted sectors, professional personnel endowment and capacity needs. Responses confirmed the growing importance of competition policy issues in infrastructure services (i.e. market foreclosure, access to essential facilities) and the need to foster coordination between sector regulators and competition agencies. An important lesson for the design of training courses is that competition agencies do not need introductory courses. There is a significant demand for training on substance, on how to solve day-to-day technically challenging cases in the areas of mergers and acquisitions and abuse of dominant position.
Is Criminalization of EU Competition Law the Answer?
Authors: Wils Wouter P. J.
Published: April 2022

This article, based on a paper with the same title presented at the Amsterdam Center for Law and Economics (ACLE) Conference on ``Remedies and Sanctions in Competition Policy: Economic and Legal Implications of the Tendency to Criminalize Antitrust Enforcement in the EU Member States’’ (Amsterdam, 17-18 February 2005) addresses five questions concerning criminalization of EU antitrust enforcement: First, what do we mean by "criminalization’’, or "criminal’’ enforcement (as opposed to public enforcement of a "civil’’ or "administrative’’ nature)? Second, is there a tendency in the EU Member States to criminalize antitrust enforcement (in comparison with US antitrust enforcement and with antitrust enforcement at the level of the EU institutions)? Third, is criminal antitrust enforcement, more specifically imprisonment, desirable (in general, irrespective of whether it takes place at the level of the Member States or of the EU institutions, or whether it is harmonized at EU level)? Fourth, is it problematic that antitrust enforcement is criminalized at the level of individual EU Member States without parallel criminalization at the level of the EU institutions or without EU harmonization? Fifth, would it be legally possible to criminalize antitrust enforcement at the level of the EU institutions, or to have EU harmonization of criminal antitrust enforcement in the Member States?
Competition Law Compliance Programmes: A Study of Motivations and Practice
Authors: Rodger Barry J.
Published: April 2022

This article discusses the outcome of a recent empirical project which sought, via field studies with three major UK companies, to ascertain the extent to which a corporate culture of compliance has been developed within UK industry in recent years. The research has provided useful information on the development of competition law compliance culture. For instance, it confirmed the hypothesis that the experiences and perspectives of the particular company affects compliance. The research also provides some limited evidence to support the three key theoretical frameworks which are likely to underpin the establishment and maintenance of effective compliance: deterrence based on rational choice; moral corporate citizenship based on questions of legitimacy and sound corporate governance; and managerial competence based on operational effectiveness and adoption of sound management systems; although it is evident that the deterrent impact of competition law sanctions is the underlying and primary compliance motivation for each of the companies which participated in the research, at least at this stage in the development of UK competition law and UK corporate compliance culture.
State Action Defence in EC Competition Law
Authors: Castillo de la Torre Fernando
Published: April 2022

The State action defence doctrine arises in cases of possible conflict between regulation and competition law, i.e. when regulation restricts competition. Which rules prevail? Is the undertaking responsible for behaviour which has been required by public regulations? EC Courts have shown a readiness to apply competition prohibitions in the presence of regulatory measures that simply facilitate or encourage the very same forbidden conduct, but they may find that the issue falls outside the scope of competition provisions when the Court is satisfied that the Member State has left no room for autonomous decisions by market participants. However, Member States are bound not to render ineffective antitrust prohibitions, as this would be a violation of Article 10 in combination with Articles 81 or 82 EC, and primacy of EC law over national law requires a national competition authority (NCA), in the course of an investigation under Article 81 EC into the conduct of undertakings, to be able to declare a national measure contrary to those provisions and, consequently, to disapply it. As regards the penalties which may be imposed on the undertakings concerned, if a national law precludes undertakings from engaging in autonomous conduct which prevents, restricts or distorts competition, the duty of NCAs to disapply such an anti-competitive law cannot expose the undertakings concerned to any penalties, either criminal or administrative, in respect of past conduct where the conduct was required by the law concerned. However, conduct after the NCA’s decision finding an infringement and disapplying such an anti-competitive national law has become definitive, can be penalised. If a national law merely encourages, or makes it easier for undertakings to engage in autonomous anti-competitive conduct, those undertakings remain subject to Articles 81 EC and 82 EC and may incur penalties, including in respect of conduct prior to the decision to disapply that national law. This case law still leaves a number of questions unanswered, and the scope of this defence is far from clear.
Can State Aid Policy Become more Economic Friendly?
Authors: Crocioni Pietro
Published: April 2022

With the recent and ongoing reform of most areas of European competition law (mergers, Art. 81 and now Art. 82 of the EC Treaty) State aid rules appear more and more as an anomaly. This is both from the institutional point of view, where State aid remain the exclusive domain of the European Commission, and in being one of the few last areas of competition law where decisions are based on presumptions rather than competitive effects. This article argues that the two aspects are strictly linked. Because the European Commission has to review a large number of State aid cases every year it lacks the resources to go beyond an analysis based on presumptions. This suggests that a different system could improve the application of State aid rules. It is claimed here that a strong case for a supranational control of State aid is only warranted when the measure is likely to result in significant negative spillovers. It follows that the European Commission could focus only on cases where significant effects on trade are likely and delegate the analysis of cases where the effects are purely national to independent national authorities in each Member State.
Cartels and Collusion in Developing Countries: Lessons from Empirical Evidence
Authors: Jenny Frédéric
Published: April 2022

During the course of the debate at the WTO on the Singapore issues, a number of government officials from developing countries have suggested that their countries would derive little benefit from competition law enforcement. Some even argued that competition law enforcement would actually hinder the development of their country. To a large extent these views were based on the idea that domestic anticompetitive practices are not prevalent on developing economies or do not impose a large cost on their economies. This discussion on the relationship between trade competition and development, however, has remained fairly abstract in multilateral fora. This article attempts to look at the reality of anticompetitive practices around the turn of the century in developing countries by drawing from numerous public sources to identify the types of anticompetitive practices most frequently observed or alleged by type and sectors. The analysis shows that the economies of developing countries are subject to a wide array of anticompetitive practices, that such practices not only hurt consumers in developing countries but also affect the competitivity of the economies of these countries, and that they are often similar across countries. The policy implications of such findings are discussed in the last section.
Optimal Antitrust Fines: Theory and Practice
Authors: Wils Wouter P. J.
Published: April 2022

This article discusses the use of fines imposed on companies or other corporate entities to enforce antitrust or competition law prohibitions such as Articles 81 and 82 of the EC Treaty or Sections 1 and 2 of the Sherman Act. The article addresses more specifically the questions in what ways these fines contribute to competition law enforcement, on the basis of which factors the amount of antitrust fines should be fixed in theory, and whether it is feasible in practice to calculate or measure such optimal fines. It is argued that the imposition of fines can contribute in three ways to the prevention of antitrust violations: through deterrent effects, through moral effects, and by raising the cost of setting up and running cartels. For violations committed by a single offender, a necessary condition for deterrence to work is that the expected fine, discounted for the probability of detection and punishment, exceeds the gain which the offender expected to obtain from the violation. Because of overconfidence bias, prospective offenders are likely to overestimate the gain and underestimate the probability of detection and punishment. Administrative costs could be saved by adopting an enforcement strategy of very high fines and low probability of punishment, but the possibility to impose high fines is limited by inability to pay, by the social and economic costs of high fines, and by requirements of proportional justice. Cooperation with the competition authority’s investigation should be rewarded through reduced fines. For collective violations, it is a sufficient but not a necessary condition for deterrence to work that the expected fine, discounted for the probability of detection and punishment, exceeds the expected gain, either for all the cartel members taken together or for each of them separately. The cost of setting up and running cartels can be raised by modulating the amount of the fine for each cartel member depending on the active role played in the functioning of the cartel, as well as through a leniency policy. To avoid a deterioration of the market structure as a result of the imposition of fines, where high fines are imposed and where there is a significant difference in the ability to pay of the various cartel members, the amount of the fines imposed on the different companies should be differentiated so as to reflect their respective ability to pay. In practice, it does not appear feasible to measure econometrically the theoretically optimal fine for a given antitrust violation. The theory on optimal fines remains however useful as general guidance for the practice of fixing the amount of antitrust fines.
The Creative Regulation Process of the Mexican Competition Commission
Authors: Mena Labarthe Carlos
Published: April 2022

This article analyses how regulatory objectives are achieved by the Mexican Federal Competition Commission. An emphasis is laid on the analysis of the environmental and institutional settings and the implications they have in its enforcement process and regulatory activity. The analysis includes the issue of regulatory decision making, the stage of intervention, regulatory rules and different styles of enforcement in regulatory agencies in their relevance for regulatory enforcement. The article draws on the existing enforcement literature, especially the responsive regulation model and the regulatory space and dispersed regulatory action paradigms and reflects on similarities and differences in this specified case of a Mexican agency. While identifying a range of characteristics of the agency’s enforcement process, it also finds that there is a lack of studies of certain of the main characteristics identified. These differentiating characteristics are studied and analysed; its causes are explored in relation to the specific environment of a developing civil law background and other environmental features that directly affect the possibility of achieving competition regulatory objectives. The article analyses the agency’s experience through time and space with special attention to the study of how it has been trying to adapt to a scenario that looks adverse to its objectives. The identification is made of an original style of enforcement which is characterised as “Creative Regulation” as a result of its adaptation process and the agency’s drive to achieve certain objectives. This article has been shortlisted for the 1st World Competition Young Writers Award.
Converge? Diverge? A Comparison of Horizontal Merger Laws in the United States and European Union
Authors: Zhu Shilei
Published: April 2022

This article summarizes the similarities and dissimilarities of horizontal merger laws in the United States and the European Union focusing on legislative regulations, horizontal guidelines, internal measures and available remedies.The article examines substantive and procedural dimensions of US and EU horizontal merger laws. In addition it considers important constituent factors of their horizontal guidelines, basic models and levels of their economic analyses, judicial review and due process as well as two types of remedies. This article has been shortlisted for the 1st World Competition Young Writers Award.
Cartel Fines in Europe–Law, Practice and Deterrence
Authors: Veljanovski Cento
Published: April 2022

This article examines the law, practice and evidence on fines for price-fixing under European competition

law. It undertakes the first comprehensive quantitative analysis of fines imposed on cartels by the European

Commission. Based on an analysis of 30 fully reported cartel decisions, and appeals against many of these,

the article looks at how fines were calculated in practice under the 1998 Penalty Guidelines, leniency

notices and appeals, and whether they reflected consumers’ losses and were likely to deter price-fixing. It

also examines the impact of the 2006 Penalty Guidelines by recalculating fines for the decided cartel cases.
Are Sports Cartels Different?–An Analysis of EU Commission Decisions Concerning Collective Selling Agreements for Football Broadcasting Rights
Authors: Massey Patrick
Published: April 2022

The March 2006 decision by the EU Commission in respect of broadcast rights for FA Premier League

(FAPL) football matches is the latest in a series of decisions in which the Commission has permitted

collective selling of such rights. The decision precludes the sale of all rights to live FAPL football matches

to a single broadcaster. The Commission had initially objected that the joint selling arrangements were

anti-competitive and ’’tantamount to price fixing’’. Given that price fixing is generally regarded as a

serious breach of competition law, the acceptance of such arrangements in the case of sports broadcasting

raises some serious issues. A subsequent UK Government report on football recommended the

introduction of a block exemption permitting collective selling of football broadcasting rights. Three main

arguments have been advanced in support of collective selling of sports broadcast rights?that it is

necessary because of the unique characteristics of sports leagues; that it improves competitive balance

within sports leagues; and that it permits the redistribution of some of the revenues from the sale of

broadcast rights to lower level clubs. The present article analyses these arguments and concludes that they

are not supported by the evidence.
The Application of Article 86(2) EC to Measures Which do Not Fulfil the Altmark Criteria; Institutionalising Incoherence in the Legal Framework Governing State Compensation of Public Service O
Authors: Lynskey Orla
Published: April 2022

Whether or not state compensation for the performance of public service obligations constitutes aid is a

question to which consistent answers have not been forthcoming.

In its Altmark Trans judgment the Court made an attempt to definitely settle this issue when it held that

state compensation for the undertaking of public service obligations does not confer an advantage on

undertakings if the four criteria set out in that judgment are fulfilled. However, this conditional answer

provided by the Court to this question opened a different can of worms. The Altmark criteria overlap with

those found in Article 86(2) EC begging the question; did Altmark incorporate the Article 86(2) EC

derogation into the Article 87(1) EC concept of advantage? The Commission’s position is clearly set out in

its Monti package; it considers that the exception may be applied after the Altmark criteria. By permitting

the application of the same legal criteria twice, the Commission runs the risk of applying these criteria in an

inconsistent manner. This article sets out to examine the ramifications the Altmark judgment has had on the

legal certainty of the Community’s state aid regime. In this regard, particular emphasis will be put on the

Commission’s recent ’’Monti package’’ to examine whether it has cleared up any remaining confusion post-

Altmark.This article has been shortlisted for the 2nd World Competition Young Writer’s Award.
Effective Cartel Enforcement in Europe
Authors: Schinkel Maarten Pieter
Published: April 2022

The European Commission has made clear in a number of recent publications that undertakings that collude to fix prices or share markets should expect fines based on affected commerce, as well as private antitrust damage claims. Research on discovered cartels characterises a modern international cartel in terms of illegal gains, duration of the infringement and success on appeal. This article offers a back-of-the-envelope calculation into the net effective (expected) liability of a representative modern international cartel in Europe. To that end, the history of European cartel enforcement is surveyed in summary statistics. The exercise leads to the conclusion that the European Commission’s recent commitments to punishing cartels are likely to remain insufficient to deter collusion, unless European enforcement also produces a high (perceived) probability of discovery across the board. This calls for active cartel detection.
Market Power in Bidding Markets: An Economic Overview
Authors: T’Syen Koen
Published: April 2022

Undertakings often claim to operate on a bidding market, where it is impossible to have market power (“bidding market defence”).

This defence is only valid under four conditions: winner-takes-all, lumpy demand, absence of lock-in effects and easy entry. If fulfilled, one speaks of an ideal bidding market.

Non-compliance with at least one condition invalidates the defence, and “ordinary” antitrust problems resurge: firms may exercise market power. The feasibility thereof depends, firstly, on whether the bidding process is better qualified as an ascending or a sealed-bid auction and, secondly, on whether it is a private or a common value auction.

Three common ways of exercising market power in impure bidding markets are collusion, predation and entry deterrence. These strategies can be effectively tackled under Articles 81 or 82, except for tacit collusion. Therefore, competition authorities should use their powers under the Merger Regulation to avoid that mergers between bidders facilitate coordinated behaviour.

Consequently, markets with bidding contests do not always lead to competitive outcomes. To avoid confusion, these markets should not be referred to as “bidding markets” but as “markets with a bidding process”. The concept “bidding market” is better reserved for ideal bidding markets.

This article has been shortlisted for the 3rd Young Writer’s Competition Award.
An Institutionalist Explanation of Joint Dominance
Authors: Vatiero Massimiliano
Published: April 2022

This article tries to formulate an institutionalist reassessment of the notion of joint dominance, a market situation in which certain firms indirectly synchronize the conduct in a ‘conscious parallelism’. In this article, the concept of joint dominance is treated as an economic common good with the resulting problems of coordination and free riding. We prove, then, that the essence of these problems explains the emergence of economic links between agents involved in a joint dominance. In particular, we define the limit of a joint dominance by the notion of conjectural variations.

Moreover, we distinguish different forms of joint dominance as deriving from the old-institutionalist J.R. Commons’ idea of transaction. We demonstrate that joint dominances composed by vertically related parties and/or by firms and the ‘public authority’ produce the reduction of a contestable Commonsian transaction as well as the horizontal joint dominance.
Using Abuse of Collective Dominance in Article 102 TFEU to Fight Tacit Collusion: The Problem of Proof and Inferential Error
Authors: Mezzanotte Félix E.
Published: April 2022

Recent events suggest that Article 102 TFEU may prohibit the abusive conduct of tacitly colluding firms. Yet can the Commission enforce this law? In this article, I argue that it cannot. I show that proof of ongoing tacit collusion requires the Commission to overcome a difficult problem of identification, notably how to distinguish tacit collusion from other very subtle conducts like unconscious parallelism and undetected overt collusion. I claim that the Commission cannot resolve this problem by establishing the typical conditions drawn from case law, such as the lack of effective competition, the Airtours criteria and a focal point, as proof of these conditions cannot mitigate error sufficiently. Abusive and tacitly collusive conduct may not even be at all plausible in real world. I conclude that a problem of detection and costly error restricts dramatically the ability of the Commission to combat tacit collusion by using Article 102. Such a policy, if carried out, would be misguided.
The Elusive Standard of Proof in EU Competition Cases
Authors: Gippini-Fournier Eric
Published: April 2022

Lawyers trained in common law systems often enquire about the applicable standard of proof when the EU Courts in Luxembourg (the General Court and the Court of Justice) review the legality of competition law decisions of the European Commission. This article shows that, despite occasional references in the English language versions of some recent judgments, the concept of ‘standard of proof’ as such does not form part of the Courts’ reasoning process. The EU Courts seem more influenced by the predominant conception in civil law countries – the vast majority of EU Member States have civil law systems – where the judge decides according to the persuasiveness of the evidence without being bound by pre-determined evidentiary or probability ‘thresholds’. The elusive and largely fruitless quest for ‘the’ standard of proof that has mired so many authors appears to be a blind alley. With specific reference to competition cases, the article then explores some factors (including, for example, the distinction between actions and consequences or the judge’s implicit views on economic ‘normality’), which may contribute to explaining the process of persuasion in litigation before the EU Courts.
The Enforcement and Development of Korean Competition Law
Authors: Choi Yo Sop
Published: April 2022

Competition law and policy in the Republic of Korea (‘Korea’) have been developing since the first legislation in 1980, focusing on prohibiting unfair business practices. The Korean competition authority has heavily relied on legal provision on unfair business practices rather than unfair concerted practices, or abuse of market dominance in its enforcement. This provision is unique, giving the Korean competition authority full power in its implementation of law. However, implementation of this legal provision is very unclear, since it can be used as a catch-all provision. This article discusses of crucial problems in Korean competition law and critically analyses current implementation. It then suggests amendments to provisions on unfair business practices. This article adopts a categorization approach based on market share threshold, by looking at other competition regimes’ legal techniques and re-examining them in the Korean context. This article argues that simplified language through clear market power presumption, by means of a market share threshold test, provides concrete guidance for competition law in the civil law system. The Korean competition authority will subsequently narrow the scope of the provision on unfair business practices and develop implementation of law based on anti-competitive agreements and abuse of market dominance.