• Selected
• Entire List

Abstract:
Antitrust has entered a gilded age of increased international cooperation and enforcement at levels never before seen. Yet, increased globalization creates challenges to combat international anticompetitive conduct. Part I introduces the Article. Part II provides a brief overview of the history of international antitrust. This overview departs from previous historical analyses as it focuses on participation within each of the international antitrust institutions to explain the historical limitations of international cooperation in antitrust. Part III identifies and explores three case studies which are generally representative of international antitrust. These case studies have been chosen because the issues they address have been at the top of the agenda of international antitrust in the past decade: mergers, cartels, and market access.

Part IV introduces the theoretical tools to address the problems of international antitrust. This Part makes the analytical case for the application of comparative institutional analysis, an analysis of the choice of the decision making process, to international antitrust. It addresses how a comparative institutional analysis framework allows for a more complete examination of both international and domestic institutions. It also explains the participation model as organizing principle for the analysis of institutions, as participation affects each institution's ability to create policy remedies. The second theoretical tool that Part IV introduces is international relations theory. Comparative institutional analysis works with international relations theory to provide an effective way to understand the interplay of institutions at the domestic and international levels, as well at the level of international institutions vis-à-vis each other.

Part V offers an analysis of the efficacy of various types of antitrust institutions to determine which of these institutions are best suited to address the problems of international antitrust. This Part evaluates the capacity of each institution to address problems that the case studies implicate. These institutions include the World Trade Organization (WTO), regional and bilateral trade agreements, the United Nations Conference on Trade and Development (UNCTAD), the International Competition Network (ICN), domestic legislatures, courts and agencies, and the market as institution.

Part VI concludes that existing institutions each have limitations in their ability to address any of the issues in international antitrust exclusively. This Article argues that the ICN, because of its structure and participation, is the least problematic institution to address international antitrust issues. This approach may assist to identify other regulatory areas in which an ICN modeled solution may prove to be the most effective way to address international issues.

antitrust, economic institutions, regulation, international organizations, public international law, private international law, international trade, mergers, cartels

Abstract:
In the past 15 years, the world has witnessed the large scale introduction of antitrust/competition policy as an instrument of market-facilitating government policy. Building the capacity of young antitrust institutions in the developing world and in transition economies is a means to improving the capacity of these agencies to police against anti-competitive conduct. Many countries have augmented their development of competition agencies with technical assistance (TA) support. Determining how best to design TA programs to interact with nascent and financially constrained competition agencies is a difficult and complex matter. The objective of this study is to assess the impacts of the TA-agency partnership. This chapter focuses specifically on factors that lead to improved effectiveness of TA. In a field that has been lacking for empirical evaluation, we use a unique dataset of responses from 38 competition agencies that have received technical assistance from the period 1996-2003. Our empirical analysis demonstrates that issues of timing and absorptive capacity of particular forms of technical assistance within a larger political economy consideration maximize the impact and effectiveness of technical assistance provided to competition agencies.

antitrust law, international policy coordination, international development, regulation, private international law, institutional economics

Abstract:
The international expansion of law firms plays a critical role in understanding the business of law and the nature of globalization. This article responds to two articles on law firm expansion in the Indiana University - Bloomington Law School symposium on the Globalization of the Legal Profession. The article utilizes management studies' theoretical work on internationalization and applies it to law firm expansion to explain law firm strategic decision-making. The author creates a six part taxonomy for types of law firm expansion and provides a snapshot of the increasing U.S./U.K. dominance of capital markets, corporate and mergers and acquisitions legal work around the world. Finally, the article proposes an interdisciplinary research agenda that incorporates law, economics, sociology, economic geography, and management studies to better understand law firm expansion.

law firms, globalization, firm expansion, law and economics, law and society, firm organization

Abstract:
The European Union is perhaps the most advanced area in terms of mobile telecommunications penetration. It is within this context that third generation (3G) spectrum licenses for mobile phones have become such an important issue in European regulation, finance, and politics. This article addresses two issues that have been missing from legal academic literature. First, it analyzes auction theory and its applications to telecommunications. Second, it investigates the important 3G spectrum license process in Europe and breaks down its implications on EU law and policy in the telecom sector. This analysis is crucial given that the unresolved issues that have arisen in the 3G process, if not solved, will have a deleterious effect on future spectrum allocation processes in Europe. Therefore, this article argues that a single simultaneous ascending auction and a pan-European telecom regulatory authority should be created to allow for better spectrum allocation results.

Proper regulation serves to correct market inefficiencies. One of the goals of regulating the mobile market is to encourage competition, which prevents monopolization, lowers barriers to entry, and reduces costs to consumers. In order to allow for greater competition in the mobile market, Member States of the EU and other European countries have chosen between auctions and beauty contests to allocate licenses. Auctions raise substantial amounts of money for the government. Auctions give the government good information about the value of different uses of spectrum, may help to better allocate spectrum allotment in the future, tend to be quick, and are cost effective. Auctions encourage the efficient use of frequency by assigning the spectrum to the eligible party that values it most. They also keep the number of applicants down, which thereby reduces administrative costs. However, auctions may disadvantage consumers if governments fail to devise effective auctions. In contrast, a beauty contest, or comparative hearing, has government regulators selecting a winner based on its own determination of the potential pros and cons of the candidates.

Section II of this paper provides an overview of EU law on mobile telecommunications. Section III explores auction theory and its applications for the licensing of spectrum. Section IV examines how auctions and beauty contests for 3G licenses have faired in Europe. Section V offers an analysis of the impact of the licensing process on European telecom operators and consumers while Section VI concludes that a single simultaneous ascending auction for all of the licenses throughout Europe will provide for greater efficiency, and advocates for the creation of a pan-European telecommunications regulatory authority so that future processes of licensing spectrum in Europe prove to be more successful than the 3G process.

Telecommunications, law, auctions, Europe

Abstract:
There has been an explosion in the past 10-15 years of bilateral and regional free trade agreements in Latin America (together "preferential free trade agreements" or PTAs). The purpose of PTAs is to increase trade, regulatory and investment liberalization. As trade liberalization requires more than just a reduction of tariffs, PTAs include "chapters" in a number of areas of domestic regulation. These chapters that address domestic regulation, create binding commitments to liberalize domestic regulation that may impact foreign trade. Among chapters that address domestic regulation, many of the Latin American PTAs include a chapter on antitrust/competition policy. Until now, the effectiveness of such chapters has remained unanswered. This article undertakes the first empirical analysis of Latin American antitrust/competition policy chapters in PTAs.

To understand the dynamics of PTAs, this article begins with some context of Latin American development. First, the article provides an overview of the process of liberalization in Latin America. It then describes how domestic antitrust fits within Latin American liberalization. The article then describes competition policy chapters within Latin American PTAs based on the results of coding these provisions. The standard practice in PTAs is to create binding commitments that have third party adjudication for potential disputes. The choice of binding international institutions, such as PTAs, is based on the perception of the relative strength of PTAs over purely domestic approaches. A comparison of the institutional alternatives to PTAs illustrates that this perception is not born out by the facts. This article finds that antitrust chapters within PTAs go against the standard practice of binding commitments. Competition policy chapters, unlike other chapters of the same trade agreement, lack binding dispute settlement. All Latin American PTAs lack dispute settlement for core antitrust issues of mergers, collusive agreements and monopolization within the competition policy chapters. This departure from the standard PTA practice is more striking given that other chapters in the same trade agreement have binding dispute resolution. These other chapters include some competition element to them, such as services and intellectual property. The remainder of the paper explores the dynamics of these chapters, including why PTAs treat antitrust differently from other areas of domestic regulation.

antitrust, competition policy, international trade, contracts, norms, hard law, soft law

Abstract:
This article focuses on the problem of a particular type of service and the barriers on this service (express delivery) that countries place upon it. Not surprisingly, those countries that are the most competitive and have the fewest barriers to trade and problems of monopolization (i.e., those countries that suffer least from monopolistic behavior in their express delivery market) have the most effective and competitive distribution systems. Section II of this article explains the importance of express delivery to the international economic system. Section III offers examples of how countries erect public sector barriers to entry in this field to limit the ability of private sector entrants to compete. Section IV examines how privatization in conjunction with liberalization will improve opportunities for entrants to provide express delivery services. Section V explains how current legal mechanisms could promote greater competition on the issue of public sector barriers to entry in the express delivery segment of the postal services sector. Section VI concludes by advocating increased global cooperation for the elimination of entry barriers.

Postal, competition, express delivery, trade, antitrust

Abstract:
The Obama administration inherits an international antitrust situation that is relatively better than the one that the Bush team inherited. Antitrust coordination and cooperation with agencies around the world have never been better. There has been an emergence of best practices across a number of different areas, both substantive and technical. On these issues, I expect that there will be no significant shifts in priority, except perhaps a less forceful approach on monopolization issues. Cooperation and harmonization will continue as will the support of technical assistance.

On the margins, the US agencies may need to refine the message of competition so that market reform does not mean a lack of regulation, just better regulation that protects consumers from anti-competitive harm. Leadership changes may play an important role on a personal level and poor leadership may impact the ability to progress on many issues. International issues should remain a priority merely because of an ever increasing global role of China and other countries and an ever expanding European Union. Yet, the emergence of China and other countries onto the antitrust scene will create new challenges, which the current financial crisis will compound in terms of analytical harmonization about single firm conduct and the proper role of the state in the economy.

antitrust, international, law, economics

Abstract:
This Essay focuses on how both external (international institutions) and internal (agency capacity and technical assistance) dynamics shape the capacity of younger agencies to undertake antitrust in their jurisdictions. Both approaches play an important role in improving capacity. In the case of technical assistance, this Essay analyzes survey data from recipient agencies of antitrust technical assistance to determine the most effective means of improving antitrust agency capacity. Part I explains the type of capacity building that antitrust agencies undertake themselves. The rest of this Essay focuses upon international efforts that can assist agencies in capacity building, but it is important not to overlook capacity building efforts that can occur at the agency level. Part II describes the work that international antitrust institutions undertake to improve agency capacity. Part III provides an analysis of survey data that shows how technical assistance from outside providers can improve agency capacity. Part IV concludes and offers recommendations to improve developing world antitrust agency capacity building.

antitrust, industrial organization, law and economics, international organizations, law and development

Abstract:
This book offers an unparalleled analysis of the emerging law and economics of competition policy in Latin America. Nearly all Latin American countries now have competition laws and agencies to enforce them. Yet these laws and agencies are relatively young. The relative youth of Latin American competition agencies and the institutional and political environment in which they operate limit the ability of agencies to address anti-competitive conduct effectively. Competition policy is a tool to overcome anti-market traditions in Latin America. Effective competition policy is critical to assisting in the growth of Latin American economies and their global competitiveness, and to improving the welfare of domestic consumers. This book provides new region-specific insights into how better to achieve these aims.

Abstract:
Technical assistance to improve the capacity of regulatory agencies around the world remains a key priority for international aid efforts. Technical assistance is critical to younger antitrust agencies because more effective agencies can protect consumers against anti-competitive conduct. Beginning in the 1990s, the rapid adoption of antitrust laws and development of agencies to interpret and enforce these laws has transformed the competitive landscape in many countries. Indeed, more than half of the countries with an antitrust legal framework enacted antitrust laws in the past 15 years. Many of the newer antitrust agencies are not as effective as they need to be to improve the well being of consumers and protect against anti-competitive conduct. Consequently, donors have assigned a significant amount of time and financial resources to technical assistance to raise the capacity and effectiveness of these younger agencies. However, quantitative analysis of the impact of this technical assistance remains limited at best. In a previous paper, we undertook a general analysis of antitrust technical assistance. In this paper we focus on what appears to be a particularly important part of technical assistance and capacity building - the use of long term advisors (LTA) and short term interventions (STI).

In 2005, the International Competition Network conducted a survey of antitrust agencies that received LTA and STI services from a wide array of donor agencies. We first perform a descriptive assessment of the survey data. We find LTAs to be more effective than STIs in preparing the agency for tackling work they could not have undertaken previously and in confronting cartels. Most LTA and STI services arrived directly from developed world antitrust agencies and lawyers were superior to economists for STI work while economists tend to perform best as LTAs. In a more general empirical framework, we model the effectiveness of LTA and STI interventions using key survey questions about the initial preparation phase, the ability of the interventions to improve internal tactical qualities of the agency, and the ability of the interventions to improve the agency in its strategic mission. We estimate a three equation seemingly unrelated regression system designed to tease out the factors that led to a successful preparation of tactical and strategic technical assistance. The most important findings are related to two structural features of recipient antitrust agencies. Our most prominent finding is that recipient agencies absorb LTA and STI services best when the agency head has a rank of minister or higher and/or when agencies had prosecutorial discretion. At the heart of these agency features is the relative power position of the agency in the domestic political and economic structure. Those agencies with a strong power base seem well positioned to receive the current formatted technical assistance involving LTAs and STIs. Donors should focus on modifying the technical assistance to agencies with less power and should push for stronger agency autonomy and authority. A second prominent finding was that bilateral donor relationships did remarkably better in helping the agencies with their strategic mission. Perhaps bilateral LTA and STI perform better because of a better understanding of the political and economic realities these agencies face or because these donors provide aid through developed world competition agencies. Our suggestion is that multilateral donor agencies work hard to overcome deficiencies that their organizational structure presents to recipient agencies. Overall, our analysis of technical assistance efforts in one field of complex regulation (antitrust) may prove relevant to policies of how to make assistance more effective across regulatory fields.

antitrust, law and development, competition policy, development economics, organizations

Abstract:
In the United States and in many other countries, private sector restraints, monopolization, and collusive behavior are addressed by statute. Thus, by law, this path of private anticompetitive behavior is blocked. It is not always the case that public sector restraints are addressed. Although competition law and trade law have been separately analyzed in economic literature to a large extent, the interaction of competition law and trade law remains underdeveloped. The foundation of dealing with public sector restraints at a global level already exists in various WTO agreements. To that extent, the aim of discussing competition is not to introduce the issue, but rather to make the efforts already in place more effective. The way to do this is to address the issue of public sector restraints. We examine case studies of public sector restraints in: A. Price Controls: Pharmaceutical Price Ceilings; B. Entry and Exit Restrictions: Dealer Protection Laws; C. Government Procurement: Microsoft and Open Source; D. Technical Standards Restrictions; and E. Government Created Monopolies and Cross-Subsidization: Telecom. As we seek to reduce trade barriers, it is also important to address these issues of competitive environments. It is not sufficient to lower trade barriers if it is still exceedingly difficult to compete in such markets because of regulatory barriers. To this end, the creation of multilateral competition policy and competition agencies as well as competition policy disciplines at the bilateral and WTO level is crucial to true trade liberalization.

antitrust, international, public sector restraints, international trade, trade and competition

Abstract:
This article responds to Florian Becker's article in this journal, “The Case of Export Cartel Exemptions: Between Competition and Protectionism.” Professor Becker provides a number of insights into various approaches that battling export cartels may take. I take issue with three of Becker's main themes. First, Becker underplays the importance of political economy issues in the creation and perpetuation of export cartel exceptions from antitrust. A public choice understanding of export cartels is critical to formulating any effective remedy for export cartels. Second, Becker assumes that export cartels are hard-core cartels and that they are a serious problem in international antitrust. In fact, there is very little empirical data on export cartels and nearly all of it comes from the United States. Therefore, it is difficult to say with any great certainty whether export cartels are a problem and how serious a problem they are. Third, Becker ignores the role that international organizations such as the OECD and ICN can play to reduce the effects of export cartels. After surveying different possible solutions, I propose a WTO transparency regime to address export cartels more effectively.

Abstract:
This article responds to Florian Becker's article in the Journal of Competition Law and Economics, "The Case of Export Cartel Exemptions: Between Competition and Protectionism." Professor Becker provides a number of insights into various approaches that battling export cartels may take. I take issue with three of Becker's main themes. First, Becker underplays the importance of political economy issues in the creation and perpetuation of export cartel exceptions from antitrust. A public choice understanding of export cartels is critical to formulating any effective remedy for export cartels. Second, Becker assumes that export cartels are hard-core cartels and that they are a serious problem in international antitrust. In fact, there is very little empirical data on export cartels and nearly all of it comes from the United States. Therefore, it is difficult to say with any great certainty whether export cartels are a problem and how serious a problem they are. Third, Becker ignores the role that international organizations such as the OECD and ICN can play to reduce the effects of export cartels. After surveying different possible solutions, I propose a WTO transparency regime to more effectively address export cartels.

cartels, export cartel, antitrust, competition policy, international trade, WTO, ICN, OECD

Abstract:
When government regulates, it may either intentionally or unintentionally generate restraints that reduce competition (“public restraints”). Public restraints allow a business to cloak its action in government authority and to immunize it from antitrust. Private businesses may misuse the government’s grant of antitrust immunity to facilitate behavior that benefits businesses at consumers’ expense. One way is by obtaining government grants of immunity from antitrust scrutiny. This Article offers a new contribution to the extensive literature on the globalization of antitrust. The present Article focuses both on the processes of creating public restraints, as well as upon the negative impacts of these restraints. Government can exempt a company from antitrust regulation, which allows the firm unbridled discretion to monopolize and harm consumers.

The issue of government intervention in the economy and its competitive impacts has taken on renewed importance as the global financial crisis has led countries to provide various benefits to favored companies, which may distort competition. Distorting competition may keep the world in recession longer, as countries may retaliate with new distortions of their own, creating a downward spiral for the global economy. Thus, local “solutions” may cause international problems, and require international resolutions.

This Article addresses the important domestic and international institutional dynamics of how to reduce such anti-competitive immunities. It then provides a theoretical framework to identify potential domestic and international institutional responses to public restraints and the costs and benefits of these responses. The institutional framework developed in this Article proposes both substantive policies and institutional structures that can undertake these policies. The framework builds on both new institutional economics and international organization literatures, while recognizing the difficult limitations in design and capacity that existing institutions face. Part I of this Article explores the causes and effects of public restraints. Part II analyzes the potential institutional choices to address public restraints. In Part III, this Article undertakes a case study of the current inadequacies of existing institutional solutions to the problem of government restraints. Part IV then suggests a set of reforms to correct for the existing institutional shortcomings. The Conclusion suggests that a modified WTO is the least bad alternative to address international antitrust public restraints.

antitrust, international organizations, public choice, international trade, competition, international law, soft law

Abstract:
With a significant increase in the number of countries with antitrust laws, technical assistance to improve the capacity of antitrust agencies has become a key priority for international antitrust aid efforts. Donors have assigned a significant amount of time and financial resources to technical assistance to raise the capacity and effectiveness of younger agencies. However, quantitative analysis of the impact of this technical assistance remains limited at best. In this article we focus on what appears to be a particularly important part of technical assistance and capacity building—the use of long term advisors (LTA) and short term interventions (STI).

In a year-long project, the International Competition Network surveyed its member antitrust agencies on antitrust technical assistance. The questionnaire contained over 1,000 questions on various aspects of technical assistance. We provide an analysis of the data using formal modeling. The most important findings from the model relate to two structural features of recipient antitrust agencies. First, recipient agencies absorb LTA and STI services best when the agency head has a rank of minister or higher and/or when agencies had prosecutorial discretion. At the heart of these agency features is the relative power position of the agency in the domestic political and economic structure of the country. Those agencies with a strong power base seem well positioned to receive the current formatted technical assistance involving LTAs and STIs. Second, bilateral donor relationships did remarkably better in helping the agencies with their strategic mission.

antitrust, law and development, competition policy, technical assistance, capacity building