Federative Republic of Brazil, Before the Administrative Council for Economic Defense (“CADE”), Draft Guidelines Concerning Antitrust Remedies, Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University

7 Pages Posted: 27 Jun 2018

See all articles by Tad Lipsky

Tad Lipsky

George Mason University - Antonin Scalia Law School

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School, Faculty

John M. Yun

George Mason University - Antonin Scalia Law School, Faculty

Date Written: June 22, 2018

Abstract

This comment provides recommendations to the Brazilian Administrative Council for Economic Defense (CADE) on Draft Guidelines Concerning Antitrust Remedies, which describe CADE's policies and practices for ordering relief in cases involving structural transactions. The comment commends CADE for publishing the guidelines and for adopting best practices based extensively on accepted international standards. The comment describes why economic analysis suggests flexibility in regard to relief policies, given the wide range of factual possibilities, so that competition is preserved or restored with minimum compliance, administrative, and enforcement costs, and with minimum loss of efficiencies. The comment then identifies several areas where the guidelines could benefit from improved flexibility. These include: (a) a preference for structural remedies, even though behavioral remedies might be preferable in vertical cases; (b) a presumption in favor of an upfront buyer requirement, although such a requirement is usually unnecessary where an effective divestiture package is well defined and qualified buyers are identifiable; (c) a critical stance on remedies requiring monitoring, even though firewalls and other conduct remedies are often successful where circumstances favor them; and (d) a strong presumption against mix-and-match divestiture packages, although such divestiture may be the preferable option in some cases involving multiproduct firms. The comment concludes by encouraging ex-post empirical analysis of merger remedies.

Keywords: guidelines, structural transaction, merger, acquisition, concentration, economics, economic analysis, flexibility, remedy, structural remedy, behavioral remedy, upfront buyer requirement, monitoring, mix-and-match, divestiture, multiproduct firm, empirical analysis

JEL Classification: K21, K23, L41, L42

Suggested Citation

Lipsky, Tad and Wright, Joshua D. and Ginsburg, Douglas H. and Yun, John M., Federative Republic of Brazil, Before the Administrative Council for Economic Defense (“CADE”), Draft Guidelines Concerning Antitrust Remedies, Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University (June 22, 2018). George Mason Law & Economics Research Paper No. 18-19. Available at SSRN: https://ssrn.com/abstract=3202972 or http://dx.doi.org/10.2139/ssrn.3202972

Tad Lipsky (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

John M. Yun

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
20
Abstract Views
347
PlumX Metrics