Date: March 15, 2016
A GLOBAL GUIDE TO ANTITRUST/COMPETITION LAW—WHAT, WHY, FOR WHOM?
Loyola Antitrust Colloquium 2016
David J. Gerber
Dear Colleagues:
In this part of the program we deviate from our normal procedures. There is no
paper to discuss, but rather a project and, more fundamentally, a way of thinking
about antitrust(Acompetition law@) as it is evolving today. I am very grateful to
Spencer Waller for making it possible for me to discuss this project with you and to
seek your advice and comments.
The project is driven by the recognition that antitrust law increasingly crosses legal,
political, social and linguistic borders. officials often cross such borders in dealing
with foreign laws, foreign officials and foreign policies. Practitioners often cross
them in encounters with foreign antitrust laws as well as with foreign lawyers and
foreign clients. Scholars cross them in trying to understand and explain foreign
antitrust laws, their significance and their influence. Sometimes the borders are
easily recognized; at other times they might not be noticed. In both cases, crossing
the borders has consequences.
This increasingly transborder dimension of competition law highlights the potential
value of viewing antitrust law from a global perspective. From this perspective,
individual decisions, institutions and actors are located not only within a domestic
legal system, but also within a broader system of influences, actors and borders. It
reveals and requires that we notice the connections, influences and interactions of
that broader system. It urges us to recognize how they shape what happens in
government meetings, courtrooms and practitioner=s offices.
My main objective in talking with you about this project is to seek your advice and
comments on a book I am currently writing. I call it a AGlobal Guide to Antitrust
and Competition law.@ As a basis for discussing this project, I include below revised
excerpts from the proposal I submitted to the publishers of the book. In writing the
book, I have changed the structure somewhat, but I decided to give it to you more or
less as originally presented.
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I very much welcome any comments you may have about the project - now or in the
future. I particularly welcome comments on the book=s proposed structure and
perspective. Does the book as presented here seem potentially valuable to you?
Your students? Your clients? If not, why not? Could the objectives of the project be
more effectively realized? If so, how? Do you recommend including other materials
in addition to or in place of those proposed here? If so, what kinds of materials?
Thank you!
David Gerber
BOOK PROPOSAL EXCERPTS
A GLOBAL GUIDE TO COMPETITION LAW AND ANTITRUST
DAVID J. GERBER
I. THE PROBLEM AND ITS IMPORTANCE
Competition law (also known as AAntitrust law@) now impacts virtually all aspects
of economic life in many parts of the world. This has led to a widespread and rapidly
intensifying need to know more about competition law—what it is, how it functions,
whose interests it serves, and how to use it. Competition law is not, however, well
or easily understood, and many find it obscure, unclear and even forbidding. This
book responds to the need for tools to understand and deal with competition law in
its many forms and facets. It provides an overview of competition law=s substantive
content and methods as well as an analysis of its dynamics.
The book views competition law from a global perspective, because competition law
is now a global phenomenon. It operates in more than 100 countries, and the
relationships among competition law systems are often complex and opaque. This
makes it critically important to understand both the similarities and differences
among systems and the relationships among them. In many parts of the world,
competition law is also young and fragile, and there is much uncertainty about how
decisions in these new jurisdictions will be made and about how decisions there will
impact others.
II. OBJECTIVES
The book has two central objectives. One is to provide points and means of entry
into competition law for those who know relatively little about the field. The other
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is to provide tools for enhancing and broadening understanding of competition law
for those who are already dealing with it, but who recognize the value of knowing
more about competition law and its dynamics in other jurisdictions and about the
interactions among competition laws.
III. SUMMARY OF CONTENTS
The book consists of three main parts, plus an introduction and a conclusion.
CHAPTER ONE: INTRODUCTION
The introduction presents competition law as a particular type of legal tool which
each political-legal system uses in one way or another to attain its own goals. These
systems and the people and institutions who influence them are now related in a
complex, transnational web of relationships.
It identifies the kinds of factors that influence what competition law does, and it
sketches the tools needed for understanding how it operates. What should we know
about competition law? What are the obstacles to knowing and understanding
competition law? What factors generate and shape competition law decisions—from
political decisions about the formal content of the laws to legal and administrative
decisions that shape its contours and its impact on society and economic conduct?
These kinds of questions are our focus.
PART ONE: ELEMENTS OF COMPETITION LAW:
IDENTITY, AIMS, AND DECISIONS
This first part of the book identifies the basic elements of any competition law
system, and it examines tools for understanding how such systems operate. It looks
at the issues that are common to competition law systems as well as at those that
differ among them.
CHAPTER TWO: WHAT IS IT? COMPETITION LAW=S VEILED IDENTITIES
The identity of competition (or antitrust) law is surprisingly veiled, and for many the
term has no clear meaning. Moreover, Acompetition law@ in one jurisdiction may
mean something quite different from what it means in another. The identity issue is
more central in competition law than it is in most other branches of law, because the
function of competition law in society is not self-evident. It involves preventing
injury to an economic process, and this is not an easy notion to grasp. The
difficulties are increased by myths, misunderstandings and ideologies related to its
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origins as well as to politics and to economics. The chapter confronts these issues
and provides tools for understanding competition law=s identities.
CHAPTER THREE: THE AIMS AND USES OF COMPETITION LAW
This chapter focuses on questions such as AWhy do we have competition laws?@
AWhat do governments and government decision makers seek to do with their
competition laws?@ and AWhose interests do competition laws serve?@ We examine
the stated objectives and formal justifications, but we also examine incentives to use
competition law for undisclosed or even intentionally concealed aims.
CHAPTER FOUR: COMPETITION LAW DECISIONS: LOGICS AND LANGUAGES
How do decision makers arrive at decisions in competition law, and how do
advocates seek to influence those decisions? The chapter explores the logics and
forms of argument they use and the languages they employ. In any competition law
system, there are accepted methods of arguing for and justifying decisions.
Recognizing these forms of argument is often of much value in understanding the
basis for decisions, interpreting what has been said and written in the field, and
predicting decisions. These methods are associated with particular forms of
language, and thus identifying patterns of language and perceiving their influence is
an important source of insights into competition law materials and discussions. If,
for example, economics is the dominant language used by decision makers in a
particular system, this provides critical information about who makes decisions as
well as about the factors and arguments that will influence decisions. Competition
law=s languages can be technical and apparently precise, but they can also be highly
opaque and filled with ambiguity. They can be tools of power, forms of exclusion,
and sources of cooperative understanding. Much also depends on who is using
which elements for which purposes.
PART TWO: COMPETITION LAW=S TARGETS
These factors shape the targets of competition law, and this part of the book gives
readers a sense of what these targets are, why they are chosen, and what the various
forms of attack are. There are three basic target categories: Agreements to restrict
competition, unilateral conduct that restricts competition, and mergers and
acquisitions that have that effect. The book looks at each, examining the core issues
involved and the patterns of difference and similaritiy among systems in perceiving
and responding to them. It then looks at some of the economic and political
consequences of pursuing particular targets.
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CHAPTER FIVE: ANTI-COMPETITIVE AGREEMENTS
Business firms can agree to restrain competition. Where competing firms agree to
restrain competition among themselves, they are likely to violate most competition
laws, although there are many exceptions to this general rule. In recent years the
focus of competition law enforcement around the world has been on this form of
restraint. Where firms that are not competing with each other agree to restrain
competition, the legal situation is much more complex, and there are major
differences among competition law systems regarding such agreements. This
chapter examines the forms of analysis of both types of agreements, identifies
patterns among competition law systems and places the issues in a global context.
CHAPTER SIX: DOMINANT FIRM CONDUCT
A single firm may restrain conduct without entering into agreements to achieve that
result, and most competition law systems contain provisions directed at such
unilateral and Amonopolistic@ conduct. There is much controversy, however, about
how such provisions should be enforced and how much attention should be paid to
them. Some competition law systems pay very limited attention to this component
of competition law, while in other countries it is considered a particularly important
part of the competition law framework. The chapter explores the differences among
systems in this regard and identifies factors that contribute to the controversies
surrounding them.
CHAPTER SEVEN: MERGERS AND ACQUISITIONS
The third major category of targets includes mergers and acquisitions—basically,
conduct combining the ownership or management interests of two or more
independent firms. Many competition laws contain provisions that can be used to
block such combinations or require that they be changed in significant ways. As a
result, this area of law is often particularly sensitive to political pressure. The
chapter examines the basic concepts and forms of analysis of mergers and highlights
the patterns of similarity and difference among competition laws relating to this form
of conduct.
PART THREE: PATHS AND EXPERIENCES
The third part of the book looks at national competition laws and experience. The
immediate impact of competition law is felt at the national level, and national laws
and experiences are of primary concern to those interested in competition law. These
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chapters capture the main features of competition law in the most prominent
competition law systems as well as in some that are on their way to becoming
prominent.
CHAPTER EIGHT: U.S. ANTITRUST AS MODEL AND LENS
US antitrust law is central to competition law experience. It is a primary reference
point for discussions of competition law in virtually all parts of the world. Some
seek to emulate it; others distance themselves from it. For both, there is much value
in better understanding how US competition law works and what US antitrust
experience has been. This is particularly important because US antitrust law is often
poorly understood. This chapter sketches its basic contours and dynamics, and it
examines misleading images of US antitrust law as well as their causes and impacts.
The US has far more experience than any other jurisdiction with competition law,
and globalization has given the US view of antitrust law additional sources of
influence based on the economic and political power of the US and of US public and
private institutions. This chapter reveals the basic outlines of US antitrust law and
experience, and it demonstrates how that experience has shaped the perspectives of
US officials, lawyers and scholars regarding competition law, on the one hand, and
the development of competition law in other countries, on the other.
CHAPTER NINE: COMPETITION LAW EXPERIENCE IN EUROPE
European competition law is in some ways as important as US antitrust law. It is
applied throughout the EU, which gives it potentially great significance for many
practitioners, scholars and administrators, both in Europe and elsewhere. Moreover,
it is a highly developed competition law that is stricter than US law on important
types of conduct. It has also been and remains an important model for the
development of competition law in many countries, not least because its evolution
confronted problems and situations that resemble the challenges faced by many
newer competition law systems. Finally, Europe has had by far the most extensive
experience with the interaction and integration of national competition law systems,
and this experience makes it particularly useful for developing policies to respond
to economic and legal globalization. The chapter reviews European competition law
in order to give readers insights into its dynamics and its roles in the world.
CHAPTER TEN: NEWER PLAYERS
This chapter focuses on several newer competition systems that play important roles
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in the global economy and/or can be expected to do so in the near future.
Competition law experience in these countries is more limited than it is in the US or
Europe. In most cases there is little relevant experience prior to 1990. Today,
however, these newer competition law systems are rapidly moving toward center
stage, and economic globalization has made their roles increasingly important for
businesses virtually everywhere. The chapter pays particular attention to East Asia,
especially China, because of the widespread influence that the competition laws of
these countries have on business and legal decisions throughout much of the world.
It also reviews basic elements of competition law in areas such as Latin America and
Africa. In these countries competition law is seen primarily as a tool to achieve
economic development, and a major issue is what kinds and forms of competition
law may now be appropriate for this developmental use.
PART FOUR: GLOBALIZATION AND THE PRESENT
AND FUTURE OF COMPETITION LAW
The last part examines the effects of globalization on competition law and on interactions
among competition law systems. It then focuses on the increasingly central issues of
cooperation and convergence among competition law systems. It sketches the changing
forces that are influencing competition law and identifies scenarios for future
development.
CHAPTER ELEVEN: GLOBAL DYNAMICS: COMPETITION LAWS INTERTWINING
The rapidly intensifying Aglobalization@ of competition law is the focus of this
chapter. Competition law decisions today are increasingly subject to foreign and
international influences. As a result, national and international competition laws are
intertwining B interacting with each other in ways that are new, difficult to discern,
and of major practical and policy importance. The chapter outlines the current
jurisdiction-based system and reviews some of its implications and consequences.
It then looks more carefully at how projects of convergence and cooperation among
competition law systems are both shaped by the jurisdictional framework and a
response to its limitations.
CHAPTER TWELVE: THE FUTURES OF COMPETITION LAW
The concluding chapter ties together the threads of the book. It reviews key points
in the book=s analysis and materials, and its shows how they can be used to
anticipate more accurately the future paths competition law -- those elements of
competition law that are likely to endure and those that are likely to change. The
chapter focuses on the types of change that are occurring and those that are likely to
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occur in the future. In particular, it identifies ways in which political, economic and
intellectual changes are influencing competition law. It looks at the challenges faced
by decision makers and the existing tools for responding to those challenges. The
process of intertwining described in chapter eleven will almost certainly continue,
and this chapter looks at what this means for competition law officials, lawyers,
judges and students.
IV. READERS
I expect the book to appeal primarily to two groups. One includes those that are
relatively new to the field - students, of course, but also practitioners, corporate
decision makers, management consultants and competition law officials who seek
entry into competition law.
The other primary group consists of the many
practitioners, economists, business people, competition law officials and legal and
business scholars who may already have some familiarity with one competition law
system or one component of competition law, but who recognize the value of
acquiring a better understanding of other systems and of the relationships between
systems and the borders and obstacles that increasingly influence competition law
operations across the globe.
The book should also appeal to several groups of academics. Law professors should
find it useful, and I would expect a respectable number of them to assign the book
in their courses. Professors of business and economics who deal with competition
law issues or global business topics should also find the book relevant both for their
own scholarship and for their students. Some professors outside the fields of law
and business may also find value in it. Globalization and issues of Aglobal
governance@ have become major concerns of social scientists and historians, and
this book is directly relevant to these issues.
I expect the book to be read at least as widely outside the U.S. as it is within the U.S.,
and probably more widely. It addresses a "global" issue, and its audience will be
global.
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