: 
Comparative Competition Policy in a Global Context, Professor Eleanor Fox, Professor Christian Joerges
This comparative seminar with international dimension will cover antitrust/competition law principles of the United States , the European Union, and selected other countries, including developing countries. The materials will analyze problems of extraterritoriality and conflicts in the global environment, and explore principles for internationalizing antitrust law and linking antitrust with trade law.
Table of Contents of Materials, Classes 1-14
Class
1 BACKGROUND AND INTRODUCTION: concepts of competition;
international antitrust in search of governance
Essays by William Kolasky (US)
Philip Lowe (EU)
read: EU Casebook (offprint), pp. 784-86 (DG Competition Reports: Objectives
of Community Competition Policy)
The Doha Declaration (WTO), for Cancun agenda
Failure of Cancun talks
2 CARTELS: THE WORST RESTRAINT?
read: EU Casebook (offprint), pp. 788-831
Excerpt from Socony (US): Are there good cartels?
OECD Hard Core Cartel Recommendation
F. Jenny: Why developing countries need antitrust
“Steeling” the World
The Doha Declaration (WTO)
After Cancun, see class 1
3 EXTRATERRITORIALITY, FTAIA, AND THE SYSTEM OF ENFORCEMENT AGAINST WORLD
CARTELS
How far may national law reach? Rights and duties of a regulating nation
Framework essay, Fox/Sullivan/Peritz (2004)
British Parliamentary debates
Can U.S. antitrust pry open foreign markets?
Foreign Trade Antitrust Improvements Act of 1982
US International Guidelines (1988) and footnote 159
Repeal of footnote 159
US International Guidelines (1995), point 3, 3.1 and 3.2
Comments by Japan on U.S. Guidelines
Hartford Fire (US), see above
Woodpulp (EC), EC Casebook offprint at 825 at E. to 831
Microsoft and Christie’s: A customary international law of antitrust?
Is U.S. (appropriately) the private plaintiff’s forum of choice?—Empagran
Class
4 STATE ACTION, SOVEREIGNTY AND COMMUNITY
Modalities for coordinating free trade, free competition, and regulatory
policies
EU, internal market
Art. 81-82, see offprint 788-89; Art. 87 (state aids), see offprint 1014-15
Offprint, Chapter 23, 895-902 (environment, labor); chapter 26, 991-1003,
1007-14; esp. Franzen, Albany, Commission v. Italy (CNSD), Italian matches
Altmark Trans (state aid)
Alstom (state aid)
US: Internal market (federalism, state action, sovereignty), Fox/Sullivan/Peritz,
Framework Essay
US and the World
International Guidelines, point 3.3
Shielding a foreign export cartel: Trugman-Nash v. New Zealand Dairy Board
Shielding a world cartel:
OPEC—Fugate summary
S. 2778: NOPEC—a bill to make OPEC illegal
Prewitt v. OPEC [withdrawn on procedural grounds]
EC Treaty: relevant provisions
5 MONOPOLIZATION AND ABUSE
Protecting efficiency? protecting competition? protecting competitors?
US: Microsoft
Excerpts, D.C. Cir.
Brown & Williamson, offprint 871-73
Verizon v. Trinko
Supreme Court Opinion
Does the owner of the local loop violate the antitrust laws by
using its leverage to prefer itself in the local service market?
LePage’s v. 3M
Can bundled loyalty rebates constitute a violation in absence of predatory
pricing?
EU: Offprint, chap. 22, esp. Hoffmann-LaRoche,Tetra Pak, AKZO
Michelin II
Masterfoods (van den Bergh)
Indonesia, excerpts from statute and Indomaret: modulating competition that
destroys a society of small firms
UNCTAD Model Competition Law, abuse of dominant position
6 MONOPOLIZATION, ABUSE, IP
EU—offprint, 959-64, 852-57, including Magill, note re Bronner (note
4 p. 852), IMS (p. 857) Licensing—Press release on revision of block
exemption
Licensing—revision of block exemption (Art. 81), new rules on technology
licensing
US— T. Muris, Competition and Intellectual Property Policy
Intergraph v. Intel, CSU v. Xerox (see Muris)
Microsoft—treatment of innovation issues, in materials for class 5
Consider implications of Trinko (class 5) to licensing IP
Class
South Africa
Excessive pricing of and refusal to supply retroviral drugs (for HIV/AIDS)
to generic manufacturers: affect of AIDS crisis on the balance of competition
rules
Interaction of competition, trade, health and poverty; relationship to TRIPS
(see class 8 for
summary of TRIPS)
7 MERGERS
STANDARDS
EU—offprint, Chap. 25, Update to Chap. 25; esp. Boeing, Gencor, Airtours
(CFI decision is after p. 1019), GE/Honeywell, Tetra Laval
US–1992 Merger Guidelines with 1997 revision of “efficiencies”
UNCTAD Model Law on Competition, Article 5 and commentary on Article 5
What standard?—substantial lessening of competition, significant impairment
of competition,
dominance? Does it matter? What is the significance of concentration?
What role for industrial policy?
US: Boeing, supra, Wal-Mart-Puerto Rico
South Africa: Tepco
EU: SEB/Molinex, Boeing
PROCESS: Informal harmonization in ICN
See http://internationalcompetitionnetwork.org/mergers.html
8 MARKET BLOCKAGE: TRADE + COMPETITION— JAPAN, US, WORLD TRADE
Is there a market access problem? Should there be changes in law or policy
to address a market access problem? What effect on developing countries?
Japanese flat glass market—statement of Guardian Industries, a competitor
How would Japanese law treat these restraints? US law? EC law?
Raj Bhala, Kodak-Fuji (WTO)
Reread US International Guidelines §3.122 and Example D
Japanese competition law, excerpts
US: If it is vertical, it is probably efficient (and legal)
Kobayashi, WTO and Competition Policy
H.Yamane and S. Seryo, Japanese Law: Restrictive Practices and Market Access
Competition elements in GATT/WTO
9 SPECIAL PROBLEMS AND PERSPECTIVES OF DEVELOPING COUNTRIES
Do interests of developing countries differ from interests of industrialized
countries in terms of an optimal competition policy? What particular differences
would you expect, and recommend, for developing countries’ national
competition laws? What recommendations for regional or developing country
collaboration (FTAs or blocks)? What implications do your answers have for
a world regime?
Development and Competition, paper by Frédéric Jenny
South Africa
Class
Merger between Shell South Africa and Tepco
D. Lewis, The Political Economy of Antitrust
Indonesia, see Indomaret, class 5
UNCTAD Model Law on Competition
10 OVERLAPPING JURISDICTION
Should there be principles or processes to resolve tensions?—networks,
harmonization,
dispute resolution?
EU: review offprint, 825-831, 987-90
US International Guidelines
The Statutes, Guidelines 2.2, 3.12; Illustrative Example H
Consider harmonization, accommodation or conflict resolution for the conflicts
posed by:
Gencor, Boeing, GE/Honeywell, Wood pulp, Hartford, Microsoft, Trugman-Nash,
OPEC
11 CONCEPTUALIZING GOVERNANCE
Administration of antitrust in the European multi-level system, emerging
world networks, and their implications for world coordination
Modernization of EC Competition law—Regulation 1/2003
Summary of 1/2003
Bilateral cooperation agreements, US-EU 1991, 1998 (positive comity)
See websites for ICN, OECD (competition), UNCTAD (competition)
C. Joerges, The Law’s Problems with the Governance of the European
Market
[12-13 Student presentations]
14 CONCLUSION: BEYOND CANCUN
EU submissions to WTO Working Group before and after Cancun
Fox, Doha Dome