Objectives Of Competition Law Research Articles

AI-enabled price discrimination as an abuse of dominance: a law and economics analysis

In digital markets, concentrated Big Data and analytical algorithms enable undertakings to predict each consumer’s willingness to pay with increasing accuracy and offer consumers personalized recommendations and tailored prices accordingly. In this context, concerns have arisen about whether and when AI-enabled price discrimination amounts to an abuse of dominance under competition law and would require a legal response. To address these concerns, this paper will analyze AI-enabled price discrimination from a comparative law and economics perspective. In economics, price discrimination is not always undesirable as it can increase static efficiency, and, on some occasions, it can promote dynamic efficiency and boost consumer welfare. Nevertheless, it may also lead to exclusionary and exploitative effects, especially once Tech Giants abuse their dominant positions in relevant markets. Since the protection of free competition and consumer welfare are objectives of competition law in China and the EU, competition law seems a proper instrument to step into digital markets to address these concerns. Indeed, the EU and China have established mixed regimes of competition law and other rules to tackle unfair and/or anti-competitive AI-enabled price discrimination. As such, AI-enabled price discrimination does not always require a competition law response and it requires competition authorities to make a trade-off between different considerations.

Administrative sanctions for anti-trust violations: interpretation issues

The legal definition of anti-competitive offenses and the size of fines imposed for their commission are fully consistent with the best international standards and foreign practices. However, in order to further increase the effec-tiveness of application of competition law through its proper interpretation, it should be assumed that the provisions of competition law on sanctions for its violation are inextricably linked with the objectives of competition law, which means that each sanction should be aimed at supporting and protection of economic competition, restriction of monopoly in economic activity to ensure the effective functioning of the economy of Ukraine on the basis of the development of unrestrained competition, which excludes taking into account when deciding on the guilt of the business entity for anticompetitive actions, protection of the national producer and interests of consumers if it is out of connection with fairness of competition. Also, to improve the interpretation of the rule of law in context of the 
 requirement of proportionality of sanctions for anti-trust violations, we note that in exceptional circumstances, the application of competition law, businesses should not lose the opportunity to conduct business and compete prop-erly on fair terms, which determines the need to interpret competition law in context of fines for anticompetitive offenses so that the impact of fines on the financial condition and solvency of economic entities does not irreversibly undermine their business activities with their actual withdrawal from the market. For instance, structural remedies, such as a forced separation of business entity holding a dominant position in the market, are subject to a stricter pro-portionality requirement as they can only be imposed either where there is no equally effective behavioural remedy or where any equally effective behavioural remedy would be more burdensome for the undertaking concerned than the structural remedy.

Should the State Control Tariffs?

Tariffs or price control has been a controversial subject in recent years. The debate between legal experts and economists is still a hot topic in any discussion. Tariff control regulated in the work creation omnibus law seems to be a topic that must be discussed again regarding this regulation’s urgency. Are specific prices so impressive that the government can intervene in regulating them? This article examines the urgency of rules regarding price controls to create a healthy competitive environment. After conducting a critical literature review, it was analyzed with critical analysis and looking at the objective of competition law was to maximize welfare by protecting competition. The results in this article indicated that the government could only intervene in regulating price-fixing only if companies’ pricing could harm the country’s economy and consumer welfare. The government, therefore, had an interest in regulating the price ceiling. Meanwhile, the price floor, which was believed to be pro-consumer and could promote consumer welfare had no interest and should not have been limited by the government.

Competition Policy vis-a-vis Consumer Welfare

In India, the Competition Act, 2002 controls and maintains up competition in the market through its provisions forbidding anti-competitive agreements and abuse of dominance. We likewise have the Consumer Protection Act, 1986 which tries to ensure the interests of the consumers against information asymmetry, unfair trade practices, deficiency of services and so on. Under the Competition Act, the Competition Commission of India is the adjudicatory body for issues competition with rivalry while under the Consumer Protection Act, the District Forum, the State Forum and the National Consumer Forum are enabled to manage issues influencing consumers. The focus of this paper is to comprehend and outline the approach and objectives of competition law and consumer law considering their shared objective of accomplishing ‘consumer welfare’. The significance of this activity lies in understanding the job that the Competition Commission of India has assumed all by itself. The Competition Commission of India has taken upon itself to adjudicate even when the impact on competition is circuitous, for example where direct injury to the consumer streams from the adverse effects of the reproved act itself. The issue with this lies in the way that the appropriate remedy would lie with consumer courts. In spite of the fact that the type of such practices would propose a customer law remedy, their distortive consequences for competition may bring about competition law investigation. This paper intends to resolve the wrinkles and give a sound legal and economic reason for the utilization of competition law and consumer law. Despite the fact that reflections and principles are appropriate, an endeavour has been made to attest them as a final essential as this encourages the cycle of for all intents and purposes applying the standards to a given case.

Constituent elements of prohibited vertical agreements in the competition law of Iran and the European Union

The objective of the investigation is to analyze the constituent elements of vertical agreements prohibited by Iran's competition law, in accordance with Chapter IX of the Law on the Implementation of General Policies and in accordance with Article 44 of the Constitution and, as set out in European Union competition law, Article 101 of the Treaty on the Functioning of the European Union. By vertical agreements it can be said that one of the types of agreements is wanted in the competition law. Any reference between natural or legal persons in the longitudinal direction (whether top to bottom or bottom up) that is not close to the consumer's interest is agreed. These agreements may include free clauses that are not compatible with the objectives of competition law. Methodologically, this is a documentary research close to comparative and legal hermeneutics. It is concluded that, to prohibit vertical agreements, they need to have the anti-competitive object or effect and also have a tangible impact on the closure of competition on the market.

Divestment of State-Owned Enterprises and Competition in Oil & Gas Sectors in Vietnam

Abstract In its endeavour to attract foreign investment inflows and realise the diversity and security of its energy supply, Vietnam has set out short, medium and long term strategies which have been articulated in a number of legal instruments. These developments include the drive and acceleration of divestment and liberalisation of the energy market and ensuring healthy competition therein. This article provides a critical analysis of the current divestment of state-owned enterprises (SOEs) in Vietnam’s oil and gas sectors. In doing so, it also assesses current state of affairs against the key principles and objectives of competition law. After providing a brief summary of the milestones in the oil and gas sector, the article explains the equitisation in and privatization of SOEs and critiques the implications of these practices against the benchmarks of competition law provisions. After identifying the current problems and future challenges that lie ahead, it provides a number of constructive recommendations for policy development and legal reform.

Direito cooperativo como lacuna na análise antitruste – o caso das cooperativas de saúde no Brasil

O artigo pretende explicitar algumas das possíveis contribuições do Direito Cooperativo para uma análise integradados possíveis casos de conflito em matéria antitruste envolvendo cooperativas. Tem-se como hipótese que, se porumladoexistepoucoconhecimentoedivulgaçãosobreocooperativismonosetoracadêmiconãoespecializado,nãohá, por outro, qualquer incompatibilidade apriorística entre os objetivos da conduta de cooperação cooperativista eos objetivos doDireitoConcorrencial.Ao contrário, a identificação de parâmetros estruturais doDireitoCooperativo esua recepção no ordenamento jurídico por meio de parâmetros constitucionais destinados ao exercício da atividadecooperativista permitem estabelecer o diálogo das fontes com base na ideia de desenvolvimento, que não se limitaao significado de crescimento econômico. A título de demonstração, critica-se a jurisprudência consolidada sobrea possível ilicitude concorrencial consistente em algumas práticas no âmbito das cooperativas de saúde. Com basena doutrina e na legislação, propõe-se, a título de demonstração final, uma aplicação adaptada das válvulas deescape da lei que estrutura o Sistema Brasileiro de Defesa da Concorrência (Lei n° 12.529/2011).

Mixed Policy Objectives in Merger Control: What Can Developing Countries Learn from South Africa?

Adopting mixed policy objectives (economic and non-economic) introduces a divergence to the ‘economic based model’ currently advocated as the basis for competition law convergence. One area of competition law where mixed policy objectives are prominently featured is merger control. South Africa is a leading example of a jurisdiction that embraces mixed objectives of competition law. In this article, we look at competition law enforcement in South Africa focusing on large mergers in the past fifteen years. The article goes beyond the conceptual, pros & cons discussion of the inclusion of public interest considerations in competition law to identify the analytical process followed in a merger situation and empirically examines the impact these considerations have had on the final decision, in comparison to other considerations usually taken into account, i.e. efficiencies/consumer welfare. The article also addresses administrability issues and challenges arising from this model. This should in turn, engage the academia in critical examination of this model, assist policymakers in making an informed policy choice and benefit practitioners in understanding how merger analysis functions in this mode

Competition law and the Malaysian financial services market: an analysis of the structure and level of competition in the market

The main objective of competition law is to protect the process of competition by preventing anti-competitive behaviour such as abuse of dominant position and anti-competitive mergers. The assessment of market structure and the level of competition in the financial sector are important for the exercise of the competition authority's power to enforce the national competition law. It helps the competition authority to better understand the nature of the financial services market such as the existence of market power and features that facilitate anti-competitive behaviour. This paper attempts to analyse structure of the market and the level of competition in the Malaysian financial market using two measures, namely concentration ratio (CR) and Herfindahl-Hirschman index (HHI). The study shows that the banking sector can be considered as 'unconcentrated'. However, based on ownership (foreign or local) the study indicates such sector is 'moderately' concentrated. For the insurance sector, general insurance can be considered as 'unconcentrated', whereas life insurance is 'highly concentrated'.

Ordoliberalism and Balancing Competition Goals in the Development of the European Union

This paper examines the aims behind the incorporation of competition rules into the European project and studies how the development of the doctrine has been molded to the specific circumstances and outlooks encountered in postwar Europe. It argues that the objectives of competition law in the EU go beyond economic or legal standards that are applied in individual cases; rather, competition law and policy have been calibrated to contribute to allowing the EU project to harness the benefits of an open capitalist economy within the context of a democratic European society. The analysis aims to demonstrate that while Ordoliberal thinking played a role in the development of European competition law and policy, there were several other social, political, and macroeconomic influences at play as well. As such, the strain that competition policy has come under is a result of attempts to use competition policy to balance several public policy objectives.

Ordoliberalism and Balancing Competition Goals in the Development of the European Union

This paper examines the aims behind the incorporation of competition rules into the European project and studies how the development of the doctrine has been molded to the specific circumstances and outlooks encountered in post-war Europe. It is argued that the objectives of competition law in the EU go beyond economic or legal standards that are applied in individual cases; rather, competition law and policy have been calibrated to contribute to allowing the EU project to harness the benefits of an open capitalist economy within the context of a democratic European society. The analysis aims to demonstrate that while Ordoliberal thinking played a role in the development of European competition law and policy, there were several other social, political and macroeconomic influences at play as well. As such, the strain that competition policy has come under is a result of attempts to use competition policy to balance several public policy objectives.

Regulating abuse of superior bargaining position under the Japanese competition law: an anomaly or a necessity?

Abuse of superior bargaining position has long been a controversial area of Japanese competition law. Even though it is by no means unique to Japan—Korea, Taiwan, France, and Germany among others also have similar regulation—Japan’s abuse regulation has tended to attract more attention globally. One of the main sources of controversy for abuse regulation is whether it is consistent with competition law, and whether it serves any useful economic purpose. This article attempts to address this long-standing debate by examining whether abuse regulation is consistent with the various objectives of competition law and other economic rationales. Having determined that these objectives and rationales provide at best tenuous justifications for abuse regulation, or are inconsistent with the Japan Fair Trade Commission’s current enforcement practices, it proceeds to argue that abuse regulation can be best justified as a supplement to deficient contract law enforcement, which many commentators have noted is particularly serious for smalland medium-sized enterprises in Japan.

Competition Law and the Malaysian Financial Sector

Abstract The main objective of competition law is to promote the process of competition and to ensure that market functions efficiently. However, competition does not always seem to work well in the financial system. This paper attempts to explore issues that may arise from the application of competition law in the Malaysian financial sector focusing on various forms of collaboration among market players. This paper argues that the cooperations or arrangements need to be assessed on case-by-case basis to see their actual effect on competition. In addition, a clear guidance should be formulated to avoid legal uncertainty and unpredictability.

The Objectives of Competition Law and the Effective Conduct of the Infringement Proceedings: Judgments of the Court of Bosnia and Herzegovina in BH Telecom and Telekomunikacije RS. Case Comment to the Judgments of the Court of Bosnia and Herzegovina No. S1 3 U 003765 10 U of 24 April 2013 (BH Telecom) and No. S1 3 U 007875 11 U of 10 October 2013 (Telekomunikacije RS)

On 16 February 2010 the Competition Authority of Bosnia and Herzegovina (KV) initiated an investigation into the potential margin squeeze and discriminatory practices applied by the incumbent telecom operator BH Telecom. The investigation was prompted by the complaint submitted by an independent telecom operator Akt. online, which claimed that BH Telecom abused its dominant position by obstructing access to the fixed line network and applying discriminatory pricing on call termination services to the domestic providers.

Interface between Competition law and Intellectual Property Rights: A Comparative Study of the US, EU and India

It is generally viewed that Intellectual property protection and competition law are odds with each other. Is there really any tussle between intellectual property protection and competition law? Intellectual property law creates and protects monopoly power and the other seeks to exclude it. IP exclusion provisions are included in the Indian Competition Act, 2002 in Section 3(5). This is to provide enforcement to intellectual property rights. But protection of intellectual property rights are not per se violates any competition provisions. The objective of competition law is to prohibit anti-competitive practices and the objective of both the stream is wealth maximization in any economy. Intellectual property protection is necessary to foster innovation and choices of products in the market. It infuses efficiency in the market and increases consumer welfare. India is in the nascent state of its administration of competition laws. There are sizable number of cases came before the Indian competition authorities (CCI) and Indian courts. Cases against Microsoft India and abuse of dominant case against Ericsson filed by an Indian company named Micromax is only the beginning of the interface cases on intellectual property and competition law. There is no sufficient case laws and jurisprudence is available in India in guiding the Indian authorities and courts on the interface between intellectual property and competition. It is necessary to make an analysis of the jurisprudence in the US and EU. First part of this paper deals with the US Antitrust Act, 1890 and analysis of a number of cases dealt by the US courts. The EU Regulations and cases are clearer on issues of intellectual property and competition law. Indian jurisprudence is not clear so far and few cases are dealt by the CCI and Indian courts. The study concludes that Indian authorities should learn from other jurisdictions and the jurisprudence will act as guideline for Indian authorities.

The Choice of Competition Law and the Development of Enforcement in Asia: A Road Map Towards Convergence

Despite the distinct backgrounds of competition law in Asia, most Asian countries have adopted similar legal provisions, for example, clarifications of the objectives of competition law and the presumption criteria of market dominance. This is understandable because it was necessary for competition policymakers in Asia to design legal provisions that could ensure a certain level of predictability in the implementation of the laws, thereby improving legal certainty, even in the absence of accumulated case law. The preference in Asian countries for legal certainty provides a friendly environment for the localised harmonisation of the laws in Asia. However, some gaps still exist among Asian countries in their levels of enforcement. Variations in the degree of enforcement may cause harm not only to the public as a whole, but also may impede the free flow of trade across the borders in Asia. Therefore, it is crucial for agencies that regulate competition in countries that have recently adopted competition laws to establish the proper role of competition policy. This article discusses the trends in competition policy and its potential for development through cooperation among the various competition authorities in Asia, and thereby, to increase their understanding of the role of competition law to facilitate effective enforcement.

The Enforcement of Merger Control in China: A Critical Analysis of Current Decisions by MOFCOM

The Anti-Monopoly Law in China took effect in 2008, and it is unquestionable that it has led to a meaningful transformation of economic policy. Chinese competition law has been understood as a constitution for free and fair competition and also an important means of creating a price-driven market economy. In particular, since China is one of the world’s largest economies, its adoption of a competition law has drawn the attention of trading partners and large multinational enterprises. When examining the current enforcement of competition law in China, it is noteworthy that most cases involve the enforcement of merger control rather than cartels or abuse of market dominance, and the number of merger cases continues to increase significantly. Therefore, understanding merger control is important for an overall understanding of competition policy in China. The Chinese competition regime has improved the techniques for merger assessment, but it also appears to have some problems due to a lack of experience. This article aims to introduce and analyse the recent enforcement and development of Chinese merger control. It also acknowledges fundamental differences between the objectives of Chinese competition law and the objectives of competition law in Western countries, and explains how this eventually results in dissimilar outcomes. Lastly, this article provides proposals for establishing a better merger policy based on the competition-priority principle rather than socio-political values.

REGULATING FIRMS’ BEHAVIOR IN THE MARKET UNDER THE COMPETITION LAW: ISSUES AND CHALLENGES

The objective of competition law is to protect the process of rivalry between firms in the market.  It prohibits any anti-competitive behaviors such as cartel and abuse of dominant position. However, in practice regulating firms’ behaviors in the market is not an easy task.  It requires both legal and economic analysis to determine whether a firm is occupying a dominant position and whether the conduct is abusive. This paper seeks to identify the important provisions of “anti-competitive agreements” and “abuse of dominant position” under the Malaysian Competition Act 2010. It is observed that competition law across the counties have been heavily influenced by the UK and EU competition law. Despite the similar concepts applied across the jurisdictions, in practice the implementation differs. This paper seeks to explore the benefits of adopting foreign concepts on competition law and how the rules will be implemented especially in response to the different political, economic and social environment. This paper will also include the approach taken by Indonesia with regard to implementation of foreign ideas on competition law to suit the local need.

Réflexions sur une meilleure intégration du droit de la concurrence et du droit des pratiques commerciales déloyales

La directive 2005/29/CE relative aux pratiques commerciales déloyales des entreprises vis-à-vis des consommateurs dans le marché intérieur est un instrument d’harmonisation complète dans ce domaine. En revanche, le droit de la concurrence déloyale et des pratiques commerciales entre entreprises reste essentiellement national. Enfin, il existe des règles de concurrence au niveau européen et des règles de concurrence convergentes aux règles européennes au niveau des États membres. Les rapports entre ces trois branches du droit (pratiques commerciales déloyales des entreprises vis-à-vis des consommateurs, pratiques commerciales déloyales entre entreprises et droit de la concurrence) suscitent de nombreuses interrogations. Il y a un chevauchement entre l’application des règles en matière de pratiques commerciales déloyales des entreprises vis-à-vis des consommateurs et les règles en matière de pratiques commerciales déloyales entre entreprises. L’application des règles en matière de pratiques commerciales déloyales peut mettre en péril l’objectif du droit de la concurrence, à savoir garantir une concurrence effective. Une meilleure intégration de ces trois branches du droit pourrait contribuer à éviter les contradictions qui existent à ce jour. Il est notamment proposé que le droit ces pratiques commerciales déloyales reconnaisse la garantie d’une concurrence effective comme un de ses objectifs et que le droit de la concurrence quant à lui n’autorise pas d’une manière absolue les États membres d’interdire des pratiques restrictives de concurrence sur la base de législations ayant un autre but.

Should Germany Introduce a Law on the Dissolution of Dominant Enterprises? (Zur Zweckmäßigkeit eines Entflechtungsgesetzes) (German)

This article analyzes a proposed amendment to German competition law. The proposed amendment entitles the German Federal Cartel Office (Bundeskartellamt) to order the dissolution of dominant enterprises in order to stimulate competition. The article argues that this proposal should be abandoned for several reasons: First, such a possibility creates a disincentive to internal growth and runs counter to the general objectives of competition law. Second, the scope of application is unclear. Third, there is need for European and international coordination without which the proposal will not be effective in practice.