Chillin'Competition

Relaxing whilst doing Competition Law is not an Oxymoron

Archive for November 2011

11/11

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Today is a day off in Belgium and France. A quick post though.

A group of Phd students from University College Dublin is organising a Postgraduate Workshop (in March 2012) on competition law enforcement.

Hereafter the link to the call for papers.

Written by Nicolas Petit

11 November 2011 at 11:11 am

The Italian Way

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A message of hope, for our Italian readers.

In Italy, competition experts face promising career prospects:

Both of them held professorships in prestigious academic institutions (Amato as a lawyer, Monti as an economist).
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In our small epistemic community, Amato is also known for being the author of Antitrust and the Bounds of PowerMany have praised the book. I have a slightly dissonant view on this book. Sure, it does a good job a casting new light on the history of competition policy. But, the style is often cryptic. It makes the book  very hard to read.

Written by Nicolas Petit

10 November 2011 at 7:51 pm

Assorted links

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  • Wouter Wils has a new paper on recidivism. I understand it will appear in World Competition. A question: Does Wouter have an exclusive supply agreement with Kluwer?;
  • At the GCLC we are DESPERATELY looking for a Commission official to come present the best practices on the conduct of proceedings in antitrust cases (101 and 102 TFEU) at a forthcoming lunch talk;
  • I gave a presentation on standardisation agreements, IP and competition law. See link thereafter for the ppt. Droit des brevets et droit de la concurrence – Accords de normalisation A paper is in the making;
  • A good New Yorker paper on why the current laudative discourse on small business is misguided;
  • And a rumination/question: what makes it that in some markets, the supplier pays for distribution (publisher-search engines, airlines-travel agents), and in other markets, the supplier sells to distributors (consumer goods-supermarkets)?

Written by Nicolas Petit

9 November 2011 at 8:18 pm

Posted in Uncategorized

On the EU and the sovereign debt crisis (because life isn’t just competition law)

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We spend most of our time working on competition law matters – be it in academia or in private practice-, and we also spend part of our free time trying to look at competition law from a different angle on this blog. If we devote so much time to try to make sense –and sometimes fun- out of competition law it isn’t because we believe that competition law is more important than other stuff. For all its many virtues, it actually isn’t.

We started this because we thought there was something a bit different that could be done within our tiny and endogamic professional circle, and because we only feel comfortable speaking out loud about issues on which we feel we can add something coherent and hopefully useful (as you can imagine, writing every day what comes off the top of our heads without thorough reflection and in front of such an informed audience as you are means entails certain challenges and risk, notably the risk of making fools out of ourselves). In other words, we do this because we thought there was something meaningful –if only a tiny bit- that we could add to the area in which our professional lives are focused.

But even though our economist friends could argue that we are rationally choosing to exploit our competitive advantage, we can’t help thinking sometimes that maybe our priorities are somehow skewed. One example: while EU leaders were holding crucial talks in Brussels–just a few meters away from my office- on October 27th and 28th, we were writing here about the names of partners at an American firm as well as about the “slow death of Article 101(3)”. Wouldn’t it have made much sense for us to write about the slow death of the European project?

We are just as politics geeks and fervent EU supporters as we are competition law geeks; the difference is that we feel, or rather know, that you wouldn’t give a damn about our personal views on general issues on which our opinion is not different from anybody else’s; that’s why we’ve only gone off track on very rare occasions. There are times however where we feel that we have to give vent to some non-competition related thoughts.

There are some things we simply can’t understand. We don’t have solutions and are not going to fix the world, but since we need to let some steam off, we thought we’d use this platform.

If interested in knowing what we can’t understand, keep on reading. If not, we’ll be back tomorrow with the usual stuff, and apologies for going off-track.

Read the rest of this entry »

Written by Alfonso Lamadrid

8 November 2011 at 9:03 pm

28th Annual AmCham EU Competition Conference

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Next Wednesday (November 9), the American Chamber of Commerce to the European Union will be holding a most interesting conference in Brussels.

This event may have gone unnoticed for some of you, but we think it´s interesting enough to bring it to your attention (it´s also good way for us to show that we don´t discriminate the links displayed on our blog in favor of our own events…).

The AmCham Conference will feature one panel on the role of EU Courts, one on fining policies, and one on procedural rights.  The line up of speakers is also impressive (and includes some friends and readers of this blog). For more details, the program is available here

Those interested in registering can still do so via this link.

 

 

Written by Alfonso Lamadrid

7 November 2011 at 8:01 pm

Posted in Events

Patent wars (+ Faull&Nikpay)

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It has been reported today that the European Commission is concerned about the use that is being made of patents essential to the 3G  mobile communications standard in the context of the ongoing legal battles surrounding the smartphone technology markets.

The Commision has confirmed that it has addressed requests for information to both Samsung and Apple, but it has not yet provided any further details. A legal filing by Apple in the U.S. nevertheless reveals that this preliminary investigation on the part of the Commission may be targetting a possible abuse of FRAND (Fair Reasonable And Non Discriminatory) licensing agreements on the part of Samsung, which in the recent past has initiated a large number of proceedings against Apple in several jurisdictions.

This is not the first antitrust investigation regarding anticompetitive behavior related to enforcement, use and misuse of patents undertaken by the EU Commission (think, for instance, about the Qualcomm or Astra Zeneca cases), and it certainly won´t be the last. Patent wars may be a newcomer in the antitrust world, but they´re here to stay.

By the way, I´m very fortunate to be  -together with Miguel de la Mano (Deputy Chief Economist at DG Comp and currently Acting Chief Economist at the UK´s Competition Commission), Hans Zenger (CRA), and Renato Nazzini (LMS and Southampton University)- part of the team that is currently should be drafting the chapter on Article 102 for the next edition of the Faull&Nikpay (which, as you know, is one of our favorite books), and given the rise of IP-related abuse of dominance cases we´re planning to devote a specific section to these issues.

Have a nice weekend!

(Image possibly subject to copyright)

Written by Alfonso Lamadrid

4 November 2011 at 11:58 pm

The language of competition law

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In a comment to a recent post we recently engaged in a discussion about the meaning of words and the importance of the proper use of terminology in light of the crucial meanings, nuances and attitudes that words often implicitly or explicitly convey. Words often “carry dynamite”, we said.  A few days earlier, we had also written another post which -perhaps in a manifestation of wishful thinking- highlighted the fact that the Court had used the term “objective justification” in an area (Art. 101 TFEU) where it had never resorted to it before. In our view, words matter. A lot.

All this sprung a reflection about the importance of words and of languages when it comes to understanding, teaching or applying law in general, and competition law in particular:

The crucial influence of the use of certain words, metaphors or narratives has already been noted in the past by some of the most prominent antitrust scholars. Excellent examples of this can be found, amongst others, in the influential piece by late Prof. Areeda on “Essential Facilities: An Epithet in Need of Limiting Principles“; in “Antitrust Doctrine and the Sway of Metaphor” by Michael Boudin (who, btw, was my antitrust professor at HLS); or in Newberg´s “A Narrative Construction of Antitrust“.

One of our blogosphere colleages (Prof. Sokol) also wrote a post some time ago about The Language of Sex and Antitrust (if cheap advice on how to increase online readers is right, this is the link that most of you will be clicking…).

But beyond words, the language in which the law is conceived, drafted, learnt, taught, and interpreted or applied also makes a huge difference. I am not aware of the existence of any study on whether and how languages compete to shape the law, but it is undeniable that they do shape it, and that their influence can be much greater than that of words, because languages (i) are also vehicles for the diffusion of certain values; and (ii) because they are subject to very strong network externalities (if any enforcer is reading this, then languages -as beneficiaries of network externalities- may have just become a new antitrust suspect…).

Many of you may have first-hand experience of the fact that law is very often learnt, taught and understood differently depending on the language used. Nicolas and I, for instance, are currently working on competition law textbooks in our own languages, and it is not always easy to transform the input we normally receive (typycally in English) to our output. Mere translation is not always enough because the language strongly influences the way in which the information is rationalized. Examples abound:

Some posts ago we wrote about the future reform of the General Court and noted that more than 40% of référendaires (clerks) at the GC are of French nationality. This is obviously due to the fact that the official language at the Court is French, but, as we noted in that post, those numbers have implications far beyond the merely linguistic. In that case there are also cultural elements involved (in as much as the language may be associated to the values of a country), but the influence of the French values through the French language can be traced in many of the Courts attitudes and Judgments.

Now English has become the lingua franca (a fact of which this blog stands as evidence). This may have had some disadvantages for the English language (because being used by non-natives it risks deteriorating, as this blog also illustrates..), but overall it offers many advantages to anglosaxon values and ideas which enjoy an “unparalleled competitive advantage” (to use the words of the CFI´s Judgment in Microsoft). Ask the Financial Times or The Economist

But competitive advantages arising from the use of language in competition law are not merely enjoyed by ideas and policies, but also by firms. One example of this could be the legal market, where anglosaxon firms enjoy a competitive advantage on the worldwide market just because they´re anglosaxon firms.  I´m not necessarily criticizing this; my firm, for instance, also benefits from a competitive advantage derived from huge brand recognition in its main market. I do nevertheless have a problem with the legal market becoming a “luxury” market where brands matter more than quality and outcomes (and I know many examples where this is true in the EU competition law world), but this is another matter that perhaps we´ll deal with in another future post.

Written by Alfonso Lamadrid

3 November 2011 at 9:13 pm

General Interest

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A few weeks ago, I have been asked to make conclusive remarks at a conference on “Competition law and the general interest” (BTW, the picture above shows Paris Hilton serving “general interest” works after having been found guilty of unlawful drug possession).

I attach my text below. This is far from ground-breaking, and if anyone has suggestions on how to improve the text, I’ll surely take them on board.

That said, it was the first time I was asked to do this, and it was a lot of fun.

The proceedings of the conference (in French), will soon be published by Larcier.

Droit de la concurrence et intérêt général – Final (03 11 11) NP

Written by Nicolas Petit

2 November 2011 at 10:25 pm

Help

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Apologies for the self-promotion – it is actually not the purpose of this post – but next week, I have to give a speech on standardization a this conference.

To prepare for the conference, I have read a LOT of stuff including complex books on the ISO, patent law, etc.

Yet, there’s one little piece of information that I am still missing. I heard last week from a secret informant that there is currently a Dupont case in COMP’s pipeline, but I cannot find any trace of it. Any information on this case would be most helpful.

More generally, I welcome any input, remark, comments, sources on standardization. As usual, your help will be acknowledged in the first footnote of my paper.

Written by Nicolas Petit

1 November 2011 at 6:49 pm