FIDE Congress 2010
The FIDE (Fédération Internationale de Droit Européen) will be holding its XXIV Congress in Madrid between the 3rd and the 6th of November. One of the three topics discussed will be “The Judicial Appliccation of Competition Law”. The other two topics will focus on “The Role of National Parliaments in the European Union” as well as on ““Public Capital and Private Capital in the Internal Market”.
The program for all three topics is most appealing. As it´s customary in FIDE, the discussions will be based on reports prepared by representatives of national associations members of FIDE. The General Report on Competition Law is authored by Santiago Martínez-Lage and Rafael Allendesalazar (Howrey-Martínez Lage); the EU Report has been written by André Bouquet (from the Commission´s Legal Service); and discussion sessions will be chaired by Judge Koen Lenaerts, Assimakis Komninos (Greek Competition Authority), and Ulf Bernhand Bernitz (Stockholm University).
For more info see here.
Duopoly – A Real Life Example
The idea of this post came while having lunch in the centre of Brussels (I am definitely a competition geek).
Until recently, Noordzee (on the left side of the picture) enjoyed a local monopoly on the market for fast fish-seafood standing meals in the centre of Brussels (my shot at this somewhat original market definition). Their business concept was simple: you eat and drink outside, standing.
I was, with loads of other customers, a great fan of Noordzee. Yet, ordering there involved queuing, eating in uncomfortable conditions,and possibly supra competititive pricing.
A while ago, a restaurant located on the other side of the street (ABC on the right side) decided to replicate Nordzee’s business concept. ABC installed tables on the outside and started to serve customers just as Noordzee had done in the past.
Everyone, including Noordzee seems to withdraw benefits from this expansion/entry. Noordzee has reduced queuing time and increased consumer satisfaction. In addition, the optics of having an increased number of people around the restaurants is good in terms of brand image and advertisement. I am not sure, however, that prices have plummeted. Tacit collusion may be the reason there.
(Picture subject to copyrights. Source: taken with my mobile phone earlier in the day)
Subversive Readings?
In reaction to one of my recent papers, a very good friend said that I was a “neo-chicagoan” (friends can be tough…).
This morning, I came accross a masterpiece of NON-chicagoan scholarship (L. Kaplow, “Antitrust, Law & Economics and the Courts”, (1987) Vol. 50, 4, Law and Contemporary Problems, 181). I thought I should share with you several powerful quotes, with which I fully concur.
“The price theory widely hailed by the Chicago School as its heart and soul, although a useful starting point, is in fact the earliest and simplest for of economic analysis of industry” p.189
“Antitrust law is necessarily based on the contrary assumption that courts at times can punish detrimental practices better than markets will” P.192
“One of the most widely noted shortcomings of Chicago School antitrust analysis is that it uses static models even when examining effects that are intrinsically dynamic – as in the case of all exclusionary practices …” P.192
“[a]ll calls for the rule of reason should be understood as either intentionally or unconsciously disguised attempts to remove the area from antitrust scrutiny” P.196 (I am not sure I 100% agree with this one though)
(Image possibly to copyrights: source here)
New merger guidelines in the UK and the US/ Upward Pressure on Price Index
The OFT and the Competition Commission released their joint merger guidelines yesterday. Perhaps the most significant novelty brought by the guidelines is the explicit move towards the direct assesment of effects on competition to the detriment of the classic detailed assessment of market definition.
This shift, which is logically most apparent in sections 5.4.6 to 5.4.12 of the guidelines, which deal with the analysis of unilateral effects in markets with significant product differentiation, is in line with the prevailing trend in the U.S, as reflected in the new DOJ/FTC merger guidelines (also released less than a month ago; see particularly section 6.1). Both the US and the UK guidelines seem to be strongly inspired by, and leave ample room for the application of, the “Upward Pressure on Price” index proposed by Joseph Farrell and Carl Shapiro, the leading economists at the FTC and DOJ respectively (pictured above).
In essence, the UPP index moves away from the rigidness of structural analysis (which ignores the degree of actual substitutability between heterogeneous products) towards a greater focus on diversion ratios and the value of diverted sales. A detailed explanation about this tool doesn´t belong here, but for those interested in learning some stuff about it, here are some links to the original 2008 proposal by Farrell and Shapiro as well as to an interesting paper by Joseph Simons and Malcolm Coate proposing certain refinements. Unfortunately for non-Spanish speakers, the best short summary for non-economists that I´ve read on the UPP index -authored by Eric Gippini (who has a remarkable ability to identify hot topics)- appeared in the last number of the Gaceta Jurídica de la UE y de la Competencia (not available online). We´ll certainly be hearing a lot about the “UPP” index from now onwards.
Fermat
In our small epistemic community, many people view antitrust law as a superiorly complex subject – one which laymen cannot understand. Also, I have noticed that many antitrust professionnals display little humility, and view themselves as superiorly intellectual (I hope I am not concerned).
Now, if you wanna see real “brains“, please check this truly superb documentary on Fermat’s theorem.
Found on optimum.
Back on track + yet another discussion on LLMs
Last Monday I returned to real life (i.e. the office) after a great year in the U.S. and a more or less sabbatical summer.
Since my return, I´ve read several discussions regarding competition lawyers and LLMs (see e.g. Nicolas´ tweet a couple of weeks ago). Several people have asked me for an opinion, so I though it could be interesting to share some very personal advice for those considering enrolling in an LLM.
If you can, do it. If you have the possibility and the means (there are plenty of scholarships and other sorts of financial aid) to take one year off work to pursue an LLM, do it. Whether you´re interested in deepening your knowledge on one area; in exploring diverse fields; in acquiring a taste of common law; in experiencing other teaching methods; or plainly in profiting from an extraordinary personal experience, do it.
Be real about what you expect. An LLM will help you broaden your horizons (as I´ve written here earlier: the world is much larger than our desk at a firm); it might open new doors; it should provide enormous personal enrichment; and you would surely learn a lot. However, it won´t transform you, professionally speaking. In my experience, excellent lawyers come back as they were, and crappy lawyers do too.
Don´t take admission decisions too seriously. If you´re admitted by a top-notch school, that doesn´t mean you´re any better than those who are not there (I´ve met a surprisingly high number of people who think that way): most truly brilliant people do not even have the possibility of applying to these programs. On the other hand, if you are rejected, be conscious that there are random elements unrelated to your skills that influence these decisions and don´t quit trying.
Don´t look for “THE best LLM”. Choose a particular program depending on your interests. Ivy League schools offer incredible “brand recognition” and generally have superb faculties. However, the quality of teaching is very similar in other places (at least in my case learning mostly takes place reading and reflecting, and you can do that anywhere) which also offer complements such as specialized programs or the possibility of living in particular cities. At the end of the day, what really matters is the people that surround you; good schools make a great filter, but not the only one. I am very satisfied with the path I chose, but naturally, and fortunately, we all tend to argue that our decisions are the best, and to some extent we´re all right.
To those who wish to pursue a career as competition lawyers: If you´ve never studied EU competition law before, a European program (College of Europe; Liège; King´s; BSC…) could be of greater use. Personally, I learnt much more competition law at the CoE than in the US. I would advise anyone to remain in Europe to “focus” first, and to go to the US to “expand” later.
P.S. For full disclosure: I decided to return to Garrigues, where I will be working at the Madrid and Brussels offices. You can now reach me at: alfonso.lamadrid@garrigues.com
Thoughts
Living and working in Brussels offers the opportunity to talk and meet with practitioners from all sides. In this context, a lunch with colleagues may help bring new perspectives on issues.
On second thoughts, and as a matter of principle, one may question whether the appointment of a former official of the Commission’s legal service as hearing officer is as appropriate as mentioned in my tweet two days ago. Nothing to do with Wouter Wils’s brilliant legal skills (I am a great fan of his academic work). But in terms of neutrality, it is somewhat odd to appoint as a referee someone who spent years defending the Commission’s decisions in Court against companies. I guess this may create a bias (or am I the one with a suspicious bias )? Much to the advantage of the companies facing Commission proceedings, however, is the fact that this particular hearing officer knows the case-law on fundamental rights inside out.
Misconception?
Check this (in French language)
Were De Gaulle and his fellows really hostile to free-market policies and competition?
Thanks to Pierre Honore for the pointer.
(Image possibly subject to copyrights: source here)
Competition in the Belgian Electronic Communications Sector
Please find below a ppt presentation which reviews recent decisions in order to assess whether – as argued in official circles – the Competition Council has beefed up its enforcement policy in the electronic communications sector. It draws on two articles that I recently co-authored with Ief Daems (Howrey LLP) and Elise Provost (ULg).
For more, see I. Daems et N. Petit, « La fin de la récréation pour l’opérateur historique? », TBM-RCB, 2009/3, p.66 ; and N. Petit et E. Provost, « L’émancipation du Conseil de la concurrence? », TBM-RCB, 2010/2, p.89.
Apologies for the absence of post yesterday.
(Image possibly subject to copyrights: source here)
Upcoming Conference
The two rising stars of UK competition law, Christopher Brown and David Bailey, have asked us to post the below announcement. Looks promising.
FIFTH JUNIOR COMPETITION PRACTITIONERS CONFERENCE — CALL FOR SPEAKERS
The editors of the Competition Law Journal are pleased to announce the fifth Junior Competition Practitioners Conference. This year’s Conference will take place on 3 December 2010 and will comprise two sessions dedicated to the law and practice on penalties and other enforcement techniques.
For further details please scroll to the bottom of the following web page:-
http://www.jordanpublishing.co.uk/publications/commercial/competition-law-journal
If you would like to speak at the Conference, please contact Vian Quitaz – vjquitaz@hotmail.com – with an expression of interest and a short outline of your proposed topic.
A separate announcement will be made in due course for those interested in attending the Conference.
Chillin'Competition 
