Article

Export Cartels: Is it Legal to Target Your Neighbour? Analysis in Light of Recent Case Law

Despite the growing sophistication of antitrust regimes around the world, export cartels benefit from special treatment: they are almost universally tolerated, if not encouraged in the countries of origin. Economists do not offer an unambiguous policy recommendation on how to deal with them in part due to the lack of empirical data. This article discusses arguments for and against export cartels and it identifies the existing gaps in the present regulatory framework. The theoretical part is followed by an analysis of the recent case law: a US cartel challenged with different outcomes in India and South Africa, as well as Chinese export cartels pursued in the USA. The Chinese cases are particularly topical as the conduct at stake, apart from being subject to private antitrust actions before US courts, was also challenged within the WTO dispute settlement framework, pointing out to the existing interface between trade and competition. While the recent developments prove that unaddressed issues tend not to vanish, the new South–North dimension has the potential of placing export cartels again on the international agenda. Pragmatic thinking suggests looking for the solution within the WTO framework.
Reference :

Marek Martyniszyn, 'Export Cartels: Is it Legal to Target Your Neighbour? Analysis in Light of Recent Case Law', 15(1) Journal of International Economic Law 181 (2012).

A Comparative Look on Foreign State Compulsion as a Defence in Antitrust Litigation

This paper presents and investigates the foreign state compulsion as a defence in transnational antitrust cases. It takes a comparative approach by looking at the doctrine and its developments in the United States and in the European Union. To illustrate the relevance of the defence and the difficulties of its applicability, this paper analyses the new antitrust case law emerging in the US involving Chinese export cartels. It is argued that at present the standard required to prove compulsion is too high to serve its function.
Reference :

Marek Martyniszyn, 'A Comparative Look on Foreign State Compulsion as a Defence in Antitrust Litigation', 8(2) Competition Law Review 143 (2012).

Legislation Blocking Antitrust Investigations and the September 2012 Russian Executive Order

This article offers a typology of so-called blocking legislation and analyses its development, functions and legality under international law. It also presents and discusses the new Russian blocking Order, issued in September 2012, focusing on its possible effects on the European Commission’s investigation of Gazprom’s business practices (in light of EU competition law) as well as, more broadly, on foreign operations of Russian strategic enterprises.
Reference :

Marek Martyniszyn, 'Legislation Blocking Antitrust Investigations and the September 2012 Russian Executive Order', 37(1) World Competition 103 (2014).

Inter-Agency Evidence Sharing in Competition Law Enforcement

While transnational antitrust enforcement is becoming only more common, the access to foreign-based evidence remains a considerable practical challenge. This article appraises considerations and concerns surrounding confidentiality, and looks into ways of their possible accommodation. It further identifies and critically evaluates the existing mechanisms allowing for inter-agency confidential information/ evidence sharing in competition law enforcement. The article outlines the shortcomings of the current framework and points to novel unilateral approaches. In the latter regard the focus is devoted to Australia, where the competition agency is empowered to share confidential information with foreign counterparts, also without any underlying bilateral agreement and on a non-reciprocal basis. This solution shows that a pragmatic and workable approach to inter-agency evidence sharing can be achieved.
Reference :

Marek Martyniszyn, 'Inter-Agency Evidence Sharing in Competition Law Enforcement', 19(1) International Journal of Evidence and Proof 11 (2015).

Leniency (Amnesty) Plus: A Building Block or a Trojan Horse?

Leniency (amnesty) plus is one of the tools used in the fight against anticompetitive agreements. It allows a cartelist who did not manage to secure complete immunity under general leniency, to secure an additional reduction of sanctions in exchange for cooperation with the authorities with respect to operation of another prohibited agreement on an unrelated market. The instrument was developed in the US and, in recent years, it was introduced in a number of jurisdictions. This article contextualises the operation of and rationale behind leniency plus, forewarning about its potential procollusive effects and the possibility of its strategic (mis)use by cartelists. It discusses theoretical, moral, and systemic (deterrence-related) problems surrounding this tool. It also provides a comparison of leniency plus in ten jurisdictions, identifying common design flaws. This piece argues that leniency plus tends to be a problematic and poorly transplanted US legal innovation. Policy-makers considering its introduction should analyse it in light of institutional limits and local realities. Some of the regimes which already introduced it would be better off abandoning it.
Reference :

Marek Martyniszyn, 'Leniency (amnesty) plus: a building block or a Trojan Horse?', 3(2) Journal of Antitrust Enforcement 391 (2015).

On extraterritoriality and the Gazprom case

The European Commission's (EC) investigation of Gazprom's business practices in the EU raises a number of questions. This article comments on the issue of the EC's jurisdiction in transnational cases in general and in particular — in the context of the Gazprom case, in light of another contribution dealing with this matter. It also sheds some light on the considerations which might have informed Russia's legislative response to the EC's investigation.
Reference :

Marek Martyniszyn, 'On extraterritoriality and the Gazprom case', 36(7) European Competition Law Review 291 (2015).

How High (and Far) Can You Go? On Setting Fines in Cartel Cases Involving Vertically-Integrated Undertakings and Foreign Sales

This article examines the recent developments concerning the treatment of internal sales (intra-group or captive sales) in the process of setting fines for violations of EU Competition Law. In particular, it looks into Guardian Industries, LG Display and InnoLux, in which the Court of Justice recognised the European Commission’s right to take into account internal sales, also in the transnational setting (when infringement-affected components are sold and incorporated into the finished products outside the EU), and to impose fines which more accurately reflect the scale and significance of the investigated infringements.
Reference :

Marek Martyniszyn, 'How High (and Far) Can You Go? On Setting Fines in Cartel Cases Involving Vertically-Integrated Undertakings and Foreign Sales', 37(3) European Competition Law Review 99 (2016).

Foreign States’ Amicus Curiae Participation in U.S. Antitrust Cases

Foreign states’ amicus curiae briefs submitted before the U.S. courts are a special type of pleading. This article analyzes such submissions made in U.S. antitrust cases during the period 1978-2015, identifying which foreign nations used amicus briefs to present their views and what sort of issues attracted their attention. This piece examines also the issue of deference due to such filings, arguing that while foreign states’ submissions should be treated respectfully, they do not warrant a dispositive effect. Furthermore, this article outlines the practice of filing, explaining the shift from diplomatic correspondence towards amicus curiae submissions and the creation of a niche market of authoring them. It also indicates general trends in relation to stages of filings and the degree of their prevalence. Some broader comments are offered on the functions of foreign nations’ amicus filings and their contribution to the on-going development of competition law and policy internationally.
Reference :

Marek Martyniszyn, 'Foreign States’ Amicus Curiae Participation in U.S. Antitrust Cases', 61(4) Antitrust Bulletin 611 (2016).

Japanese Approaches to Extraterritoriality in Competition Law

Extraterritorial application of domestic competition law is an important feature of the current regulatory framework governing anticompetitive conduct. Japan was initially hesitant to apply its Anti-Monopoly Act in such a manner. However, the last two decades show a significant shift in its approach. Japan has gradually embraced extraterritoriality and the Japan Fair Trade Commission has actively enforced competition law in a purely offshore context. This article investigates this evolution as well as the most recent and controversial cases in which Japan applied its laws in a distinctive manner unseen to date.
Reference :

Marek Martyniszyn, 'Japanese Approaches to Extraterritoriality in Competition Law', 66(3) International and Comparative Law Quarterly 747 (2017).

Foreign State’s Entanglement in Anticompetitive Conduct

Transnational competition cases pose numerous challenges — from accessing foreign-based evidence to effectively enforcing decisions or judgments in their aftermath. Some of such cases are quite special in that the underlying conduct involves or implicates a foreign State. This article makes an original contribution to the scholarship by filling the existing gap and developing a typology of State’s entanglement in conduct causing competitive harm abroad. It also examines the way in which foreign State’s involvement or implication can be addressed in the adversely affected forum. Moreover, the key broader considerations which need to inform policies and approaches toward such cases are identified and evaluated. It is argued that competitive harm resulting from commercial dealings should be pursued under competition laws regardless of the character of the parties involved, unless there are overriding reasons justifying abstention. States should not enjoy immunity for competitive harm resulting from their commercial dealings. Agencies and courts in the affected fora should strive to clarify this matter. A clear State’s policy on dealing with inbound competitive harm may also make foreign partners more receptive to concerns about policies which facilitate competitive harm which they may be pursuing.
Reference :

Marek Martyniszyn, 'Foreign State’s Entanglement in Anticompetitive Conduct', 40(2) World Competition 299 (2017).

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