This article looks at the commonalities and disparities in the rules against single-firm market abuses in the US and in the EU and their enforcement. Despite they target the same type of business behaviour, the US and the EU have always followed divergent paths. This article will examine alternative explanations for the differences and will also look at the different forms of conduct caught under the prohibition, underlining the most recent enforcement discordances
International Company and Commercial Law Review 2017/9: 338-345
This paper shows how supermarket location, size and format are regulated privately by major supermarket chains and publicly by government planning and competition agencies. The inquiry is spurred by the tenacity of the competition policy prescription that public regulation of supermarket siting be wound back so that private regulation has a free hand. Having conducted case studies in the field, within a framework of regulatory studies, the paper finds that public regulation is often only a mild restriction on private strategies to site. Yet public regulation, and land-use planning law especially, remains a crucial point at which collective processes and social values may exert an influence over food provision and the social spaces of our suburbs and towns. The paper recommends that regulatory law reform be holistic rather than narrow minded.
Christopher Arup, Caron Beaton-Wells and Jo Paul, 'Regulating Supermarkets: The Competition for Space' (2017) University of New South Wales Law Journal (forthcoming)
The power asymmetryies that exists between major supermarket chains and suppliers, in Australia and abroad, have has been analysed largely through an economic-legal lens, focussed predominantly on consumer prices. This article takes a wider stance, considering the economic and then the social discourses that arise in response to the supermarket-supplier relationship, before examining how such discourses shape regulatory responses. We find that the two are not, as they appear on first blush, disconnected or in conflict. Rather, as with many socio-economic interactions, they are connected and interdependent. Applying a problematisation analysis, we interrogate the underlying assumptions and question the ways in which the issues relating to the imbalance in bargaining power between major supermarkets and suppliers are framed in mainstream policy debates, and then consider the implications. On our analysis, the problem that this imbalance is seen to pose has dimensions of both competition and fairness, creating challenges that require a range of responses. It is thus a problem that can be tackled by appealing to the traditional platforms of both the left and right of politics. A dual discourse also facilitates effective political risk management. While a neoliberal approach allows government to be seen as promoting competition to maximise efficiencies and consumer welfare, tough measures on socially unacceptable behaviour enables government to align with important social-cultural values.
Caron Beaton-Wells and Jo Paul, 'Problematising Supermarket-Supplier Relations: Dual Discourses of Competition and Fairness' (2017) Griffiths Law Review (forthcoming)
This this chapter of the book Anti-Cartel Enforcement in a Contemporary Age: Leniency Religion, the authors consider a range of theories that may explain the dynamics in the cartel leniency — cartel criminalisation relationship and, in particular, that address the question as to whether the relationship suggests a largely instrumental justification for criminalisation (that is, using criminal sanctions to bolster leniency policies), as distinct from a more normative justification (that is, using criminal sanctions to reflect and punish the harmful and delinquent nature of cartels). Whichever theory is favoured, the authors argue that the relationship is problematic, replete with ambiguities, tensions and contradictions that threaten the legitimacy and effectiveness of both competition and criminal law enforcement. In making this case, Harding, Edwards and Beaton-Wells canvas the fragility of the economic policy justifications for singling out certain types of cartel conduct for criminal treatment; the retributive compromise and foreclosure inherent in a leniency-driven strategy of enforcement; the ways in which leniency policy underscores and may even reinforce the otherwise immoral (cheating) behaviour said to attract the moral opprobrium associated with criminal sanctions; the ways in which leniency policy shapes and distorts the relationship between cartelists as prospective leniency applicants and competition authorities; and the potential for leniency policy to be ‘gamed’ by cartelists and the associated risk of business capture of the legal process.
Christopher Harding, Caron Beaton-Wells and Jennifer Edwards, 'Leniency and Criminal Sanctions: Happily Married or Uneasy Bedfellows?' in in C Beaton-Wells and C Tran (eds), Anti-Cartel Enforcement in a Contemporary Age: Leniency Religion, Hart Publishing, 2015, ch 12, pp234-260
The study of emergency has received much attention from political theorists. Relying on the realms of philosophy, theology and morality, these scholars have focused on whether acts of the sovereign in times of emergency should lie "inside" the law (i.e., be subject to scrutiny) or "outside" the law (i.e., enjoy some form of immunity). This article, on the other hand, utilizes economic theory to analyze emergencies. It argues that some emergencies are subject to the same laws of demand and supply and often do not mandate any intervention; while others may deserve a unique treatment (often within the law) that can be premised on simple rational behavior models. Specifically, this paper discusses two types of emergencies: private and public. The discussion of private emergencies focuses on decisions in which courts were asked to compel one to undergo a medical procedure to give an organ that would save the life of another. The article employs economic theory to reconcile the seemingly contradictory decisions. The article also investigates strategic behaviors, remedial reactions and under what conditions, if any, courts (or regulators) should intervene in organ transactions. The discussion of public emergencies focuses on price gouging. It reviews a number of anti-price gouging laws, the conditions that trigger them as well as the justifications for and against these laws. Using a number of examples, the article demonstrates how the so called "exorbitant prices" help decrease shortages, enable inflow and storage of essential commodities, allocate scarce resources, reduce strategic behavior and queues and stabilize demand. It argues that the assumption underlying anti-price gouging laws - that markets fail in times of emergency - is often erroneous.
Keywords: Emergency, Body Parts, Transplants, Organs, Price Gouging, Unconscionable contracts, Economic Analysis
In Sovereignty, Emergency, Legality, Cambridge University Press, 2009).
Contrary to the traditional view, this article argues that mega-brands are neither economic evils nor limited to imparting information about the products they adorn. It also rejects the view that famous marks persuade “snobs” to “irrationally” pay more for the same physical product they could have purchased for less. Rather, it adopts the view that in purchasing a branded good, the consumer is actually purchasing a bundle of three products: a physical product, information about the physical product, and an intangible product, such as fame, prestige, peace of mind, or a pleasant feeling. This article explores the demand for the intangible product and its impact on pricing, welfare, and the strategies of consumers and producers. It concludes that under certain conditions one may witness the anomaly of an increase in both price and output. Further, contrary to conspicuous goods theory, this analysis shows that snobbism may occur in the traditional downward-sloping demand curves and is not limited to goods with conspicuous properties.
A direct implication of this analysis is that mega-brands neither confer a monopoly nor foster price discrimination. On the contrary, they enhance competition in both the physical and intangible spheres. Further, the analysis provides a rational basis for anti-dilution law. Anti-dilution law - widely considered to protect producers and injure consumers - actually inures to the benefit of both groups. Finally, this analysis shows that even snobs are rational, and that there are sound economic justifications for the law’s unique protection of famous marks.
Keywords: famous trademarks, mega brands, persuasive advertising, branding, intangible product, snobs, conspicuous goods, irrational consumers, social norms, anti-dilution, externality, intellectual property, price discrimination, tying, antitrust, psychological value
Every day, digital platforms generate, gather, store and analyze a huge amount of data, personal data included: these data can be elaborated on to cluster individuals and offer personalized prices and services. Individuals are progressively losing control over their personal data and digital identities and, accordingly, data protection authorities are looking at the operations of these digital platforms carefully. The paper addresses the issue of a possible commingling of data protection rules and antitrust provisions and the lively global debate between those who call for strong antitrust intervention to buffer privacy risks and those who would keep antitrust law at bay.
Journal of European Competition Law & Practice (2017)