procedural issues

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).

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).

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).

Due Process in EU Competition Proceedings

This chapter analyses the competition law procedures in the EU through a more general lens of the four features of due process identified as key by the FTC’s Chairwoman Edith Ramirez. The discussion focuses on procedures applicable in antitrust cases, although various procedural features are largely common to the area of antitrust and mergers. Part I of this chapter deals with the question of legal representation. Part II outlines the rules and practices concerning the parties’ awareness of the charges they faces and the evidence against them. With respect to these two features of due process, the EU competition law procedures are overall very progressive and can serve as a basis of good practices. The remaining discussion turns to issues in relation to which the EU competition procedures face considerable criticism. In particular, Part III presents the scope for engagement between the parties, the case teams, and final decision-makers. Part IV examines the existing checks and balances in the EU competition procedures. The conclusion notes the Commission’s awareness of the critique of its procedures and the actions it undertook in response. It is acknowledged that considerable scope for improvement remains.
Reference :

Marek Martyniszyn, 'Due Process in EU Competition Proceedings' in Daniel D Sokol and Andrew T Guzman (eds), Antitrust Procedural Fairness (Oxford University Press, 2019).

Implementing a Competition Law System—Three Decades of Polish Experience

This article critically analyses the introduction and development of a system of competition law in Poland prior to 2016, a period when the country underwent two fundamental transitions: from a centrally planned economy to free markets and from communism to democracy. In particular, the study focuses on the competition agency’s setup, advocacy and enforcement efforts. It also examines the position and input of the judiciary, practitioners and the broader epistemic community. The study uniquely benefits from in-depth interviews with individuals who shaped the Polish system over nearly 30 years of its existence (inclusive of all former heads of the agency, judges, leading practitioners, and agency advisors) and from analysis of newly gathered data and statistics. It also draws on broader scholarship on new competition regimes. The findings are aimed to inform refinements in Poland and other countries establishing or developing competition law systems. This study will be particularly salient in countries that are undergoing or have undergone similar economic and/or political transitions.
Reference :

Marek Martyniszyn, Maciej Bernatt, Implementing a competition law system—Three Decades of Polish Experience, Journal of Antitrust Enforcement, 2019, https://doi.org/10.1093/jaenfo/jnz016

PROMOTION AND HARMONIZATION OF ANTITRUST DAMAGES CLAIMS BY DIRECTIVE EU/2014/104?

Directive EU/2014/104 is the latest legal instrument that crystalizes the evolution of EU competition law enforcement. This paper assesses critically the features of the Directive and the challenges it poses for its implementation by Member States. The Directive codifies the case law of the EUCJ and it encroaches upon the autonomy of Member States in setting the institutions, remedies and procedures available for victims’ of antitrust infringements. Although the Directive provides a fragmented and incomplete set of rules that only partially harmonizes antitrust damages claims in the EU, and it’s slanted towards follow-on cartel damages claims, it has publicised the availability of damages claims, creating momentum that will transform how competition law is enforced in the future.
Reference :

Co-written with Barry J. Rodger & Miguel Sousa Ferro, preliminary draft of Chapter 2 of The EU Antitrust Damages Directive: Transposition in the Member States (Oxford University Press, eds. B. RODGER,M.S. FERRO & F.MARCOS, due for publication in 2018).

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