Theory and History of Competition Law

The objective of the programme is to bridge the gap between theory, history of competition law and practice in Europe, by exploring some core issues of competition law, from an interdisciplinary and a critical legal theory perspective.

The objective is to have small and informal workshops intended mainly for advanced students (LL.Ms), academics and practitioners with theoretical interests.

Cycle Economic Evidence

Convened by Professor Anne-Lise Sibony and Professor Ioannis Lianos

Workshop 1

How useful is economics to understand competition law?

26 November 2009

In this seminar, two short presentations will focus on how economists of various schools envisage their contribution to competition law and the role of economic schools in rationalizing competition law discourse. Participants will be invited to discuss how these conceptions fit with lawyers’ notion of the usefulness of economics in this field of law.

Economists know what competition law is about: different “schools” of economic thought may advance different stories (ordoliberals, Harvard economists, Chicago, post-Chicago, Austrians, behavioral law and economics…). Is the contribution of economics to the understanding of competition law really about goals? Or is a consensus about goals a preliminary step for the real imput of economists, which consists in designing legal tests and suggesting presumptions? Or is it yet something else economists have to offer?

Obviously, many of us think that it is indeed useful, but there are nevertheless different ideas about exactly how useful economics might be as a source of competition law and, more generally, of antitrust discourse. Should competition law transplant economic concepts as such and should their use always be compatible to “sound economics”? What is the role of economic “schools” in rationalising competition law discourse? 

Workshop 2

Economic expertise and experts in competition law enforcement: theory and practice

19 January 2010

Economic evidence has made heavy inroads in competition law enforcement and litigation. The emerging role of economic consultancies in litigation has been the notable result of the more economics-oriented approach in competition law.

The emergence of a market for economic experts in Europe may profoundly affect the way economic expertise is integrated in legal proceedings. Common law jurisdictions (e.g. United Kingdom, United States) have traditionally used different mechanisms from civil law jurisdictions (e.g. France, Germany) in order to address the information asymmetry that exists between economic experts and judges and to ensure the objectivity of judicial decision-making.

They chose to emphasize the role of the adversarial process (expert witnesses) instead of the quest for a neutral arbiter (court appointed experts), mechanism traditionally chosen by civil law jurisdictions.

The need to mitigate this asymmetry of information between judges and economic experts has also led to the development of hybrid mechanisms (e.g. assessors, specialised courts) and to the adoption in the United States (US) of specific rules for the admissibility and the evaluation of economic evidence. The UK Competition Commission, but also most recently the European Commission have adopted best practices governing the submission of economic evidence in their proceedings. 

For more information, see Suggested Best Practice for Submissions of Technical Economic Analysis from Parties to the CC available at:

www.competition-commission.org.uk/rep_pub/corporate_documents/
corporate_policies/best_practice.pdf

and European Commission Best Practices for the Submission of Economic Evidence available at: 

http://ec.europa.eu/competition/consultations/2010_best_practices/
best_practice_submissions.pdf

The session will discuss, among other questions, the practical implications of these texts, the issue of expert bias and how to address it, the question of adopting more extensive admissibility standards for economic expertise, as well as the way economic evidence is assessed by courts and competition authorities and the probative value of the different types of economic evidence.

For example, are there any types of economic methods and models to which, in your experience, courts are more receptive in the quantification of antitrust damages (comparator-based, financial analysis based or market structure based)? If so, why?

The starting point for the discussion will be a paper on 'Judging' Economists: Economic Expertise in Competition Law Litigation - A European View (September 4, 2009). University College of London Centre for Law and Economics Working Paper No. 01-09.

Available at SSRN: http://ssrn.com/abstract=1468502

Cycle Distributive Justice

Competition Law and Distributive Justice: A Critical State of Play 

13 July 2011

Speakers

Professor Herbert Hovenkamp
Ben and Dorothy Willie Chair, College of Law, University of Iowa

Commentators

Dr Amelia Fletcher, Chief Economist, Office of Fair Trading 
Professor Kai-Uwe Kühn, Chief economist, DG Competition, European Commission
Dr Jorge Padilla, Senior Managing Director and Head of Compass Lexecon Europe
Professor Richard O. Zerbe
Daniel J Evans, Professor of Public Affairs, University of Washington 
Dr Ioannis Lianos, City Solicitors' Educational Trust Reader in European and Competition Law; Director, Centre for Law, Economics and Society, UCL

About this talk

Paper by Prof Hovenkamp

Comments by Dr Fletcher 

http://ucl-distributive-justice.eventbrite.co.uk/

The debate over the objectives of competition law statutes has recently intensified. There are many reasons for this:

First, competition law has expanded globally to different forms of economies and societal bases, thus leading to different conceptions over its scope and aims.

Second, the expansion of competition law has led to tensions between different legal regimes regulating the conduct of corporations in global markets.

Thirdly, more and more State activities are now infused with a form of competition culture: competition law is applied to previously exempted economic activities and even to some State activities, competition advocacy has also developed. Equity considerations are explicitly integrated as objectives of several competition legislations around the world, and more specifically EU competition law in the area of state aids control, alongside efficiency (total welfare).

Some could also envision the standard of consumer welfare as a distributive justice standard, in the sense that it focuses on wealth transfers from consumers to antitrust law infringers. This raises questions over the deep meaning of competition law and its interaction with other public policies, including policies aiming at wealth redistribution.

Fourthly, economic analysis and evidence has become an essential ingredient of competition law discourse. Economic rhetoric emphasises efficiency considerations, but does not suppress the need for distributive choices. The recent work of the Stiglitz, Sen and Fitoussi Commission on the measurement of economic performance and social progress and the OECD happiness index illustrate this trend.

Recent work has also highlighted the importance of equality concerns and distributive justice in public policy more generally (e.g. "The Spirit level"). More generally, there are fundamental questions raised by the application within the legal system of the principles of welfare economics, in view of the Stiglitz-Atkinson theorem and more generally the consideration of distributive justice by welfare economics.

The concept of distributive justice also has considerably evolved over time. To be sure, its content is not the same as in the 1930s'. Finally, the recent emphasis of competition law worldwide on fostering consumer interest requires difficult choices from policy makers, competition authorities and the courts.

They must set priorities over the long v. short term consumer interest (thus including intertemporal trade offs), trade off the interest of some classes of consumers versus others, adopt - explicitly or implicitly - a specific conception of the consumer (marginal versus infra-marginal, neoclassical versus behavioural...).

The objective of this workshop will be to reflect on these fundamental issues in competition law and policy by inviting contributions from competition lawyers, economists, historians of economic thought, philosophers and sociologists.