Competition Law in a Global Context: Analysing the Trans-Atlantic Divide
In this Section:
A growing number of companies operate on a global scale attracting the scrutiny of multiple competition law authorities around the world. As some of the largest and most developed antitrust jurisdictions in the world, the US and the EU are often looked upon as influential authorities on competition law standards and approaches. They do not always agree, but they are not necessarily as divergent as it is sometime suggested in the literature. This conference will discuss the relationship between the two jurisdictions.
To examine these issues the conference will bring together academics, practitioners, and regulators from the EU and the US. It will consist of four panels, one of which will be structured as a moderated conversation among current and former enforcers from the US and Europe:
- Anticompetitive Agreements
- A Conversation with Competition Law Enforcers
- Objectives of Competition Law
- Competition Law and IP
The conference will take place at the School of Law, University of Leeds from 9.15am until 5.15pm on 15 September 2017.
This full-day conference is jointly organised and funded by the Centre for Business Law and Practice (CLBP) at the School of Law and the International Center for Law and Economics (ICLE) in Portland, OR, USA.
The CPBL is a leading research centre based at the School of Law, University of Leeds. Its expertise includes corporate and financial law, commercial and consumer law and, competition/antitrust law. It is large and well-established, with over 20 academic members, half of which are professors. Its members have established international reputations in the broad field of business law, and in particular in corporate and financial law.
The International Center for Law & Economics (ICLE) is a nonprofit, non-partisan research center. Working with a roster of more than fifty academic affiliates and research centers from around the globe, ICLE develops and disseminates targeted academic output to build the intellectual foundation for rigorous, economically-grounded policy.
The conference will be preceded by Professor Pinar Akman’s Inaugural Lecture, which will take place at 5.00pm on 14 September 2017 at the School of Law, University of Leeds. Additional registration for the Inaugural Lecture is required; it can be done on a different Eventbrite page to that for the conference itself. To register for the Inaugural Lecture please click here.
The School of Law, University of Leeds is accredited by the Bar Standards Board to provide CPD for barristers at the Bar of England & Wales. The conference is accredited with 7 CPD hours for barristers at the Bar of England & Wales. We are willing to confirm the attendance of solicitors for CPD purposes on their individual CPD records.
Moot Court Room, Liberty Building, School of Law, University of Leeds, LS2 9JT (download map).
There is limited car-parking available on campus on a first come, first serve basis.
This conference is generously supported with additional funding obtained from:
15 September 2017
09.15-09.30: Welcome from the Head of School, Professor Alastair Mullis
09.30-11.00: Panel 1: Anticompetitive Agreements
Moderator: Professor Pinar Akman, University of Leeds
- Professor Peter Whelan, University of Leeds (‘Cartel Criminalisation: Explaining the Trans-Atlantic Divide’)
- Professor Salil Mehra, Temple University (‘Robo-Selling, Big Data and Antitrust’s Error-Cost Framework’)
- Dr Marek Martyniszyn, Queen’s University Belfast (‘Developing Countries’ Fight with International Cartels: In Search of a System’s Realignment’)
11.15-12.45: Panel 2: A Conversation with Competition Law Enforcers
Moderator: Dr John Temple Lang, Adjunct Professor, Trinity College Dublin
- Rainer Becker, Deputy Head of Unit, Policy and Strategy Directorate, DG Competition, European Commission
- Dr Philip Marsden, Senior Director, Case Decision Groups, Competition and Markets Authority, UK
- Abbott (Tad) Lipsky, Former Acting Director of Bureau of Competition, Federal Trade Commission
- Dr Arvid Fredenberg, Chief Economist, Swedish Competition Authority
13.45-15.15: Panel 3: Objectives of Competition Law
Moderator: Geoffrey Manne, International Center for Law and Economics
- Professor Ariel Ezrachi, Oxford University (‘Potato, Potahto, Tomato, Tomahto - Let's Call the Whole Thing Off!’)
- Judge Douglas Ginsburg, Senior Judge, US Court of Appeals, DC Circuit; Professor of Law, George Mason University (‘Welfare Trumps Choice - But Whose Welfare?’)
- Dr Anne Layne-Farrar, Charles River Associates (‘Limiting Principles that Encourage Innovation’)
15.30-17.00: Panel 4: Competition Law and IP
Moderator: Dr Konstantinos Stylianou, University of Leeds
- Professor Nicolas Petit, Université de Liège (‘Adverse Patent Implementation and the Royalty Gap’)
- Dr Hedvig Schmidt, University of Southampton (‘Fantastic Beasts and How to Deal with Them Under the Competition Rules’)
- Professor Koren Wong-Ervin, Global Antitrust Institute (‘Standard-Essential Patent and FRAND: The International Landscape’)
- Dr Alan Devlin, Latham & Watkins LLP (‘Beyond Patent Scope and the Existence-Exercise Dichotomy: Understanding the Antitrust-IP Intersection Today’)
17.00-17.15: Final Comments: Professor Pinar Akman and Geoffrey Manne
- Rainer Becker (European Commission)
- Alan Devlin (Latham & Watkins LLP)
- Ariel Ezrachi (Oxford University)
- Arvid Fredenberg (Swedish Competition Authority)
- Douglas Ginsburg (US Court of Appeals, DC Circuit)
- Anne Layne-Farrar (Charles River Associates)
- Tad Lipsky (Latham & Watkins LLP)
- Philip Marsden (Competition and Markets Authority)
- Marek Martyniszyn (Queens University)
- Salil Mehra (Temple University)
- Nicolas Petit (Université de Liège)
- Hedvig Schmidt (University of Southampton)
- John Temple Lang (Trinity College Dublin)
- Peter Whelan (University of Leeds)
- Koren Wong-Ervin (Global Antitrust Institute)
Summary of the conference, written by Magali Eben, John Gannon and Omar Mashjari, PhD Candidates (in Competition Law), School of Law.
On Friday 15 September 2017, leading scholars and practitioners assembled in Leeds for the international conference ‘Competition Law in a Global Context: Analysing the Trans-Atlantic Divide’. The conference was jointly organised and co-funded by the Centre for Business Law and Practice (CLBP) at the School of Law and the International Center for Law and Economics (ICLE) in Portland, OR, USA. It was further supported by Addleshaw Goddard LLP, Eversheds Sutherland LLP, Google, Oxford University Press and Hart Publishing. The event explored the relationship and divergences between the European approach to competition law and the American approach to antitrust.
The conference covered a range of topics, including anticompetitive agreements, the objectives of competition law, and the intersection between competition law and intellectual property. It comprised four panels, including a keynote panel in moderated discussion format featuring current and former competition enforcers from the EU and the US.
The first panel, moderated by Professor Akman of the University of Leeds, dealt with a broad range of issues concerning the prohibition on cartel agreements. Professor Peter Whelan of the University of Leeds discussed the differing approaches to cartel criminalisation in different jurisdictions, highlighting markedly varied attitudes regarding prosecution, incarceration rates and moral attitudes across the international competition community. Professor Salil Mehra, of Temple University, articulated the challenges to the competition law frameworks of both the EU and USA presented by businesses that use algorithms to engage in automated decision making. In particular, he emphasized the significant potential for economic efficiency and the important role of the rule of reason in assessing, when there is collusion, whether such practices breach the competition rules. Finally, Dr Marek Martyniszyn, of Queens University Belfast, analysed the specific challenges faced by developing countries fighting international cartels (for example, the significant transfer of wealth to other jurisdictions when the competition law is breached).
The keynote panel that followed was moderated by Dr John Temple Lang of Trinity College Dublin, and involved a vigorous debate between current and former competition law enforcers from both sides of the Atlantic. The debate between Dr Rainer Becker of the Directorate-General of Competition of the European Commission, Dr Philip Marsden of the UK’s Competition and Markets Authority, Tad Lipsky of the Federal Trade Commission (formerly), and Dr Arvid Fredenberg of the Swedish Competition Authority mainly focussed on the convergence and divergence between the approaches of different enforcement agencies in the different jurisdictions. The points of views of the enforcers themselves diverged on many a point. They disagreed on how big a contribution the International Competition Network had made to the convergence of rules and decisions between different jurisdictions. And, when discussing the converging impact of economic analysis on decision-making, there was some disagreement on how fail-proof a science economics really is. They did agree on at least one point: no matter how alike economists’ conclusions may or may not be, applying economics does not necessarily lead to convergence. Differences between the jurisdictions may partially be explained by diverging objectives, argued Tad Lipsky, referring to the EU’s alleged ordo-liberalism and its objective of market integration. The philosophical differences between the EU and US were also raised, with Dr Marsden’s reference to the US’s cautious approach to intervention, and Dr Becker’s discussion of the US’s ‘belief in the self-correcting power of markets’. The discussion ended with an appeal to academics and practitioners alike to help enforcers in their ambition to explain to the wider public what the purpose of competition law is, and how it impacts society.
The conference’s third panel discussed the controversial topic of the objectives of competition law. The panel was moderated by Geoffrey Manne of the ICLE with notable speakers from both practice and academia, including Professor Ariel Ezrachi from Oxford University, Judge Douglas Ginsburg, who sits on the US Court of Appeals for the District of Columbia Circuit, and Dr Anne Layne-Farrar of Charles River Associates. The panel explored the origins of competition law, highlighting how competition regimes both in the US and EU have largely left the objectives of competition law to judges or competition authorities, which has resulted in inconsistency due to the variety of opinions. The panel agreed that the discussion on the objectives of competition is dependent on the preferred social and economic theory adopted at any one time. For instance, it noted how in the 1930s, the US Supreme Court was 'notoriously intolerant' of price discrimination as there was a populist movement. However, later a more economic-based approach was adopted which meant the removal of per se offences or offences that were illegal merely because of their specific type. It was questioned as to whether such an approach could be achieved in the European Union, with some of the speakers suggesting that the unique social fabric and historical grounding of the EU’s legal system meant this was not possible, despite the potential for a negative impact on consumer welfare. The panel proved to be a dynamic and interesting dialogue between experts in the field and, importantly, demonstrated how the debate on the objectives of competition law remains vibrant. Indeed, it is perhaps an oddity of competition law that some 130 years since its first establishment there remains ambiguity as to what its objectives are.
The last panel, moderated by Dr Konstantinos Stylianou of the University of Leeds, focussed on the intersection between competition law and intellectual property rights. It was kicked off with a presentation by Professor Koren Wong-Ervin of the Global Antitrust Institute on Standard-Essential Patents and FRAND assurances. Dr Alan Devlin of Latham & Watkins LLP then analysed the antitrust and intellectual property intersection as it currently exists, through a discussion of the ‘patent scope’ approach and the existence-exercise dichotomy. Both Professor Wong-Ervin and Dr Devlin seemed to advocate caution when looking at intellectual property rights from a competition law perspective, with Professor Wong-Ervin stating that breaches of FRAND contracts should only be antitrust law breaches if harm to competition can be shown. Dr Hedvig Schmidt followed these talks with her presentation on Patent Assertion Entities (PAEs) and patent trolls, wonderfully entitled ‘Fantastic Beasts and How to Deal with them under the Competition Rules’. Her stirring presentation led to debates with the other panellists on how difficult it may be to recognise PAEs as patent trolls, and on whether they should be a matter for competition law in the first place. The panel sparked more conversation on the remit and objectives of competition law, thus bringing the discussion back to some of the issues debated throughout the day.
The conference was preceded by Professor Pinar Akman’s inaugural lecture ‘In Search of Principles for Abuse of Market Power’ delivered the evening before. In this lecture, Professor Akman set out potential different understandings and interpretations of anticompetitive unilateral conduct, and the resulting lack of universally accepted principles. Through the reading of a poem entitled ‘Tom Smith and His Incredible Bread Machine’, written by R.W Grant, Professor Akman illustrated the incoherence, and sometimes even absurdity, which the rules in this area can exhibit.
Magali Eben, John Gannon and Omar Mashjari,
PhD Candidates (in Competition Law),
School of Law,
University of Leeds.