When emerging economies draft competition law and begin to enforce it, they usually draw on the EU and US competition law systems. However, significant country-specific legal and practical variations tend to arise quickly, making it imperative for international business lawyers to acquire more than a passing knowledge of competition legislation and relevant case law in these countries. Now for the first time a thoroughly researched book provides an in-depth empirical analysis of the legal problems raised for competition, and especially for merger control and its enforcement, in emerging economies, using a case study approach in the Brazilian and Argentinean contexts to reveal paradigmatic trends. Brazil and Argentina are chosen not only because they are among the major trading jurisdictions in the developing world, but also because they have each established a track record of over a decade in formulating and enforcing a system of merger control. The author describes and analyses all Brazilian and Argentinean legislation in the field of competition law, as well as the main merger decisions adopted by the competition authorities and the judgements held by the courts of these countries. The book thoroughly covers the system of competition law currently enforced in each country, as well as the main innovations of proposed new competition law currently pending in Brazil. In addition, the author draws on field interviews with competition lawyers and officers of competition authorities conducted between April and July 2008 in Buenos Aires, Brasilia, and São Paulo. The analysis considers such issues as the following: y impact of M & As on the level of competition in the markets of developing countries; y enforcement of competition law and the judiciary; y criteria for notification of economic concentrations; y application of econometric tests to define the relevant market and the degree of market concentration.

This study investigates whether the existing regulatory framework governing the telecommunications sector in countries in Sub-Saharan Africa effectively deals with emerging competition-related concerns in the liberalised sector. Using Uganda as a case study, it analyses the relevant provisions of the law governing competition in the telecommunications sector, and presents three key findings: Firstly, while there is comprehensive legislation on interconnection and spectrum management, inefficient enforcement of the legislation has perpetuated concerns surrounding spectrum scarcity and interconnection. Secondly, the legislative framework governing anti-competitive behaviour, though in line with the established principles of competition law, is not sufficient. Specifically, the framework is not equipped to govern the conduct of multinational telecommunications groups that have a strong presence in the telecommunications sector. Major factors hampering efficient competition regulation include Uganda’s sole reliance on sector-specific competition rules, restricted available remedies, and a regulator with limited experience of enforcing competition legislation. The weaknesses in the framework strongly suggest the need to adopt an economy-wide competition law. Lastly, wireless technology is the main means through which the population in Uganda accesses telecommunications services. Greater emphasis should be placed on regulating conduct in the wireless communications markets.

As a country on the way to integration with the European Union (EU), Turkey has been following EU principles in establishing and improving its merger control regime, as well as overall competition law, keeping pace with changes in relevant EU legislation and case law. This book presents, for the first time, a description and analysis of the relationship between the EU and Turkish merger control law and practice. The second edition of the book considers the legislative changes that occurred in 2020-2021, including the reform of the Turkish Competition Law which introduced the significant impediment to effective competition (SIEC) test into the Turkish concentration control. The authors—all three, both practicing lawyers and academicians in Turkey—focus on comparing substantive, procedural and jurisdictional issues and draw parallels on their regulation in the two jurisdictions. These matters include the following: determining whether a transaction shall be regarded as a notifiable merger, hence be subject to control; financial thresholds used for allocating jurisdictions; extraterritoriality of merger control; relationship between the SIEC test and the dominance test; determination of the relevant market; techniques used for assessment of horizontal and non-horizontal mergers; notification requirements; procedural duties of competition authorities in relation to remedies; third-party rights; gun-jumping fines and other sanctions for failure to comply with merger control requirements; and peculiarities of assessment of mergers in the Big Data world. Each chapter provides an overview of the respective issues in the EU and Turkey, projecting a clear understanding of the main similarities and differences in the two regimes. A notable feature is an in-depth analysis of applicable case law concerning each issue, with most of the Turkish decisions available in English for the first time. The book’s comparative approach will prove to be of great value. With its clear answers to questions about what transactions are subject to merger control, what criteria are used in assessing those transactions, and the main issues that a foreign company should be aware of while merging with another foreign company with effect in Turkey and/or EU, the book will be of immeasurable value for lawyers and their business clients dealing with multijurisdictional merger cases. Interested academics and policymakers will also find much here to attract their attention.

Over the past 30 years, merger control has become well-established around the world with broad consensus around its ambit and objectives. That consensus has fractured in recent years. Enforcement today is at a critical juncture, facing an array of challenges and calls for reform unprecedented in their scope and intensity. Authored by leading legal practitioners, economists, enforcers and jurists, this timely Research Handbook on Global Merger Control discusses those challenges and predicts how merger control is likely to evolve.

The role of intellectual property rights in merger control procedures has not received the attention it warrants. Most research has focused on the assessment of intellectual property rights in anticompetitive conducts rather than on how a firm can monopolise a market by accumulating such assets. This is despite the fact that access to such assets, whether used or unused, is often a key factor, if not the only one, motivating mergers. This book, the first to address trademarks and brands from the perspective of merger control procedure, studies the legal issues of the topic. It provides a comprehensive response to the question of how European and Swiss competition authorities should consider trademarks and brands when assessing a merger. The author's thorough and critical approach addresses topics such as: - the in-depth assessment of the legal and economic foundations of both trademarks and brands, and merger control; - why trademarks and brands may be relevant to the assessment of mergers, including the distinction between trademarks and brands, the origin of the brands' strength according to marketing sciences, and how and why brands may provide market power to their holder; - the conditions under which the assignment or licence of a trademark may qualify as a concentration under the definition of the European Union Merger Regulation or of the Swiss Cartel Act; - the role played by trademarks and brands in the substantive assessment of a merger, including the definition of the relevant markets, different types of mergers, and the invocation of the failing firm defence; - the provision of detailed guidelines describing the possible influence of trademarks and brands on the outcome of the merger assessment; and - the importance of trademarks and brands in the design and assessment of remedies. At every stage of the study, special attention is given to the decisions of both the European Commission and the Swiss Competition Commission. As the first detailed analysis of the role of trademarks and brands in the assessment of mergers, this book constitutes a deep and illuminating answer to the uncertainties regarding the outcomes of the assessment of mergers that derive from the 'more economic approach' prevailing in European Union Law. It cannot fail but capture the interest of practitioners, businesspeople and academics whose work involves competition and intellectual property.

Every year, top-level market regulators, academics and legal and economic practitioners contribute to the Annual Competition Workshop organised at the European University Institute in Florence. The Co-Directors of the Workshop are Philip Lowe, Mel Marquis and Giorgio Monti. Workshop participants address and critically analyse a particular set of topical issues in the field of competition law and policy. The proceedings are published in Hart's European Competition Law Annual series. This is the fifteenth in the ECLA series. It encompasses numerous chapters that examine the field of merger control from a variety of perspectives. In these chapters the contributors discuss legal and economic issues of substantive analysis, procedure, comity and best practices, as well as matters relating to the litigation of merger cases, particularly before the European Courts. The discussion also benefits from the perspectives of policy makers and experts from Canada, China, Japan, Korea, the United States and other jurisdictions and regions. Authors contributing to this book include: John Boyce Calvin Goldman Andreas Mundt Rachel Brandenburger Klaus Gugler Lars-Hendrik Röller Jochen Burrichter Barry Hawk Tadashi Shiraishi Maher Dabbah Scott Hemphill Irwin Stelzer Thomas Deisenhofer Seonghoon Jeon James Venit Götz Drauz William Kovacic Sven Völcker Kirsten Edwards Mel Marquis Vanessa Yanhua Zhang Adam Fanaki Abel Mateus Xinzhu Zhang

The elements of infrastructure – roads, transportation, electricity, water, communications, schools, hospitals – are so ingrained in the fabric of daily life that few people give a second thought to who provides them, and how. Yet, they are controlled by an extensive and complex regulatory system. Moreover, the EU’s State aid modernization plan has made infrastructure a crucial aspect of competition law. How did EU State aid law turn into regulation on whether a city can build a new airport, or how it may operate a school? And what do the rules actually mean for infrastructure funding? These are the questions this book, the first comprehensive guide to EU State aid law in this key sector and a major contribution to the debate on the topic, seeks to answer. In its thorough review of the legal literature as well as relevant legislation and case law, this book covers such aspects of the infrastructure-State aid nexus as the following: – role of infrastructure in competition law; – infrastructure funding as aid and its compatibility with the internal market; – impact on land development and other ongoing activities; – sector-specific impact of State aid regulation on the design of infrastructure projects; – risk management; and – newer infrastructure sectors such as sports and cultural and healthcare projects. At many points in the presentation, the case-by-case analysis provides individual appraisals. In addition to focusing on the complex rules and how they have been interpreted in the decisional practice of the Commission and in the EU case law, this book provides deeply informed proposals for reform. This is a key work in a field of EU law that has developed and changed dramatically in recent years. It is sure to be of immeasurable value to practitioners and jurists in State aid law, competition law, and public procurement, as well as market actors (aid beneficiaries and competitors), policymakers, government officials, and business persons in these fields.

If an EU industrial policy can be said to exist, its contours may be found in the complex and evolving concept of State aid. Because approaching any State aid issue can be fraught with multiple and sometimes conflicting interpretations, an in-depth analysis of the rationales, initiatives, and regulations that constitute the State aid system is much needed. In response to this need, this book provides a fine-grained clarifying context through which recent reforms, policy shifts, and judicial decisions concerning State aid can be understood and applied to specific situations. Focusing on the impacts of landmark cases and policy developments leading up to a deeply informed critique of the current State Aid Modernisation Programme, the authors cover such issues and topics as the following: – linkages to other established and evolving EU common policies and common strategies; – effect of EU State aid rules in the expanding geopolitical regions of EU influence; – interaction with the WTO Subsidies and Countervailing Measures Agreement; – the problem of a ‘subsidies culture’; – how the European Commission’s notion of ‘bad’ State aid has evolved; – effect of EU policy imperatives (e.g., environmental goals) which implicitly argue for increased subsidisation; – nexus with EU tax harmonisation; – competition among undertakings versus competition among Member State policies; and – nature of the quasi-devolution of regulatory responsibilities to EU Member States. This book is a crucially important source of both theoretical enlightenment and practical wisdom that will greatly enhance confident progress through any legal matter involving EU State aid rules. It will prove of immeasurable value to practitioners, in-house counsel, policymakers, and academics for many years to come.

Reverse payment settlements or “pay-for-delay agreements” between originators and generic drug manufacturers create heated debates regarding the balance between competition and intellectual property law. These settlements touch upon sensitive issues such as timely generic entry and access to affordable pharmaceuticals and also the need to preserve innovation incentives for originators and to strengthen the pipeline of life-saving pharmaceuticals. This book is one of the first to critically and comparatively analyse how such patent settlements and various other strategies employed by the pharmaceutical industry are scrutinised by both United States (US) and European courts and enforcement authorities, and to discuss the applicable legal tests and the main criteria used for their assessment. The book’s ultimate objective is to provide guidance to the pharmaceutical industry regarding the types of patent settlements, strategies and conduct which may be problematic from US antitrust and European Union (EU) competition law perspectives and to assist practitioners in structuring settlements which are both efficient and compliant. To this end, an exhaustive legal analysis of some of the most controversial issues regarding pharmaceutical patent settlements is provided, including: – the lengthy split among US Circuit Courts on the issue of pay-for-delay settlements, its resolution by the US Supreme Court in FTC v. Actavisand subsequent jurisprudence; – the decision of Lundbeck v. Commissionby the European General Court and the Servier decision of the European Commission; – the Roche/Novartisdecision of the European Court of Justice and the most important decisions by National Competition Authorities on pharma patent settlements in the EU; – an overview of other types of strategies such as product-hopping and product reformulations, no-authorised generic commitments, problematic side-deals, mechanisms affecting generic substitution; – the rejection of the “scope of the patent” test in both the US and the EU and the balancing of patent law and antitrust law considerations in the prevailing applicable tests; – the benefits of settlements and the main criteria for assessing their legitimacy under US antitrust and EU competition law. The analysis provides concrete examples of both illegitimate and legitimate settlements and strategies, emphasising on conduct that falls within a grey zone and on the circumstances and criteria under which such conduct could be deemed problematic from an antitrust perspective. This book will serve as a valuable guide for pharmaceutical companies wishing to minimise the risk of engaging in conduct that could potentially infringe US antitrust and EU competition law. It further aims to save courts and enforcement agencies and also practitioners and academics considerable time and resources by providing an exhaustive analysis of the relevant caselaw, with the ultimate goal to increase legal certainty on the most controversial aspects of patent settlements in the pharmaceutical industry.

Vertical agreements represent a variety of supply and distribution contracts involving different market players, such as suppliers of diverse inputs, manufacturers, distributors and retailers. They gain particular significance in a global economy where technological advances are dynamic and are changing all the time. Such agreements are signed among businesspeople on a daily basis, and antitrust experts around the world are often asked to advise on whether they have any negative impact on competition or whether they infringe antitrust law. Taking into consideration the complex economic impacts of these vertical alliances, and the different market conditions that firms face in a wide variety of situations, the author proposes an in-depth examination of the following topics: resale price-fixing; geo-blocking clauses; exclusive and selective distribution systems; the concept of ‘economic efficiency’ in the context of vertical restraints; self-assessment of potential anticompetitive effects and antitrust risks; ex post control of vertical restraints; digital economies and its policy impact; alternative enforcement models under various institutional frameworks; the role and influence of political pressure groups. The book offers very constructive theoretical and political insights at the frontier between the disciplines of Economics and Law. By comparing two world’s leading antitrust jurisdictions, this book explores the lessons to be learned from the legal rules in the European Union and in Brazil, considering their promises and drawbacks, and formulates policy recommendations.