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ploitative and this category of abuse is rarely found 62 a rarer issue is that of predatory pricing 63 the practice of dropping prices of a product so much that one s smaller competitors cannot cover their costs and fall out of business although it is not impossible for such practices to be found in the eu case of france telecom sa v commission 64 a broadband internet company was forced to pay 13 9 million for dropping its prices below its own production costs it had no interest in applying such prices except that of eliminating competitors 65 and it was being cross subsidized to capture the majority share of a booming market a third category of pricing abuse is price discrimination 66 an example of this could be a company offering rebates to industrial customers who export their sugar but not to customers who are selling their goods in the same market 67 collusion edit this section is an excerpt from collusion edit collusion is a deceitful agreement or secret cooperation between two or more parties to limit open competition by deceiving misleading or defrauding others of their legal right collusion is not always considered illegal it can be used to attain objectives forbidden by law for example by defrauding or gaining an unfair market advantage it is an agreement among firms or individuals to divide a market set prices limit production or limit opportunities 68 it can involve price or wage fixing kickbacks or misrepresenting the independence of the relationship between the colluding parties 69 in legal terms all acts effected by collusion are considered void 70 cartel edit this section is an excerpt from cartel edit a cartel is a group of independent market participants who collaborate with each other and avoid competing with each other in order to improve their profits and dominate the market they seek to limit competition fix prices and increase prices by creating artificial shortages through low production quotas stockpiling and marketing quotas cartel behaviors can be either legal or illegal 71 but jurisdictions frequently consider cartelization to be anti competitive behavior leading them to outlaw or curtail cartel practices anti trust law targets cartel behavior in markets mergers and acquisitions edit main article merger control see also mergers and acquisitions in united kingdom law mergers in united kingdom law and merger guidelines competition law regulates mergers and acquisitions prospectively rather than retrospectively in order to prevent potential monopolies and market domination 72 with companies intending to merge often needing to gain authorization from the state before they can do so when assessing whether a merger or acquisition can be allowed courts and other officials consider whether there will be a significant effect on competition 73 74 this is often done through the consideration of empirical evidence 75 although mergers can produce economic benefits such as reduced transaction costs and increased economies of scale economies of scope and economies of density 76 77 they also result in the concentration of economic power 78 as such courts often examine include the herfindahl hirschman index 79 the propensity of oligopoly via economic links 80 the transparency of a market 81 and barriers to entry 82 balancing the potential noncompetitive effects of a merger against the possible economic efficiencies and scientific discoveries that may also arise as a result 83 84 another possible defense might be that the firm which is being taken over is about to fail or go insolvent and so the resulting competitive state would not be lessened 85 this is known as the failing firm defense and has been a regular feature of the u s horizontal merger guidelines since 1982 86 mergers vertically in the market are rarely of concern although in aol time warner 87 the european commission required that a joint venture with a competitor bertelsmann be ceased eu authorities have also focused on the effect of conglomerate mergers where companies acquire a large portfolio of related products though without necessarily dominant shares in any individual market 88 public finance subsidies and aid edit bid rigging in public procurement is often illegal across jurisdictions in corruption law and often competition law 89 90 91 92 intersection with other areas of law edit contract law edit competition law may act to restrict the kinds of contracts that can be formed within parties prohibiting anticompetitive practices such as exclusive dealing retail agreements 93 employment law edit competition law may restrict occupational licensing 94 certification bodies for example can engage also anti competitive actions 95 via medical certification bodies reducing competition in health care and thus worsening health economics and health care quality 96 non compete clauses may also be illegal in competition law 97 intellectual property edit competition law has become increasingly intertwined with intellectual property such as copyright trademarks patents industrial design rights and in some jurisdictions trade secrets 98 it is believed that promotion of innovation through enforcement of intellectual property rights may both promote and limit competitiveness the question then turns on whether it is legal to acquire monopoly through accumulation of intellectual property rights in which case the judgment decides between giving preference to intellectual property rights or to competitiveness 99 defences edit defences to competition law litigation include ones grounded in constitutional rights e g the us noerr pennington doctrine 100 sovereign immunity e g the us parker immunity doctrine 101 and copyright misuse remedies edit competition and antitrust law can require a large conglomerate to be broken up into separate smaller companies 102 for example the united states required american telephone telegraph at t and standard oil to break up 103 additional approaches to prevent monopoly profits include local loop unbundling merger control and monopoly profits taxes 104 principles edit consumer welfare standard edit across many jurisdictions a broad principle of competition law that has been applied is the consumer welfare standard regards the impact of business practices on consumer welfare as an important if not decisive factor in determining whether to find against the business 105 despite its name the consumer welfare standard as originally expressed by conservative legal scholar robert bork does not strictly aim to maximise consumer welfare but the welfare of both producers and consumers the use of the consumer welfare standard as a decisive test for whether the law should intervene has been criticised for inappropriately restricting the scope of competition law to effects on prices to consumers instead of more broadly considering issues of fairness efficiency and justice today most jurisdictions agree that the consumer welfare standard is not solely decisive in competition law cases but is one of a number of factors the courts should consider 106 policy and juridical decision making edit the creation of competition law and policy in statute and other sources of law generally aims to strike a balance between clarity and discretion the former allowing businesses and officials to understand and apply the law without unintended consequences and the latter allowing officials to decide between a range options that have different economic and political implications 107 the application of competition law also balances between a number of factors beyond a firm s market share or the mere existence of a monopoly such as the extent to which the firm abuses its monopoly power or to which consumers are paying excessive prices 108 under eu law for example very large market shares raise a rebuttable presumption that a firm is dominant 109 110 if a firm has a dominant position then there is a special responsibility not to allow its conduct to impair competition on the common market 111 another deciding factor in determining an abusive monopoly is if the firm behaves to an appreciable extent independently of its competitors customers and ultimately of its consumer 112 economics edit main article competition law theory modern economists and competition lawyers recognise that market failure may occur for a number of reasons and generally agree that intervention is justified if government failure can be avoided 113 economists acknowledge that perfect competition is seldom observed in the real world and so aim for what is called workable competition 114 115 116 contemporary economic developments have challenged conventional industrial organisation models and the efficacy of conventional competition law tools 117 118 119 as a result modern directions of competition law include new and increased focuses on information economics digital economy and platform economy including considerations of enforcement speed dynamic models of competition competitive harms beyond the consumer network effects winner take all markets market dominating firms monopsony powers transaction costs non monetary costs value of information and attention costs 120 121 large platform companies tend to engage in complex and multidimensional strategic choices that can be difficult to subject to contemporary regulations 122 for example amazon and alibaba can change market structure by connecting geographically dispersed buyers and suppliers through centralised infrastructure imposing terms of participation that privately regulate the market structure and the governance of the platform itself 118 122 artificial intelligence can pose challenges in preventing a winner take all market due to the positive feedback of recursive self improvement 123 by country edit asia edit in many of asia s developing countries including india competition law is considered a tool to stimulate economic growth in korea and japan the competition law prevents certain forms of conglomerates in addition competition law has promoted fairness in china and indonesia as well as international integration in vietnam 1 hong kong s competition ordinance came into force in the year 2015 124 india edit main articles the competition act 2002 and competition commission of india during india s economic liberalization the government of india enacted competition laws such as the monopolies and restrictive trade practices act of 1969 which became obsolete in 1991 and replaced by the competition act 2002 the competition commission of india is the quasi judicial body established for enforcing provisions of the 2002 act 125 126 127 china edit main article anti monopoly law of china the anti monopoly law of china came into effect in 2008 for years it was enforced by three different branches of government but since 2018 its enforcement has been the responsibility of the state administration for market regulation the people s daily reported that the law had generated 11 billion rmb of penalties between 2008 and 2018 128 asean member states edit as part of the creation of the asean economic community the member states of the association of south east asian nations asean pledged to enact competition laws and policies by the end of 2015 129 today all ten member states have general competition legislation in place while there remains differences between regimes for example over merger control notification rules or leniency policies for whistle blowers 130 and it is unlikely that there will be a supranational competition authority for asean akin to the european union 131 there is a clear trend towards increase in infringement investigations or decisions on cartel enforcement 132 americas edit united states antitrust edit main article united states antitrust law senatorial round house by thomas nast 1886 section 1 of the sherman act declared illegal every contract in the form of trust or otherwise or conspiracy in restraint of trade or commerce among the several states or with foreign nations section 2 prohibits monopolies or attempts and conspiracies to monopolize following the enactment in 1890 us court applies these principles to business and markets courts applied the act without consistent economic analysis until 1914 when it was complemented by the clayton act which specifically prohibited exclusive dealing agreements particularly tying agreements and interlocking directorates and mergers achieved by purchasing stock from 1915 onwards the rule of reason analysis was frequently applied by courts to competition cases however the period was characterized by the lack of competition law enforcement from 1936 to 1972 courts application of antitrust law was dominated by the structure conduct performance paradigm of the harvard school from 1973 to 1991 the enforcement of antitrust law was based on efficiency explanations as the chicago school became dominant and through legal writings such as judge robert bork s book the antitrust paradox since 1992 game theory has frequently been used in antitrust cases 133 with the hart scott rodino antitrust improvements act of 1976 mergers and acquisitions came into additional scrutiny from u s regulators under the act parties must make a pre merger notification to the u s department of justice and federal trade commission prior to the completion of a transaction as of february 2 2021 the ftc reduced the hart scott rodino reporting threshold to 92 million in combined assets for the transaction 134 canada edit main article competition act canada s competition laws are primarily governed by the competition act a federal statute that regulates business practices to maintain fair competition in the marketplace the act includes both criminal and civil provisions aimed at preventing anti competitive behavior such as conspiracies bid rigging abuse of dominance and deceptive marketing 135 the competition bureau an independent law enforcement agency administers and enforces the act with cases adjudicated by the competition tribunal and courts 136 the evolution of competition law in canada dates back to the anti combines act of 1889 one of the earliest antitrust laws worldwide which prohibited business conspiracies and agreements that restrained trade over time this early law was replaced and updated by various laws including the combines investigation acts of the early 20th century the modern competition act replaced the combines investigation act in 1986 introducing provisions for civil review of mergers and anti competitive practices under a balance of probabilities standard along with maintaining criminal sanctions for serious offenses like conspiracy and bid rigging since then the act has undergone multiple amendments to improve enforcement clarify provisions and adapt to new market challenges while initially enforcement was exclusive to government authorities more recent amendments have allowed for limited private rights of action the competition act and its enforcement framework emphasize preventing undue lesseni...
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