Avoidance Techniques: State Related Defences in International Antitrust Cases

Despite its economic significance, competition law still remains fragmented, lacking an international framework allowing for dispute settlement. This, together with the growing importance of non-free-market economies in world trade require us to re-consider and re-evaluate the possibilities of bringing an antitrust suit against a foreign state. If the level playing field on the global marketplace is to be achieved, the possibility of hiding behind the bulwark of state sovereignty should be minimised. States should not be free to act in an anti-competitive way, but at present the legal framework seems ill-equipped to handle such challenges.

This paper deals with the defences available in litigation concerning transnational anti-competitive agreements involving or implicating foreign states. Four important legal doctrines are analysed: non-justiciability (political question doctrine), state immunity, act of state doctrine and foreign state compulsion. The paper addresses also the general problem of applicability of competition laws to a foreign state as such. This is a tale about repetitive unsuccessful efforts to sue OPEC and recent attempts in the US to deal with export cartels of Chinese state-owned enterprises

UK: general - UK enforcement.

Reports that the Competition and Markets Authority (CMA) began operations in "shadow form" on October 1, 2013 prior to it taking over the mandates of the Competition Commission and the Office of Fair Trading in April 2014. Outlines the CMA's draft guidance, issued for consultation on September 17, 2013, on prosecutions for the cartel offence. Presents links to other CMA communications.

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.

Crisis Cartels:Non-Economic Values, the Public Interest and Institutional Considerations

This paper considers the use of non-economic considerations in Article 101(3) analysis of industrial restructuring agreements, using the Commission's Decisions in Synthetic Fibres, Stichting Baksteen, and the recent UK Dairy Initiative as examples. I argue that contra to the Commission's recent economics-based approach; there is room for non-economic considerations to be taken into account within the framework of the European Treaties. The competition law issue is whether the provisions of Article 101(3) can save such agreements.
I further argue that there is legal room for non-economic considerations to be considered in evaluating these restructuring agreements, it is not clear who the appropriate arbiter of these considerations should be given the institutional limitations of courts (which have no democratic mandate), specialised competition agencies (which may be too technocratic in focus) and legislatures (which are susceptible to capture by rent-seeking interest groups).

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 United States 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 eleven 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.

On Extraterritoriality and the Gazprom case

In September 2012 the European Commission opened a formal investigation of Gazprom’s business practices in the EU. The Gazprom investigation raises a number of questions. One of them is the issue of jurisdiction—whether EU competition law applies to Gazprom, a foreign company. A day after the opening of the proceeding, in a press note and alongside other issues, Gazprom raised the question of jurisdiction, noting that it complies with laws of the countries in which it operates and that is it ‘registered outside the jurisdiction of the EU’. This statement, possibly, prompted some commentators to consider the applicability of EU law in this case.
In a piece in the ECLR, entitled ‘Iron Curtain at the border: Gazprom and the Russian blocking order to prevent the extraterritoriality of EU competition law’, Sean Morris offered his views on some of the aspects of the Gazprom case, including the issue of jurisdiction. Morris discussed also the blocking Order issued by the Russian President in response to the European Commission’s investigation, and its possible effects in the Gazprom case.
This article seeks to add a few important and relevant issues of law relating to extraterritoriality and the reach of EU law generally and in particular— in the context of the Gazprom investigation and in the light of the Morris article. This piece also sheds some light on the considerations which might have informed Russia’s hastily enactment of the Blocking Order.