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ANTITRUST IN EMERGING AND DEVELOPING COUNTRIES: China, India, Mexico, Brazil, South Africa...

Concurrences Journal + New York University School of Law

Friday, October 24, 2014 from 8:30 AM to 6:30 PM (EDT)

New York, United States

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Concurrences + NYU Conference 24 Oct. 2014

 

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New York University School of Law
Greenberg Lounge
40 Washington Square South
New York

Friday, October 24, 2014 from 8:30 AM to 6:30 PM (EDT)


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Concurrences Journal + New York University School of Law

The increasing number of competition regimes worldwide gives rise to new challenges for the antitrust enforcement on the global stage. This conference delves into the issues raised by the implementation and enforcement of antitrust rules in developing countries and offers the opportunity to discuss the hottest topics with some of the most prominent antitrust academics, enforcers, and practitioners.

All tarifs include breakfast, coffees, lunch and cocktail reception. Payment must be received prior to the conference. There will be no refund after 1st October 2014. Cancellations must be received in writing; cancellation received in writing up to 2 weeks before the conference will receive a refund less 15 %. Substitutes delegates are welcome at any time. Photos will be taken at the event; attendees agree for the organizer to use these photos, unless otherwise required in writing.

This event is seeking approval for New York State CLE credit.  If approved, it will be appropriate for both experienced and newly attorneys (those admitted to the New York Bar for less than two years) and is presented in traditional (in person) format. Financial Aid is available for those who qualify.  For more information, please contact Elisa Ramundo at elisa.ramundo@concurrences.com.

Panel sponsors are AGON, AZB & Partners, Chaves, Gelman, Machado, Gilberto e Barboza Sociedade de Advogados, Cleary Gottlieb Steen & Hamilton, CRA, Levy & Salomão Advogados, Linklaters, NERA, White & Case, and Winston Strawn.  Social event sponsors are Google and Qualcomm.

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2014-07-09 15:21:40

« MAKING MARKETS WORK FOR DEVELOPMENT » : Interview with Eduardo Pérez Motta (AGON-NERA Mexico)

André Marques Gilberto – Campos Mellos Advogados, Saõ Paulo – has interviewed Eduardo Pérez Motta – former President, Federal Competition Commission, Mexico, and now Partner at AGON - NERA (Mexico).  André Marques Gilberto will participate in the panel discussion: "Making Markets Work for Development".  Other panel speakers include: Tania Begazo Gomez – World Bank – Dennis Davis – South African Competition Appeal Court – R. Shyam Khemani – former World Bank – and Professor Ian MCEwin – University of Malaya.  Professor Eleanor Fox will moderate the panel.

In addition to typical market failures – natural monopoly, externalities, asymmetric information etc. – what are the most relevant limits to competition in your jurisdiction (e.g. bureaucracy within the competition agency, protectionist measures seasonally implemented by the Federal Government, pressure from lobbyists etc.)?

Restrictions to competition in Mexico come mainly from an anticompetitive regulatory framework. This is especially important in sectors that are naturally regulated sectors like: Telecoms, Energy, Transport and Financial Services. All those sectors are network activities where efficiency depends on the size of network services offered. They all represent the basic platform of productivity in any economy.

What would be examples of recent actions taken by your Federal Government to establish a more competitive framework?

The most comprehensive set of actions taken by the Federal Government and the main political parties in the Mexican Congress are the major Constitutional regulatory reforms that started last year. All of them have the main purpose is to inject efficiency, through competition, in the education, telecoms, financial services and energy market. 

What is the importance of the connection between competition law and trade policies in terms of fostering competition in your jurisdiction?

The connection in these two policies is relevant. In the Mexican case the main introduction of competition in Mexican markets started with the opening of the economy through multilateral trade liberalization initially and then a global network of bilateral negotiation with Mexico’s main trading partners. Decisions that have taken place in 2013/2014 complement, through domestic precompetitive regulatory reforms in non-tradable service´s sectors, the competition pressure that has taken place in most tradable manufacturing activities.

2014-07-22 02:39:44

«MAKING MARKETS WORK FOR DEVELOPMENT»: Interview with Eleanor Fox (New York University School of Law)

Eduardo Pérez Motta – former President, Federal Competition Commission, Mexico, now Partner at AGON, Mexico City – has interviewed Professor Eleanor Fox who will moderate the panel: "Making Markets Work for Development". Other panel speakers include: Tania Begazo Gomez – World Bank – Dennis Davis – South African Competition Appeal Court – R. Shyam Khemani – former World Bank – and Professor Ian McEwin – University of Malaya.

There has been an intense discussion about the impact of competition and competition policy on income distribution. This is especially important in developing countries where income distribution improvement is still a major pending part of the economic agenda. What are your reflections about this?

Thank you for this question, Eduardo.  There is indeed intense discussion about the impact of markets on developing countries; about whether markets increase the disparity of wealth and income, and whether competition law and policy can counteract the growing disparities. It is a myth that markets themselves increase disparity of wealth and income and concentrate wealth in the hands of a few.   To the contrary, markets are a good friend of development, and a good friend of inclusive development, if the competition authorities do their job.  Freedom to engage in markets empowers people.  When people have the right to compete on their merits and the pathways are open -  which means not choked off by privilege and power – there is opportunity and mobility, and income should spread more evenly. But the problem in many developing countries is that a few oligopolists at the top, or the State in collaboration, skim the cream off the markets, take all good opportunities for themselves, and block the pathways for people with good ideas and merit but no political connections or power.  When the competition authority opens up the market so that merit succeeds and privilege fails, the economy grows.   Sometimes the competition authority can do this by enforcement of the competition law.  Sometimes it can do it only by good advocacy – but advocacy is a serious challenge when it attacks the privilege of the State or the friends of the State. 

What do you think are the main challenges for a competition authority in developing countries?

The challenges for competition authorities in developing countries are myriad.  The five big variables are the state of development, the strength and integrity of institutions in the country, availability of sufficient resources, independence, and leadership.  Some poorer and younger authorities may find themselves under the control of a minister who holds the purse strings, who alone may launch initiatives, and who either likes his emoluments more than competition or simply does not have the time or money for nurturing, let alone jump-starting, competition.  Fortunately, at the other end of the continuum, we have many agencies that have independence and they have their own budget.  Even so, here are a few challenges that haunt more than a critical mass of developing countries’ competition authorities:  scarcity of resources, both human and monetary, a corrupt or crony-driven system of governance, State-erected barriers to competition favoring privilege and power, weak enforcement tools, and a weak or corrupt enforcement system including the courts.  But notwithstanding all of the challenges, I see, within the agencies, great leadership, great vision, a thirst for learning how to do it better, a sharing of knowledge and expertise, and bravery in standing up to political pressures to do the wrong thing.  In my experience, the competition agency among all agencies is often the one with the most integrity, run by smart and dedicated people not beholden to the power elite, who knows how to do much with little.      

What do you think should be the ideal balance between competition policy and enforcement? Does this balance change when you compare societies with different levels of development?

In developing countries with no competition culture, in the beginning years of operation, it is likely that the authority will and should devote a large share of its time and money to competition advocacy.   It should ask itself, what are the worst restraints that keep barriers high, that keep entrepreneurs out, and that thereby entrench a society of high prices and stagnant innovation?  And it should identify a strategy for tearing down the barriers and opening the markets.  Often, enforcement of competition law will not be an available path and the agency will need to mount its challenge by advocacy.  At the same time the agency officials should keep their eyes open for good cases that are winnable and will make a difference.  These are likely to be cartel cases where the conspirators have left a string of footprints behind them. Law enforcement is always important and should never be ignored.  Until the agency has won high profile cases, it will not have the credibility to command compliance.   As the agency matures, the balance is likely to shift towards more enforcement and less advocacy; but the agency should never leave behind either advocacy or enforcement. 

2014-08-08 08:59:31

«MERGERS: THINKING LOCALLY AND GLOBALLY»: Interview with Daniel Rubinfeld (New York University School of Law)

The Antitrust in Emerging and Developing Country conference will be held on October 24, 2014 at New York University, School of Law. George Cary – Partner Cleary Gottlieb Steen & Hamilton, Washington, DC– has interviewed Professor Daniel Rubinfeld who will moderate the panel: "Mergers: Thinking Locally and Globally". Other panel speakers include: Huang Yong—University of International Business & Economics School of Law— Alessandro Octaviani—Brazilian Administrative Council for Economic Defense— and Elizabeth Wang—CRA.

Prof. Rubinfeld, Your position as an economist teaching in the Law Schools at Berkeley and NYU is indicative of how thoroughly integrated US merger control is with economic analysis and with an economically based definition of anticompetitive effects. Where are the Chinese authorities in adopting an economic framework for merger control? What can western practitioners—lawyers and economists—do to encourage adoption of an economic model of merger control?

 My experience with MOFCOM suggests that China has made significant progress in development of its merger the enforcement agency. However, further progress is needed in adding significant economic expertise. Western practitioners have been offering assistance to MOFCOM with respect to antitrust economics and should continue to do so. Perhaps equally as important is for MOFCOM to increase its reliance on the views of the talented Chinese industrial organization economists. Progress has been made and will presumably continue to be made through visible international conferences held in China and with the attendance of selected MOFCOM staff. 

 After several iterations of the US DOJ/FTC Merger Guidelines, it is now firmly established that consideration of merger specific efficiencies is intrinsic to assessing whether the impact of a merger on consumers will be pro or anticompetitive.   In this era of global merger control, what is your view of how national antitrust enforcers are to consider efficiencies that may disproportionately benefit consumers in other parts of the world in determining whether to block a merger? To what extent should a national enforcement agency take into account the decisions of heir counterparts in other countries designed to remedy a merger’s competitive impact while permitting the transaction to go forward so as to allow the realization of efficiencies in designing its own remedies?

My understanding of the US Clayton Act is that the focus is on the effect of proposed mergers on US consumers.   I also believe that similar statutes apply outside the United States. While formally, these external effects should not be counted, if global efficiency is to be achieved it is vital that external efficiencies be reflected to the extent possible within the confines of the law. I suggest, therefore, when there are substantial external benefits that agencies look towards workable fixes rather than the complete blockage of mergers. Moreover, informal discussions and/or meetings among affected agencies should help all interested parties to see the long run benefits that flow from internalizes external benefits to the extent allowable under the law.    

As a former Deputy Assistant Attorney General, what are your views about the proper role for the US antitrust agencies in advocating to its foreign counterparts, (particularly the newer agencies such as MOFCOM), for appropriate enforcement standards? Given the importance of efficiency generating mergers to the US economy, is your view the same with respect to advocating for a particular outcome in a specific transaction?

It is important for the US agencies to assist foreign agencies in developing their merger expertise generally. Both the FTC and the Antitrust Division of DOJ have been active over the past several decades in doing just this. Furthermore, while there is much work to be done, both the OECD and more recently, the International Competition Network have played a significant role in moving the multitude of enforcement agencies towards a more common set of enforcement standards.   While (to my knowledge) it has been relatively rare for the US to advocate foreign enforcement authorities with respect to specific transaction outcomes (beyond cooperating in the evaluation of mergers with overlapping jurisdiction), such intervention can be appropriate, especially in cases where actual or perceived domestic interests are believed to be driving an enforcement result. It is in the interests of all enforcement authorities to move global enforcement towards economic efficiency and to avoid competition becoming a “race to the bottom.”

2014-08-14 02:11:18
2014-08-14 02:25:22

«THERE'S A GREAT DANGER IN TRANSPLANTING COMPETITION LAW WITHOUT DUE REGARD TO THE LEVEL OF INSTITUTIONAL DEVELOPMENT OF COUNTRIES.»: Interview with Simon Roberts (University of Johannesburg)

The Antitrust in Emerging and Developing Country conference will be held on October 24, 2014 at New York University, School of Law. Clara Ingen-Housz – Partner, Linklaters, Hong Kong/Singapore – has interviewed Professor Simon Roberts – University of Johannesburg. They will speak in the panel: "Cartels and other concerted practices: proof, evidence, presumptions, enforcement". Other panel speakers include: Percival Billimoria—AZB & Partners—, Mark Gidley—White & Case—, and Agustin Ros—NERA. Frédéric Jenny will moderate the panel.

 

New authorities often need to enforce the laws while a comprehensive procedural framework is not yet in place. This generates a lot of uncertainty and results in a potential lack of trust. What are the implications for the enforcement approach of new authorities?

New authorities clearly need to spend considerable time in advocacy work explaining the competition regime to business. However, in the absence of credible enforcement, business is not likely to pay attention to the new rules. By setting out its priorities and a road map a new authority can influence expectations and identify what will be focused on first. Trying to do everything at the outset inevitably means relying on external experts and little practical recognition of the particular issues in the country in question. By comparison, moving step-by-step means the development of procedures can be sequenced with the enforcement agenda so that the rules can take into account the actual problems of enforcement and decision-making.

If industrial policy objectives are embedded in the competition law regimes in certain emerging regimes, (i) is it justified and should it be challenged, and (ii) how can these goals be better articulated and communicated?

It is natural that economic development objectives be incorporated in the objectives of competition regimes in developing countries. The nature and intensity of competition is central to the health of an economy and its characteristics - such as to what extent innovation, effort and creativity are rewarded as opposed to incumbency. And, a competition law regime cannot float in space removed from the hard economic policy choices, nor ignore the economic history of the country in question.The debate about industrial policy is confused by lack of clarity as to what is meant by it. Critics cast industrial policy as arbitrary interventions to support powerful elite interests which distort the economy. On the other hand, recognizing that market failures, such as information asymmetries which have far-reaching implications for investment and skills development, are intrinsic features of a market economy means industrial policies to support the development of productive capabilities have an important role to play. Such policies are also important to ensure effective competitive rivalry as the market failures also imply barriers to entry. Appropriate industrial policy can thus be understood as complementary to a competition law regime which recognizes the importance of active rivalry in a dynamic economy.    

Cartel investigations nowadays spread from jurisdiction to jurisdiction, in part due to increased communication between authorities. This has changed the landscape of regulatory risks for global businesses. How can this be better coordinated and how can businesses better manage this new kind of risk?

I believe that the main reason for the increased international scope of cartel investigations is that competition enforcement is slowly catching up with the international nature of coordination, given the predominance of transnational corporations in many products and services in the globalized economy. Cooperation is still relatively patchy and occurs only on major global cartels and between well-established authorities. The International Competition Network has been a crucial part of furthering cooperation and working towards greater consistency in cartel enforcement. However, there is a great danger in transplanting competition law without due regard to the level of institutional development of countries. This is evident in the push for criminalization of cartel conduct. Further improvements in coordination will depend on deepening and broadening cooperation and on the maturing of competition regimes in developing countries. This includes institutional arrangements at a regional level.

2014-10-06 07:18:27

«IT SEEMS THAT THE LEGISLATION PRIORITY OF CHINA'S MERGER REVIEW BEGINS TO CHANGE, FROM ESTABLISHING NECESSARY NEW SYSTEMS TO PERFECTING CURRENT SYSTEMS»: Interview with Professor Huang Yong (University of International Business & Economics School of Law)

The Antitrust in Emerging and Developing Country conference will be held on October 24, 2014 at New York University, School of Law. Elizabeth Wang – Principal, CRA, Boston – has interviewed Professor Huang Yong – University of International Business & Economics School of Law, Beijing. They will speak in the panel: "Mergers: Thinking Locally and Globally". Other panel speakers include: George Cary—Cleary Gottlieb— and Alessandro Octaviani—formerly, CADE; Universitu of São Paulo School of Law. Professor Daniel Rubinfeld (NYU) will moderate the panel.

What are the key trends of China’s merger review since the enactment of China’s Antimonopoly Law (AML) six years ago?

In respect of the trend of legislation, the legislation of China’s merger review is constantly improving. Since the enactment of the AML, MOFCOM has successively formulated more than 10 implementing rules involving almost all important aspects of merger review, such as notification and review procedures, assessment of impact of mergers on competition, divestiture of assets or business and review of streamlined cases. In recent two years, it seems that the legislation priority of China’s merger review begins to change, from establishing necessary new systems to perfecting current systems. For example, on July 6, 2014, MOFCOM has promulgated a new version of the Guidance on Notification of Undertakings’ Concentration (“2014 Guidance”) replacing the old one promulgated in 2009. In the 2014 Guidance, MOFCOM defines, for the first time, the concept of “control”, which is deemed to be one of the most crucial concepts when identifying whether a concentration of undertakings happens, and also specifies and clarifies many other issues that are unclear in past practice. In respect of the trend of law enforcement, there are two points need to be mentioned. First, though not enough, the transparency of enforcement of merger review is constantly enhancing. The text of decisions imposing remedies by MOFCOM is becoming longer and so do their reasoning part. Also, after a decision that arise extensive attention is made, MOFCOM will usually hold a press conference. For instance, on April 8 this year, the same day that Microsoft/Nokia transaction was imposed restrictive conditions, MOFCOM held an “Anti-Monopoly Work” press conference and DG Shang in person attended the press conference and made speech. Second, as stated in the followed, MOFCOM is being more initiative in dealing with cases it believes may raise competition concerns.

We have seen a number of global mergers and acquisitions that were cleared without conditions in the US and EU, but the Ministry of Commerce of the People’s Republic of China (MOFCOM) imposed severe conditions (e.g. Microsoft /Nokia) and even blocked the deal (P3 alliance). What are the main drivers for such differences in the outcomes for these cases? How important are non-competition factors, such as industrial policy or protection of Chinese companies, in the decision making process?

Having reviewed more than 900 cases of notifications of mergers, MOFCOM has gained more experience and confidential than 6 years ago in dealing with cases it believes may raise competition concerns. Hence, after deliberate assessment, MOFCOM may take a more positive and initiative attitude to make decisions. Theoretically, a competition enforcement agency should not consider non-competition factors when making decision. As China is still in the process of social transition, it’s inevitable that industrial policies would exert some degree of influence on MOFCOM, especial the sensitive industrial policies related to national security. However, MOFCOM is trying its best to be independent from those influences and perform its duty authorized by AML.

Unlike most jurisdictions where structural remedies are the predominant tool for merger control, MOFCOM has used considerably more behavioral remedies so far. What do you think are the key explanations for such a difference?  What is your view on the remedy known as “hold separate,” which seems to be quite unique from any other traditional merger remedies we have seen before in other countries?

In my opinion, there are three main reasons why MOFCOM uses relatively more behavioral remedies. Firstly, for some merger transactions, there is no appropriate candidate to conduct structural remedies, while it would be too strict to directly forbid the transactions. Thus, taking behavioral remedies might be the golden mean. Secondly, since the remedies are proposed by transaction parties at first, once the parties notice that MOFCOM is not willing to block transactions, they might tend to propose behavioral remedies for their transactions. Thirdly,according to MOFCOM’s practice, after receiving notifications from merging undertakings, there will be a round of consultation with industrial regulators such as NDRC, MIIT, Trade Associations and so on. The responses from them are mainly behavior remedies although MOFCOM will make the decision independently. To some extent, “hold separate” remedies may be appropriate if structural remedies is not feasible due to lack of appropriate candidates, while comprehensive evaluations have been made on whether the remedies are likely to restore the competition as intended and whether the remedies might lead to inefficiency due to the high monitoring cost and decreasing synergy gains. Otherwise, to block the merger transactions or to approve them without imposing conditions might be the better choice. One thing is important regarding hold separate, that’s the evaluation of the remedies and the standard to lift the conditions. MOFCOM hasn’t lifted one case yet. We look forward to the criteria.

To what extent does economic analysis play a role in MOFCOM’s decision making? How often does MOFCOM use outside economists to provide support?  In your view, what are the greatest achievements and challenges in terms of economic analysis in merger review in China? 

Economic analysis is increasingly playing an important role in MOFCOM’s decision making. In many cases, MOFCOM used Herfindahl-Hirschman Index (HHI) criteria to evaluate the market concentration rate. In its Thermo Fisher Scientific/Life Technologies decision, as a breakthrough, MOFCOM not only used HHI criteria, to target 13 out of 59 products for closer scrutiny, but also used Margin-HHI regression and Upward Pricing Pressure (UPP) to estimate the potential price increase. There is no official statistic about this question. But according to public resource, in many cases, economic experts from mainstream economic consulting companies are retained by MOFCOM as outside economists. The greatest achievement in terms of economic analysis in merger review in China: it helps MOFCOM’s decision-making process to be more rational and to some extent reduces the agency’s unscrupulous. The greatest challenge of economic analysis in China’ merger control is that, currently, only those economic analysis that provide supportive evidence to MOFCOM’s decision will be put into the decision announcement, and the more controversial the decisions are, the less the economic analysis appears.

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