World Competition Law and Economics Review Volume 47, Issue 3, 2020
We are happy to inform you that the latest issue of the journal is now available and includes the following contributions:
Christian Bergqvist, Post Danmark: More than Just Another Serial Infringer
The Danish Postal incumbent’s, Post Danmark, struggle to acclimatize to a market without special rights has yielded epic competition cases such as Post Danmark I and Post Danmark II. It is tempting to label Post Danmark a serial violator, but it is a company who was slow to accept that letter mail was a dying business and viewed other services merely as a commodity that could be priced accordingly. Post Danmark’s ‘troublesome relationship’ with competition law offers insights into the treatment of multi-product companies under competition law, the need to police their allocation of costs and the consequences of failing in this. Studies of Post Danmark’s ‘troublesome’ relationship with competition law offer insights into the treatment of multi-product companies under competition law the need to police their allocation of costs and the consequences of failing in this.
Aleksandra Wierzbicka, The GDPR-DMA Nexus: Is the GDPR an Achilles Heel for the DMA’s Data-Related Obligations?
In the ever-expanding digital realm, a systematized and coherent legal framework regulating data-driven competition has emerged as a paramount concern in the European Union. The General Data Protection Regulation and the Digital Markets Act, which govern data protection and market competition respectively, are at the core of this complex puzzle. The ‘without prejudice clause’ enshrined within the DMA aims to harmonize the coexistence of these two laws, but the true extent of compatibility and complementarity between them remains elusive. The juxtaposition between these two legislative pillars reveals nuanced conflicts as well as potential vulnerabilities at their intersection. If disregarded, these glaring blind spots might become an Achilles heel of the DMA and risk to weaken the DMA’s data-related ambitions.
Kim Youngseok, Korean Competition Law Enforcement: Recent Developments
This article explains recent developments in Korean competition law enforcement from three perspectives. First, the Korea Fair Trade Commission has improved its public enforcement procedures. It focuses on preventing the gathering of irrelevant materials on-site during investigations, ensuring confidentiality of the KFTC investigations against the legal departments investigated companies, and allowing respondents to express their opinions more actively. Second, the criminal enforcement is where the most significant progress has been made in the enforcement of Korea’s Monopoly Regulation and Fair-Trade Act (“MRFTA”). The KFTC, as well as other national institutions, are actively using criminal penalties to force companies to consider criminal proceedings early in their response. In the last few years, there have been significant improvements in the private enforcement of Chinese anti-monopoly law. These include: (1) an increase in damage suits filed by parties injured by MRFTA violation, (2) derivative suits brought by shareholders to recover losses of the company, and (3) legislative efforts to promote the private enforcement of Chinese anti-monopoly law through injunctions which prevent and prohibit violations as well as assist the injured parties to prove damage. In Miao Chong v. SAIC GM, the Supreme People’s Court of China (SPC) for the first ever affirmed the presumption that facts established in antitrust infringement cases are true in private enforcement of competition laws. This is believed to ease the plaintiff’s burden in establishing damage claims. The Miao Chong decision should not be overstated, as the application of the presumption is subject to strict conditions, and must be combined with a judge’s investigative powers to collect evidence. In reality, the plaintiffs’ weak position in private enforcement of competition laws is due to the de facto imbalance of power and resources. This is shown by the fact most plaintiffs are also individuals who lack effective evidentiary system. To elevate the plaintiff’s footing in the private enforcement of Chinese Anti-Monopoly Law (ALM), this article proposes changes to the existing presumptions of harm and substantive legal tests, with the aim of reducing the plaintiffs’ evidentiary burden and better assisting them in defending their compensation claims.
Achu Ann Michael, Prevention and Detection of Bid Rigging in Public Procurement in India: Role of Artificial Intelligence
India’s National Crime Record Bureau’s report, ‘Crime in India’, stipulates that the conviction rate of economic crimes is only 29.4% which is way lesser than that of criminal conviction rate of 57%. In the Indian context, punitive measures under 2002’s Competition Act are not well-known. This article is an effort to examine the punitive actions in the Act, to see the evidence used to convict and to see if they deter violators. The article tries to determine how the Supreme Court ruled in the Rajasthan Cylinders Case ( Rajasthan Cylinders and Containers Ltd. v. UOI and Anr. 2018 SCC Online SC1718. It could have diluted India’s already low conviction rate. In many jurisdictions, artificial intelligence is used to identify cartels. In Indian jurisdictions, the evidentiary standards for cartel identification are similar to “beyond a reasonable doubt” instead of “preponderance”. In cases of anticompetitive behavior, it is necessary to use the evidentiary jurisprudence known as’reverse burden’ or’reversed onus’, which shifts the burden of proof onto the accused. Did the apex courts fail? How will jurisdictions counter anti-competitive practices if digital algorithms are available to guide and highlight red flags of clandestine cartelization?
