Loyalty discounts, exclusive dealing and bundling: rule of reason, quasi-per-se, price-cost test, or something in between?

2016 ◽  
Vol 4 (2) ◽  
pp. 345-380 ◽  
Author(s):  
Assaf Eilat ◽  
David Gilo ◽  
Guy Sagi
Keyword(s):  
Exclusive Dealing ◽  
Rule Of Reason ◽  
Per Se

Modernization of Antimonopoly Policy in Russia (Economic Analysis of Proposed Changes in the Competition Law)

2005 ◽  
pp. 100-116
Author(s):  
S. Avdasheva ◽  
A. Shastitko
Keyword(s):  
Economic Analysis ◽  
Financial Markets ◽  
Financial Services ◽  
Competition Law ◽  
Commodity Markets ◽  
State Aid ◽  
Executive Power ◽  
Rule Of Reason ◽  
Per Se

The article is devoted to the analysis of the draft law "On Protection of Competition", which must substitute the laws "On Competition and Limitation of Monopolistic Activity on Commodity Markets" and "On Protection of Competition on the Financial Services Market". The innovations enhancing the quality of Russian competition law and new norms providing at least ambiguous effects on antimonopoly regulation are considered. The first group of positive measures includes unification of competition norms for commodity and financial markets, changes of criteria and the scale of control of economic concentrations, specification of conditions, where norms are applied "per se" and according to the "rule of reason", introduction of rules that can prevent the restriction of competition by the executive power. The interpretation of the "collective dominance" concept and certain rules devoted to antimonopoly control of state aid are in the second group of questionable steps.

Antitrust and Third Party Insurers

1982 ◽  
Vol 8 (3) ◽  
pp. 251-270
Author(s):  
George Heitler
Keyword(s):  
United States ◽  
Health Care ◽  
United States Supreme Court ◽  
The United States ◽  
Third Party ◽  
United States Supreme ◽  
Rule Of Reason ◽  
Relative Value ◽  
Care Field ◽  
Per Se

AbstractThis Article surveys major antitrust issues affecting the health care field with particular emphasis on third party insurers. It deals with the most recent decisions of the United States Supreme Court, including Maricopa, Pireno and McCready, involving limitations on the scope of the antitrust exemptions, and the bearing of these decisions on third party insurers, provider agreements, peer review mechanisms, physician control or sponsorship of prepayment plans, joint insurer activities, relative value fee schedules, maximum fee schedules, and area-wide planning. The Article challenges the desirability of strict application of antitrust principles to these and other activities within the health care field, stressing that practices with procompetitive and cost containment aspects should be encouraged and analyzed under the rule of reason rather than a per se approach.

Us Antitrust Law: Central, but Unique

2020 ◽  
pp. 91-102
Author(s):  
David J. Gerber
Keyword(s):  
Practical Importance ◽  
Competition Law ◽  
Antitrust Law ◽  
Basic Principles ◽  
Judicial Decisions ◽  
Rule Of Reason ◽  
Institutional Structures ◽  
Per Se ◽  
Substantive Law

US antitrust law has long influenced all who deal with competition law—sometimes as a model, sometimes as a source of experience and insights, and sometimes as a surrogate for an “international standard.” It also has great practical importance in international business. This chapter provides information and insights necessary for understanding its roles and engaging with its rules and procedures. The chapter explains its institutional structures, basic principles of substantive law, and the central role of economic analysis in deciding cases. In particular, it throws light on the unique way in which judicial decisions (case law) guide decisions in all institutions and on the central significance of the categories of “rule of reason” and “per se treatment.” It also provides insights into the dynamics of the regime—the factors that drive antitrust decisions. It also sketches the ways in which it exercises influence on other competition law regimes.

Anticompetitive Agreements (2008–2010): Errors of 1 Type in Russian Enforcement

2016 ◽  
Vol 2016 (1) ◽  
pp. 84-107
Author(s):  
Andrey Makarov
Keyword(s):  
Competition Law ◽  
Antitrust Policy ◽  
Competition Authority ◽  
Antitrust Enforcement ◽  
Priority Areas ◽  
Rule Of Reason ◽  
Standards Of Proof ◽  
Per Se ◽  
Mixed Agreements

This article analyzes the antitrust enforcement practice in Russia (2008–2010) in the area of competition restricting agreements (horizontal and vertical). The analysis is based on courts decisions database (litigations with the Russian competition authority - FAS). Database contains 242 cases, including 139 horizontal agreements, 103 vertical and mixed agreements. On the basis of this database we have analyzed important features of the interpretation and implementation of the competition law in Russian practice, priority areas of the enforcement. We considered the antitrust policy taking into account the risks of errors of 1 and 2 types, including the problem of the flexibility of prohibitions (PER SE vs RULE OF REASON), standards of proof, consistency of enforcement, etc.

Through the Anti-Monopoly Lens: What Constitutes ‘Unfairly High Patent Pricing’ in China?

2020 ◽  
Vol 69 (8) ◽  
pp. 823-846
Author(s):  
Yuan Hao
Keyword(s):  
Dynamic Efficiency ◽  
Theoretical Possibility ◽  
Dynamic Competition ◽  
Rule Of Reason ◽  
Dominant Market Position ◽  
Per Se ◽  
The Right ◽  
Error Costs ◽  
Chinese Court ◽  
Critical Link

Abstract This article proposes that a patentee’s unilateral pricing of proprietary technology should be presumed legal per se under Sec. 55 IPR immunity framework provided by the Anti-Monopoly Law, unless a plaintiff overcomes all three of the following hurdles with actual evidence: (i) the patentee enjoys a dominant market position; (ii) such pricing constitutes de facto refusal to deal with or significant ‘margin squeeze’ for subsequent or follow-on innovators; and (iii) the constructive refusal or ‘margin squeeze’ would likely foreclose dynamic competition. This seemingly high evidentiary burden is justified by three cumulative resources: (i) the very patent mechanism in facilitating innovation, including a solid promise of supra-competitive profit through the right to lawfully exclude competition by imitation, and thus the instigation of a virtuous circle of dynamic competition through pivoting on the critical link of competition by substitution; (ii) the prevalent cautious attitude in sister jurisdictions when dealing with the concept; and (iii) the inevitable limitations of antitrust law, manifested in the administrative and error costs due to lack of proper information and economic analysis methodologies on dynamic efficiency. Through a detailed illustration with six specific scenarios, we see in a quasi-quantitative way that the actual likelihood of unilateral foreclosure on dynamic competition, even in the case of a monopolist patentee, is extremely low despite the existence of a theoretical possibility. Facing this meager likelihood and information deficiency, it would be unwise for a Chinese court to incur enormous costs of searching for a possibility in every case, with the mere guidance of a vague rule-of-reason framework.

Per Se Versus Rule of Reason: An Analysis

1970 ◽  
Vol 28 (2) ◽  
pp. 207-215
Author(s):  
Lawrence G. Hill
Keyword(s):  
Rule Of Reason ◽  
Per Se

scholarly journals Penerapan Pendekatan Rule Of Reason Oleh Kppu Dalam Dugaan Pengenaan Harga Eksesif (Studi Kasus Putusan KPPU Nomor Perkara 03/Kppu-I/2017)

2020 ◽  
Vol 4 (2) ◽  
Author(s):  
Indra Sanjaya
Keyword(s):  
Market Power ◽  
Public Interest ◽  
Dominant Position ◽  
The Public ◽  
Rule Of Reason ◽  
Per Se ◽  
Abuse Of Dominant Position ◽  
The Cost ◽  
Case Number

To assess whether a particular action of a business actor violates the provisions in Statute Number 5 of 1999, the KPPU and the Court may apply the per se illegal approach or rule of reason, depending on the formulation of the provisions allegedly violated. The rule of reason approach is an approach used by business competition authorities to make an evaluation of the consequences of certain agreements or business activities, to determine whether an agreement or activity is inhibiting or supporting competition. This paper analyzes the rule of reason approach applied by KPPU in cases with Case Number 03 / KPPU-I / 2017 to determine whether PT. Angkasa Pura II (Persero) which does not reduce the cost of shipping and taking cargo at Kualanamu Airport, even though its workload has been reduced, can be classified as a form of monopolization and constitutes a violation of the provisions of Article 17 paragraph (1) and paragraph (2) of Statute Number 5 of 1999. The results of the study showed that the application of the rule of reason by KPPU was carried out through 4 (four) steps, namely: (1). Market identification; (2) Identification of market power; (3) Identification of abuse of dominant position; (4) Identification of impacts on the public interest. Through the application of the rule of reason, KPPU decides that the actions of PT. Angkasa Pura II is a form of monopolization and that the action fulfills the elements in Article 17 paragraph (1) and (2) of Statute Number 5 of 1999.

scholarly journals Applying the rule of per se and rule of reason to assess the violation of the Competition Law by the IPRs owners

2020 ◽  
Vol 4 (2) ◽  
pp. First
Author(s):  
Bui Thi-Hang Nga
Keyword(s):  
Intellectual Property ◽  
Competitive Advantage ◽  
Market Power ◽  
Intellectual Property Rights ◽  
Competition Law ◽  
Rule Of Reason ◽  
Per Se ◽  
The Right ◽  
Exclusive Right ◽  
Monopoly Position

With the nature of practically irreplaceable and the monopoly of the protection documents, the law has given the intellectual property rights (IPRs) owner a competitive advantage, as well as a market power. As a result, to extent the market power and create a monopoly position to maximize profitability, IPRs owners tend to abuse IPRs to limit competition. Although the exclusive right to IPRs is a legal monopoly comes from protection documents, it does not mean that the owner has the right to abuse this monopoly to limit competition. This is because such behavior is not considered an exception under the Competition Law and shall be prohibited in case the satisfaction of provision violating conditions of the Competition Law. However, in order to balance the interests of related subjects, in assessment of the Competition Law violations of IPRs abuses, the laws of countries fully recognized and applied the rule of reason instead of per ser as Competition Law violations in general. The article aims to analyze and explain the purpose of the application of the rule of reason when assessing the violation of the Competition Law of IPRs owner and when using the per se, in respect of the legal monopoly of the IPRs subjects. The paper then provides proposals to complete the Vietnamese Competition Law which governs the abuse of IPRs owners.

scholarly journals Correction: Applying the rule of per se and rule of reason to assess the violation of the Competition Law by the IPRs owners

2020 ◽  
Vol 4 (3) ◽  
pp. 973
Author(s):  
Nga Hang Bui Thi
Keyword(s):  
Competition Law ◽  
Rule Of Reason ◽  
Per Se

Article: Applying the rule of per se and rule of reason to assess the violation of the Competition Law by the IPRs owners (DOI: https://doi.org/10.32508/stdjelm.v4i2.627) by Bui Thi Hang Nga is added new section as below: Acknowledgement This study is funded by University of Economic and Law, VNU-HCM, Vietnam under grant number CS/2019-15.

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