November 2015 - I

Antitrust Chronicle – Telecom Mergers There has been considerable activity in the telecom merger space in recently. In the U.S., AT&T was barred from purchasing T Mobile, Comcast was warned not to acquire Time Warner Cable while other comparably sized mergers have been given the green light, albeit some with conditions, including Comcast’s purchase of NBC Universal and AT&T’s acquisition of Direct TV. Each case had unique features. In the EU, the merger planned by Telenor and TeliaSonera was withdrawn and there are conversations regarding the optimal number of players in the telecom sector.

October 2015 - II

Antitrust Chronicle – Huawei v. ZTE A Deep Dive Having dealt extensively with the issue of FRAND across different jurisdictions in our March issue, and the first issue of October this year, in this CPI Issue we offer a deep dive into the ECJ’s decision in Huawei v. ZTE, which attempts to establish an EU framework for SEP licensing negotiations — a decision made even more noteworthy as the two players involved are both Chinese tech giants. Our authors address whether the decision has cleared the waters — or made them even murkier. In doing so they as some relevant questions such as – what is the remedy available to SEP owner against an SEP infringer under the EU law, how does the Huawei decision address patent hold up situations, what will be the implications of the decision on the national courts and the patent regime.

October 2015 - I

Antitrust Chronicle – Antitrust & IP Of Frands and Foes The intersection of antitrust and intellectual property continues to be tricky to navigate. Several competition authorities (Canada, Japan, Korea) have issued new approaches, while other countries (India) have begun to look at case law. In this issue of CPI, our contributing authors from across the globe look at this issue through different lenses, and ask certain pertinent questions such as – is there empirical evidence to show that patent hold up by SEPs have actually occurred, does the remedy for patent hold ups lie in law of contracts or antitrust laws, what is the approach of the Canada’s Competition Bureau approach to patent litigation settlement agreements and “product switching”, potentially to SEPs and how does the Canadian approach contrast with that of the U.S. and EU, how is the Competition Commission of India poised to deal with imminent SEP related issues.

September 2015 - II

Antitrust Chronicle – Hong Kong Competition Views After years of political debate, the Hong Kong Competition Ordinance will finally come into force on December 14, 2015. The new law merits attention not only because of Hong Kong’s economic position and possible influence on—or by—China, but because the debate highlighted many of the challenges Asian markets face in introducing competition law, including the historic existence of cartels, the role of trade associations, insecurity by SMEs, sector exclusions, and others. This collection of papers, managed by guest editor Adrian Emch, analyzes how these issues were dealt with and how they might play out in the future. As always, thank you to our great panel of authors.

September 2015 - I

Antitrust Chronicle – Leniency If there is one topic that never gets stale in antitrust, it is cartels. With the help of guest editor Rein Wesseling, we’re taking a look at the current state of cartel enforcement, in particular leniency programs. Is the early success of leniency programs threatened by new roadblocks, including conflicts with enforcing individual criminal charges, different global approaches, hybrid cartel cases, more sophisticated risk analyses? We look at these questions and more. And, in an of special interest article, James Rill has some thoughts on the U.S. antitrust authorities’ SEP enforcement activities.

August 2015 - II

Antitrust Chronicle – ASEAN Competition Law: Part 2 In this CPI issue, we look at emergent issues and antitrust perspective in ASEAN jurisdictions, ably organized and managed by Guest Editor Ian McEwin. Southeast Asia is a region of considerable ethnic differences, levels of economic development, regime types (although all are authoritarian), state administrative capacity, and general institutional development. In creating a new economic union, all 10 ASEAN member states agreed to have competition laws in place by the end of 2015.

August 2015 - I

Antitrust Chronicle – ASEAN Competition Law: Part 1 In this CPI issue, we look at emergent issues and antitrust perspective in ASEAN jurisdictions, ably organized and managed by Guest Editor Ian McEwin. Southeast Asia is a region of considerable ethnic differences, levels of economic development, regime types (although all are authoritarian), state administrative capacity, and general institutional development. In creating a new economic union, all 10 ASEAN member states agreed to have competition laws in place by the end of 2015.

July 2015 - II

Antitrust Chronicle – Antitrust Antipasto We’re serving up our summer beach reading equivalent — an antitrust antipasto featuring eight disparate articles. Some bring us up to date on topics we delved into earlier, some respond to previous articles, some highlight topical subjects, and some visit intriguing parts of the world to see what’s new. Illustratively, we look at how Competition Commission India imposes and determines penalties, how the Chinese NDRC has dealt with the issue of SEP licensing relating to telecom technology, the rise of national and regional competition authorities in Africa, the scope of Section 5 enforcements under the auspices of the USFTC, perspectives on regulating online advertising platforms, the merger control regime in Ecuador, the merits of the “smallest saleable patent-practicing unit” based licensing model.

July 2015 - I

Antitrust Chronicle – Antitrust & Procedural Fairness Procedural fairness has become an increasingly important part of the international dialogue on competition law enforcement and is indispensable for any institution and its legitimacy. In this issue, we look at the International Competition Network (“ICN”) guidelines on fairness in investigative process, the investigative process and principles adopted in the U.S., see how the Australian Competition and Consumer Commission manages its processes such that it has become a beacon of fairness and transparency over the last 40 years, how the EU is grappling with human rights arguments in investigations, how the Japanese and Taiwanese authorities address concerns regarding procedural fairness in their dispensations.

June 2015 - II

Antitrust Chronicle – Antitrust Compliance In this CPI issue, we discuss the importance of antitrust compliance mechanisms, as a tool of antitrust policy in the hands of regulators and as a tool of risk mitigation in the hands of corporates. In the U.S., Compliance Monitors have assumed significance post the Apple eBooks pricing case. The contributing authors bring diverse perspectives on the issue to the table – while some welcome the rise of compliance monitors, others view the appointment of compliance monitors as a case of judicial overreach.

June 2015 - I

Antitrust Chronicle – Teaching Antitrust – Approaches & Perspectives In this CPI issue, our contributing authors offer their diverse perspectives and approaches to teaching antitrust – from adopting different analytical approaches to mirror the current antitrust jurisprudence, to tailoring newer and more niche antitrust subject offerings and employing novel methods of teaching that connect classroom to the real-world challenges. The authors make interesting suggestions to take this forward, such as in-class simulations of merger hearings, teaching by way of moot courts, teaching antitrust law in conjunction with enterprise organization and commercial transactions, getting students to design compliance programs and alternative pricing strategies (from general counsel perspective), and keeping a cross cultural perspective while dealing with antitrust problems.

May 2015 - II

Antitrust Chronicle – Big Data – An Antitrust Perspective In this issue, we deal with the emergent issue of the competition concerns that arise in connection with Big Data. The contributors in this special issue on Big Data discuss several relevant questions – what role should Big Data play in assessment of mergers, i.e. should having and controlling consumer data be viewed as a form of market power. Then there is the related question on whether it is correct to deem “privacy” to be a non-price consideration in antitrust analysis, and whether it is fair to assume that entities owning big data have the power to foreclose markets, and which theories of harm may be applicable in context of big data.

May 2015 - I

Antitrust Chronicle – E-Commerce and Pricing Concerns – An Antitrust Perspective In this CPI issue, we ponder how resale price maintenance (“RPM”) and most favored nation (“MFN”) clauses are playing out in the brave new world of e-commerce. Europe has witnessed a proliferation of regulatory attention in the ecommerce space, as seen in the EC’s 2010 revised Guidelines on Vertical Restraints, the European Court of Justice’s 2011 ruling in the Pierre Fabre case, and the European Commission’s 2013 E-books commitments decision.

April 2015 - II

Antitrust Chronicle – Healthcare and Antitrust – Looks at Recent Caselaw In this CPI issue, we look at two key decisions relating to the healthcare sector in the U.S. Both could have strategic impact on the stakeholders involved and the healthcare sector. In North Carolina Dental Board case, the U.S. Supreme Court held that “state action” antitrust immunity (the 1943 Parker decision) was not applicable to actions of the state dental board (that comprised private practitioners and had issued diktats against non-dentists from performing certain procedures that it believed were in the exclusive domain of licensed dentists), and held certain actions of the concerned state board to be anti-competitive. The authors discuss the nuances of this decision and how it could affect professionals across the U.S.

April 2015 - I

Antitrust Chronicle – Developing Competition Regimes - Evolving Perspectives This CPI issue focusses on different challenges facing different of relatively (as compared to the U.S./EU counterparts) young competition regimes, viz. India, Pakistan, Israel, and Iran while dealing with myriad issues ranging from abuse of dominance cases, private enforcement and political influence. Spring 2015, Volume 4, Number 1 - Antitrust Chronicle – Developing Competition Regimes - Evolving Perspectives

March 2015 - II

Antitrust Chronicle – Antitrust & IP - Old Frands, New Challenges (Part 2) While on a certain level, antitrust and patent laws share the ethos of fostering innovation and checking anti-competitive conduct, they also differ in their methods – in that patents effectively create legally recognized monopolies and are a well-accepted exception to antitrust regulation. Standard essential patent (“SEP”) licensing (where the SEP holders agree to license their products on fair, reasonable, and non-discriminatory (“FRAND”) terms in lieu of adoption of their technology standards) is an issue that rests at the intersection antitrust laws and patent laws. Standard-setting in the U.S. is sectoral and market-led, while in certain countries it is state-led / influenced – which may place SEP licensing issues at the crossroads of law and international diplomacy, adding another layer of complexity.

March 2015 - I

Antitrust Chronicle – Antitrust & IP - Old Frands, New Challenges (Part 1) While on a certain level, antitrust and patent laws share the ethos of fostering innovation and checking anti-competitive conduct, they also differ in their methods – in that patents effectively create legally recognized monopolies and are a well-accepted exception to antitrust regulation. Standard essential patent (“SEP”) licensing (where the SEP holders agree to license their products on fair, reasonable, and non-discriminatory (“FRAND”) terms in lieu of adoption of their technology standards) is an issue that rests at the intersection antitrust laws and patent laws. Standard-setting in the U.S. is sectoral and market-led, while in certain countries it is state-led / influenced – which may place SEP licensing issues at the crossroads of law and international diplomacy, adding another layer of complexity.

February 2015 - II

Antitrust Chronicle – Private Enforcement in the EU - The Road Ahead In the first issue of this year, we ran a colloquium on the new EU Claims Directive. In this issue, created with the assistance of Jay Himes, we are exploring two related issues—collective redress and class actions. We look at the current recommendations for injunctive and compensatory collective redress mechanisms; analyze the laws in those Member States that are most advanced in this arena (the United Kingdom, Germany, the Netherlands), as well as countries just now investigating the concept; and explore some interesting mechanisms such as claims vehicles. We also look at the prospects and challenges of class action in the UK, where they are currently non-existent.

February 2015 - I

Antitrust Chronicle – Chinese Whispers & Competition Enforcement in China - A quick Glance This edition focuses on different issues and facets of the Chinese competition regime. Recently, the Chinese competition authorities have, under the Anti-Monopoly Law (“AML”), imposed fines on several multinationals such as Qualcomm, Microsoft, and BMW. This has brought considerable attention to Chinese competition processes and structures.

January 2015 - II

Antitrust Chronicle – The Seventh Circuit – Motorola Ruling / Global Supply Cartels and The American Consumer At the heart of this edition is the conflict between the application of provisions of the Sherman Act, on the one hand, and the provisions of the Foreign Trade Antitrust Improvements Act of 1982 (“FTAIA”) on the other – to anticompetitive conduct arising offshore that adversely impacts on American consumers. This conflict came to fore in the Motorola v. AU Optronics Corp case relating to sale of liquid crystal display (“LCD”) panels at artificially inflated prices to Motorola, an American cellphone manufacturer to Motorola. Eventually, the high cost of LCDs was transferred to the American consumers. In its recent ruling, the Seventh Circuit held that Motorola is prohibited from recovering damages in U.S. courts under the FTAIA.

January 2015 - I

Antitrust Chronicle – Private Enforcement in the EU There have been significant antitrust development in the EU: the EU Directive on Antitrust Damages was adopted in November 2014, requiring Member States to implement it in their legal systems by December 27, 2016, with a view to strengthen private enforcement. So far, on account of many factors, the EU’s track record of private enforcement of competition rules has been rather staid. Thus, the EU Directive attempts to optimize the EU competition rules and harmonize EU and national laws on the matter, with a view to ensuring that the victims of antitrust infringements get just compensation.