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Know How: Antimonopoly & Unilateral Conduct

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Joseph Ostoyich, Erik Koons and William Lavery published an article for the 2017 edition of GCR’s Know How: Antimonopoly and Unilateral Conduct. This article examines the U.S. perspective of legal framework governing unilateral conduct by companies with market power. The authors address many questions, listed below, related to monopoly power and unilateral conduct and conclude with expected future developments in this area.

1 What is the legal framework governing unilateral conduct by companies with market power?
2 What body or bodies have the power to investigate and sanction abuses of market power?
3 What role does market definition play in market power assessment?
4 What is the approach to market definition?
5 How is market power or monopoly power defined?
6 What is the test for finding of monopoly power?
7 Is this test set out in statute or case law?
8 What role do market shares play in the assessment of monopoly power?
9 Are there defined market share thresholds for a presumption of monopoly power?
10 How easily are presumptions rebutted?
11 Are there cases where companies with high shares have been found not to exercise monopoly power?
12 What are the lowest shares with which companies have been found to exercise monopoly power?
13 How important are barriers to entry and expansion for the assessment of monopoly power?
14 Can the lack of entry barriers negate a finding of monopoly power?
15 What kind of barriers to entry are typically considered in the analysis?
16 Can countervailing buyer power negate a finding of monopoly power?
17 What if consumers can easily switch between suppliers?
18 Are there any other factors that the regulator considers in its assessment of monopoly power?
19 Are any entities or sectors exempt from the antimonopoly regime?
20 Can companies be deemed to hold collective monopoly power?
21 Can the exercise of joint monopoly power or tacit oligopolistic collusion be treated as an infringement?
22 Has the competition authority published guidance on how it defines markets and assesses market power?
23 Is there a general definition for what constitutes abusive conduct? What does it entail?
24 What are the general conditions for finding an abuse?
25 Is there a list of categories of abusive or anticompetitive conduct in the applicable legislation?
26 Is this list open or closed?
27 Has the competition authority published any guidance on what constitutes abusive conduct?
28 Is certain conduct per se abusive (without the need to prove effects) and under what conditions?
29 To the extent that anticompetitive effects need to be shown, what is the standard to demonstrate these effects?
30 Does the abusive conduct need to harm consumers?
31 What defences are there to allegations of abuses of monopoly power?
32 Can abusive conduct be objectively justified?
33 What objective justifications have been successful?
34 How is the burden of proof distributed in an abuse analysis?
35 What are the legal conditions to establish an abusive tie?
36 What are the legal conditions to establish a refusal to supply or refusal to license?
37 Do these abuses require an essential facility?
38 What is the test for an essential facility?
39 What is the test for exclusivity arrangements?
40 What is the test for predatory pricing?
41 What is the test for a margin squeeze?
42 What is the test for exclusionary discounts?
43 Are exploitative abuses also considered and what is the test for these abuses?
44 Is there a concept of abusive discrimination and under what conditions does it raise concerns?
45 Are only companies with monopoly power subject to special obligations under unilateral conduct rules?
46 Must the monopoly power exist in the same market where the effects of the anticompetitive conduct are felt?
47 What sanctions can the competition authority impose or recommend?
48 How are fines calculated for abuses of monopoly power?
49 What is the highest fine imposed for an abuse of monopoly power?
50 What is the average fine imposed over the past five years?
51 Can the competition authority impose behavioural remedies?
52 Can it impose both negative and positive behavioural obligations?
53 Can the competition authority impose structural remedies?
54 Can companies offer commitments or informal undertakings to settle concerns?
55 What proportion of cases have been settled in the past five years?
56 Have there been any successful actions by private claimants?
57 Can a company appeal a finding of abuse?
58 Which fora have jurisdiction to hear challenges?
59 What are the grounds for challenge?
60 How likely are appeals to succeed?
61 Summarise the main abuse cases of the past year in your jurisdiction.
62 What is the hot topic in unilateral conduct cases that antitrust lawyers are excited about in your jurisdiction?
63 Are there any sectors that the competition authority is keeping a close eye on?
64 What future developments can we expect?

For a full copy of the article, click the title link below.
Know How: Antimonopoly & Unilateral Conduct

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