Competition Policy in Smaller Economies: Balancing Regulation & Investment


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Plenary presentation to the Pacific Finance & Investment Conference in Suva, Fiji on 9 May 2013

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Competition Policy in Smaller Economies: Balancing Regulation & Investment

  1. 1. FINANCIAL INSTITUTIONSENERGYINFRASTRUCTURE, MINING AND COMMODITIESTRANSPORTTECHNOLOGY AND INNOVATIONPHARMACEUTICALS AND LIFE SCIENCESCompetition Policy in Smaller EconomiesBalancing Regulation and InvestmentDr Martyn TaylorPartnerPacific Finance & Investment ConferenceSuva, FijiMay 2013
  2. 2. 17752725.ppt2OverviewA. Importance of competition law and policyB. Economic traits of smaller economiesC. Competition law in smaller economiesD. Lessons from Australia and New ZealandE. Application to Pacific Island economiesDr Martyn TaylorPartnerNorton Rose Sydney+61 2 9330
  3. 3. A. Importance of competition law and policy
  4. 4. Competition policy – why is it important ?17752725.ppt4• Competition policy is a core tenet of modern regulatory policy.• Competition policy is any government policy that promotescompetition in any part of the economy.• The objective of competition policy is to ensure the efficient and fairoperation of markets in order to maximise total economic welfare.• Underlying philosophy:• a market-based system is the optimal way for society’s scarceresources to be allocated between competing uses;• greater competition will ensure greater efficiency and henceimproved levels of total economic welfare.• Competition policy is inherently deregulatory. It generally promotesthe removal of excessive Government regulation in order to ensurethat markets can operate freely.
  5. 5. Regulation is selectively targeted at market failures17752725.ppt5• Competition policy recognises that markets are imperfect; henceregulation is still necessary to correct instances of market failure.• Competition policy promotes a principled approach to regulation:• regulation is selective and seeks to correct the relevant marketfailure as directly as possible, hence minimising spillover effects;• regulation is proportionate and informed by a cost-benefit analysis.• Competition law is an instrument that gives effect to competition policy.• Competition law regulates the obtaining and use of market power.Excessive market power can give rise to a key form of market failure:• in more concentrated markets, firms may use their individual orcollective market power to affect market processes;• market power enables firms to raise prices and reduce output tomaximise their profits at the expense of consumers.
  6. 6. Tripartite structure of modern competition lawCompetition lawSingle partyconductMergers andacquisitions• Misuse of market power• Sectoral regulatory regimes• Anti-competitive agreements• Collusion, cartels and price fixing• Anti-competitive acquisitionsKey focus is on regulating ‘market power’•Firms may already have unilateral market power, so certain of their conduct must be regulated.•Alternatively, firms can co-ordinate their business activities to achieve market power (whether byagreement or by fully integrating their businesses by acquisition).17752725.ppt6Multi-partyconductVerticalHorizontal• Restraints of trade• Exclusive dealing• Boycotts of suppliers/customers
  7. 7. Balancing regulation against investment17752725.ppt7• All markets are imperfect, so what regulatory role should theGovernment have? (This inherently depends on one’s political views)• Regulation affects investment, both positively and negatively:• market certainty and stability is important to investment, socertain fundamental laws are required (e.g., property rights);• regulatory uncertainty is anathema to investment, givenuncertainty increases risk and hence financing costs;• excessive regulation can impose unnecessary costs that, inturn, deter investment due to reduced private sector returns.• The key questions:• in smaller economies, what should be the appropriate role ofcompetition law?• what balance should be adopted vis a vis investment?
  8. 8. B. Economic traits of smaller economies
  9. 9. What is a ‘smaller’ economy?• The competitiveness of markets differs widely within every economy.• However, smaller economies generally exhibit markets with a lowerlevel of competitiveness than larger economies:• this conclusion is empirically confirmed and supported bymicroeconomic theory;• key factors of competitiveness in smaller economies includemarket size and the existence of import competition.• Generally a ‘smaller’ economy is an economy that has marketsthat can only support a small number of competitors:• Fiji with a population of 850,000 is small.• New Zealand with a population of 4.2 million is also small.• Australia has a population of 22 million, but its population isdispersed and isolated – hence could be regarded as smallfor some of Australia’s more concentrated sectors.
  10. 10. Competition issues facing smaller economies• The ability of a market to support competition is determined by thestructural features of the market itself:• The minimum efficient scale (MES) is the smallest level of output fora firm that reduces/optimises its long-term average costs. MESreflects the realisation of economies of scale in production.• If the MES is achieved at levels of output that are a substantialproportion of the market, there will be fewer competitors.• In the absence of domestic competitors, smaller economiesare more reliant on imports as a source of competition:• For economies co-located to large markets, importsallow them to be regarded as part of the larger market.• Market concentration is more likely in isolated smallereconomies that have higher import costs, such as Fiji.• Smaller economies also tend to be less diversified and henceare more reliant on a few key economic sectors.Summary:• MES will lead tomore concentratedmarkets.• Where economy isisolated, importsmay not providesufficient alternativecompetition.
  11. 11. Investment certainty in smaller economies• Investments are heavily affected by cost and risk. Any NPV analysis willdiscount the net cash flows of an investment, adjusted for risk.• In order to optimise investment in a regulatory context, it is necessary to:• minimise the cost of regulation, typically by ensuring that it is nomore burdensome than necessary to achieve the policy objectives;• minimise regulatory risk, typically by ensuring that the law andregulatory decisions are transparent, predictable and high quality.• A smaller economy tends to be subject to the following concerns:• Because markets are more concentrated and the economy is moredependent on a few key sectors, domestic firms may have greaterpolitical influence over regulatory policy (leading to rent seeking).• Domestic firms may have less ability to tolerate compliance costs.• Regulators may have less resources.• To the extent law requires interpretation, a sufficient body of caselaw may not exist to provide judicial guidance on interpretation.
  12. 12. Key issues for competition law and policy• The different economic characteristics of smaller economies give rise to thefollowing key issues for competition law and policy:1. Should a smaller economy adopt different competition laws andpolicies than a larger economy?2. How should a smaller and more isolated economy address the factthat it has naturally more concentrated and less competitive markets?3. How should smaller economies regulate mergers and instances of co-ordinated activities, such as joint ventures?4. How should smaller economies regulate anti-competitive conduct,particularly if market structures make such conduct more likely?5. Should differences occur in enforcement and regulation?6. What techniques should be used to reduce investment risk?
  13. 13. C. Competition law in smaller economies
  14. 14. Objectives and structure remain unchanged• The general principles underlying competition law are unaffected bydifferences in the underlying markets subject to regulation:• Competition law is generic in application, applying to all sectorsof the economy, so is inherently based on ‘one size fits all’.• The objectives of competition law are generally uniform across alleconomies, namely to promote economic efficiency. Someeconomies may also include incidental distributional considerations.• The tripartite structure of competition law reflects international bestpractice in competition law. Again, there is no need to amend thisstructure for different economic conditions.• So what is subject to change?• Differences in substantive legal thresholds.• Differences in the application of those legal thresholds.• Differences in enforcement and prioritisation.
  15. 15. Tolerating greater market concentration• A key trade-off for competition law occurs in a merger review context:• By merging, firms realise synergies in production that reducecosts (i.e., increasing productive efficiency).• By merging, firms also increase market power and can reduceoutput and increase prices (i.e., reducing allocative efficiency).• Merger laws trade-off productive and allocative efficiency; as wellas effects on dynamic efficiency (i.e., efficiency gains over time).• As smaller economies achieve MES at higher market concentrations,arguably they should tolerate greater domestic market concentration:• Competition law should be more sympathetic to the need for firmsto increase scale in order to achieve efficiencies in output.• High levels of concentration may be a ‘necessary evil’ in order toachieve greater productive efficiency in the domestic market.• In those markets where imports provide an important source ofcompetition, higher domestic market concentration can be tolerated.
  16. 16. Greater recognition of productive efficiencies• Generally, any increases in co-ordination between firms have the abilityto increase productive efficiency:• Firms may enter into long-term supply contracts with the objectiveof increasing certainty and reducing the cost of production.• Firms may enter into joint ventures (JV) to share critical resourcesand therefore benefit from economies of scale.• In more concentrated markets, such co-ordination is more likely to leadto anti-competitive effects given that the relevant firms will havesubstantial market shares within the domestic market.• Smaller economies should therefore ensure that the benefits anddetriments of co-ordination are recognised in any competition analysis:• Higher substantive thresholds for illegality may be appropriate,hence permitting greater co-ordination to occur.• Defences may be appropriate, including for joint ventures.• Public benefit authorisations may enable such analysis to occur.
  17. 17. Greater emphasis on regulating market conduct• A more relaxed merger policy will tend to result in more concentratedmarkets and hence a greater risk of anti-competitive conduct:• Moreover, arrangements between competitors are more likely to affecta greater proportion of the market and confer market power.• Accordingly, the quid pro quo of a more relaxed merger policy shouldbe a greater emphasis on regulating market conduct:• Markets that are highly concentrated should be subjected togreater scrutiny, consistent with international best practice.• Where anti-competitive agreements do not have productiveefficiency benefits, they should be subject to enforcement.• In very highly concentrated markets, sectoral competition regulationmay also be appropriate:• Price controls may be appropriate in instances of monopoly.• Where monopolies are vertically-integrated and controlinfrastructure bottlenecks, access regulation may be required.
  18. 18. Promoting greater regulatory certainty• Competition laws are not prescriptive and instead rely on the application oflegal concepts to different factual scenarios, creating some uncertainty:• A key means for smaller economies to enhance regulatory certaintyis to provide guidance on the application of their competition laws.• Guidelines also reduce compliance costs for firms by enabling thelegality of conduct to be more easily ascertained.• If international best practice approaches are followed, regulators canleverage case law from other jurisdictions and adopt similar approaches.• The International Competition Network, for example, is an initiativethat is seeking to ensure consistency in the regulation of anti-competitive conduct by regulators on a global basis.• Rent seeking by domestic firms in concentrated markets can beaddressed by ensuring that domestic regulation reflects key competitionpolicy considerations:• Where regulation is imposed, it should be most consistent with thepromotion of competition by maximising the number of competitors.
  19. 19. D. Lessons from Australia and New Zealand
  20. 20. Merger thresholds in Australia• Australia’s approach to the regulation of mergers has changed overtime as the Australian economy has matured and diversified:• From 1974, Australia applied a low ‘substantial lessening of competition’ (SLC)threshold for merger control.• The threshold was raised to ‘acquisition of dominance’ in 1977, expressly topromote the development of economies of scale in Australian industry.• In 1992, Australia migrated back to the SLC threshold (which applies today) onthe basis that the economy was sufficiently mature for the lower threshold.• From 1992 – 2008, Australia applied a ‘safe harbour’ in its merger guidelines,based on 40% market share and a four-firm concentration ratio of 75% (CR4).• From 2008, Australia has now moved to a lower HHI concentration as used inmore advanced economies (currently an HHI of 2000 when screening mergers).• While Australia permits public benefit authorisation when reviewing mergers, theprocedure is time consuming and rarely used. Instead, overwhelming emphasis isgiven to net competitive effects, as one would expect of a larger economy with lessconcentrated markets.
  21. 21. Merger thresholds in New Zealand• New Zealand’s competition law has tended to follow Australia, buthas diverged in important respects to reflect New Zealand’snaturally more concentrated markets:• New Zealand initially adopted a higher ‘dominance’ threshold,but followed Australia to the lower SLC threshold in 2001(lowering its threshold a decade after Australia).• New Zealand’s safe harbours have tolerated a higher level ofmarket concentration. New Zealand currently uses a 40%threshold and a three-firm concentration ratio of 70% (CR3).• In early 2013, New Zealand released draft new MergerGuidelines that maintain the CR3 thresholds, but now treatthem as factors rather than safe harbours. However, NewZealand will not migrate to the Australian ‘HHI’ approach.• While New Zealand and Australia have similar procedures for thepublic benefit authorisation of mergers, New Zealand’s procedurehas been used more frequently and is generally regarded as morelikely to result in a favourable authorisation decision.Key differences:• New Zealandreduced its legalthreshold adecade afterAustralia• New Zealandwill shortlydeemphasise its‘safe harbour’,but still uses amuch higherconcentrationratio (i.e., CR3).
  22. 22. Differences in regulation of market conductDifferences in regulation between Australia and New Zealand are consistentwith the differences one would expect between large and small economies:•Australia’s approach to the regulation of market conduct is moreprescriptive than New Zealand. Australia generally deems more conduct tobe outright illegal:• Australia’s an approach is more consistent with a larger economy(i.e., Australia is less concerned that anti-competitive behaviourmay be justifiable for productive efficiency reasons).• Australia has authorisation procedures, but they are harder to applythan in New Zealand and subject to greater scepticism.•Until 2001, New Zealand applied a higher threshold to the regulation ofmarket power based on a dominant position in the market:• New Zealand lowered this threshold in 2001 to align with theAustralian ‘substantial market power’ threshold, but still retains anstricter judicial approach to the regulation of market power.• Again, New Zealand’s stricter approach is consistent with aneconomy that allows more concentrated markets to exist.
  23. 23. Differences in enforcement and prioritisation• New Zealand Commerce Commission (NZCC) has an annual budget ofFJD 65 million, which is roughly 20% of the Australian Competition andConsumer Commission’s (ACCC) budget of FJD 330 million.(The Fiji Commerce Commission annual budget is much lower).• The different resources available to the regulators impact on theirenforcement and prioritisation activities, although the budgets are alsocommensurate with the volume of issues that each of the regulators arerequired to process each year:• The ACCC is more heavily involved in international enforcementactivities, including co-ordinating with regulators in US and EU.• The ACCC is more likely to take ‘test cases’ that seek to clarifyimportant aspects of the law in order to provide greater certainty.• NZCC draws from the ACCC’s expertise in relation to matters thathave a trans-Tasman aspect, thereby pooling resources. Suchpooling of resources is providing important regulatory benefits.
  24. 24. E. Application to Pacific Island economies
  25. 25. More tailored approach to competition policy• As evidenced by New Zealand, smaller economies generally prefer amore tailored approach to the application of competition law and policy.• Generally, competition laws in smaller economies are more sympatheticto the realisation of productive efficiencies:• Greater co-ordination of business activity may be permitted, providedit can be justified on a productive efficiency basis.• Greater levels of market concentration may also be permitted,particularly in sectors subject to import competition.• In smaller economies, markets tends to be more concentrated henceare more prone to market failure. This may result in a need for:• more heavy-handed regulation in heavily concentrated economicsectors, including price controls; and• additional regulation, if consistent with competition policy.• Given the importance of import competition, openness to tradecan be as important as the application of competition law andpolicy.
  26. 26. Different application of competition laws• In relation to the application of competition laws themselves, the objectivesand structure of modern competition laws can be applied without change• However, differences in thresholds and their application may be appropriate:• Substantive thresholds for merger control should normally be higher,thereby enabling more concentrated markets to exist. Merger safeharbours may also be appropriate based on high concentration ratios.• Screening of mergers and other forms of business co-ordination shouldgenerally have regard to productive efficiency gains.• Import competition should be an important feature of any analysis.• Resources of the regulator may be limited, hence:• enforcement priority should be given to highly concentrated marketsthat are economically important where the conduct is not netefficient;• guidelines should be used to reduce compliance costs, providecertainty, and promote compliance at least regulatory cost.• Care needs to be taken that enforcement does not damage a firm to theextent they exit a market (with a resulting loss of competition).
  27. 27. Should ‘micro’ economies have competition laws?• What about very small ‘micro’ economies (e.g., population < 100,000): shouldsuch economies have competition laws ?• Competition law is costly to administer and enforce. At some point, the costsof regulation will exceed the benefits.• In micro economies, competition laws are generally of lower priority than lawsthat create and maintain the markets themselves (e.g., property rights).• However, this is not to say that competition law does not have a role, just thatdifferent regulatory solutions may be appropriate:• Competition regulation may be pooled with other regulatory functions.• Jurisdictions may consider creating a multi-jurisdictional competitionregulator that is shared across a number of different jurisdictions.• Competition regulation may be selectively applied to a few critical sectorsthat are highly concentrated and not subject to import competition.• Where competition regulation is applied, regard would generally need tobe had to net public benefits.
  28. 28. F. Conclusions
  29. 29. Points for discussion1. How prevalent are competition policy considerations in the developmentof regulatory policy in the Pacific region?2. How frequently do competition concerns actually arise in practice?3. To what extent do competition laws and policies in the Pacific regionalready reflect the approach identified in this presentation?4. To what extent would a multi-jurisdictional regulator be appropriate inorder to pool resources and reduce regulatory costs in the Pacific? (Sucha proposal has been developed by the Pacific Islands Forum Secretariat)5. Which are the economic sectors that are likely to give rise to the greatestcompetition concerns?6. How does openness to trade sit with other policy objectives, such aspromoting the development of infant industries in small economies?7. How should smaller economies address offshore mergers and conductthat have substantive local effects?
  30. 30. 17752725.ppt30Our international practiceDisclaimerThe purpose of this presentation is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Norton Rose Australia on the points oflaw discussed. No individual who is a member, partner, shareholder, director, employee or consultant of, in or to any constituent part of Norton Rose Group (whether or not such individual is described as a“partner”) accepts or assumes responsibility, or has any liability, to any person in respect of this presentation. Any reference to a partner or director is to a member, employee or consultant with equivalentstanding and qualifications of, as the case may be, Norton Rose LLP or Norton Rose Australia or Norton Rose Canada LLP or Norton Rose South Africa (incorporated as Deneys Reitz Inc) or of one of theirrespective affiliates.