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October 20-21, 2017 portolano.it
Avv. Enzo Marasà
of Counsel – EU, Antitrust and Regulatory
ANTI-TRUST AND ANTI-GLOBALIZATION
European University Institute
Second FCP Annual Conference
20-21 October 2017
San Domenico di Fiesole
October 20-21, 2017 portolano.it2
Panel IV – Anti-globalization and the future of antitrust
enforcement across the world
 Since I was a student, I’ve always been looking at antitrust and competition
law as a means for substantive, economic democracy within a country. Even
more naïvely, I used to dream of a “global antitrust treaty” as an
indispensable means to achieve global peace and sustainable living, as far as
it would create a level playing field for businesses across the world and,
thus, a sustainable social and economic growth with equal opportunities for
everyone.
 Needless to say, achieving a truly effective global antitrust system sounds in
fact completely unrealistic in the short or even medium term.
October 20-21, 2017 portolano.it3
Panel IV – Anti-globalization and the future of antitrust
enforcement across the world
But because there does not seem to be a plausible way back
form globalization of markets and economic activities and there
cannot be a fair, peaceful and sustainable globalization without
a global antitrust system, we must keep dreaming and aim to
achieve that goal in the long term!
At least, we should prepare the ground for such an ambitious
(yet fundamental) goal and refrain from jeopardizing the chance
for future generations to pursue it.
October 20-21, 2017 portolano.it4
Panel IV – Anti-globalization and the future of antitrust
enforcement across the world
 However, my personal trust in antitrust law (ignore the oxymoron) as a
means to achieve global peace and economic welfare resides in
 the deep belief that free market economy – if adequately monitored
and regulated to protect competition and correct certain sistematic
failures – is the best possible economic system with a view to promote
growth and progress for the entire community; and
 in that it is (or should be) founded on strict legal principles combined
with sound economic sciences.
 Conversely, anti-globalization movements mainly bear on distrust in the
ability of free market forces to sort out social and economic disparities on a
global scale: this is true in particular from either the consumers’ and small
business’ standpoint.
October 20-21, 2017 portolano.it5
Panel IV – Anti-globalization and the future of antitrust
enforcement across the world
 Rightly or wrongly, such distrust on free market forces is also targeting or
influencing antitrust agencies across the world in a claim to protect
“territorial” interests by factoring broader non-economic, social or “home
affairs” considerations (often in disguise of “fairness” considerations) into
antitrust assessments, thus negating the very economic foundation of
antitrust laws.
 Hence, as a matter of fact, the protectionist push by Anti-globalization
movements may lead (or is already leading) to a dangerous shift in
competition policy towards a so called “populist” or “hipster” antitrust,
which refuses to apply strict economic sciences to issues such as dominance
and collective dominance (or abuse thereof) and disregards the economic
analysis of law as the way to improve efficiency and effectiveness of
antitrust law enforcement.
October 20-21, 2017 portolano.it6
Panel IV – Anti-globalization and the future of antitrust
enforcement across the world
 As far as the above is correct, anti-globalization movements pose a serious
threat to the convergence of antitrust policies towards the “more
economic” and “effect-based” approach” so long invoked by undertakings,
practitioners and academics of the antitrust community…
 …which is the essential premise to build an effective, sound and truly
“global antitrust system”
 it will be impossible to even start cooperating to achieve this (dream) goal if
concepts such as single or collective dominance as well as the various legal
tests for assessing antitrust breaches were not based on sound and rock-
solid economic principles as widely endorsed by the international
community – and it would be impossible to develop a fair global market if
each jurisdiction were to apply its own non-economic, protectionist/populist
approach to antitrust assessments.
October 20-21, 2017 portolano.it7
Panel IV – Anti-globalization and the future of antitrust
enforcement across the world
 Indeed, it is a circular effect: the more non-economic (say –
hipster/populist) arguments and considerations factor into antitrust
reasoning and legislation, the more antitrust enforcement policies and
legislations across the world would become prone to Anti-globalization and
protectionist movements and, thus, would start diverging again rather than
converging.
 The contrary is also true: the more strict economic factors and theories are
taken into account in antitrust assessments, the more a convergence and
cooperation across jurisdictions is possible and the less a “fair” globalization
a mirage.
October 20-21, 2017 portolano.it8
Panel IV – Anti-globalization and the future of antitrust
enforcement across the world
 Actual forms of formal cooperation between jurisdictions in antitrust
enforcement include formal bi-lateral cooperation agreements (e.g. EU/US;
EU/Japan; EU/Switzerland etc.)..
 which however are limited to the exchange of non-confidential
information on timescales of the procedures, theories of harm, possible
remedies, strategies and coordination on timing of down raids or other
investigative steps…
 and the respective antitrust agencies) are mandated to operate
independently from each other’s determinations and are left free to reach
different, even opposing, outcomes (as often do)
October 20-21, 2017 portolano.it9
Panel IV – Anti-globalization and the future of antitrust
enforcement across the world
 Other forms of “soft”, informal multilateral cooperation exist within the
International Competition network (or within the European Competition
Network inside the EU)…
 which however do not bear compulsory cooperation obligations and only
represent a venue to facilitate exchange of views between antitrust
agencies across the world on actual policy issues, or to share high-level
approaches to procedural and substantive issues, without any binding or
structural effect;
 they are of course useful to promote convergence and cooperation, but at
present are not able to achieve more than that
October 20-21, 2017 portolano.it10
Panel IV – Anti-globalization and the future of antitrust
enforcement across the world
 Ideally, a more formal, integrated and effective multilateral cooperation
agreement should provide for:
 joint investigation teams and joint decisions taken by a supra-national,
independent antitrust agency formed by “technicians” from the different
jurisdictions/parties to the agreement (e.g. top officials of national
antitrust agencies); and
 a supra-national court system for strong, independent judicial review of
such decisions (formed e.g. by top senior and antitrust-savvy judges of the
different jurisdictions involved)
October 20-21, 2017 portolano.it11
Panel IV – Anti-globalization and the future of antitrust
enforcement across the world
 The main (and seemingly insuperable at present) roadblocks to achieve such
a (dream) goal are probably the following:
 the existence of huge non-free market economies, which go along with
too low standard for protection of human rights, including the right to run
a business, and lack of due process;
 Large presence of State Owned Entities in the global economy (anyone
thinking to OPEC? OECD says 22% of 100 largest companies are SOEs)
 Lack of sufficient guarantees that confidential/privileged information of
undertakings (responses to RFI, leniency submissions, market data,
technologies in R&D stage etc.) will not be leaked or used by some of the
participating jurisdictions for other purposes; and…(next page)
October 20-21, 2017 portolano.it12
Panel IV – Anti-globalization and the future of antitrust
enforcement across the world
…Too broad language in antitrust legislation (e.g. “fairness” or
“sustainable development”), which attracts
protectionist/populist interpretations that nothing have to do
with sound economic sciences
Fairness of commercial conducts in the antitrust field cannot
be assessed without resorting to a clear theory of harm based
on solid and sound economic principles.
October 20-21, 2017 portolano.it13
Panel IV – Anti-globalization and the future of antitrust
enforcement across the world
 Is there a possible solution or path to follow with a view to overcome such
obstacles? In the real and actual situation, this doe not seem to be the case –
at least not for global abuses or cartels, particularly if SOEs are involved…
 But perhaps things can start sorting out by strengthening the already fairly
advanced cooperation existing in the merger control field.
 There, undertakings are more incentivized to prompt cooperation among
and between different jurisdictions with a view to obtain a more expedite,
uniform and coordinated outcome of the investigation, with aligned
remedies and a certain framework for their global business strategies
October 20-21, 2017 portolano.it14
Panel IV – Anti-globalization and the future of antitrust
enforcement across the world
 However, even if this is a dream goal, one has to be realistic: any attempt
to reach such a multilateral agreement can only work out if non-free
market economies are cut out of it – there is clearly no momentum in
entering into a serious multilateral antitrust agreement with such
jurisdictions as they will jeopardize the overall functioning an foundation
of antitrust laws
 One must hope that participating jurisdictions reach a sufficient economic
scale to force excluded, non-free market economies to improve their
system just to benefit of the great advantages of being part of a
multilateral antitrust system
 OECD is doing a great work to narrow the gaps! ICN may provide a starting
venue to discuss the matter seriously; and the experience in WTO may
provide valuable tips and frameworks for future enforcement – let’s keep
dreaming and be trustful in humankind, as it is the only way out!
October 20-21, 2017 portolano.it
GRAZIE!
ENZO MARASÀ
of counsel
Mail emarasa@portolano.it
Mobile +39 340 2161867
Office +39 02 722341

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Enzo Marasà_Antitrust and Antiglobalization

  • 1. October 20-21, 2017 portolano.it Avv. Enzo Marasà of Counsel – EU, Antitrust and Regulatory ANTI-TRUST AND ANTI-GLOBALIZATION European University Institute Second FCP Annual Conference 20-21 October 2017 San Domenico di Fiesole
  • 2. October 20-21, 2017 portolano.it2 Panel IV – Anti-globalization and the future of antitrust enforcement across the world  Since I was a student, I’ve always been looking at antitrust and competition law as a means for substantive, economic democracy within a country. Even more naïvely, I used to dream of a “global antitrust treaty” as an indispensable means to achieve global peace and sustainable living, as far as it would create a level playing field for businesses across the world and, thus, a sustainable social and economic growth with equal opportunities for everyone.  Needless to say, achieving a truly effective global antitrust system sounds in fact completely unrealistic in the short or even medium term.
  • 3. October 20-21, 2017 portolano.it3 Panel IV – Anti-globalization and the future of antitrust enforcement across the world But because there does not seem to be a plausible way back form globalization of markets and economic activities and there cannot be a fair, peaceful and sustainable globalization without a global antitrust system, we must keep dreaming and aim to achieve that goal in the long term! At least, we should prepare the ground for such an ambitious (yet fundamental) goal and refrain from jeopardizing the chance for future generations to pursue it.
  • 4. October 20-21, 2017 portolano.it4 Panel IV – Anti-globalization and the future of antitrust enforcement across the world  However, my personal trust in antitrust law (ignore the oxymoron) as a means to achieve global peace and economic welfare resides in  the deep belief that free market economy – if adequately monitored and regulated to protect competition and correct certain sistematic failures – is the best possible economic system with a view to promote growth and progress for the entire community; and  in that it is (or should be) founded on strict legal principles combined with sound economic sciences.  Conversely, anti-globalization movements mainly bear on distrust in the ability of free market forces to sort out social and economic disparities on a global scale: this is true in particular from either the consumers’ and small business’ standpoint.
  • 5. October 20-21, 2017 portolano.it5 Panel IV – Anti-globalization and the future of antitrust enforcement across the world  Rightly or wrongly, such distrust on free market forces is also targeting or influencing antitrust agencies across the world in a claim to protect “territorial” interests by factoring broader non-economic, social or “home affairs” considerations (often in disguise of “fairness” considerations) into antitrust assessments, thus negating the very economic foundation of antitrust laws.  Hence, as a matter of fact, the protectionist push by Anti-globalization movements may lead (or is already leading) to a dangerous shift in competition policy towards a so called “populist” or “hipster” antitrust, which refuses to apply strict economic sciences to issues such as dominance and collective dominance (or abuse thereof) and disregards the economic analysis of law as the way to improve efficiency and effectiveness of antitrust law enforcement.
  • 6. October 20-21, 2017 portolano.it6 Panel IV – Anti-globalization and the future of antitrust enforcement across the world  As far as the above is correct, anti-globalization movements pose a serious threat to the convergence of antitrust policies towards the “more economic” and “effect-based” approach” so long invoked by undertakings, practitioners and academics of the antitrust community…  …which is the essential premise to build an effective, sound and truly “global antitrust system”  it will be impossible to even start cooperating to achieve this (dream) goal if concepts such as single or collective dominance as well as the various legal tests for assessing antitrust breaches were not based on sound and rock- solid economic principles as widely endorsed by the international community – and it would be impossible to develop a fair global market if each jurisdiction were to apply its own non-economic, protectionist/populist approach to antitrust assessments.
  • 7. October 20-21, 2017 portolano.it7 Panel IV – Anti-globalization and the future of antitrust enforcement across the world  Indeed, it is a circular effect: the more non-economic (say – hipster/populist) arguments and considerations factor into antitrust reasoning and legislation, the more antitrust enforcement policies and legislations across the world would become prone to Anti-globalization and protectionist movements and, thus, would start diverging again rather than converging.  The contrary is also true: the more strict economic factors and theories are taken into account in antitrust assessments, the more a convergence and cooperation across jurisdictions is possible and the less a “fair” globalization a mirage.
  • 8. October 20-21, 2017 portolano.it8 Panel IV – Anti-globalization and the future of antitrust enforcement across the world  Actual forms of formal cooperation between jurisdictions in antitrust enforcement include formal bi-lateral cooperation agreements (e.g. EU/US; EU/Japan; EU/Switzerland etc.)..  which however are limited to the exchange of non-confidential information on timescales of the procedures, theories of harm, possible remedies, strategies and coordination on timing of down raids or other investigative steps…  and the respective antitrust agencies) are mandated to operate independently from each other’s determinations and are left free to reach different, even opposing, outcomes (as often do)
  • 9. October 20-21, 2017 portolano.it9 Panel IV – Anti-globalization and the future of antitrust enforcement across the world  Other forms of “soft”, informal multilateral cooperation exist within the International Competition network (or within the European Competition Network inside the EU)…  which however do not bear compulsory cooperation obligations and only represent a venue to facilitate exchange of views between antitrust agencies across the world on actual policy issues, or to share high-level approaches to procedural and substantive issues, without any binding or structural effect;  they are of course useful to promote convergence and cooperation, but at present are not able to achieve more than that
  • 10. October 20-21, 2017 portolano.it10 Panel IV – Anti-globalization and the future of antitrust enforcement across the world  Ideally, a more formal, integrated and effective multilateral cooperation agreement should provide for:  joint investigation teams and joint decisions taken by a supra-national, independent antitrust agency formed by “technicians” from the different jurisdictions/parties to the agreement (e.g. top officials of national antitrust agencies); and  a supra-national court system for strong, independent judicial review of such decisions (formed e.g. by top senior and antitrust-savvy judges of the different jurisdictions involved)
  • 11. October 20-21, 2017 portolano.it11 Panel IV – Anti-globalization and the future of antitrust enforcement across the world  The main (and seemingly insuperable at present) roadblocks to achieve such a (dream) goal are probably the following:  the existence of huge non-free market economies, which go along with too low standard for protection of human rights, including the right to run a business, and lack of due process;  Large presence of State Owned Entities in the global economy (anyone thinking to OPEC? OECD says 22% of 100 largest companies are SOEs)  Lack of sufficient guarantees that confidential/privileged information of undertakings (responses to RFI, leniency submissions, market data, technologies in R&D stage etc.) will not be leaked or used by some of the participating jurisdictions for other purposes; and…(next page)
  • 12. October 20-21, 2017 portolano.it12 Panel IV – Anti-globalization and the future of antitrust enforcement across the world …Too broad language in antitrust legislation (e.g. “fairness” or “sustainable development”), which attracts protectionist/populist interpretations that nothing have to do with sound economic sciences Fairness of commercial conducts in the antitrust field cannot be assessed without resorting to a clear theory of harm based on solid and sound economic principles.
  • 13. October 20-21, 2017 portolano.it13 Panel IV – Anti-globalization and the future of antitrust enforcement across the world  Is there a possible solution or path to follow with a view to overcome such obstacles? In the real and actual situation, this doe not seem to be the case – at least not for global abuses or cartels, particularly if SOEs are involved…  But perhaps things can start sorting out by strengthening the already fairly advanced cooperation existing in the merger control field.  There, undertakings are more incentivized to prompt cooperation among and between different jurisdictions with a view to obtain a more expedite, uniform and coordinated outcome of the investigation, with aligned remedies and a certain framework for their global business strategies
  • 14. October 20-21, 2017 portolano.it14 Panel IV – Anti-globalization and the future of antitrust enforcement across the world  However, even if this is a dream goal, one has to be realistic: any attempt to reach such a multilateral agreement can only work out if non-free market economies are cut out of it – there is clearly no momentum in entering into a serious multilateral antitrust agreement with such jurisdictions as they will jeopardize the overall functioning an foundation of antitrust laws  One must hope that participating jurisdictions reach a sufficient economic scale to force excluded, non-free market economies to improve their system just to benefit of the great advantages of being part of a multilateral antitrust system  OECD is doing a great work to narrow the gaps! ICN may provide a starting venue to discuss the matter seriously; and the experience in WTO may provide valuable tips and frameworks for future enforcement – let’s keep dreaming and be trustful in humankind, as it is the only way out!
  • 15. October 20-21, 2017 portolano.it GRAZIE! ENZO MARASÀ of counsel Mail emarasa@portolano.it Mobile +39 340 2161867 Office +39 02 722341