Dear Readers,
As per tradition, this August 2022 edition of the Antitrust Chronicle® features articles from members of the CPI Editorial Advisory Board.
This set of articles covers a variety of jurisdictions and a diversity of antitrust topics including, among other things, reflections on the basic principles of antitrust law from practical and theoretical perspectives, recent amendments to the Chinese anti-monopoly law, the treatment of consortia under competition rules, the EU General Court’s approach to jurisdictional referrals under EU competition law, the evolution of UK competition law, and equitable remedies under antitrust law at the U.S. State level.
At the macro level, Rod Sims opens with his unique reflections as the experienced former head of the Australian ACCC. He draws on his years of experience in the role (as well as his past incarnations in the private sector) to draw out various insights that will be vital reading for practitioners in the public and private sector alike. Allan Fels AO similarly provides his insights on the legislative framework in operation in Australia and discusses recent proposals for reform. These observations are complemented by Dennis W. Carlton’s thoughts on recent (somewhat extreme) positions staked out by participants in ongoing debates over antitrust reform. In his view, although there are many improvements that can be made in antitrust doctrine and enforcement, the claims by a growing number of academics, politicians, and government officials (often referred to as “Neo-Brandeisians”) that antitrust needs to be radically redirected and that certain core principles should be jettisoned, these views are wrongheaded, and would lead to undesirable policy outcomes.
Xu Guangyao & Adrian Emch comment on the June 24, 2022 revision of the Chinese Anti-Monopoly Law (“AML”), the country’s main antitrust statute. The revised AML entered into force on August 1, 2022. The paper examines a number of key takeaways from the AML revision and concludes that although the plan was to make a “small amendment,” its impact on businesses, government bodies and other stakeholders in the Chinese antitrust community is profound.
Kyriakos Fountoukakos & Kian O’Connell examine the European Commission’s draft revision of the horizontal cooperation guidance published on March 1, 2022, which for the first time includes a specific section on the assessment of consortia agreements. Up to now, there has been very limited guidance in case law and in the existing horizontal cooperation guidelines. The article examines the role of consortia in procurement processes (tenders) and in M&A and discusses their assessment under EU competition rules.
James Killick & Peter Citron analyze the July 13, 2022 judgment of the General Court of the European Union on the Illumina/Grail transaction following a referral pursuant to Article 22 EUMR. The judgment is an important endorsement of the EC’s recent change in its Article 22 referral policy, and may embolden the EC to call in for review of more transactions where it may have concerns (in particular suspected so-called “killer acquisitions”) even where the transaction does not fulfill the standard EU merger control thresholds.
August 2022 marks the 25th anniversary of the publication of the draft Competition Bill in August 1997. Rachel Brandenburger, Christopher Hutton & Stelios Charitopoulos provide a retrospective of its effectiveness so far. Although there have been significant reforms and institutional changes since 1997, the fundamental building blocks of this framework have remained consistent. This article highlights some key developments and reflects on what the past may tell us about the future of competition law enforcement in the UK.
As always, many thanks to our Editorial Advisory Board for their ongoing efforts and this selection of articles.
Sincerely,
CPI Team
