Competition law and economic regulation : making and managing markets / Niamh Dunne.
2015
K3850 .D86 2015 (Map It)
Available at Cellar
Formats
| Format | |
|---|---|
| BibTeX | |
| MARCXML | |
| TextMARC | |
| MARC | |
| DublinCore | |
| EndNote | |
| NLM | |
| RefWorks | |
| RIS |
Items
Details
Author
Title
Competition law and economic regulation : making and managing markets / Niamh Dunne.
Published
Cambridge, United Kingdom : Cambridge University Press, 2015.
Call Number
K3850 .D86 2015
ISBN
9781107070561 (hardback)
1107070562 (hardback)
1107070562 (hardback)
Description
xvii, 373 pages ; 24 cm
System Control No.
(OCoLC)894183741
Summary
"Niamh Dunne undertakes a systematic exploration of the relationship between competition law and economic regulation as legal mechanisms of market control. Beginning from a theoretical assessment of these legal instruments as discrete mechanisms, the author goes on to address numerous facets of the substantive interrelationship between competition law and economic regulation. She considers, amongst other aspects, the concept of regulatory competition law; deregulation, liberalisation and 'regulation for competition'; the concurrent application of competition law in regulated markets; and relevant institutional aspects including market study procedures, the distribution of enforcement powers between competition agencies and sector regulators, and certain legal powers that demonstrate a 'hybridised' quality lying between competition law and economic regulation. Throughout her assessment, Dunne identifies and explores recurrent considerations that inform and shape the optimal relationship between these legal mechanisms within any jurisdiction"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (pages 335-359) and index.
Record Appears in
Gift
Purchased from the income of the Fisch Fund
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Fisch Fund
Table of Contents
Acknowledgements
ix
Tables of cases
xi
1.
Introduction
1
I.
Market failure and the pursuit of efficiency
6
II.
Mechanisms to address market failure (I): the concept of competition law
14
i.
Theories of competition and monopoly
14
ii.
The structure of competition law: the US and EU systems of competition
18
iii.
The goals of competition law: outcomes or processes?
26
III.
Mechanisms to address market failure (II): the concept of economic regulation
33
IV.
A comparison of competition law and regulation
41
V.
Conceptualising the interface between competition law and regulation
48
i.
Competition law and regulation as substitutes
49
ii.
Competition law and regulation as complements
54
VI.
The interface in practice: the evolution of US telecommunications regulation
60
VII.
Concluding remarks
65
2.
Competition law as regulation
69
I.
Competition law as substitutionary or gap-filling regulation
71
II.
Doctrinal regulatory competition law: procedural and substantive dimensions
78
i.
Distinguishing regulatory competition law from competition law's established core
79
a.
Administrative/technocratic enforcement
79
b.
Ex ante enforcement
81
c.
Prescriptive competition law doctrines
82
d.
Regulatory remedies
83
e.
Mandating 'best' solutions
84
f.
Regulatory competition law: jurisdictional variations
86
ii.
The pros and cons of regulatory competition law
87
a.
Separation of powers
89
b.
Legitimacy and the rule of law
91
c.
Error costs and bad bargains
93
d.
Politicisation
95
e.
Assessing the pros and cons of regulatory competition law
96
III.
Procedural regulatory competition law: negotiated settlements
97
i.
The American experience: consent decrees in US antitrust
98
a.
The nature of consent decrees: accommodating bargains, novelty and regulation
102
ii.
Commitment decisions within EU competition law
108
a.
Commitment decisions and policymaking in the EU energy sector
112
iii.
Negotiated settlements as regulation: a critical assessment
116
IV.
Doctrinal regulatory competition law: excessive prices and essential facilities
119
i.
Excessive prices under competition law
120
a.
Antitrust approaches to excessive prices: the apparent US/EU dichotomy
123
b.
Excessive prices, regulation and the role of competition authorities
127
ii.
The essential facilities doctrine
129
V.
Conclusions
136
3.
Regulation, deregulation and the space for competition law
139
I.
Regulation absent competition law
141
II.
Critiques of regulation - the public-choice movement
143
III.
Public choice in practice: deregulation and privatisation
146
i.
Deregulation in practice: the US and UK experiences
151
ii.
Deregulation and the role of competition law
155
IV.
Reforming regulation: 'better regulation'
161
i.
Better regulation and the role of competition law
168
V.
Regulation's substantive core: non-economic values and structural inefficiency
173
i.
Distributional justice and other non-economic values
174
ii.
Structural market inefficiency
175
iii.
Regulating in lieu of antitrust: the EU Roaming Regulation
179
VI.
Conclusions
185
4.
Concurrent application of competition law and regulation
187
I.
Conceptualising concurrency
188
i.
Concurrent application of competition law in regulated markets: conceptual issues
188
ii.
Competition problems in regulated markets: the example of margin squeeze
191
iii.
Concurrency: conceptual approaches and criteria for application
193
II.
Concurrency in practice: The US and EU law positions
198
i.
US antitrust and state regulation: the significance of sovereignty
199
ii.
US antitrust and federal regulation: substance- and policy- focused approaches
203
a.
The conventional approach: a presumption of concurrency
203
b.
From concurrency towards preclusion: the Trinko and Credit Suisse decisions
205
c.
A holistic approach to concurrency and critiques of the new direction: the decision in Town of Concord
209
iii.
Concurrent application under EU law: prioritising effectiveness, compromising legitimacy?
212
a.
Concurrent application of EU competition law and regulation: general principles
212
b.
Concurrency: the EU constitutional dimension
214
c.
Concurrency and 'State action' in EU law
215
d.
The EU approach: analysis and critique
221
iv.
Analysis: differing approaches to concurrent application in practice
227
III.
The parameters of concurrency: economic, rule-of-law and institutional concerns
228
i.
Analytical and economic concerns
228
a.
Accounting for the impact of regulation on markets and behaviour
229
b.
Risks of competition enforcement: false positives and inefficient outcomes
232
c.
Duplication of market supervisory functions
234
ii.
Rule-of-law concerns
236
iii.
Institutional concerns
243
a.
Private enforcement
243
b.
Remedies
246
IV.
Market circumstances where concurrency arises: policy implications
251
i.
Unrelated competition abuse arising in regulated markets
252
ii.
Regulation in pursuit of non-economic goals
254
iii.
Broken regulation: design inefficiency or regulatory capture
256
iv.
Regulatory gaming
258
V.
Conclusions
261
5.
Institutional issues at the interface of competition law and regulation
263
I.
Allocation and sharing of powers between public-enforcement agencies
264
i.
The UK model: concurrent 'competition enforcement by regulators
267
ii.
The Australian model: an antitrust `super-regulator'
272
iii.
Resolving conflicts within the conventional division of labour
275
II.
Institutional gateways to competition law and regulation (I): market studies
279
i.
Sector inquiries in the European Union
280
ii.
Market investigation references by the UK's Competition and Markets Authority
285
a.
The BAA airports inquiry
290
iii.
Market studies: analysis and concluding remarks
293
III.
Institutional gateways to competition law and regulation (II): 'hybridisation'
294
i.
Concretising competition principles: access to infrastructure regulation
296
ii.
Section 5 of the Federal Trade Commission Act
304
IV.
Conclusions
314
6.
Analysis and conclusions
316
I.
The central role of the concept of competition law
319
II.
Delimiting the interface between competition law and regulation: recurring issues
327
i.
General welfare versus individual rights
328
ii.
The role of efficiency
329
iii.
Democratic accountability versus political interference
330
III.
Concluding remarks
332
Bibliography
335
Index
360