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Enforcement Institutions/procedure
Effects of Leniency program under enforcement errors reconsidered
Recent works in the field of leniency programs have uncovered many ambiguous effects that these programs can have and some unexpected incentives for firms they may also generate. It is quite a common intuition that low standards of economic analysis can undermine the overall effectiveness of antitrust enforcement. What might be a counterintuitive result is how the treatment of different types of agreements – not just cartels, but vertical, conglomerate and horizontal cooperation agreements – and the standards of their assessment by the antitrust authority can influence the effectiveness of leniency programs. It is customary to think that leniency programs are targeted at cartels (even predominantly hardcore ones), whereas their use to fight any other type of conduct is dubious. Yet what happens when participants of other types of agreements try to use the program to get fine discounts in exchange for a confession, and what incentives might they have to do so? How should the antitrust authority act in this case? If normally such – “non-cartel” type – agreements would be assessed based on a “rule of reason” approach, it seems that applying the same approach to any agreement brought forward with the help of a leniency program would essentially defeat the aim of the program, which is to minimize investigation costs. And would the antitrust authority even have the necessary
Enforcement Institutions/procedure
Competition Law and IPRs in Russia: Three years at a crossroad
It is difficult to imagine economic development without innovation. However, competition is closely related to innovation too. At the same time, in spite of the importance of IPR protection for the flow of innovations, the interplay between competition and IPR protection is not simple. This was recognized both in research studies (for instance see: Crampes, Encaoua, Hollander, 2006; Regibeau, Rockett, 2011) and guidelines for antitrust law enforcement (U.S. DOJ, FTC, 1995, European Commission, 2004 a,b). This is so because IPRs might be used in order to restrict competition. This is why in developed and experienced jurisdictions there is not a total exemption for unilateral conduct and anticompetitive agreements as far as competition restrictions based on IPR use is concerned. This fact is used as an argument in discussions for the upgrade of antitrust laws in emerging market economies with much less experience in antitrust and which are faced with more complicated issues for balancing it with other directions of economic policy (first of all, active competition policy, industrial policy). One notable example is Russia, where at the moment the federal law “On competition protection” (OCP) adopted in 2006 replacing the two previous basic laws (1991 and 1999), contains two exemptions for IPRs: (1) part 4 of article 10 for abuse of dominance[1] and (2) part 9 of the article 11 for anticompetitive