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Peter C. Carstensen

This chapter identifies, describes and evaluates alternative ways to limit or regulate the abuse of unilateral buyer power. The first category is that of more general regulation of conduct which can specifically address strategic conduct by dominant buyers, provide overall regulation of market participants regardless of power, set floors or other constraints on transactions, or provide sponsorship for alternative outlets for producers. The second category involves creating off-setting power in producers either by authorizing producer cartels or permitting integration, vertical or horizontal, by producers. Finally, public authorities can create alternative markets for producers. Each of these strategies has some capacity to limit abusive buyer conduct, but each is also fraught with difficulties both in defining standards and in achieving the goal of constraining buyer abuses. The implication, consistent with Chapter 5, is that remedying buyer power problems once the power exists is likely to have only limited effectiveness.

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Peter C. Carstensen

This chapter describes the harms to competition that can result from the abuse of buyer power. It starts with an analysis of harms resulting from exploitation that include depressed prices, discrimination among producers, uncompensated shifting of risks and costs to producers and the potential that the harms will flow upstream to suppliers of the supplier. It then describes the exclusionary harms that buyer power can cause to competitors of the buyer both as buyers and in any downstream markets where they compete. These practices include exclusive contracts, inducing refusals to deal by producers, most favored nation type clauses in buying contracts and predatory buying practices that increase the cost of inputs to competitors of the buyer. The final part of the chapter argues that abuse of buyer power generally and monopsony in particular is more harmful to the competitive process than is abuse of monopoly.

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Doctrinal foundations of competition law

Assessing the Goals of Antitrust through the Lens of Legal Philosophy

Oles Andriychuk

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The evolution of the economic concept of competition

Assessing the Goals of Antitrust through the Lens of Legal Philosophy

Oles Andriychuk

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The legal theoretical aspects of competition

Assessing the Goals of Antitrust through the Lens of Legal Philosophy

Oles Andriychuk

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The mechanics of balancing

Assessing the Goals of Antitrust through the Lens of Legal Philosophy

Oles Andriychuk

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The normative value of competition

Assessing the Goals of Antitrust through the Lens of Legal Philosophy

Oles Andriychuk

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Practical conclusions

Assessing the Goals of Antitrust through the Lens of Legal Philosophy

Oles Andriychuk

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Fernando Castillo de la Torre and Eric Gippini Fournier

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Patrick Actis Perinetto and Mel Marquis

This chapter examines the approaches of the Italian National Competition Authority (NCA) and the Italian courts when applying the prohibition against abuse of dominance in industries governed by sector-specific regulation (specifically, telecoms, rail transport and pharmaceuticals). On the basis of decisional practice and case law, certain trends seem to emerge. At the level of enforcement by the authority, there appears to be little hesitation to apply competition law, notwithstanding the existence of regulation and regulatory authorities whose task is often, even if technically on different grounds, to resolve the same behavioural issues that are the object of the NCA’s interventions. This consistent and even predictable enforcement trend across different sectors contrasts, however, with the more variable approach of the Italian courts. The courts have in some cases accepted the NCA’s interventions but have rejected others. The chapter traces these developments and attempts to explain the different approaches of the different institutions (regulatory authorities, the NCA and the courts) across the different regulated sectors. Keywords: Italian NCA; Italian courts; pharmaceuticals; rail transport; regulation of network industries; regulatory authorities; telecommunications