Archive for the 'Publications' Category
November 28, 2012
The Fraser Institute has published the eighth edition of its Economic Freedom of North America report (economic freedom defined as “the ability of individuals and families to make their own economic decisions, free from government influence”).
Some key findings made by this new report include (not surprisingly) Alberta ranking first in economic freedom, Canadian provinces making up four of the top ten Canadian and U.S. jurisdictions and Canadian provinces (surprisingly) ranking ahead of U.S. states in average levels of economic freedom.
The report was compiled by examining key indicators of Canadian and U.S. economic freedom, including size of government, taxation, rule of law and property rights and levels of regulation based on 2010 data.
Abstract:
“This is the eighth edition of the annual report, Economic Freedom of North America. The statistical results of this year’s study persuasively confirm those published in the previous seven editions: economic freedom is a powerful driver of growth and prosperity. Those provinces and states that have low levels of economic freedom continue to leave their citizens poorer than they need or should be.
November 27, 2012
The C.D. Howe Institute published a new report on the Canadian Investment Canada Act and state-owned enterprises (SOEs): Speed Dating or Serious Courtship? Canada and Foreign State-Owned Enterprises. Abstract:
“If Canada wants to benefit from Asia’s long-term growth potential, there is no getting around the need to do business, carefully, with state-owned enterprises (SOEs), according to a report released today by the C.D. Howe Institute. In ‘Speed Dating or Serious Courtship? Canada and Foreign State-Owned Enterprises,’ author Daniel Schwanen discusses how Canada can address concerns about the potential impacts of investment by foreign SOEs in Canadian companies.”
For a copy of the C.D. Howe Institute’s new report see: Speed Dating or Serious Courtship? Canada and Foreign State-Owned Enterprises.
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November 24, 2012
On November 23, 2012, the U.K. Office of Fair Trading (OFT) announced that it had written to 100 leading price comparison websites (“PCWs”) asking that they take steps to ensure they were providing clear information to consumers (see: here). In making the announcement, which followed a detailed Review of Price Comparison Websites, the OFT said:
“The OFT has written to 100 leading price comparison websites asking them to ensure they are providing clear information to consumers, after a review published today by the OFT suggested that some sites could do more to improve trust amongst the public.
The review says that in general, price comparison websites have represented a major step forward for consumers, enabling them to secure better value when buying goods and services, but that some people are missing out on potential savings because of a lack of trust. The review also says that the role of such sites is likely to become even more important in the future as online sales continue to grow and initiatives such as the Government’s ‘midata’ project put more information in consumers’ hands.
As part of its review, the OFT conducted a web sweep of 55 price comparison sites which found that a number of sites could improve their privacy policies and their complaints and redress processes. It also identified scope for some sites to provide greater clarity about the way search results are presented, and clear identification of the business operating the website.”
Some of the specific issues considered by the OFT in its Price Comparison Website Report include privacy (e.g., the collection of customer information relating to searches and disclosure and use of information), transparency of information (e.g., how searches are ranked, commercial relationships between comparison sites and vendors and the proportion of the market searched) and complaints and exclusions of liability (e.g., clarity of complaints policies and scope of exclusions of liability).
Recommendations made by the OFT to PCWs include ensuring that privacy policies are clear; being clear about how search results are presented; being clear about the nature of the search; ensuring that there is a clear complaint and redress process; and ensuring clear identification of the website’s operator. The OFT also issued “six top tips” for consumers to keep in mind for price comparison sites.
In Canada, like other jurisdictions, comparative advertising can be a perfectly legitimate and consumer enhancing advertising strategy. It can also, however, in some instances raise issues including misleading advertising (or performance claim), defamation or intellectual property concerns – for example, the recent Rogers performance claims case involving a challenge by the Bureau of Rogers for comparative cell phone reliability claims made by Rogers.
November 20, 2012
The C.D. Howe Institute published a new competition/antitrust related report today entitled “Closing the Back Door Route to Cartels: The Need to Clarify the Regulated Conduct Doctrine” that calls for the Competition Bureau to clarify how the regulated conduct defence applies and how the Bureau may act as an advocate of competition in regulated sectors.
I found this new report somewhat curious, in that it harkens back to the significantly more advocacy focused efforts of Canada’s former Commissioner of Competition (Sheridan Scott), who was highly engaged, among things, in efforts to deregulate segments of the health care sector (uncoupling dental hygienists from dentist oversight for example) and producing a significant report on competition in the professions (Self-regulated Professions Report). It is also not clear that the Bureau has an appetite to expand its guidance of its approach to the RCD (or amplify its advocacy efforts) given that in the past few years it has been moving in the opposite direction – i.e., narrowing some guidelines (e.g., its recently updated Abuse of Dominance Guidelines) and showing an increased focus on enforcement (not advocacy) and a desire to expand Canadian competition law through the courts (not through more guidelines).
Having said that, some increased clarity and certainty in relation to mergers in regulated sectors, including as recommended in this new report those regulated by the CRTC and the Bureau, would certainly be welcome.
Overview:
“The Competition Bureau should actively engage in competition matters in regulated sectors of the economy, where anti-competitive conduct may be protected by government legislation or authority. This is the consensus view of the C.D. Howe Institute’s Competition Policy Council, which held its fourth meeting on November 8, 2012.
Members of the Council held that the Bureau should more clearly delineate the scope of anti- competitive practices that it sees as protected by provincial or federal legislation or delegated authority; and it should be directly engaged in regulatory decisions that potentially impair competition. As well, the Bureau should contribute independent analysis in merger reviews in regulated sectors. …
At Issue: The Regulated Conduct Doctrine (RCD) protects cartels, and potentially other forms of anti-competitive conduct, that would otherwise be subject to scrutiny under the Competition Act if, according to the Competition Bureau’s interpretation, the conduct is authorized by provincial or federal legislation or authority. Although the RCD is prominent in provincially regulated sectors – such as agriculture marketing boards, professional services, energy and alcohol retailing – conduct in federally regulated sectors – such as transportation, telecommunications and broadcasting – may also potentially be protected under the RCD.
November 16, 2012
I did a bit of a quick sweep earlier today for new Canadian competition, advertising and regulatory law texts and this one, recently published by Oxford University Press, caught my eye on class action regimes around the world including Canada. Given the accelerating rate of class action activity in Canada, including in the competition and advertising law areas, I thought this was a worthy hole to fill (and to keep filling).
Abstract:
“World Class Actions: A Guide to Group and Representative Actions around the Globe is a guide for attorneys and their clients on the procedures available for class, group, and representative actions throughout the world. It helps lawyers navigate and develop strategies for litigation and risk management in the course of doing business abroad, or even in doing business locally in a way that impacts interests abroad.
Part I of the book provides a jurisdiction-by-jurisdiction survey of the class action, group, collective, derivative, and other representative action procedures available across the globe. Each chapter is written from a local perspective, by an attorney familiar with the laws, best practices, legal climate, and culture of the jurisdiction.
Part II provides guidance from the perspective of international attorneys practicing in foreign jurisdictions and the art of counseling and representing clients in international litigation. It also covers a variety of topics related to transnational, multi-jurisdictional, and class or collective actions that involve international issues and interests.
Each chapter offers practice tips and cultural insights helpful to an attorney or litigant facing a dispute in a particular part of the world. Many of the chapters introduce key books, treatises, articles, or other reference materials to foster further research. Its focus on international class and group litigation law from a practitioner’s perspective makes World Class Actions an essential guide for the lawyer or client.”
Jurisdictions included in this new global class action text include Canada, as well as the U.S., Australia, a number of major European jurisdictions, China, India and the Asia-Pacific region.
For more information see: World Class Actions: A Guide to Group and Representative Actions Around the Globe.
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November 14, 2012
When companies think about competition law compliance, the focus is often on senior management and board compliance – that is, ensuring that the board, and a firm’s directors and officers, have a clear understanding of competition law rules. That is not to say that it is not well known that managers, and in particular a company’s sales force, are often at the center of competition/antitrust issues. Practically, however, companies often approach compliance from the top down with an expectation that senior management will disseminate the compliance message down through an organization. Sometimes that is the case. In more cases, however, it seems that it is not – as is evidenced by the Competition Bureau’s perennial complaint that many companies have compliance programs, but fail to effectively implement them.
In this regard, a recent U.K. paper caught my eye on the role of marketing managers in global cartels entitled “The Role of Sales and Marketing Managers Within International Cartels” (J.K. Ashton & A.D. Pressey).
This study looked at 56 major international cartels investigated by the European Union with findings that include the fact that marketing and sales managers have been involved in a substantial percentage of cartels (42.9%), are seldom the most senior managers, tended to involve global cartels (in manufacturing more than distribution industries) and involved information exchanges in the context of predominantly market allocation and price-fixing arrangements.
Interestingly, this study also looks at some of the strategies cartels have used to avoid detection (including minimizing meetings, punishing “cheating” and more levels of organizational hierarchy – i.e., buffers between marketing personnel and senior management), marketing managers’ involvement in trade associations and statistics of U.S. incarceration of foreign nationals and the reliance of whistle blowers in investigations.
Abstract:
“Although the study of international cartels has a considerable lineage our understanding of their organization, operation and management remains limited. This study attends to this omission through examining the role of marketing and sales managers within international cartels using a content analysis of 56 major international price-fixing cartels over two decades (1990-2009). It is reported that marketing and sales managers are demonstrably involved in many international cartels (42.9% of all cartel cases), albeit often accompanied by more senior managers from other firm functions. Marketing and sales managers appear most frequently within worldwide and manufacturing industry cartels and where market allocation and customer-sharing practices occur. In light of these findings it is important to reassess both managerial attitudes towards inter-firm collaborations and enhance the position of antitrust concerns within business school syllabi.”
For a copy of the paper see: Who Manages Cartels? The Role of Sales and Marketing Managers within International Cartels.
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November 12, 2012
The Antitrust Law Section of the American Bar Association has published a new issue of its Antitrust Law Journal that includes contributions on the U.S. Supreme Court’s new approach to implied antitrust immunity; antitrust and innovation; antitrust, innovation and product design in platform markets; the Google books settlement; and the rule of reason and goals of antitrust. For a copy of the new issue see: Antitrust Law Journal.
November 10, 2012
Derek Ireland (djirel@sympatico.ca) has recently presented a new paper to the Canada Law and Economics Association entitled “Behavioural Economics and Competition Policy and Law in Emerging Market Economies”. Abstract:
“The literature on how behavioral economics should be applied to competition policy and law in the more advanced OECD economies has expanded greatly over the last ten years. However, behavioral economics and antitrust have to date not addressed the obvious relevance of these behavioral insights for the design and enforcement of competition policies and laws in the more than 80 emerging market economies that in the past 20 years have established new or more modern competition policies, laws and authorities. The purpose of this working paper and our research program is to make a modest start to filling this research gap.
The major argument of this working paper is that selective application of the insights from the behavioral, information and related literatures will improve the analysis and decisions of emerging economy competition authorities, reduce the risk of Type I errors/false positives (e.g. blocking a good merger) and Type II errors/false negatives (e.g. clearing a bad merger), and enhance the competence, credibility and visibility of new, recently established and other competition authorities in emerging economies.
One of the guiding principles from the research is that behavioral economics and related literatures must be able to reduce both Type I and Type II errors in order to be helpful to inexperienced and under resourced competition authorities in emerging economies. On the positive side, emerging economy competition authorities, enterprises and other economic agents operate in a world of rapid change, complexity, ambiguity, and unpredictability. When: (i) the complex objectives functions and the management challenges of business groups and other companies are brought together with; (ii) aversions to risk, losses, disappointment, complexity and ambiguity and to making difficult decisions in complex market contexts; enterprises more often employ simple decision rules and strategies and other heuristics and shortcuts.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
