The Institute of Competition Law has published a new e-Competitions Bulletin, which includes the following:
Unilateral Conduct
Howard Ullman: “A U.S. Court of Appeals Reiterates That It Is Possible to Monopolize a Technology Market (Apple / Samsung) and Andrey Filippov: “A Russian Commercial Appeal Court Imposes a Significant Amendment for a Breach of Competition on the Market of a Domain Name Registration”.
Anti-competitive Practices
Helene Lallemand and Juliett Goyer “The French NCA Issues a Decision Making Compulsory the Commitments of Several French Banks in Order to Abolish Progressively the Main Interbank Fees on Direct Debits, Interbank Payment Orders and Other Non-Cash Means of Payment” (whew … think this may also be a record for exhaustive article title) and Marianela Lopez-Galdos: “The Indian Competition Commission Breaks Up a Cement Cartel and Fines Cartelists With a Record Fine of RPS 60 Billion” and Gavin Benjamin Bushell: “The European Court of Justice Rules on Selective Distribution on the Motor Vehicles Industry”.
Mergers
Ewa Gojniczek: “The President of the Polish Office for Competition and Consumer Protection Issues New Guidelines on the Assessment of Notified Concentrations” and Eduardo Molan Gaban: “The Brazilian Council for Economic Defense Clears Merger Between Two Ammunition Companies Resulting in Monopolization of the Relevant Market”.
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On July 30, 2012, the Competition Bureau announced that the Corporate Research Group Ltd. (CRG) has pleaded guilty to a criminal charge of bid-rigging for federal government contracts in relation to real estate advisory services and was fined $125,000. In making the announcement the Bureau reflected its continuing focus on criminal competition law matters and reliance on its Immunity and Leniency Programs:
“The Bureau’s investigation benefited from cooperation under the Bureau’s Immunity and Leniency Programs, which create incentives for parties to address their criminal liability by cooperating with the Bureau in its ongoing investigation and prosecution of other alleged cartel participants.
Cracking down on cartels, including bid-rigging offences, is a top priority for the Bureau. Under the Competition Act, it is a criminal offence for two or more bidders, in response to a call or request for bids or tenders, to agree among themselves on the bids submitted, to agree that one party will refrain from bidding or to agree to withdraw a submitted bid, without informing the person calling for the bids of this agreement.”
Under section 45 of the Competition Act (the criminal conspiracy offences of the Act) three types of agreements between competitors are “per se” illegal (i.e., with no adverse competitive impacts required to be proven): (i) price-fixing agreements (agreements to fix, maintain, increase or control the price for the supply of a product or service), (ii) market allocation/division agreements (agreements to allocate sales, territories, customers or markets for the production or supply of a product) and (iii) output/supply restriction agreements (agreements to fix, maintain, control, prevent, lessen or eliminate the production or supply of a product). Other types of agreements between competitors are potentially subject to review under a second and separate non-criminal reviewable matters agreement provision (section 90.1).
In anticipation of its upcoming fall Canada in the Pacific Century Conference, the Canadian Council of Chief Executives (CCCE) is publishing a series of Asia investment related papers:
“As part of the Canada in the Pacific Century initiative, the CCCE will publish a series of papers in 2012 dealing with a wide range of issues in the Canada/Asia relationship.”
The CCCE has published the most recent paper in this series by Graham Orpwood, entitled “Competing in the 21st Century Skills Race” – see: Canada in the Pacific Century – Papers
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The Canadian Bar Association (CBA) has published a new edition of its Canadian Competition Law Review, which includes articles on indirect purchaser class actions, antitrust immunity agreements, the availability and scale of litigation and investigation costs in private competition law litigation, origins of Canada’s cartel (conspiracy) laws, criminal competition law developments in 2011 and recent merger review developments.
For a copy of the new edition see:
Canadian Competition Law Review 2012, Vol. 25 No. 1
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The Canadian Interactive Advertising Bureau (IAB) has published two new advertising industry related glossaries, that may also be useful to advertising and marketing law lawyers as well: the “real time bidding” (RTB) and social media glossaries. See: Interactive Advertising Bureau (IAB) – Real Time Bidding (RTB) Glossary and Interactive Advertising Bureau (IAB) – Social Media Glossary. We have added links these very fine two additions to the body of competition/advertising law definitions to our own Antitrust and Advertising Alphabets.
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I am pleased to be delivering the Competition Law and REALTORS course for the Real Estate Board of Greater Vancouver on August 29, 2012. This course has been designed by the Alliance for Canadian Real Estate Education (ACRE) in conjunction with The Canadian Real Estate Association (CREA).
From ACRE:
“Competition Law and REALTORS®: What You Say and Do Matters was designed by ACRE with the assistance of CREA to help Canadian REALTORS® understand and comply with Canadian competition law. While Canadian competition law applies to all real estate professionals, this course was designed specifically for REALTORS®. This course provides an overview in plain language of Canadian competition law and practical compliance guidelines to assist REALTORS® in complying with Canadian competition law and a number of illustrative case studies.”
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With the Maple/TMX and Glencore/Viterra deals beginning to quiet down now, the next Competition Act / Investment Canada Act approval dance began earlier today with announcements that China National Offshore Oil Corporation (“CNOOC”) was proposing to acquire Nexen Inc. in a friendly $15.1 billion all cash transaction ($27.50 per Nexen share). Nexen has assets in Western Canada, the U.K. North Sea, Gulf of Mexico and offshore Nigeria, including oil and gas, oil sands and shale gas production.
Canada’s Industry Minister, the Honourable Christian Paradis, confirmed that the transaction would be subject to Investment Canada Act (“ICA”) review (see: Minister Paradis Confirms China National Offshore Oil Corporation and Nexen Inc. Transaction is Subject to Review under the Investment Canada Act) and made a number of rather pro forma statements, including confirming that the transaction exceeded the WTO review threshold and setting out the net benefit to Canada criteria under the ICA. The Minister also confirmed that the Competition Bureau would be reviewing the proposed transaction.
CNOOC, in reply, in this newest ICA approval dance, began to indicate the types of commitments it may be prepared to offer to secure ICA approval, including significant capital investment, listing CNOOC Limited’s common shares on the TSX, making Calgary its head office for North and Central American operations, vowing to maintain existing management and employees (as well as increasing jobs) and accelerating resource development. According to Nexen’s press release, CNOOC also intends to continue to support oil sands research at Alberta universities and participate in the Oil Sands Innovation Alliance (COSIA) (see: CNOOC Limited Enters Into Definitive Agreement to Acquire Nexen Inc.).
A new book has been published by Thorsten Kaseberg (from the German Economics Ministry) by Hart Publishing (Oxford) entitled Intellectual Property, Antitrust and Cumulative Innovation in the EU and the U.S.:
“For decades, the debate about the tension between IP and antitrust law has revolved around the question to what extent antitrust should accept that IP laws may bar competition in order to stimulate innovation. The rise of IP rights in recent years has highlighted the problem that IP may also impede innovation, if research for new technologies or the marketing of new products requires access to protected prior innovation. How this ‘cumulative innovation’ is actually accounted for under IP and antitrust laws in the EU and the US, and how it could alternatively be dealt with, are the central questions addressed in this unique study by lawyer and economist Thorsten Käseberg.
Taking an integrated view of both IP and antitrust rules – in particular on refusals to deal based on IP – the book assesses policy levers under European and US patent, copyright and trade secrecy laws, such as the bar for and scope of protection as well as research exemptions, compulsory licensing regimes and misuse doctrines. It analyses what the allocation of tasks is and should be between these IP levers and antitrust rules, in particular the law on abuse of dominance (Article 102 TFEU) and monopolisation (Section 2 Sherman Act), while particular attention is paid to the essential facilities doctrine, including pricing methodologies for access to IP.
Many recent decisions and judgments are put into a coherent analytical framework, such as IMS Health, AstraZeneca, GlaxoSmithKline (in the EU), Apple (France), Orange Book Standard (Germany), Trinko, Rambus, NYMEX, eBay (US), Microsoft and IBM/T3 (both EU and US). Further topics covered include: IP protection for software, interoperability information and databases; industry-specific tailoring of IP; antitrust innovation market analysis; and the WTO law on the IP/antitrust interface.”
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
