XXIX. Competition Laws

A. THE PHILOSOPHY OF COMPETITION

The aims of competition (anti-trust) laws are to ensure

that consumers pay the lowest possible price (=the most

efficient price) coupled with the highest quality of the

goods and services which they consume. This, according

to current economic theories, can be achieved only

through effective competition. Competition not only

reduces particular prices of specific goods and services - it

also tends to have a deflationary effect by reducing the

general price level. It pits consumers against producers,

producers against other producers (in the battle to win the

heart of consumers) and even consumers against

consumers (for example in the healthcare sector in the

USA). This everlasting conflict does the miracle of

increasing quality with lower prices. Think about the vast

improvement on both scores in electrical appliances. The

VCR and PC of yesteryear cost thrice as much and

provided one third the functions at one tenth the speed.

Competition has innumerable advantages:

a. It encourages manufacturers and service providers

to be more efficient, to better respond to the needs of their

customers, to innovate, to initiate, to venture. In

professional words: it optimizes the allocation of

resources at the firm level and, as a result, throughout the

national economy.

More simply: producers do not waste resources (capital),

consumers and businesses pay less for the same goods and

services and, as a result, consumption grows to the benefit

of all involved.

b. The other beneficial effect seems, at first sight, to

be an adverse one: competition weeds out the

failures, the incompetents, the inefficient, the fat

and slow to respond. Competitors pressure one

another to be more efficient, leaner and meaner.

This is the very essence of capitalism. It is wrong

to say that only the consumer benefits. If a firm

improves itself, re-engineers its production

processes, introduces new management

techniques, modernizes - in order to fight the

competition, it stands to reason that it will reap the

rewards. Competition benefits the economy, as a

whole, the consumers and other producers by a

process of natural economic selection where only

the fittest survive. Those who are not fit to survive

die out and cease to waste the rare resources of

humanity.

Thus, paradoxically, the poorer the country, the less

resources it has - the more it is in need of competition.

Only competition can secure the proper and most efficient

use of its scarce resources, a maximization of its output

and the maximal welfare of its citizens (consumers).

Moreover, we tend to forget that the biggest consumers

are businesses (firms). If the local phone company is

inefficient (because no one competes with it, being a

monopoly) - firms will suffer the most: higher charges,

bad connections, lost time, effort, money and business. If

the banks are dysfunctional (because there is no foreign

competition), they will not properly service their clients

and firms will collapse because of lack of liquidity. It is

the business sector in poor countries which should head

the crusade to open the country to competition.

Unfortunately, the first discernible results of the

introduction of free marketry are unemployment and

business closures. People and firms lack the vision, the

knowledge and the wherewithal needed to support

competition. They fiercely oppose it and governments

throughout the world bow to protectionist measures. To

no avail. Closing a country to competition will only

exacerbate the very conditions which necessitate its

opening up. At the end of such a wrong path awaits

economic disaster and the forced entry of competitors. A

country which closes itself to the world - will be forced to

sell itself cheaply as its economy will become more and

more inefficient, less and less competitive.

The Competition Laws aim to establish fairness of

commercial conduct among entrepreneurs and competitors

which are the sources of said competition and innovation.

Experience - later buttressed by research - helped to

establish the following four principles:

1. There should be no barriers to the entry of new

market players (barring criminal and moral

barriers to certain types of activities and to certain

goods and services offered).

2. A larger scale of operation does introduce

economies of scale (and thus lowers prices).

This, however, is not infinitely true. There is a

Minimum Efficient Scale - MES - beyond which

prices will begin to rise due to monopolization of

the markets. This MES was empirically fixed at

10% of the market in any one good or service. In

other words: companies should be encouraged to

capture up to 10% of their market (=to lower

prices) and discouraged to cross this barrier, lest

prices tend to rise again.

3. Efficient competition does not exist when a market

is controlled by less than 10 firms with big size

differences. An oligopoly should be declared

whenever 4 firms control more than 40% of the

market and the biggest of them controls more than

12% of it.

4. A competitive price will be comprised of a

minimal cost plus an equilibrium profit which does

not encourage either an exit of firms (because it is

too low), nor their entry (because it is too high).

Left to their own devices, firms tend to liquidate

competitors (predation), buy them out or collude with

them to raise prices. The 1890 Sherman Antitrust Act in

the USA forbade the latter (section 1) and prohibited

monopolization or dumping as a method to eliminate

competitors. Later acts (Clayton, 1914 and the Federal

Trade Commission Act of the same year) added forbidden

activities: tying arrangements, boycotts, territorial

divisions, non-competitive mergers, price discrimination,

exclusive dealing, unfair acts, practices and methods.

Both consumers and producers who felt offended were

given access to the Justice Department and to the FTC or

the right to sue in a federal court and be eligible to receive

treble damages.

It is only fair to mention the "intellectual competition",

which opposes the above premises. Many important

economists thought (and still do) that competition laws

represent an unwarranted and harmful intervention of the

State in the markets. Some believed that the State should

own important industries (J.K. Galbraith), others - that

industries should be encouraged to grow because only size

guarantees survival, lower prices and innovation (Ellis

Hawley). Yet others supported the cause of laissez faire

(Marc Eisner).

These three antithetical approaches are, by no means,

new. One led to socialism and communism, the other to

corporatism and monopolies and the third to jungle-

ization of the market (what the Europeans derisively call:

the Anglo-Saxon model).

B. HISTORICAL AND LEGAL CONSIDERATIONS

Why does the State involve itself in the machinations of

the free market? Because often markets fail or are unable

or unwilling to provide goods, services, or competition.

The purpose of competition laws is to secure a

competitive marketplace and thus protect the consumer

from unfair, anti-competitive practices. The latter tend to

increase prices and reduce the availability and quality of

goods and services offered to the consumer.

Such state intervention is usually done by establishing a

governmental Authority with full powers to regulate the

markets and ensure their fairness and accessibility to new

entrants. Lately, international collaboration between such

authorities yielded a measure of harmonization and

coordinated action (especially in cases of trusts which are

the results of mergers and acquisitions).

Yet, competition law embodies an inherent conflict: while

protecting local consumers from monopolies, cartels and

oligopolies - it ignores the very same practices when

directed at foreign consumers. Cartels related to the

country's foreign trade are allowed even under

GATT/WTO rules (in cases of dumping or excessive

export subsidies). Put simply: governments regard acts

which are criminal as legal if they are directed at foreign

consumers or are part of the process of foreign trade.

A country such as Macedonia - poor and in need of

establishing its export sector - should include in its

competition law at least two protective measures against

these discriminatory practices:

1. Blocking Statutes - which prohibit its legal entities

from collaborating with legal procedures in other

countries to the extent that this collaboration

adversely affects the local export industry.

2. Clawback Provisions - which will enable the local

courts to order the refund of any penalty payment

decreed or imposed by a foreign court on a local

legal entity and which exceeds actual damage

inflicted by unfair trade practices of said local

legal entity. US courts, for instance, are allowed to

impose treble damages on infringing foreign

entities. The clawback provisions are used to battle

this judicial aggression.

Competition policy is the antithesis of industrial policy.

The former wishes to ensure the conditions and the rules

of the game - the latter to recruit the players, train them

and win the game. The origin of the former is in the 19th

century USA and from there it spread to (really was

imposed on) Germany and Japan, the defeated countries in

the 2nd World War. The European Community (EC)

incorporated a competition policy in articles 85 and 86 of

the Rome Convention and in Regulation 17 of the Council

of Ministers, 1962.

Still, the two most important economic blocks of our time

have different goals in mind when implementing

competition policies. The USA is more interested in

economic (and econometric) results while the EU

emphasizes social, regional development and political

consequences. The EU also protects the rights of small

businesses more vigorously and, to some extent, sacrifices

intellectual property rights on the altar of fairness and the

free movement of goods and services.

Put differently: the USA protects the producers and the

EU shields the consumer. The USA is interested in the

maximization of output at whatever social cost - the EU is

interested in the creation of a just society, a liveable

community, even if the economic results will be less than

optimal.

There is little doubt that Macedonia should follow the EU

example. Geographically, it is a part of Europe and, one

day, will be integrated in the EU. It is socially sensitive,

export oriented, its economy is negligible and its

consumers are poor, it is besieged by monopolies and

oligopolies.

In my view, its competition laws should already

incorporate the important elements of the EU

(Community) legislation and even explicitly state so in the

preamble to the law. Other, mightier, countries have done

so. Italy, for instance, modelled its Law number 287 dated

10/10/90 "Competition and Fair Trading Act" after the EC

legislation. The law explicitly says so.

The first serious attempt at international harmonization of

national antitrust laws was the Havana Charter of 1947. It

called for the creation of an umbrella operating

organization (the International Trade Organization or

"ITO") and incorporated an extensive body of universal

antitrust rules in nine of its articles. Members were

required to "prevent business practices affecting

international trade which restrained competition, limited

access to markets, or fostered monopolistic control

whenever such practices had harmful effects on the

expansion of production or trade". the latter included:

a. Fixing prices, terms, or conditions to be observed

in dealing with others in the purchase, sale, or lease of any

product;

b. Excluding enterprises from, or allocating or

dividing, any territorial market or field of business

activity, or allocating customers, or fixing sales

quotas or purchase quotas;

c. Discriminating against particular enterprises;

d. Limiting production or fixing production quotas;

e. Preventing by agreement the development or

application of technology or invention, whether

patented or non-patented; and

f. Extending the use of rights under intellectual

property protections to matters which, according to

a member's laws and regulations, are not within

the scope of such grants, or to products or

conditions of production, use, or sale which are

not likewise the subject of such grants.

GATT 1947 was a mere bridging agreement but the

Havana Charter languished and died due to the objections

of a protectionist US Senate.

There are no antitrust/competition rules either in GATT

1947 or in GATT/WTO 1994, but their provisions on

antidumping and countervailing duty actions and

government subsidies constitute some elements of a more

general antitrust/competition law.

GATT, though, has an International Antitrust Code

Writing Group which produced a "Draft International

Antitrust Code" (10/7/93). It is reprinted in II, 64

Antitrust & Trade Regulation Reporter (BNA), Special

Supplement at S-3 (19/8/93).

Four principles guided the (mostly German) authors:

1. National laws should be applied to solve

international competition problems;

2. Parties, regardless of origin, should be treated as

locals;

3. A minimum standard for national antitrust rules

should be set (stricter measures would be

welcome); and

4. The establishment of an international authority to

settle disputes between parties over antitrust

issues.

The 29 (well-off) members of the Organization for

Economic Cooperation and Development (OECD) formed

rules governing the harmonization and coordination of

international antitrust/competition regulation among its

member nations ("The Revised Recommendation of the

OECD Council Concerning Cooperation between Member

Countries on Restrictive Business Practices Affecting

International Trade," OECD Doc. No. C(86)44 (Final)

(June 5, 1986), also in 25 International Legal Materials

1629 (1986). A revised version was reissued. According

to it, " .Enterprises should refrain from abuses of a

dominant market position; permit purchasers, distributors,

and suppliers to freely conduct their businesses; refrain

from cartels or restrictive agreements; and consult and

cooperate with competent authorities of interested

countries".

An agency in one of the member countries tackling an

antitrust case, usually notifies another member country

whenever an antitrust enforcement action may affect

important interests of that country or its nationals (see:

OECD Recommendations on Predatory Pricing, 1989).

The United States has bilateral antitrust agreements with

Australia, Canada, and Germany, which was followed by

a bilateral agreement with the EU in 1991. These provide

for coordinated antitrust investigations and prosecutions.

The United States thus reduced the legal and political

obstacles which faced its extraterritorial prosecutions and

enforcement. The agreements require one party to notify

the other of imminent antitrust actions, to share relevant

information, and to consult on potential policy changes.

The EU-U.S. Agreement contains a "comity" principle

under which each side promises to take into consideration

the other's interests when considering antitrust

prosecutions. A similar principle is at the basis of Chapter

15 of the North American Free Trade Agreement

(NAFTA) - cooperation on antitrust matters.

The United Nations Conference on Restrictive Business

Practices adopted a code of conduct in 1979/1980 that was

later integrated as a U.N. General Assembly Resolution

[U.N. Doc. TD/RBP/10 (1980)]: "The Set of

Multilaterally Agreed Equitable Principles and Rules".

According to its provisions, "independent enterprises

should refrain from certain practices when they would

limit access to markets or otherwise unduly restrain

competition".

The following business practices are prohibited:

1. Agreements to fix prices (including export and

import prices);

2. Collusive tendering;

3. Market or customer allocation (division)

arrangements;

4. Allocation of sales or production by quota;

5. Collective action to enforce arrangements, e.g., by

concerted refusals to deal;

6. Concerted refusal to sell to potential importers;

and

7. Collective denial of access to an arrangement, or

association, where such access is crucial to

competition and such denial might hamper it. In

addition, businesses are forbidden to engage in the

abuse of a dominant position in the market by

limiting access to it or by otherwise restraining

competition by:

a. Predatory behaviour towards

competitors;

b. Discriminatory pricing or terms or

conditions in the supply or purchase

of goods or services;

c. Mergers, takeovers, joint ventures,

or other acquisitions of control;

d. Fixing prices for exported goods or

resold imported goods;

e. Import restrictions on legitimately-

marked trademarked goods;

f. Unjustifiably - whether partially or

completely - refusing to deal on an

enterprise's customary commercial

terms, making the supply of goods

or services dependent on

restrictions on the distribution or

manufacturer of other goods,

imposing restrictions on the resale

or exportation of the same or other

goods, and purchase "tie-ins".

C. ANTI - COMPETITIVE STRATEGIES

Any Competition Law in Macedonia should, in my view,

excplicitly include strict prohibitions of the following

practices (further details can be found in Porter's book -

"Competitive Strategy").

These practices characterize the Macedonian market.

They influence the Macedonian economy by discouraging

foreign investors, encouraging inefficiencies and

mismanagement, sustaining artificially high prices,

misallocating very scarce resources, increasing

unemployment, fostering corrupt and criminal practices

and, in general, preventing the growth that Macedonia

could have attained.

Strategies for Monopolization

Exclude competitors from distribution channels. - This is

common practice in many countries. Open threats are

made by the manufacturers of popular products: "If you

distribute my competitor's products - you cannot distribute

mine. So, choose." Naturally, retail outlets, dealers and

distributors will always prefer the popular product to the

new. This practice not only blocks competition - but also

innovation, trade and choice or variety.

Buy up competitors and potential competitors. - There is

nothing wrong with that. Under certain circumstances, this

is even desirable. Think about the Banking System: it is

always better to have fewer banks with bigger capital than

many small banks with capital inadequacy (remember the

TAT affair). So, consolidation is sometimes welcome,

especially where scale represents viability and a higher

degree of consumer protection. The line is thin and is

composed of both quantitative and qualitative criteria.

One way to measure the desirability of such mergers and

acquisitions (M&A) is the level of market concentration

following the M&A. Is a new monopoly created? Will the

new entity be able to set prices unperturbed? stamp out its

other competitors? If so, it is not desirable and should be

prevented.

Every merger in the USA must be approved by the

antitrust authorities. When multinationals merge, they

must get the approval of all the competition authorities in

all the territories in which they operate. The purchase of

"Intuit" by "Microsoft" was prevented by the antitrust

department (the "Trust-busters"). A host of airlines was

conducting a drawn out battle with competition authorities

in the EU, UK and the USA lately.

Use predatory [below-cost] pricing (also known as

dumping) to eliminate competitors. - This tactic is mostly

used by manufacturers in developing or emerging

economies and in Japan. It consists of "pricing the

competition out of the markets". The predator sells his

products at a price which is lower even than the costs of

production. The result is that he swamps the market,

driving out all other competitors. Once he is left alone - he

raises his prices back to normal and, often, above normal.

The dumper loses money in the dumping operation and

compensates for these losses by charging inflated prices

after having the competition eliminated.

Raise scale-economy barriers. - Take unfair advantage of

size and the resulting scale economies to force conditions

upon the competition or upon the distribution channels. In

many countries Big Industry lobbies for a legislation

which will fit its purposes and exclude its (smaller)

competitors.

Increase "market power (share) and hence profit

potential".

Study the industry's "potential" structure and ways it

can be made less competitive. - Even thinking about sin

or planning it should be prohibited. Many industries have

"think tanks" and experts whose sole function is to show

the firm the way to minimize competition and to increase

its market shares. Admittedly, the line is very thin: when

does a Marketing Plan become criminal?

Arrange for a "rise in entry barriers to block later

entrants" and "inflict losses on the entrant". - This

could be done by imposing bureaucratic obstacles (of

licencing, permits and taxation), scale hindrances (no

possibility to distribute small quantities), "old boy

networks" which share political clout and research and

development, using intellectual property right to block

new entrants and other methods too numerous to recount.

An effective law should block any action which prevents

new entry to a market.

Buy up firms in other industries "as a base from which

to change industry structures" there. - This is a way of

securing exclusive sources of supply of raw materials,

services and complementing products. If a company owns

its suppliers and they are single or almost single sources

of supply - in effect it has monopolized the market. If a

software company owns another software company with a

product which can be incorporated in its own products -

and the two have substantial market shares in their

markets - then their dominant positions will reinforce each

other's.

"Find ways to encourage particular competitors out of

the industry". - If you can't intimidate your competitors

you might wish to "make them an offer that they cannot

refuse". One way is to buy them, to bribe the key

personnel, to offer tempting opportunities in other

markets, to swap markets (I will give you my market

share in a market which I do not really care about and you

will give me your market share in a market in which we

are competitors). Other ways are to give the competitors

assets, distribution channels and so on providing that they

collude in a cartel.

"Send signals to encourage competition to exit" the

industry. - Such signals could be threats, promises, policy

measures, attacks on the integrity and quality of the

competitor, announcement that the company has set a

certain market share as its goal (and will, therefore, not

tolerate anyone trying to prevent it from attaining this

market share) and any action which directly or indirectly

intimidates or convinces competitors to leave the industry.

Such an action need not be positive - it can be negative,

need not be done by the company - can be done by its

political proxies, need not be planned - could be

accidental. The results are what matters.

Macedonia's Competition Law should outlaw the

following, as well:

'Intimidate' Competitors

Raise "mobility" barriers to keep competitors in the

least-profitable segments of the industry. - This is a tactic

which preserves the appearance of competition while

subverting it. Certain segments, usually less profitable or

too small to be of interest, or with dim growth prospects,

or which are likely to be opened to fierce domestic and

foreign competition are left to the competition. The more

lucrative parts of the markets are zealously guarded by the

company. Through legislation, policy measures,

withholding of technology and know-how - the firm

prevents its competitors from crossing the river into its

protected turf.

Let little firms "develop" an industry and then come in

and take it over. - This is precisely what Netscape is

saying that Microsoft is doing to it. Netscape developed

the now lucrative Browser Application market. Microsoft

was wrong in discarding the Internet as a fad. When it was

found to be wrong - Microsoft reversed its position and

came up with its own (then, technologically inferior)

browser (the Internet Explorer). It offered it free (sound

suspiciously like dumping) to buyers of its operating

system, "Windows". Inevitably it captured more than 30%

of the market, crowding out Netscape. It is the view of the

antitrust authorities in the USA that Microsoft utilized its

dominant position in one market (that of the Operating

Systems) to annihilate a competitor in another (that of the

browsers).

Engage in "promotional warfare" by "attacking shares

of others". - This is when the gist of a marketing,

lobbying, or advertising campaign is to capture the market

share of the competition. Direct attack is then made on the

competition just in order to abolish it. To sell more in

order to maximize profits, is allowed and meritorious - to

sell more in order to eliminate the competition is wrong

and should be disallowed.

Use price retaliation to "discipline" competitors. -

Through dumping or even unreasonable and excessive

discounting. This could be achieved not only through the

price itself. An exceedingly long credit term offered to a

distributor or to a buyer is a way of reducing the price.

The same applies to sales, promotions, vouchers, gifts.

They are all ways to reduce the effective price. The

customer calculates the money value of these benefits and

deducts them from the price.

Establish a "pattern" of severe retaliation against

challengers to "communicate commitment" to resist

efforts to win market share. - Again, this retaliation can

take a myriad of forms: malicious advertising, a media

campaign, adverse legislation, blocking distribution

channels, staging a hostile bid in the stock exchange just

in order to disrupt the proper and orderly management of

the competitor. Anything which derails the competitor

whenever he makes a headway, gains a larger market

share, launches a new product - can be construed as a

"pattern of retaliation".

Maintain excess capacity to be used for "fighting"

purposes to discipline ambitious rivals. - Such excess

capacity could belong to the offending firm or - through

cartel or other arrangements - to a group of offending

firms.

Publicize one's "commitment to resist entry" into the

market.

Publicize the fact that one has a "monitoring system" to

detect any aggressive acts of competitors.

Announce in advance "market share targets" to

intimidate competitors into yielding their market share.

Proliferate Brand Names

Contract with customers to "meet or match all price cuts

(offered by the competition)" thus denying rivals any

hope of growth through price competition.

Secure a big enough market share to "corner" the

"learning curve," thus denying rivals an opportunity to

become efficient. - Efficiency is gained by an increase in

market share. Such an increase leads to new demands

imposed by the market, to modernization, innovation, the

introduction of new management techniques (example:

Just In Time inventory management), joint ventures,

training of personnel, technology transfers, development

of proprietary intellectual property and so on. Deprived of

a growing market share - the competitor will not feel

pressurized to learn and to better itself. In due time, it will

dwindle and die.

Acquire a wall of "defensive" patents to deny

competitors access to the latest technology.

"Harvest" market position in a no-growth industry by

raising prices, lowering quality, and stopping all

investment and advertising in it.

Create or encourage capital scarcity. - By colluding with

sources of financing (e.g., regional, national, or

investment banks), by absorbing any capital offered by the

State, by the capital markets, through the banks, by

spreading malicious news which serve to lower the credit-

worthiness of the competition, by legislating special tax

and financing loopholes and so on.

Introduce high advertising-intensity. - This is very

difficult to measure. There could be no objective criteria

which will not go against the grain of the fundamental

right to freedom of expression. However, truth in

advertising should be strictly imposed. Practices such as

dragging a competitor through the mud or derogatorily

referring to its products or services in advertising

campaigns should be banned and the ban should be

enforced.

Proliferate "brand names" to make it too expensive for

small firms to grow. - By creating and maintaining a host

of absolutely unnecessary brandnames, the competition's

brandnames are crowded out. Again, this cannot be

legislated against. A firm has the right to create and

maintain as many brandnames as it wishes. The market

will exact a price and thus punish such a company

because, ultimately, its own brandname will suffer from

the proliferation.

Get a "corner" (control, manipulate and regulate) on

raw materials, government licenses, contracts, subsidies,

and patents (and, of course, prevent the competition

from having access to them).

Build up "political capital" with government bodies;

overseas, get "protection" from "the host government".

'Vertical' Barriers

Practice a "preemptive strategy" by capturing all

capacity expansion in the industry (simply buying it,

leasing it or taking over the companies that own or

develop it).

This serves to "deny competitors enough residual

demand". Residual demand, as we previously explained,

causes firms to be efficient. Once efficient, they develop

enough power to "credibly retaliate" and thereby "enforce

an orderly expansion process" to prevent overcapacity

Create "switching" costs. - Through legislation,

bureaucracy, control of the media, cornering advertising

space in the media, controlling infrastructure, owning

intellectual property, owning, controlling or intimidating

distribution channels and suppliers and so on.

Impose vertical "price squeezes". - By owning,

controlling, colluding with, or intimidating suppliers and

distributors, marketing channels and wholesale and retail

outlets into not collaborating with the competition.

Practice vertical integration (buying suppliers and

distribution and marketing channels).

This has the following effects:

The firm gains a "tap (access) into technology" and

marketing information in an adjacent industry. It defends

itself against a supplier's too-high or even realistic prices.

It defends itself against foreclosure, bankruptcy and

restructuring or reorganization. Owning suppliers means

that the supplies do not cease even when payment is not

affected, for instance.

It "protects proprietary information from suppliers" -

otherwise the firm might have to give outsiders access to

its technology, processes, formulas and other intellectual

property.

It raises entry and mobility barriers against competitors.

This is why the State should legislate and act against any

purchase, or other types of control of suppliers and

marketing channels which service competitors and thus

enhance competition.

It serves to "prove that a threat of full integration is

credible" and thus intimidate competitors.

Finally, it gets "detailed cost information" in an adjacent

industry (but doesn't integrate it into a "highly competitive

industry").

"Capture distribution outlets" by vertical integration to

"increase barriers".

'Consolidate' the Industry

Send "signals" to threaten, bluff, preempt, or collude

with competitors.

Use a "fighting brand" (a low-price brand used only for

price-cutting).

Use "cross parry" (retaliate in another part of a

competitor's market).

Harass competitors with antitrust suits and other

litigious techniques.

Use "brute force" ("massed resources" applied "with

finesse") to attack competitors

or use "focal points" of pressure to collude with

competitors on price.

"Load up customers" at cut-rate prices to "deny new

entrants a base" and force them to "withdraw" from

market.

Practice "buyer selection," focusing on those that are

the most "vulnerable" (easiest to overcharge) and

discriminating against and for certain types of

consumers.

"Consolidate" the industry so as to "overcome industry

fragmentation".

This arguments is highly successful with US federal

courts in the last decade. There is an intuitive feeling that

few is better and that a consolidated industry is bound to

be more efficient, better able to compete and to survive

and, ultimately, better positioned to lower prices, to

conduct costly research and development and to increase

quality. In the words of Porter: "(The) pay-off to

consolidating a fragmented industry can be high because...

small and weak competitors offer little threat of

retaliation".

Time one's own capacity additions; never sell old

capacity "to anyone who will use it in the same

industry" and buy out "and retire competitors'

capacity".

A Note on the Spiteful Application of Competition Laws

In many developing countries and countries in transition

from Communism to capitalism, competition laws are

used to reward cronies or to damage opponents. The

discriminatory and partial application of such laws and

regulations sustains networks of patronage and cements

political-economic alliances.

This abuse of the rule of Law and the regulatory regime is

further compounded by the seething pathological envy

that is typical of erstwhile egalitarian societies now

exposed to growing income inequalities. The mob,

business rivals, political parties, and the populace at large

leverage competition laws to tear down businesses and

humiliate entrepreneurs whose success grates on their

nerves and provokes their unbridled jealousy.

Financial Crime and Corruption · 第 40 / 74 题