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Über dieses Buch

Volume 2 uses the economic and legal concepts/theories of Volume 1 to (1) analyze the U.S. and E.U. antitrust legality of mergers, joint ventures, and the pricing-technique and contractual/sales-policy distributor-control surrogates for vertical integration and (2) assess related positions of scholars and U.S. and E.U. antitrust officials. Its analysis of horizontal mergers (1) delineates non-market-oriented protocols for determining whether they manifest specific anticompetitive intent, would lessen competition, or are rendered lawful by the efficiencies they would generate, (2) criticizes the U.S. courts’ traditional market-share/market-concentration protocol, the HHI-oriented protocols of the 1992 U.S. DOJ/FTC Guidelines and the European Commission (EC) Guidelines, and the various non-market-oriented protocols the DOJ/FTC have increasingly been using, (3) argues that, although the 2010 U.S. Guidelines and DOJ/FTC officials discuss market definition as if it matters, those Guidelines actually reject market-oriented approaches, and (4) reviews the relevant U.S. and E.U. case-law. Its analysis of conglomerate mergers (1) shows that they can perform the same legitimate and competition-increasing functions as horizontal mergers and can yield illegitimate profits and lessen competition by increasing contrived oligopolistic pricing and retaliation barriers to investment, (2) analyzes the determinants of all these effects, and (3) assesses limit-price theory, the toe-hold-merger doctrine, and U.S. and E.U. case-law. Its analysis of vertical conduct (1) examines the legitimate functions of each type of such conduct, (2) delineates the conditions under which each manifests specific anticompetitive intent and/or lessens competition, and (3) assesses related U.S. and E.U. case-law and DOJ/FTC and EC positions. Its analysis of joint ventures (1) explains that they violate U.S. law only when they manifest specific anticompetitive intent while they violate E.U. law either for this reason or because they lessen competition, (2) discusses the meaning of an “ancillary restraint” and demonstrates that whether a joint-venture agreement would be illegal if it imposed no restraints and whether any restraints imposed are ancillary can be determined only through case-by-case analysis, (3) explains why scholars and officials overestimate the economic efficiency of R&D joint ventures, and (4) discusses related U.S. and E.U. case-law and DOJ/FTC and EC positions. The study’s Conclusion (1) reviews how its analyses justify its innovative conceptual systems and (2) compares U.S. and E.U. antitrust law as written and as applied.

Inhaltsverzeichnis

Frontmatter

Chapter 12 Horizontal Mergers and Acquisitions

Abstract
A merger or acquisition (hereinafter a merger) is horizontal to the extent that the merger partners are well-placed to compete for the patronage of the same buyers in relation to given purchasing decisions. This chapter analyzes the determinants of the economic effects of horizontal mergers that are relevant to their legality under U.S. and E.C./E.U. antitrust law and states and criticizes both the approaches that U.S. and E.C./E.U. authorities have taken to the analysis of the antitrust legality of such mergers and various conclusions they have reached about the legal relevance of various facts.
Richard S. Markovits

Chapter 13 Conglomerate Mergers and Acquisitions

Abstract
This chapter focuses on the legally-relevant economic effects and legality of conglomerate mergers and acquisitions (hereinafter conglomerate mergers) under U.S. antitrust law and E.C./E.U. competition law. Conglomerate mergers are mergers that are neither horizontal nor vertical—i.e., are mergers between MPs that (1) are not equal-best-placed, respectively best-placed and second-placed, or respectively best-placed and well-enough-placed to affect the oligopolistic margins that a best-placed MP would find ex ante profitable to attempt to contrive and (2) are not in a supplier-supplied relationship to each other. Three types of conglomerate mergers can be distinguished:
Richard S. Markovits

Chapter 14 Vertical Mergers and the Pricing-Techniques, Contract-of-Sale Provisions, and Sales/Consignment Policies That Are Surrogates for Vertical Integration

Abstract
Business integration is said to be vertical when the integrators are in a supplier-supplied relationship to each other. Vertical integration can be initiated or carried out by producers, distributors, or buyers. However, for expositional reasons, this chapter will assume that the vertical-integration initiator is a final-goods producer. Such a firm can vertically integrate either backward or forward—backward into the production of inputs and forward into distribution and/or final-good consumption. Firms can execute vertical integration through merger, acquisition, or internal growth. As we shall see, firms can also achieve some of the benefits that vertical integration can generate by using complicated pricing-techniques, contract-of-sale provisions, and sales and consignment policies all of which I call “surrogates for vertical integration.”
Richard S. Markovits

Chapter 15 Joint Ventures and Other Types of Functionally-Analogous Collaborative Arrangements

Abstract
The concept of a “(business) joint venture” has been defined (usually implicitly) in a wide variety of ways. This study defines a “(business) joint venture” narrowly to refer to a business entity created by two or more other business entities (the parents) to engage in one or more business activities. Firms can collaborate in business activities without creating separate business entities that each collaborator partially owns—e.g., by entering into long-term leases that may include restrictive covenants or by establishing joint committees to structure collaborative activities and, when cross-payments are or may be appropriate, to determine when cross-payments should be made and the magnitude of any cross-payments that should be made.
Richard S. Markovits

Backmatter

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