David GERBER, Chicago-Kent College of Law: The age of antitrust law globalization

- David, this is the first time that Concurrences interviews an academic. You are professor at the Chicago-Kent College of Law; could you tell us more about yourself?

i. What are the key dates of your academic career? Are you a “pure academic” or did you have commitments with law firms or federal agencies?

ii. On a more personal side, you master German, you speak a perfect French and maybe other languages. Where did you get to learn these? Did this help you for your studies in comparative competition law?

iii. You teach at Chicago-Kent. We heard a lot in Europe about the “Chicago school”. Some of our readers may know the Chicago University, but not Chicago-Kent College of Law. What can you tell us about this Law School, its specificities and your teachings there?

- You recently published your second major book, Global Competition. Law Markets and Globalization (Oxford). While reading it, I figured out that it was directly connected with your first main book, Law and Competition in Twenthieth-Century Europe. Protecting Prometheus (Oxford). The latter is from my point of view unjustly ignored by French speaking readers and even by scholars who should definitively read it.

i. What was your goal when you launched yourself in such a thorough work? What were your conclusions of this XXth century wide history?

ii. You insisted on the role played by Austria on the inception of competition law in Europe, which may surprise more than one reader. You quote, for example, two sources: a 1803 criminal provision aimed at preventing merchants to take advantage of shortages due to Napoleonian conflicts, and a 1870 law authorizing workers to create associations. We, French, had similar provisions: Article 419 of the former Criminal code which had an identical object to the 1803 Austrian provision, and the 1864 and 1884 laws which put an end to the prohibition of workers coalitions as provided by the Le Chapelier 1791 Act. Why should Austria be awarded with the inception of competition law in Europe, given that many other European States faced similar issues at the time of the French revolution?

- In this first book, you pay substantial attention to ordo-liberalism and the social market economy. It is often said that in recent years these ideas lost the influence they had earlier, in particular when quite a few German civil servants had senior responsibilities within DG IV. Examples of this change might include the laying aside of the preliminary authorization system and of the formalistic approach to restrictions of competition, and the reduced importance given to abuse of a dominant position. What is your view of that change?

- Now, let’s turn to your latest book, a thorough analysis of globalization. In the first part, you describe the responses of states to the internationalization of markets. Repeated failures of multilateral solutions led the States to adopt extraterritorial implementation of their antitrust laws, leading to numerous conflicts, especially in transatlantic relationships (you quote, among other recent examples, the GE/Honeywell case). If we go back into the XXth century, the most striking examples are the Swiss watches case (1965), the uranium cartel (late 70s’), the Hartford case (1993). These were all cartels cases ; is the reasoning the same in case of merger control or abuse or anticompetitive cases?

- The second part of your book deals with national experience in dealing with globalised markets, and you describe the recent evolution of antitrust policies in the US (Chap. 5), the EU (Chap. 6) and he “Other players” (Chap. 7).

i. Is it correct to say that the European model is tending expand throughout the world?

ii. But the reason for this may be that, due to institutional constraints, the European administrative model is easier to implement that the US judiciary model which is somehow quite specific? Don’t you think that there is a strong link between the institutional system and the competition policy with regard to a given State?

iii. Chap. 7 on “Other players” ends on “the value of widening the lens”. What is your final conclusion?

- The final third part of you book may be seen as your “testament”: “Competition law as a transnational project”. You insist on the limits of convergence between systems and you raise the question of a multilateral agreement. Again, what is your conclusion?

- You published some years ago a paper on the EU and US competition law theories (in G. Canivet et M.A. Frison-Roche (dir.), La Modernisation du droit de la concurrence, Paris, LGDJ, 2006, p. 104-129), insisting on their different origins and goals and mentioning the scattered landscape of the academic communities in Europe. Do you see today an evolution thanks to the work done by the international networks or the growing importance given to economists?

- You may well have finished writing your book before the recent economic crisis began. How do you view competition policies which have been implemented in these times of crisis? Do you see a shift with the new leaders in charge of the competition authorities, both in the US than in the EU?

Interview conducted by Laurence Idot, University Paris II Panthéon‑Assas (Paris), member of the College of the French Competition Authority.

2010 Global Competition: Law, Markets, and Globalization 2009 Competition law and the institutional embeddedness of economics 2008 Two Forms of Modernization in European Competition Law (symposium) 2007 A Comparative Perspective on The Enforcement of Competition Law in Europe (The Common Core of European Private Law ) 2007 Private Enforcement of Competition Law: A Comparative Perspective 2007 Competition Law and the WTO: Rethinking the Relationship 2005 Consistent Application of Competition Laws Across System Borders: Rethinking the Issues 1998/2001 Law and Competition in Twentieth Century Europe: Protecting Prometheus 1994 Prometheus Born: Shaping the Relationship Between Law and Economic Conduct 1992 Integration, Disintegration and the Protection of Competition: Of Myths,

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David Gerber, David GERBER, Chicago-Kent College of Law: The age of antitrust law globalization, December 2010, Concurrences Review N° 4-2010, Art. N° 33113, pp. 7-12

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