Eleanor M. Fox Liber Amicorum: Antitrust Ambassador to the World, Nicolas CHARBIT and Sébastien GACHOT (dir.)

Nicolas Charbit, Sébastien Gachot (editors)

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to catherine.prieto@univ-paris1.fr for review in this section.

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This liber amicorum begins with an interview, finely conducted by Michal Gal, which gives the impression of finding a familiar figure, but reveals singular traits of Eleanor Fox’s career. Beyond her frail and always modest figure, we discover a firm and tenacious personality. Her reputation as a bright and caring teacher is well known. Her background as a student is less well known: in 1958, there were only two women enrolled in her law school and a condescending professor had instituted a Ladies’ Day for their oral participation. She was also a pioneer in her career as a lawyer, rising through the ranks at one of the top ten law firms on Wall Street. However, for the sake of independence, she decided to embrace an academic career. To turn the page, not without impertinence, she wrote a novel entitled WL, Esquire - WL being the initials of the main character, a lawyer, as well as the acronym for Women’s Liberation, and Esquire (Esq.), the honorific title that necessarily preceded the designation of a lawyer. She was also a pioneer in exploring other perceptions of competition law. First, it made an effort to grasp the originality of European law, which was asserting itself against the dominant ideology of the Chicago School. Secondly, it took the measure of economic globalization by proposing principles of competition law applicable within the WTO, in order to neutralize the perverse effects of a pure and hard trade liberalization. In this respect, it was close to and even involved in the reflections and proposals encouraged by the European Commission. While recognizing that this project is obsolete, it does not shy away from an illustration that underlines the need to move forward in this direction. Thus, the authorization of the merger of Holcim and Lafarge was given by the American and European authorities, who took the precaution of making the granting of this authorization conditional on commitments that protected their respective markets, but left the markets of developing countries at the mercy of a reinforced market power. It is therefore understandable that Eleanor Fox would engage in substantial work for the benefit of these countries. "Inclusiveness" became her watchword, and she even predicted that the concept could reach the developed world with the principle of equality of opportunity.

The first part is devoted to testimonies of recognition coming mainly from South Africa and sub-Saharan Africa. It is a good initiative to start with these countries, as they seem to be the forgotten ones of competition law, although they were not Eleanor. Albie Sachs describes her as "her secret weapon", while Dennis Davis uses the expression "a new competition paradigm" to signify her influence. Tembinkosi Bonakele emphasizes that she cares about making markets work for people. The third part is also about emerging economies. Taimoon Stewart highlights the artificiality of importing antitrust law into the Caribbean and the exemplary nature of South African law, which has introduced fairness, public interest and the broader value of inclusion in competition standards into its methodology. David Gerber encourages emerging countries to break away from the convergence model, which has been imposed on them until now, by taking advantage of the crisis created in the United States by the concentration of power of Big Tech companies. Harry First adds that digital platforms are a crucial tool for their development.

Part IV extends the discussion to values usually far removed from competition law: racism, inequality, and fairness. Unexpectedly, but ultimately in line with what Eleanor Fox advocates, Owen Fiss asks what antitrust can do for racially stratified societies like South Africa and the United States. Pradeep Mehta and Ujjwal Kumar examine the potential of antitrust to facilitate access to care. In the United States, Lisl Dunlop is more cautious about the potential of antitrust to facilitate access to care, given the complexity of the U.S. health care system and the significant information asymmetries.

It was necessary to return to the basics, which is what the second part does. Giuliano Amato holds to a middle ground. He recognizes that the Chicago School, by invoking a "sound" economic analysis, has slowed down the implementation of antitrust law and has led to a laissez-faire attitude that has benefited Big Tech. However, he is not convinced by the extensive solutions of the protagonists of a neo-antitrust. He sticks to the idea that competition law cannot do everything and that other branches of law must be brought to the fore. Giorgio Monti follows up with the imperative need to make, at least, antitrust law more effective. He asks why the Chicago School’s grip has not been reversed, despite the memorable writings of Eleanor Fox and the collective work How the Chicago School Overshot the Mark. He recommends first of all relying on the mechanism of presumptions which, by the possible reversal of the evidence, leaves the company sufficient room to defend itself. He then adds the interest of a political choice that would abandon the proof of an infringement of "consumer welfare" to stick to the infringement of the competition process. Competition law must be effectively implemented because, as Damien Gérard says in his article "In Antitrust We Trust", the challenge is to restore confidence in the markets and in our liberal institutions. It is clear from Darryl Biggar, Allan Fels and Alberto Heimler that the application or non-application of competition law to labor markets has created a great deal of disillusion and bitterness. They consider that the standard of "consumer welfare" is not appropriate insofar as it tends to sacrifice the interests of workers. They propose to apply the transaction cost approach. We also understand with Joseph Wilson that the means must be considered on a global scale. He returned to the efforts of Eleanor Fox and argued, in turn, for a world competition order. Taking the example of the Chicago International Convention on Civil Aviation, he reminded us that this was not a generous idea, but a necessity for the safety of transport. The same is true in a world where the globalization of economic exchanges prevails with transnational mergers and where new technologies play with borders.

In the fifth part, this globalization is discussed by Donald Baker from the positive angle of the progress made in cooperation between competition authorities. They have seen their full benefit in terms of efficiency. In contrast, Maciej Bernatt addresses the fragility of competition authorities in countries where populism reigns. For the sixth part, Koren Wong-Ervin and Andrew Heimert extend the reflections on the different approaches to extraterritoriality around the world. Assimakis Komninos considers the role of private enforcement in the implementation of the Digital Markets Act and argues for limitations to ensure that the effectiveness of public action is not impeded. As for Gönenç Gürkaynak, Berfu Akgün and Bulut Girgin, they address the very sensitive subject of judicial review of merger control decisions and specifically the annulment of a decision by the Union’s courts as in the Hutchison 3G or UPS/TNT Express judgments. At best, the Commission should be provided with all the means to avoid procedural errors or errors in economic analysis, as it is a priori better placed than the courts to deal with such complex cases. At worst, it is necessary to better consider the reparations due for its errors, even if these reparations can never cover the extent of the damage.

China is the subject of a separate section to close the book. The draft reform of the anti-monopoly law, presented in January 2020, is examined by Wang Xiaoye and Adrian Emch. Their conclusion is that it is imperative to strengthen the independence and capacity of the competition authority. Deborah Healey notes a continued move towards international standards. Wendy Ng discusses the sensitive issue of privacy and its implications for Chinese competition law.

The diversity of backgrounds and points of view, and the boldness of the proposals, do credit to Eleanor Fox’s work, which has always tenaciously gone against the grain and is finally proving to be in the vanguard

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  • University of Paris I Panthéon-Sorbonne

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Catherine Prieto, Eleanor M. Fox Liber Amicorum: Antitrust Ambassador to the World, Nicolas CHARBIT and Sébastien GACHOT (dir.), February 2022, Concurrences N° 1-2022, Art. N° 105262, pp. 249-250

Publisher Concurrences

Date 27 October 2021

Number of pages 540

ISBN 978-1-939007-97-1

Visites 624

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