LEGAL PRACTICE: EUROPEAN UNION - COMPETITION POLICY - NEGOTIATIONS - VERTICAL NEGOTIATIONS - HORIZONTAL NEGOTIATIONS - PRINCIPLED NEGOTIATIONS - CARTELS - MERGERS

Negotiation: In the shadow of competition law

The article explores a crucial but still unexplored dimension of competition law - negotiation. It discusses the two types of negotiations in competition law, namely, vertical (negotiation in the asymmetry of power) and horizontal (arm’s length negotiation), then it delves into the lessons from US-pioneered “principled negotiation”, in particular, those applicable to asymmetric negotiations between enterprises and regulators.

1. Competition law provides fertile ground for negotiation as it, by its nature, pits conflicting positions arising from clashing interests. This tension is intrinsic to the discipline. A considerable number of negotiated decisions (cartel settlements, settlements in actions for damages, commitment decisions, or remedies) are taken in the shadow of courts, in the Berlaymont building of the European Commission, at competition authorities’ premises or at multinational headquarters (for the settlement of private actions [1]). 2. However, in spite of the increasing prominence of those decisions, awareness about the importance of negotiation skills is still limited within the competition law community. [2] We are still a long way behind the United States, where negotiation is a legal

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  • General Court of the European Union (Luxembourg)

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Aymeric de Moncuit, Negotiation: In the shadow of competition law, September 2021, Concurrences N° 3-2021, Art. N° 101414, pp. 243-251

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