搜索引擎与滥用市场支配地位

从反垄断法的角度出发,现有大型搜索引擎运营商们是否实施了违法行为,一直都是各国学者及实务界关注的焦点,其中最主要的争议问题即这些运营商们是否滥用了市场支配地位。根据我国反垄断法相关规定,结合我国学者论述,并参考欧盟相关理论和实践,着眼于我国目前相关诉讼和指责等实际情况,探讨了诸如相关市场界定争议、市场支配地位证明、滥用行为是否可能和在反垄断法意义上是否成立等问题。虽然理论上存在基于滥用行为而限制竞争的可能性,但从中国和欧盟反垄断法的具体规定,尤其是举证责任问题的规定上看,在实践中确实认定搜索引擎运营商滥用市场支配地位仍需时日。     

互联网行业反垄断执法中相关市场界定

对互联网产品进行相关市场界定是该领域反垄断执法的起点。互联网产品可初步区分为全新信息交换类产品和在互联网上销售的传统商品,两类产品的市场界定需分别重视纵向互联网行业内与横向传统行业同类产品的竞争关系。非合并案件中相关市场界定可作为确认供应商市场垄断地位的间接认定方法,不应阻碍对直接损害竞争证据的考量。单一价格标准方法在互联网产品市场界定中具有局限性,应注重创新因素的考量以及时间市场的界定,着重进行供给替代分析,并寻求市场界定可能的替代性方法。     

A theoretical approach to market definition analysis

This work performs a theoretical approach to market definition analysis. The conditions a test must satisfy are selected in order to define the relevant market according to the jurisdictions of the United States and the European Union as most tests proposed by economists tend not to satisfy all the required conditions. I use two models of horizontal product differentiation to illustrate the nature of the tests that can be used under each jurisdiction. The main conclusion of the paper is that the empirical tests for market definition which are valid in the current legislations in the United States and the European Union must be performed using a different approach which may yield different relevant markets.     

Single-product versus uniform SSNIPs

It is common to apply a SSNIP test with a uniform price increase on all products in the candidate market. We show that in situations with asymmetries - for example variations in revenues - a uniform SSNIP test may suggest that the relevant market should include more products even though it could be profitable to increase the price of only one product in the candidate market. Our results are illustrated with some findings from a survey in a local grocery market.     

论反垄断法实施中的相关市场界定

相关市场的界定是建立反垄断法各主要制度的基础，是反垄断法实施中的一个关键问题，往往可以体现反垄断执法的宽严。在界定相关商品市场时主要应考虑商品的物理性能和使用目的、商品的价格、消费者的偏好以及供给的替代可能性等因素；在界定相关地域市场时应当考虑的主要因素则是运输成本和商品特性、商品价格、消费者偏好以及市场进入的障碍等。在我国《反垄断法》即将实施之际，反垄断执法机构应制定相关市场界定的具体规则。     

网络经济中相关市场的界定

在网络经济条件下,相关市场的界定要全面考虑产品、地域和时间三个维度。网络效应使得市场对价格的敏感度降低,导致传统SSNIP测试法失效,而应用产品性能测试法和盈利模式测试法能更有效地界定相关产品市场。双边市场特征要求把网络平台两端的市场视为一个整体进行相关市场的测度。网络的普遍存在和全球可达性使得相关地域市场极为广阔,但也因网络接入和网络内容服务的不同性质使其呈现出相异的边界。时间成为网络经济中需要普遍考虑的维度,坚持长远发展原则和可预期范围内原则,结合网络产品的生命周期和知识产权保护期限,最终对相关时间市场的范围作出合理的界定。     

Mergers and difference-in-difference estimator: Why firms do not increase prices?

Difference-in-difference methods are being increasingly used to analyze the impact of mergers on pricing and other market equilibrium outcomes. Using evidence from an exogenous merger between two retail gasoline companies in a specific market in Spain, this paper shows how concentration did not lead to a price increase. In fact, the conjectural variation model concludes that the existence of a collusive agreement before and after the merger accounts for this result, rather than the existence of efficient gains. This result may explain empirical evidence reported in the literature according to which mergers between firms do not have significant effects on prices.     

Characteristics and dynamics of illegal firearms markets: Implications for a supply-side enforcement strategy

The question of whether the illegal firearms market serving criminals and juveniles can be disrupted has been vigorously debated. Recent research suggests that illegal gun markets consist of both “point sources” (ongoing diversions through scofflaw dealers and trafficking rings) and “diffuse sources” (acquisitions through theft and informal, voluntary sales). To the extent that systematic gun trafficking is an important source of weapons for criminals and youth, focused regulatory and investigative resources may be effective in disrupting the illegal flow. In this research, we use data on traced firearms to examine one aspect of the illegal gun market that holds the most immediate promise for focused supply-side enforcement efforts—close-to-retail diversions. We find that almost one-third of traceable crime guns were recently diverted from legitimate retail firearms commerce and that nearly one-third had two or more indicators of gun trafficking involving dealers, purchasers, and possessors. We discuss the implications of these findings for understanding illegal gun markets and for developing effective supply-side enforcement strategies.     

MARKET ANALYSIS IN THE PRESENCE OF INDIRECT CONSTRAINTS AND CAPTIVE SALES

In antitrust cases as well as for regulated industries, thequestion of how to treat indirect constraint and captive salescorrectly has become of major importance in Europe. The (im-)propertreatment of indirect constraints has lead the CFI to overturnthe Commission's decision in the proposed merger of Schneiderand Legrand. Moreover, with regards to the definition of wholesalebroadband access markets, there is an ongoing controversy betweenthe Commission and some National Regulatory Authorities, centeringon the question of whether to incorporate indirect constraintsalready at the stage of market definition. To inform this debate,we present in this article some of the insights from a detailedformal analysis into markets with indirect constraints and captivesales. We show how indirect constraints are appropriately takeninto account through the elasticity of derived demand and commentalso on the informativeness of concentration measures on boththe wholesale and retail market. We further derive insightsinto when indirect constraints may be more or less importantcompared with direct constraints. Finally, we also discuss themore practical difficulties that are encountered when analyzing(or estimating) market structures where forward integrated firmsalso sell to other, competing retail firms.     

Market structure, performance, and efficiency of the Chinese banking sector

The Chinese banking system is evolving from a mono-bank system to one involving many banks of varied types and functions and there is a heated debate on whether competition can help to improve the performance and efficiency of the banks. This paper tests five hypotheses that have been proposed in the literature on the relationship between market structure, profitability, and efficiency using data envelopment analysis with a panel data of the 14 largest nationwide banks in China during the period of 1998–2007. The empirical results show clearly that neither the structure-conduct performance nor the efficient structure hypotheses hold in China. The strongest support is for the relative market power hypothesis that suggests that banks with differentiated services and products are those with higher market shares, and that they are able exercise their market power to obtain higher profits by setting higher prices. Technical efficiency has a significant effect upon bank profitability and the policy makers should promote further competition in the Chinese banking sector.     

存款合同还是金融衍生交易——汇丰银行“双利存款”案解析

银行个人理财产品的本质是固定收益计划,但大多嵌入了金融衍生工具从而增加了市场风险。国内首例公开报道的银行理财诉讼——汇丰双利存款诉讼显示,在“存款”名义下发生的是“存款合同＋期权合同”的场外金融衍生交易,在银行与客户之间形成了新的收益-风险分配模式。客户承担理财产品市场风险的决策基础是银行的信息披露与风险提示义务。银行如何履行信息披露义务不仅决定了汇丰双利存款诉讼的结局,同时也是银行个人理财纠纷中区分市场风险与法律责任的关键。     

The Evanston initial decision: is there a future for patient flow analysis?

This Article analyzes the October 2005 Initial Decision of the Federal Trade Commission Administrative Law Judge ordering Evanston Northwestern Healthcare Corporation to divest Highland Park Hospital on the grounds that the January 2000 merger of the entities violated Section 7 of the Clayton Act. In particular, this Article focuses on the ALJ's discussion of the use of patient flow analysis and the Elzinga-Hogarty test in defining relevant markets in hospital merger cases. Despite the ALJ's explicit rejection of the Elzinga-Hogarty Test and patient flow analysis as irrelevant and inappropriate in defining markets in the highly differentiated Hospital market, the author concludes that the ALJ's rejection of patient flow analysis likely was a response to misplaced and over-reliance on patient flow analysis by a number of courts in past prospective government challenges to hospital mergers as evidenced by the fact that the ALJ's analysis of competition and competitive effects relied upon, and thereby implicity endorsed, the use of patient flow analysis for certain purposes. Finally, the author concludes that patient flowanalysis, when used appropriately, should continue to be used as a preliminary step in geographic market definition and competitive effects analysis.     

反垄断法实施中的“相关市场”界定国际比较

目前,主要发达国家和地区在相关市场界定的方法、维度、权衡因素方面呈现出高度的趋同性,这在很大程度上充分表明了相关市场界定的相对客观性。我国应当深入地借鉴先发国家和地区在相关方面经验,进一步健全我国相关市场界定制度。     

Market Domination: Tests Applied to the Danish Cement Industry

We propose an economic interpretation of the definition of a dominant position used by the European Court of Justice (ECJ). Then we apply co-integration techniques to test econometrically whether the sole Danish producer of cement holds a dominant position. Import penetration tests show that its conduct is independent of import price and quantity, so it can act to a considerable extent independently of its competitors. We also test whether it can act independently of its customers and find that its demand is inelastic with respect to its price. It thus holds a dominant position on the relevant Danish market.     

Food Safety and the Precautionary Principle: the Legitimate Moderation of Community Courts

Abstract: The precautionary principle, though not defined in the Community Treaties, has been the subject of numerous attempts at doctrinal systematisation. These efforts have, for the most part, dealt with organising how to adopt measures banning products or methods of production. Associated with this rigorous approach to the precautionary principle are questions on moratoriums and reversal of the burden of proof. Following this logic, one must understand that the precautionary principle obliges the initiator of a project (or the producer of foodstuffs) to prove the innocuousness of its product before putting it on the market. However, this concept of the precautionary principle, while held by the larger part of doctrinal opinion, is not shared by the Community courts. These have largely developed Community law on this point with a progressive corpus of decisions that give an increasingly specific definition of the concept. This attempt at definition leads to a rational presentation of the precautionary principle as a means of dealing with scientific uncertainty and not as a way of rejecting science. The aim of this article is to show that the conception held by Community courts, while apparently less protective of human health than the doctrinal conception, has the advantage of being effective; that is to say capable of practical application, while the more rigorous interpretation leads only to a protective Utopian dead-end, which its defenders find themselves incapable of progressing beyond.     

Financial Liberalization and Stock Price Behaviour in Asian Emerging Markets

This paper exhibits tests of the random walk hypothesis and market efficiency for seven Asian emerging markets as a result of the influence of financial market integration. Random walk properties of equity prices influence the return dynamic and determine the trade strategies of investors. To examine the stochastic properties of local index returns and to test the hypothesis that stock market prices follow a random walk, the single variance ratio tests of Lo and MacKinlay, as well as the multiple variance ratio test of Chow and Denning are employed. The multiple statistical comparison of variance ratios is based on the Studentized Maximum Modulus distribution with control of the joint-test’s size. The weak-form market efficiency is also tested directly, using a nonparametric runs test. These tests are particularly useful for investigating stock prices the returns of which are frequently not distributed normally. Documented evidence shows that, from the perspective of local investors, weekly stock prices in major Asian emerging markets do not follow a random walk in the pre-liberalization period. However, in the post-liberalization period the weak-form efficiency hypothesis is generally adopted at the 5% level except for the smaller stock markets of Indonesia and Thailand. These empirical findings suggest that financial integration affects the return predictability in such a way that domestic investors might not be able to develop trading strategies allowing them to earn abnormal returns.     

Merger simulations with observed diversion ratios

One approach to merger simulations used in antitrust cases is to calibrate demand from market shares and a few additional parameters. When the products involved in the merger case are differentiated along several dimensions, actual diversion ratios may be very different from those calculated from market shares. This again may affect the predicted post-merger price effects. This article shows how merger simulation can be performed using observed diversion ratios. To illustrate the potential effects of this approach we use diversion ratios from a local grocery market in Norway. In this case diversions from the acquired to the acquiring stores were considerably smaller than suggested by market shares, and the predicted average price increase from the acquisition was 40% lower using this model rather than a model based upon market shares. This analysis also suggests that even a subset of observed diversion ratios may significantly change the prediction from a merger simulation based upon market shares.     

Evidence comes by replication,but needs differentiation: the reproducibility issue in science and its relevance for criminology

Recent publications in Nature, Science, and other journals raised concerns about the reproducibility of empirical findings in psychology and other scientific disciplines. This article summarizes some of these arguments and results that led to discussions about a “replication crisis” in research. In criminology, there is not yet a similar discussion, although the need for more replications has been emphasized in the past. The present article addresses this topic with special consideration of program evaluations in early developmental crime prevention and offender treatment. In both fields, there has been substantial progress in research and practice. Most systematic reviews showed mean positive effects; however, nearly all of them demonstrated very heterogeneous findings that could not be attributed to the content of programs. This does not allow simple recommendations of “what works” for policy-making and practice. In addition, there is a serious lack of long-term follow-ups and independent evaluations. The article shows remarkable similarity of the findings and problems in both fields of intervention. Problems of reproducibility prove to be highly relevant for criminology, although there is no need for using the term “crisis”. The article proposes various strategies that can enhance the reproducibility of findings, i.e., more systematic investigation of those differentiated conditions under which interventions are most effective. An integrative model of relevant characteristics is briefly presented. It refers to factors of the programs, contexts, participants, and evaluation methods. Confirmatory meta-analyses can play an important role on the path toward more differentiated and replicated knowledge     

Discussion of "Using Stationarity Tests in Antitrust Market Definition"

Send correspondence to: Daniel Hosken, Federal Trade Commission, 600 Pennsylvania Ave. NW, Washington, DC 20850; E-mail: dhosken@ftc.gov. The first 150 words of the full text of this article appear below.