Cartel Criminalization and the Challenge of ‘Moral Wrongfulness’

The latest research offering of the CCP’s Dr Peter Whelan has been published in the prestigious Oxford Journal of Legal Studies. His article, entitled ‘Cartel Criminalization and the Challenge of ‘Moral Wrongfulness’‘, is available for advance access download via Oxford Journals. An abstract for his paper can be found below.

Abstract

There is considerable debate at present, particularly in the Member States of the European Union, concerning the necessity and appropriateness of imposing custodial sentences upon individuals who have engaged in cartel activity. The vast majority of those contributing to this debate have focused on the punishment theory of (economic) deterrence. Little room is devoted to the punishment theory of retribution or to consideration of the ‘moral wrongfulness’ of cartel activity. This article posits that the issue of ‘moral wrongfulness’ is a central issue in the debate on cartel criminalization, irrespective of whether it is deterrence theory or retribution theory that informs the debate. By employing a norms-based approach, this article then examines the extent to which cartel activity can indeed be interpreted as conduct that is ‘morally wrong’ due to its violation of the moral norms against stealing, deception and/or cheating. By doing so, this article not only challenges traditional views of the nature of cartel activity but also provides scholars, legislatures and policymakers with specific analyses which are crucial to a decision whether to justify (or indeed to oppose) the introduction and maintenance of criminal cartel sanctions.

Policy Brief: Conflict Resolution, Public Goods and Patent Thickets

BACKGROUND

  • Over the last three decades, the demand for patents has been steadily growing at patent offices around the world.
  • Strong demand for patent rights combined with errors in patent offices’ examination and grant procedures result in increasing numbers of ‘weak’ and overlapping patent rights.
  • As a result, companies are increasingly confronted with serious challenges when trying to develop and commercialise technology in the presence of patent thickets.
  • Litigation and post-grant validity challenges have been considered as a way of eliminating erroneously granted patent rights.

 METHODOLOGY

  • The authors look at whether individual patents are opposed post-grant. The aim is to identify which factors increase or decrease the incidence of opposition, so as to establish whether post-grant opposition serves applicants patenting different kinds of technology equally well.
  • The analysis draws on a dataset, which includes all patent applications filed with the European Patent Office between 1980 and 2010, with a focus on the characteristics of the patent, the applicant and the technology area.

KEY FINDINGS

  • The authors find that opposition decreases in fields in which many firms would benefit from the revocation of a patent, which creates a public goods problem.
  • In fields with a large number of mutually blocking patents, the incidence of opposition is sharply reduced, particularly among large firms and firms that are caught up directly in patent thickets.

POLICY ISSUES

  • Findings are of high relevance to the users of patent systems and for those concerned with the governance of these systems.
  • Findings indicate that post-grant patent review may not constitute an effective correction device for erroneous patent grants in technologies affected by either patent thickets or highly dispersed patent ownership.
  • The analysis suggests that it will have to be smaller applicants who contribute to ensuring that weak patents are kept off the register or removed from it when first asserted.
  • Collectively, their interests in patent opposition working are much stronger than those of
  • larger firms at the heart of thickets, whose cooperative actions through cross-licensing do not remove weak patents from the patent register.

FOR MORE INFORMATION

The full working paper 13-4 and more information about CCP and its research is available from our website: www.competitionpolicy.ac.uk

ABOUT THE AUTHORS

Dr Dietmar Harhoff is Professor of Business Administration and Director of the Institute for Innovation Research, Technology Management and Entrepreneurship at the Ludwig-Maximilians University Munich

Dr Georg von Graevenitz is Senior Lecturer at Norwich Business School and a member of the ESRC Centre for Competition Policy.

Dr Stefan Wagner is Associate Professor at the European School of Management and Technology.

CCP Seminar: The rise (and rise?) of Regulatory Impact Assessment

This week’s CCP seminar takes place on Friday 26th April and sees John Turnpenny (PSI), a senior lecturer in Public Policy and Public Management at UEA, presenting his research on ‘The rise (and rise?) of Regulatory Impact Assessment‘. An abstract for his seminar can be found below.

Abstract

The practice of Regulatory Impact Assessment has spread rapidly through the OECD and beyond, along with an associated academic literature.  This talk introduces ex-ante policy-level appraisal more generally, of which Regulatory Impact Assessment is but one, albeit very prominent, example.  It discusses the different types of research on policy appraisal.  Appraisal is undoubtedly an important site of political behaviour, with its own institutions, instruments and policy actors, and I investigate the growing interest in what might be termed the ‘policy and politics’ of policy appraisal.  I also discuss how policy appraisal works in practice, and some of the constraints to its application.  While there are signs that policy appraisal research is moving away from what might be termed a ‘technical-rational model’ of linear knowledge transfer between experts and policy-makers, both research and practice remain heavily informed by it.  Research and practice are interacting in subtle and surprising ways in this exciting and rapidly expanding field of public policy analysis.

CCP Seminar: Estimation of search frictions in the British electricity market

The Centre is delighted to welcome Monica Giulietti (Warwick Business School) as this week’s guest speaker at the CCP seminar series. Monica will be presenting her paper entitled ‘Estimation of search frictions in the British electricity market‘, which she has conducted alongside Michael Waterson (Warwick) and Matthijs Wildenbeest (Indiana). A short abstract of the paper can be found below.

Abstract

This paper studies consumer search and pricing behaviour  in the British  domestic electricity market  following its opening to competition in 1999.  We develop a sequential search model in which an incumbent and  an entrant group compete  for consumers  who find it costly to obtain information on prices other  than  from their  current supplier.  We use a large data set on prices and input  costs to structurally estimate  the model.  Our estimates indicate that consumer search costs must  be relatively  high in order to rationalize  observed  pricing patterns. We confront our estimates with observed  switching  behaviour  and find they  match  well.

New Competition Commission Members from ESRC CCP Advisory Board

Congratulations to our Advisory Board members Sarah Chambers and Professor Stephen Littlechild, who were announced as new panel members of the Competition Commission by Consumer Minister Jo Swinson on the 10th April.

Competition Commission panel members are selected and appointed for their experience, ability and diversity of skills in competition economics, law, finance and industry.  The Competition Commission is an independent public body which carries out in-depth inquiries into mergers, markets and the regulation of the major regulated industries.

The ESRC CCP Advisory Board provides strategic guidance and advice to ensure CCP achieves its scientific aims and objectives.  The Board brings together leaders in the field who have practical and academic expertise.

For further information, please see the Competition Commission announcement:

https://www.gov.uk/government/news/competition-commission-announces-new-members

New Journal Article: ‘Strengthening Competition Law Enforcement in Ireland’

Dr Peter Whelan (CCP and UEA Law School) has had his article ‘Strengthening Competition Law Enforcement in Ireland: The Competition (Amendment) Act 2012‘ published in the latest issue of the Journal of European Competition Law & Practice. An abstract for Dr Whelan’s paper can be found below.

Abstract

Ireland has increased the maximum custodial sentence that can be imposed on a convicted cartelist from 5 to 10 years, has increased the maximum fines for competition offences and has introduced Director Disqualification Orders for non-indictable competition offences.

The increase in the maximum custodial sentence in particular has some potential to perform a signalling function to trial judges in Ireland regarding the seriousness of cartel activity and the need for the imposition of custodial sentences on cartelists.

Recent experience in Ireland demonstrates that juries may be prepared to convict alleged individual cartelists, even when their doing so may result in the imposition of a custodial sentence.

By no longer requiring plaintiffs in follow-on private actions to prove a breach of competition law, Irish law has also facilitated less burdensome private competition law enforcement.

Dr Nicholas Vasilakos awarded by the IAEE the 2012 Campbell Watkins Energy Journal Best Paper Award

The International Association for Energy Economics (IAEE) has awarded Nicholas the 2012 Campbell Watkins best paper award for his paper “Storing wind for a rainy day” (joint with Richard Green from Imperial College).

The IAEE Campbell Watkins Award is an annual award, aimed at promoting high calibre, innovative research in the field of Energy economics (more information about the award and IAEE can be found here: http://www.iaee.org/en/publications/bestpaper.aspx

Nicholas will receive his award in the next IAEE international conference this August in Dusseldorf (in which he also hopes to present one of his latest papers).

Dr Peter Whelan undertakes a Visiting Professorship in Moscow

Dr Peter Whelan, a Lecturer in Law at UEA Law School and a Faculty Member of the ESRC Centre for Competition Policy, has completed a Visiting Professorship at the Institute of International Trade and Law in Moscow.

In the first week of April 2013, while at the Institute, Dr Whelan conducted an intensive five-day course aimed at advanced law students in Russia. Specifically, the course covered the fundamentals of English Contract Law and detailed how EU Competition Law (in particular Article 101 of the Treaty on the Functioning of the European Union) can impact upon the content and validity of contracts in this particular jurisdiction.

Dr Peter Whelan addresses students in Moscow