Thursday 19 October, 2017

Competition and Litigation Support

Indecon provides clients with expert assistance in cases and studies involving Irish and EC competition law, contractual disputes and other areas of commercial law. Our expertise includes:

  • Economic assessment of mergers for the parties involved, complainants and for financial institutions;
  • Economics-based litigation support before national courts;
  • Anti-trust investigation support before the European Commission and National Competition Authorities (NCAs);
  • Economics-based advice and support to firms under review by National Regulatory Authorities (NRAs);
  • Section 30 sectoral reviews (e.g. the Professions Study);
  • Development of competition compliance programmes for businesses;
  • Assessment of economic damages in cartel, intellectual property, personal injury and contractual cases;
  • Valuation of intellectual property;
  • Trade disputes including potential WTO cases, EC subsidy and dumping cases;
  • Arbitration disputes (e.g. provision of economic analysis to a particular side in, for example, a dispute over royalty payments between two undertakings); and
  • Economics-based advice on state aids.

Unlike other consultancies or individual academics, we can draw on the wide experience of Indecon staff in business strategy, sectoral issues, industrial economics and organization, policy evaluation and quantitative modelling in order to support clients in litigation, in the evaluation of competition issues and in merger appraisal.

Indecon's advice in competition law and litigation support is based on logically consistent and evidence-based economic analysis, which is presented in a way that is clear, intelligible and of real value to the client.

Contact link:

For more information on Indecon's competition and litigation support services, please email us at competition@indecon.ie or contact us at the address below:

Indecon House
4 Fitzwilliam Place
Dublin 2
Tel: + 353 (0)1 677 7144
Fax: + 353 (0)1 677 7417

Sectors

 

Anti-trust
Indecon provides clients with expert advice and assistance in all the major areas of anti-trust under Irish and EC law, including:

  • Merger appraisal;
  • Restrictive agreements and concerted practices;
  • Abuse of dominance.

Merger appraisal (including joint ventures) is increasingly relying on sophisticated economic analysis: the new substantive test in Irish and UK law - substantial lessening of competition (SLC) - is a purely competition economics-based test and the European Commission has recently moved towards a very similar test - significant impediment to effective competition (SIEC). The Indecon competition team is on hand to provide the necessary analysis in a way that is clear and of real value to the client. In all cases, our merger and JV work takes account of how markets work in reality, including their vertical and horizontal structures.

Section 4(1) of the Competition Act, 2002 (like Article 81(1) of the EC Treaty) prohibits restrictive agreements or concerted practices between undertakings that have as their object or effect the prevention, restriction or distortion of competition in any goods or services in the State. The Indecon team provides advice to complainants (competitor businesses, consumer bodies) who might be affected by such agreements. We also provide assistance and advice to undertakings that may wish to be certain that a practice or agreement does not offend against section 4(1) or Article 81(3), by showing that the economic benefits outweigh any perceived harm to competition. The economic test for showing that an agreement does not violate section 4(1) of the Competition Act is provided for in section 4(5) (Article 81(3) of the EC Treaty). Under EC Regulation 1/2003 (the 'Modernisation Regulation'), which comes into effect on 1 May 2004, all agreements between undertakings caught by Article 81(1) that meet the exemption criteria in Article 81(3) will be legally enforceable without prior administrative approval.

The Indecon team is available to assist businesses with the necessary economic analysis that this entails.

Abuse of dominance is provided for in Irish law by section 5 of the Competition Act (Article 82 of the EC Treaty at the European level) and may come in a variety of forms, including price discrimination, excessive pricing, exclusionary pricing, predatory pricing, refusal to supply, refusal to grant access to essential facilities, tying. Indecon's services are provided to complainants or to undertakings under investigation and comprise dominance assessment as well as analysis of alleged abuse of dominance, including its likely impact on the market.

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Competition Policy
An increasingly important area of National Competition Authorities' (NCAs') work is undertaking market/sectoral studies. The purpose of these investigations, which form part of NCAs' 'advocacy' programmes, is to examine any legislative or informal practices affecting competition in markets or sectors that, among other things, are important to the overall competitiveness of the economy. Therefore, these studies have an important economic policy dimension. These advocacy studies (whether at national or EC level) have a common thread: there may be legislative or informal practices that have the (sometimes unintended) effect of restricting competition (either by making entry difficult or reducing rivalry or both) the effect of which might outweigh any intended benefits for which the practices were originally designed to achieve. Assessment of these restrictions therefore requires analysis of the costs and benefits involved and a careful weighing up of whether the intended benefits are justified in view of any competitive harm that might result ('proportionality principle'). Our in-depth work for NCAs and previous policy-based assignments put Indecon at the frontier of this important part of the competition portfolio.

A second aspect of policy-related competition work relates to the provision of competition advice in the context of regulated markets. In the past, regulation of markets where competition was deemed not to be workable tended to involve direct intervention - in the extreme case requiring a 'natural monopoly' to be broken up. Today, following developments in modern economics, regulation is based more directly on competition principles. This reflects the view, espoused by leading academic economists, that competition may be more effective than regulation in keeping prices down. This means that there is an obligation on National Regulatory Authorities (NRAs) and undertakings under review to carry out careful competition-based economic analysis, covering market definition, assessment of significant market power (SMP), collective or joint dominance, regulatory obligations (e.g. accounting separation, transparency, access requirements) and regulatory impact assessment. Because the analysis comes in the context of ex-ante regulation, the economic analysis involved may differ in a subtle way to that normally undertaken in competition work. With our extensive experience in this area, the Indecon team possesses expert knowledge of the key issues involved and how to address them using carefully constructed economic modelling and evidence.

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