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Getting the Deal Through's 2020 Guide Dominance 2020 Contributing editors Patrick Bock and Kenneth Reinker © Law Business Research 2020 Publisher Tom Barnes [email protected] Subscriptions Claire Bagnall Dominance [email protected] Senior business development manager Adam Sargent 2020 [email protected] Published by Law Business Research Ltd Contributing editors Meridian House, 34-35 Farringdon Street London, EC4A 4HL, UK Patrick Bock and Kenneth Reinker The information provided in this publication Cleary Gottlieb Steen & Hamilton LLP is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer– Lexology Getting The Deal Through is delighted to publish the sixteenth edition of Dominance, client relationship. The publishers and which is available in print and online at www.lexology.com/gtdt. authors accept no responsibility for any Lexology Getting The Deal Through provides international expert analysis in key areas of acts or omissions contained herein. The law, practice and regulation for corporate counsel, cross-border legal practitioners, and company information provided was verified between directors and officers. February and March 2020. Be advised that Throughout this edition, and following the unique Lexology Getting The Deal Through format, this is a developing area. the same key questions are answered by leading practitioners in each of the jurisdictions featured. Our coverage this year includes a new chapter on Nigeria. © Law Business Research Ltd 2020 Lexology Getting The Deal Through titles are published annually in print. Please ensure you No photocopying without a CLA licence. are referring to the latest edition or to the online version at www.lexology.com/gtdt. First published 2005 Every effort has been made to cover all matters of concern to readers. However, specific Sixteenth edition legal advice should always be sought from experienced local advisers. ISBN 978-1-83862-328-9 Lexology Getting The Deal Through gratefully acknowledges the efforts of all the contribu- tors to this volume, who were chosen for their recognised expertise. We also extend special Printed and distributed by thanks to the contributing editors, Patrick Bock and Kenneth Reinker of Cleary Gottlieb Steen & Encompass Print Solutions Hamilton LLP, for their continued assistance with this volume. Tel: 0844 2480 112 London March 2020 Reproduced with permission from Law Business Research Ltd This article was first published in May 2020 For further information please contact [email protected] www.lexology.com/gtdt 1 © Law Business Research 2020 Contents Global overview 5 Germany 101 Patrick Bock, Alexander Waksman and Henry Mostyn Katharina Apel and Friedrich Andreas Konrad Cleary Gottlieb Steen & Hamilton LLP Cleary Gottlieb Steen & Hamilton LLP Australia 9 Hong Kong 111 Elizabeth Avery and Liana Witt Adam Ferguson and Jocelyn Chow Gilbert + Tobin Eversheds Sutherland Austria 17 India 118 Christian Mayer and Moritz Am Ende Shweta Shroff Chopra, Harman Singh Sandhu and Rohan Arora Schima Mayer Starlinger Rechtsanwälte GmbH Shardul Amarchand Mangaldas & Co Belgium 24 Ireland 127 Nuna Van Belle and François-Guillaume de Lichtervelde Helen Kelly Cleary Gottlieb Steen & Hamilton LLP Matheson Brazil 33 Japan 135 Lauro Celidonio Gomes dos Reis Neto, Marcio Dias Soares, Atsushi Yamada and Yoshiharu Usuki Ana Carolina Estevão and Renata Caied Anderson Mōri & Tomotsune Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados Malaysia 143 Bulgaria 41 Sharon Tan and Nadarashnaraj Sargunaraj Anna Rizova and Hristina Dzhevlekova Zaid Ibrahim & Co Wolf Theiss Mexico 150 Canada 49 Rafael Valdés Abascal and Agustín Aguilar López Arlan Gates, Yana Ermak and Eva Warden Valdes Abascal Abogados, SC Baker McKenzie Morocco 156 China 56 Corinne Khayat and Maïja Brossard Ding Liang UGGC Avocats DeHeng Law Offices Nigeria 162 Colombia 68 Tamuno Atekebo, Chukwuyere E Izuogu, Oyeniyi Immanuel and Pablo Márquez Michelle Akpaka MBCR, Márquez, Barrera, Castañeda & Ramírez Streamsowers & Köhn Denmark 77 Norway 168 Frederik André Bork, Søren Zinck and Olaf Koktvedgaard Siri Teigum, Eivind J Vesterkjær and Heidi Jorkjend Bruun & Hjejle Advokatfirmaet Thommessen AS European Union 85 Portugal 173 Patrick Bock and Henry Mostyn Mário Marques Mendes and Pedro Vilarinho Pires Cleary Gottlieb Steen & Hamilton LLP Gómez-Acebo & Pombo France 94 Saudi Arabia 181 Corinne Khayat and Maïja Brossard Chris Webb UGGC Avocats Al Tamimi & Company 2 Dominance 2020 © Law Business Research 2020 Contents Singapore 186 Taiwan 222 Lim Chong Kin and Corinne Chew Aaron Chen and Emily Chueh Drew & Napier LLC Lee, Tsai & Partners Slovenia 193 Turkey 228 Irena Jurca and Katja Zdolšek Gönenç Gürkaynak and Hakan Özgökçen Zdolšek Attorneys at Law ELIG Gürkaynak Attorneys-at-Law Spain 199 United Kingdom 235 Alfonso Ois, Michael Tuit and Arturo Orrico Alexander Waksman and Henry Mostyn EY Abogados SLP Cleary Gottlieb Steen & Hamilton LLP Sweden 206 United States 244 Fredrik Lindblom, Sanna Widén and Angelo Skog Kenneth S Reinker and Lisa Danzig Advokatfirman Cederquist KB Cleary Gottlieb Steen & Hamilton LLP Switzerland 213 Mario Strebel and Fabian Koch Meyerlustenberger Lachenal Ltd www.lexology.com/gtdt 3 © Law Business Research 2020 United States Kenneth S Reinker and Lisa Danzig Cleary Gottlieb Steen & Hamilton LLP GENERAL FRAMEWORK Monopoly power is a required element for monopolisation. As explained further in question 6, attempted monopolisation claims Legal framework require only a ‘dangerous probability’ of achieving monopoly power, 1 What is the legal framework in your jurisdiction covering the while conspiracy to monopolise claims arguably require only a specific behaviour of dominant firms? intent to monopolise. US law does not recognise the concept of relative dominance. Section 2 of the Sherman Act, 15 USC section 2, is the primary US antitrust statute that applies to monopolies. US law recognises three Purpose of the legislation separate violations arising under this statute: 3 Is the purpose of the legislation and the underlying dominance • monopolisation, which requires possession of monopoly power standard strictly economic, or does it protect other interests? in the relevant market and anticompetitive conduct that helps to obtain or maintain that power; The focus of the Sherman Act is economic, specifically, the preservation • attempted monopolisation, which requires a dangerous prob- of competition and the promotion of efficiency and consumer welfare. ability of achieving monopoly power, anticompetitive conduct Section 5 of the FTC Act prohibits ‘unfair methods of competition’. In that threatens to help achieve that power and a specific intent to an August 2015 Statement of Enforcement Principles Regarding Unfair monopolise; and Methods of Competition under section 5, the FTC stated that it will be • conspiracy to monopolise, which requires a conspiracy, an overt act guided by ‘the promotion of consumer welfare’ in applying section 5. in furtherance of the conspiracy and a specific intent to monopolise. However, some have suggested that section 5 could also be used to address various non-economic issues, such as environmental protec- Section 5 of the Federal Trade Commission (FTC) Act, 15 USC section tion, privacy, employment or income equality. 45 – which is enforced solely by the FTC and prohibits ‘unfair methods of competition’ – also applies to monopolists. Section 5 probably reaches Sector-specific dominance rules more broadly than the Sherman Act, as the US Supreme Court has 4 Are there sector-specific dominance rules, distinct from the stated that there are more ‘unfair methods of competition’ than those generally applicable dominance provisions? prohibited by the Sherman Act. Many US states have statutes that prohibit monopolisation or There are a variety of sector-specific regulatory regimes at both the unfair methods of competition that are comparable to section 2 of the federal and state level, including in telecommunications, broadcasting, Sherman Act or section 5 of the FTC Act. securities, energy, healthcare, transportation and agriculture. Some In certain industries, other statutes and regulations might regulators can impose rate regulation (such as with public utilities), also apply. which might be appropriate in certain cases involving natural monopo- lies, or other rules that can limit monopolistic behaviour. Definition of dominance Generally speaking, all firms – including regulated firms – must 2 How is dominance defined in the legislation and case law? comply with the antitrust laws. However, there are certain exemptions What elements are taken into account when assessing under federal statute, which are often industry specific. For example, dominance? certain insurance practices that are regulated by state law are exempt from the federal antitrust laws under the McCarran-Ferguson Act. In Monopoly power is not defined by statute, but is defined by the case certain limited circumstances, notably involving the securities laws, law as the ability to control prices or exclude competition. It can be courts have also found there is an implied immunity for certain conduct proven either through direct evidence of actual price increases or the from the antitrust laws where there is a serious risk of conflict between exclusion of competitors or, more typically, through indirect
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