Book reviews

1839

Einer Elhauge and Damien Geradin, Global competition Law and Economics. Oxford: Hart Publishing, 2007. 1170 pages. ISBN-10 1-84113-465-1. GBP 35. Elhauge and Geradin argue that (a) firms operate in global markets; (b) there is consensus on the economic rationale underpinning competition law; (c) anti-competitive conduct affects competition in the global market place; and (d) agreements and mergers between firms operating in the global markets must gain approval in the global market, and as a result of these 4 facts, competition law counselling based on national markets is defective as parochial, and unnecessarily so (p. v). The modern competition lawyer must be able to advise the global enterprise on how competition law regulates their operations in a global context. The modern competition lawyer is able to provide such counselling because a common rationale allows competition law problems to be assessed within an exclusively economic methodology based on maximizing consumer welfare (p. v). Enlightened law professors and law schools will best serve their students not by teaching national competition law but by instead adopting Global Competition Law and Economics, a book designed to replace more parochial books on basic antitrust law by giving a more realistic sense of the range of issues and analyses relevant to modern antitrust law wherever practiced (p. vi).

1840

Book reviews

CML Rev. 2007

Chapter 1 provides an introduction to the statutory provisions and the enforcement regimes in both the US and EC, chapter 8 considers international cooperation and enforcement, and chapter 6 considers how to prove an agreement, but apart from these three chapters, the book is otherwise organized around five thematic competition problems: what to do if competitors agree to stop competing (horizontal agreements: chapt. 2); what to do if a single firm is able to raise prices by reducing output (unilateral conduct: chapt. 3); what if a firm enters into agreements with suppliers or buyers that excludes its rivals (vertical agreements: chapt. 4); what if a firm enters agreements with suppliers or buyers that affects competition between and amongst these trading partners (more vertical agreements: chapt. 5); and finally, what to do if rivals merge or combine into a single firm (mergers: chapt. 7). Text, cases, and materials are set out in each chapter so that the problem addressed is first stated in economic terms, the relevant US and EC provisions that apply to the problem are then briefly explained, before the case law and soft law instruments developing and interpreting the application of the statutory provisions to the economic problem are given. Thus, chapter 2 sets out the problem of horizontal agreements, Section 1 of the Sherman Act, Section 2 of the Sherman Act, Section 5 of the Federal Trade Commission Act, and Article 81 EC. This is followed by per se restraints, so e.g. under horizontal price fixing there is, Trenton Potteries, Broadcast Music, Maricopa County Medical Society, Texaco v Dagher, Polypropylene, and Uniform Eurocheques. Each case is followed by a series of questions focusing on its reasoning. It is true that because US antitrust law is so long established, competition law scholars, practitioners, and enforcers often look to the US experience for guidance. Consequently the US antitrust experience influences the direction in which competition law evolves and develops. Knowledge of some US antitrust law is at least desirable, and probably essential. However, the modern competition lawyer cannot survive on US antitrust alone global competition law is not a single regime. According to Elhauge and Geradin global competition law is US and EC competition law; this is because the lions share of global antitrust enforcement is done by the US and EC and nations outside those jurisdictions by and large borrow the basic statutory frameworks of either the US and EC and employ similar methods of antitrust analysis (p. vi). A trend to a less parochial competition law has already been reflected in Fox, Sullivan, and Peritzs, Cases and Materials on US Antitrust in Global Context, and Elhauge and Geradins Global Antitrust Law and Economics can be seen as an evolutionary stage in this movement away from parochialism. However, we can also ask whether the shackles of parochialism have truly been shed, both in general and by the authors. Is the only reason that students of global competition law will not be reading Canada (Commissioner of Competition) v Superior Propane Inc the fact that it occurs in Canada? Further, whilst separate treatment of procedural and enforcement issues may be warranted, is the separate treatment of US and EC substantive law contrary to the global competition law claim? If competition law has the single master of welfare economics should cases not be selected because they provide the clearest example of the issues at stake, rather than their hierarchy within a particular legal order (this approach is taken in the US context by Goetz and McChesney, Antitrust Law: Interpretation and Implementation, which does not select cases based on the hierarchy of the court in which they occur). The truth may be that parochial competition law endures because enforcement is parochial. The authors question whether differences in remedies between the United States and Europe suggest the desirability of having different substantive rules about which conduct merits a remedy (4). Cases occurring within a particular jurisdiction are used because these are the ones students will be citing in their national courts. And this may be expected because national courts are reluctant to consider foreign laws, perhaps because they do not accept that the underlying rationale of the competition laws are necessarily the same. This tension can be seen in the discussion of whether social welfare justifications are admissible (150191). The book reviewed here doesnt contain much on the history of the legislative provisions or

Book reviews

1841

the development of the application of the provisions, but instead focuses on error-cost analysis of various regimes. But this may simply conceal the question of a common core. Though the book is expressly not a book on comparative competition law (p. vi), it is an excellent book for introductory courses in comparative competition law at either a graduate or undergraduate level at institutions using some form of the Socratic method. Whilst the volume contains a table of contents and an index, readers will lament the absence of tables of cases and legislation, and more advanced readers may well bemoan the absence of bibliographic material (normally separate for each chapter or section) to assist in the search for more information on a particular topic. The index does contain case names and the issues raised in the case. However, it can be difficult to find discussion of some issues, thus though the US rule of reason is most clearly explained at pages 174-176 this is difficult to track down using either the table of contents or index (perhaps impossible without knowing that the leading case discussing the issue is the text is California Dental v FTC). This book is a product in a competitive market place, the authors advocating that students be taught a broader curriculum than a parochial focus allows. Against this, parochial competition law does not seem to be on the wane (a point made by Brack in a review of Slot and Johnstons, Introduction to Competition Law, (2007) ECLR, 220), various institutions offering highly specialized courses for students wishing to practice in a particular jurisdiction. There is no conflict between the two approaches, though there is the question of how best to introduce students to competition law and the issues that its practice raises. In the end the forces of competition will determine what curriculum the enlightened law school will adopt, which approach the enlightened law professor will take, and which students taught by which professors in which institutions the global employer will demand. The choice and the debate are to be welcomed. Okeoghene Odudu Cambridge