Plenary: The Commissioner’s Panel - International Focus on Unilateral Conduct

CBA 2007 Annual Fall Conference on Competition Law

Friday, October 12, 2007, 9:00-10:30 am

Moderator :

Sheridan Scott, Commissioner of Competition

Speakers :

Gregory D. Adams, CRA International
Adam Fanaki, Special Counsel to the Commissioner
Philip Lowe, DG Competition, European Union
Randolph W. Tritell, Director, Office of International Affairs, US FTC

Opening remarks

Good morning all; thanks very much for coming.

Let me start by saying how pleased I am, both to be here again conducting the Commissioner’s Panel, and to be tackling what I think is perhaps the most interesting issue in international competition law at the moment - unilateral conduct, or as we call it here in Canada, abuse of dominance. Over the past several years, there has been a lot of academic thinking on theories of unilateral conduct, and a lot of agency thinking as well. As Commissioner of Competition, I’ve seen the Bureau work toward trying to establish clarity on thorny issues such as tying, bundling, and fidelity rebates, and as Chair of the ICN’s Steering Group, I’ve seen my international counterparts wrestle with the same questions. In that respect, I’m perhaps most pleased with the progress that the ICN's recent Working Group on unilateral conduct has made in the past year.

But before we can discuss international consensus, we first need to focus on solidifying our own agency views on unilateral conduct. This has been a productive area within the last few years. The European Union published its Discussion Paper on Article 82 in late 2005, which proposes to treat exclusionary conduct with a more effects-based approach. The EU has been busy on the enforcement front as well, recently securing a decision in Microsoft from the Court of First Instance. Meanwhile, the last year in the United States has seen both the FTC/DOJ joint hearings on Section 2 of the Sherman Act as well as the Antitrust Modernization Commission's recent report, which proposes a bright-line test for dealing with bundled discounts, recently adopted by the Ninth Circuit Court of Appeals in PeaceHealth1. In Canada, we’ve published the draft bulletin on the abuse of dominance provisions as they apply to telecommunications, and of course I, like many of you in this room, am following the Competition Tribunal’s redetermination of Canada Pipe.

Staff at the Competition Bureau once told me about the “Goldilocks” theory about abuse of dominance: enforcement in the EU is too “hot”; in the US it is too “cold”; and in Canada, enforcement is “just right.” I don’t know if that’s true, but today I’m honoured to step aside and let this esteemed panel engage in what will no doubt be a fascinating debate. Representing the Canadian perspective is Adam Fanaki, Special Counsel to the Commissioner at the Bureau. From the United States, we have Greg Adams of CRA International. From the EU, I’m pleased to welcome Philip Lowe, the Commission’s Director General of Competition. Finally, providing the international perspective is Randy Tritell, Director of International Affairs for the US Federal Trade Commission and co-chair of the ICN’s Unilateral Conduct Working Group. Welcome all.

1 AMC Commissioner and US Department of Justice Deputy Assistant Attorney General for Economic Analysis Dennis Carlton expressed support for safe harbours in his AMC statement, but there have been others (e.g. former Bureau T.D. McDonald chair Tim Brennan) that these are the wrong way to go.