August 5, 2009
The Global Regulatory Cooperation (GRC) Project works to align trade,
regulatory and competition policies within governments around the world
towards open and competitive markets. This newsletter summarizes
recent activities, upcoming events and noteworthy articles.
IN THIS ISSUE:
SIGNIFICANT DEVELOPMENTS ...
GRC Releases Two New Publications
APEC Procedural Fairness Win
Chamber Testifies at Review of Model BIT
Section 2 Chamber Essay Published in GCP Magazine
Chamber and ANSI Team Up to Promote Business Engagement on Standards in APEC
FTC Commissioner Kovacic Visits Chamber, Discusses China Competition Law Developments
Russia to Host BRIC Competition Conference in August
REGULATIONS AND STANDARDS...
COMPETITION POLICY AND ANTITRUST...
INVESTMENT AND SOVEREIGN WEALTH FUNDS...
SIGNIFICANT DEVELOPMENTS...
GRC ReleasesTwo New Publications
The Global Regulatory Cooperation Project has released two new publications: Aligning International
Regulatory, Trade and Competition Policy and Opportunity to Compete. For hard copies of these
publications, please contact us at [email protected].
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The more general of these two publications, Aligning International Regulatory, Trade and
Competition Policy, addresses the growing problem of trade barriers arising from
internationally incompatible regulatory policies. We argue the U.S. government should
bring the authority of its regulatory agencies to bear in a more unified way to effectively
address these "behind the border" barriers that put U.S. companies at a competitive
disadvantage in key markets.
Opportunity to Compete addresses the specific challenge posed to U.S. companies by
the global proliferation of competition authorities. We argue these agencies should use
competition policy to support open and competitive markets - not misuse it in an effort to
prop up national champions or put foreign competitors at a disadvantage.
APEC Procedural Fairness Win
As a direct result of the Chamber's Global Regulatory Cooperation Project working in partnership
with the National Center for APEC and the APEC Business Advisory Council (ABAC), the
Economic Committee within APEC accepted our proposal to have its subcommittee on
Competition and Law conduct a roundtable discussion with the business community on
procedural fairness concerns in antitrust cases at its next meeting in early 2010.
This is an important development and part of a larger plan of action which aims to develop
procedural fairness best practices that govern antitrust investigation among the world's leading
competition authorities. APEC is one of the targeted international forums, but plans are also
underway to develop similar support for a discussion on procedural fairness which will ultimately
lead to recommended best practices within the OECD and the International Competition Network
(ICN).
Chamber Testifies at Review of Model BIT
U.S. international investment policy is garnering new attention, spurred in part by the administration's
ongoing review of the model text for U.S. bilateral investment treaties (BITs). In this context, the U.S.
Chamber has released a new International Policy Backgrounder, entitled "International Investment:
Securing its Benefits at Home and Abroad," to explain in a straightforward fashion the benefits of foreign
investment in the United States, U.S. investment abroad, and the treaties that protect these investments.
Also, the Office of the U.S. Trade Representative and the Department of State held a July 29
hearing to seek input on the U.S. "model BIT." Among the 17 witnesses to testify was the
Chamber's Sean Heather, who stressed the need for an expeditious review that focuses on
closing competitive gaps between the U.S. model text and BITs being negotiated by other
countries. The Chamber is also participating in the work of the BIT Review Subcommittee of the
State Department-based Advisory Committee on International Economic Policy. (U.S. Chamber
Written Testimony)
Section 2 Chamber Essay Published in GCP Magazine
In its latest contribution to the Global Competition Policy Magazine, an article entitled "The State
of Single-Firm Conduct Policy," the Chamber underscored the need for greater clarity with
respect to the enforcement policy of single-firm dominance in the United States as well as the
need to advocate the U.S. position internationally. More than two years ago, the
Chamber testified to joint hearings conducted by the DoJ and the FTC in which the
Chamber stressed the importance of establishing and advocating internationally a clear and
consistent policy governing single-firm dominance. A report on the subject was later issued by
the DoJ only to be immediately criticized by the FTC, putting domestic divergence unnecessarily
on display internationally. Then with the change in Administration, the DoJ report was withdrawn,
but in its place the DoJ has sited three Supreme Court cases as guidance.
Chamber and ANSI Team Up to Promote Business Engagement on Standards in APEC
The U.S. Chamber of Commerce and the American National Standards Institute (ANSI) completed a trip to
Southeast Asia this week where the focus was on advocating for harmonized standards and conformance
testing through the Asia Pacific Economic Cooperation (APEC) and ASEAN. The purpose of the trip was to
participate in the APEC Subcommittee on Standards and Conformance (SCSC) conference on business
engagement which was sponsored by the Chamber and ANSI and run by the US and Vietnamese
governments. There were over 100 attendees to the conference, including representatives of 20 of the 21
APEC economies. Mr. Teng Theng Dar, the chair of the APEC Business Advisory Council 2009, and Mr.
Marty Beard, president of Sybase 365 were the keynote speakers. Panelists discussed both the cross
cutting issues of transparency and SME outreach, as well as sector specific themes which could lead into
more detailed programs in the APEC 2010 and 2011 years.
FTC Commissioner Kovacic Visits Chamber, Discusses China Competition Law
Developments
On July 29, the GRC hosted FTC Commissioner William Kovacic for a discussion of China's
competition developments and upcoming FTC activities. Commissioner Kovacic recently
returned from a week in China, making this a very timely exchange of perspectives and
discussion of upcoming bilateral and multilateral dialogues relating to competition.
Kovacic said of his Chinese colleagues involved in interpreting and enforcing the Antimonopoly
Law (AML) that they are conveying strong interest in increasing cooperation with international
antitrust authorities and scholars, and are striving to improve the transparency of their decision
making processes. Kovacic spoke of the need for American technical assistance in China to
achieve a stronger balance between teaching broad competition law concepts and imparting
practical skills, and stressed that it is critical for our assistance to answer more of China's
operational questions.
Russia to Host BRIC Competition Conference in August
Brazil, Russia, India and China will hod a BRIC International Competition Conference reports August 31
through September 2 in Kazan, Russia. The conference will focus on competition law and policy
development in the BRIC countries, including competition advocacy and anti-cartel activity, and is aimed
promoting "harmonization of approaches with regard to competition policy and enforcement applied by the
BRIC competition authorities, as well as by all the other conference participants."
The Federal Antimonopoly Service of the Russian Federation, the Brazilian Competition Policy
System, the Competition Commission of India and the State Administration for Industry &
Commerce of the People's Republic of China co-organized the conference. Attendees will include
over 300 representatives from Russian and foreign competition authorities, and representatives
from enforcement agencies, judiciary arms, the business community, the academic community.
Speakers: Alberto Heimler, Chairman of the OECD; Anatoly Golomolzin, Deputy Head of FAS;
Andrey Tsarikovsky, Deputy Head of FAS; Andrey Tsyganov, Deputy Head of FAS; Arthur Badin,
President of CADE; Bohua Zhou, Minister of SAIC; Carlos Mena Labarthe, Federal Competition
Commission of Mexico; Cesar Mattos, Commissioner of the Council for Economic Defense, CADE;
Charles Webb, Executive Director of JCRA; Dhanendra Kumar, Chairperson, CCI; Igor Artemyev, Head
of FAS; Marc Reysen, Howrey's Partner; Marcelo Calliari, Antitrust International Trade; Markus Lange,
Head of the International Section of the Bundeskartellamt; Marta Skrobisz, European School of Law and
Administration in Warsaw; Masanori Fukamachi, Senior Planning Officer, JFTC; Mazhit Yesenbayev,
Chairman of the Agency of the Republic of Kazakhstan for Competition Protection; Mehta Kirtikumar,
Principal Advisor, EC; Michael Wood, Assistant Chief of the Cleveland Field Office of the Antitrust
Division; Nurettin Kaldirimci, President of the Competition Authority; Rimantas Stanikunas, Chairman of
the Competition Council of the Republic of Lithuania; Russell Damtoft, Associate Director of FTC;
Theodor Thanner, Director General of FCA; Wanglu Ning, Director General of Antimonopoly and
Antiunfair Competition Enforcement Bureau of SAIC; William Kovacic , FTC; Yevgeny Voevodin,
Partner and Head of Competition team of CMS.
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William Kovacic of the United States Federal Trade Commission will be part of the
Tuesday plenary session on "Challenges of Competition Policy Development in the BRIC
countries", in which competition authorities will discuss conditions for developing
competition policy through liberalization of the economy, state policy on competition
development, and dynamic economic growth. They will also consider the major obstacles
to developing competition relations, such as maintaining high levels of concentration and
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oligopoly in a number of the key sectors of the economy. Kovacic plans to speak in his
duel capacities as a Vice-Chair of the International Competition Network (ICN) and his
experience at the Federal Trade Commission. His remarks will follow the themes
developed in his report on the FTC at 100 project.
Russell Damtoft , Associate Director of the Federal Trade Commission, will be speaking
during session three of the conference titled, "Competition Advocacy as a Factor to
Develop Effective Competition Policy". During this session competition authorities will
present their experience on successful implementation of competition advocacy
programs for state authorities, civil society institutions and the business community. In
particular, they will focus on the extension of leniency programs for cartel activity by
means of competition advocacy in the business community. Damtoft's remarks will focus
on the problem of firms avoiding the disciplines of competition by seeking to restrict
competition through recourse to government regulators and legislators. Damtoft will
detail the FTC's own approach to this, which is essentially to make transparent the costs
that this kind of regulation imposes on consumers as part of its advocacy against
anticompetitive regulation.
REGULATIONS AND STANDARDS...
Commercial Standards and the Decline of US Hegemony: The EU Citizen State vs. the US
Corporate State Global Research, August 6, 2009 Keran's article explores the EU's influence over
the US in regard to commercial standards and he states, " The EU has waged an increasingly potent effort
to control commercial standards that have long underlain the global hegemony of US corporations. The
story deserves close attention, for it sheds light both on a power shift away from the US, and on the
potential for enlightened society to resist domination by enormously wealthy and well-organized special
interests" The article goes on to explain the differences between the EU's and the US's commercial
standards.
South Florida Business Journal, July
21, 2009 The Florida Office of Insurance Regulation has signed a Memorandum of
Understanding with the United Kingdom Financial Services Authority to work together
on issues relating to the regulation of financial matters under each of the agencies'
purview. The agreement formalizes an informal agreement on sharing information and
coordinating investigations.
Insurance commissioner signs deal with UK regulators
Insurers Need Common Rules on Solvency, IAIS's Yamazaki Says Bloomberg, August 6, 2009
Insurers posted $239 billion in writedowns and credit losses worldwide from the global credit crunch last
year. Losses in AIG's London-based financial products unit forced the company, once the world's biggest
life insurer, to seek four bailouts from the government, in part because U.S. regulators weren't supervising
all of the firm's businesses. Regulators should establish global standards on capital requirements, including
the minimum ratio for solvency margins, a gauge of an insurer's ability to pay policyholders, Yamazaki
said. Common rules also need to be applied to all group companies of global insurers, rather than just the
insurer itself, he said.
Green Dam Postponed China International Business Magazine, August 3, 2009 Facing fierce
criticism from home and abroad, China's Ministry of Industry and Information Technology (MIIT) has
delayed a controversial mandate requiring every new computer sold in the country to install internetfiltering software called Green Dam Youth Escort. he Chinese ministry describes the Green Dam as aiming
to prevent children from gaining access to online pornography and other content deemed to be harmful.
Parents can also use this software to check the online time and viewing content of their children, in order to
protect the children from "internet addiction."
Asian Makers Ship PCs With China Web Filter Wall Street Journal, July 23, 2009 Some Asian
computer makers have begun to include China's Green Dam Web-filtering software in products
shipped to Chinese customers, even after Chinese government officials last month indefinitely
delayed efforts to make the software mandatory in the face of industry and international
opposition.
Malaysia considers China-style Internet censor AFP, August 7, 2009 Malaysia is considering
imposing an Internet filter to block "undesirable" websites, on the grounds of maintaining racial
harmony in the multicultural nation, a senior official said Thursday. The move was quickly
condemned by the opposition which described it as a "horror of horrors" that would destroy the
relative freedom of the Internet in Malaysia, where the mainstream press is tightly controlled.
Briefing- Asia Telecommunications Trading Markets, July 22, 2009 An executive briefing on the
telecommunications industry for July 22, 2009, prepared by Asia Pulse (http:/ www.asiapulse.com), the
real-time, asia-based wire with exclusive news, commercial intelligence and business opportunities.
Makers of inefficient cars face higher taxes Alibaba, August 5, 2009 Chinese automobile
producers will be most influenced by the latest changes to the passenger vehicle fuel
consumption standard, an industry analyst said yesterday. The updated standard is expected to
call for high taxes on vehicles with poor fuel efficiency while fuel-efficient cars may enjoy
generous tax breaks, said Shangguan Zhoudong, an independent auto analyst.
COMPETITION POLICY & ANTITRUST...
United States:
High noon for Airbus and Boeing The Sunday Times July 26, 2009 A FIVE-YEAR trade battle between
Europe and America over assistance to Airbus and Boeing will come to a head within weeks when the
World Trade Organisation (WTO) delivers a long-awaited ruling on subsidies. The case, the world's biggest
trade dispute, will have far-reaching ramifications for the trillion-dollar commercial aerospace market. If
America wins, Airbus's system of using government loans to fund its development of new air craft may have
to be scrapped.
Airbus A350 Loans Said to Be Held Up as Germany Seeks More Work Bloomberg August 5, 2009 Airbus
SAS's plans to get 3.3 billion euros ($4.7 billion) in European loans for its A350 jetliner have been held up
as Germany seeks a greater share of manufacturing work, four people familiar with the talks said.
Negotiations with Airbus have stalled as concern about France's higher workload on the A350 prompts
Germany to seek guarantees of a bigger role on future models, said the people, who declined to be
identified because the talks are private.
The Antitrust Cop and the Tech Industry Christine Varney aims to reinvigorate antitrust policy
without stifling U.S. business, but Google and Intel could be among her targetsBusiness Week,
July 30, 2009 Christine A. Varney, the nation's top antitrust cop, is trying to pull off a delicate
balancing act. She wants to reinvigorate antitrust policy after the laissez-faire years of the Bush
Administration. Yet she also wants to avoid interfering with companies that compete vigorously
but fairly. "This job is making sure the competitive marketplace is free from obstacles and
barriers," says Varney, whose official title is Assistant Attorney General at the Justice Dept. "We
are thinking a lot about where bottlenecks might be in certain industries. If we can break through
them it would be good for consumers."
Schmidt's Apple Exit Suggests New Antitrust Targets (Update2) Bloomberg August 4, 2009
Google Inc. Chief Executive Officer Eric Schmidt's resignation as anApple Inc.director shows that antitrust
regulators may be gaining sway in Silicon Valley, threatening the way companies hire staff and run their
boards.
Telecoms Face Antitrust Threat Wireless Market, Generic Drugs Reviewed as Justice
Department Steps Up Enforcement July 7, 2009 The Department of Justice has begun looking
into whether large U.S. telecommunications companies such as AT&T Inc. and Verizon
Communications Inc. are abusing the market power they have amassed in recent years, according to people
familiar with the matter. The review, while in its early stages, is an indication of the Obama
administration's aggressive stance on antitrust enforcement. The Justice Department's antitrust chief,
Christine Varney, has said she wants to reassert the government's role in policing monopolistic and
anticompetitive practices by powerful companies.
Sherman Stirs: U.S. Revives Section 2 of the Antitrust Act Wall Street Journal July 7, 2009 Article
outlines the differences between Section 1 and Section 2 of the Sherman Act. Enforcement of
Section 2 went largely dormant under President George W. Bush. Toward the end of his second term, the
administration issued a report which codified its views on Section 2. It took the position that the
marketplace, not government regulators or courts, provides the ideal check on anticompetitive business
practices. Christine Varney, President Barack Obama's pick to run the Justice Department's antitrust
division, repudiated the Bush administration report. "The pendulum is swinging back," said Shepard
Goldfein, the practice leader of the antitrust group at law firm Skadden, Arps, Slate, Meagher & Flom LLP.
"Varney's clearly rejecting the policies of her predecessor. But how far she goes is an open question."
European Union:
International Business Pushes for Reform of EC Antitrust Fines MLex.com, July 16, 2009
Business associations from the UK, US, Germany and Switzerland, under the umbrella of the
International Chamber of Commerce, are pushing for a 'radical revision' of the European
Commission's fining guidelines, believing that the regulator's 'extremely high fines' signal an
'alarming trend'.Business associations from the UK, US, Germany and Switzerland, under the
umbrella of the International Chamber of Commerce, are pushing for a 'radical revision' of the
European Commission's fining guidelines, believing that the regulator's 'extremely high fines'
signal an 'alarming trend'.
EU Parliament Official Calls for Changes In EU Fining Policy in Antitrust CasesBNA Inc., July 22,
2009 A senior member of the European Parliament's''econ committee'' July 20 criticized the
European Commission's fining policies in antitrust and competition cases as out of proportion to
companies'alleged offenses and called for stronger parliamentary oversight. Peter Skinner,
member of EU Parliament from the United Kingdom, and a senior member of Parliament's
Economic and Monetary Affairs Committee, which technically oversees competition issues, told
BNA that, with Parliament about to consider candidates for the new European Commission that
will take over in 2010, the econ committee has competition high on its agenda.
EU Planning to Raise Fines on Cartels MLex.com, July 23, 2009 The current European
Commission has set its sights on ever higher fines as its principal weapon against illegal cartels.
As the level of fines comes under economic and politicalpressure, the commission will turn to an
armory which is almost bare in its attempt to punish offenders.The current European Commission
has set its sights on ever higher fines as its principal weapon against illegal cartels. As the level
of fines comes under economic and political pressure, the commission will turn to an armory
which is almost bare in its attempt to punish offenders.
EU targets drugmakers in generics antitrust probe Reuters Jul 8, 2009 EU antitrust regulators
launched a crackdown on Wednesday on drugmakers suspected of arranging with generics producers to
hold back cheap medicines in deals that cost healthcare providers billions of euros. In the final report of
her investigation into the sector, EU Competition Commissioner Neelie Kroes said delays in bringing less
expensive generic drugs to the market had pushed up consumers' bills by 20 percent between 2000 and
2007.
GDF Suez: To Appeal EU Antitrust Decision On Pipeline Wall Street Journal July 8, 2009 French
utility GDF Suez SA (GSZ.FR) Wednesday disputed the European Union antitrust regulators' conclusion
that it colluded with German peer E.ON AG (EOAN.XE) to limit competition until 2005 and said it will
appeal. The European Commission, the E.U.'s regulatory arm, said separately it plans to fine GDF Suez
and E.ON EUR553 million each for agreeing not to compete with each other in their national gas markets.
The commission said E.ON's Ruhrgas unit and Gaz de France, which merged with Suez in 2008, struck a
deal in 1975, when they decided to build the Megal pipeline across Germany to import Russian gas into
Germany and France.
EU High Court Overturns Penalty, Antitrust Regulator Won't Have to Pay Schneider for Blocking
Legrand Deal Wall Street Journal July 17, 2009 European Union antitrust regulators don't have to
compensate a French electrical-equipment maker for losses it suffered when its acquisition of a rival was
wrongly blocked, Europe's highest court said.
EU: Still Wants Lufthansa Clarifications On Austrian Deal Wall Street Journal, July 20, 2009 The
European Commission is still looking to get clarification from the German airline Deutsche Lufthansa AG
(LHA.XE) regarding its planned takeover of the troubled Austrian Airlines AG (AUA.VI), before deciding
on whether to give the deal merger clearance. Intel Appeals $1.45 Billion EU Antitrust Fine
EU to fine-tune antitrust rules on distribution July 28, 2009 EU regulators said on Tuesday they
would fine-tune antitrust rules on distribution deals between manufacturers and retailers due to
the stronger power of big players and the increasing popularity of Internet sales. The current
guidelines, which exempt companies from strict EU competition rules in some circumstances,
expire in May 2010 and are expected to be renewed for another 10 years with revisions. The
European Commission, competition watchdog of the 27-country European Union, said interested
parties have until Sept. 28 to comment on its proposals.
Intel Appeals $1.45 Billion EU Antitrust Fine Channel Web, Jul. 22, 2009 Intel (NSDQ:INTC) has
appealed a $1.45 billion fine levied in May by the European Union for antitrust violations and a
spokesperson for the company confirmed Wednesday that Intel will allege human rights abuses as part of
its argument against the European Commission's (EC) handling of its case.
Korea:
Qualcomm Fined 260 Billion Won by Korean Regulator Bloomberg July 23 Qualcomm Inc., the world's
biggest maker of mobile-phone chips, was fined a record 260 billion won ($208 million) by South Korea's
antitrust regulator for deterring competition through discriminatory charges. The Korea Fair Trade
Commission ordered the San Diego-based company to stop charging higher royalties to customers who buy
chips from rivals and to cease offering rebates to handset makers who purchase products mainly from
Qualcomm. The company should also halt receiving royalties on patents that are obsolete or have expired,
the regulator said today. Qualcomm pledged to appeal. The ruling threatens to undermine the company's
revenue in its largest market. The U.S. chipmaker is also under investigation by the European Union's
antitrust regulator for what it charges to license its patented technology.
UPDATE: Korea Fines Qualcomm KRW260B For Unfair Practices Wall Street Journal July 23
South Korea's antitrust watchdog Thursday fined Qualcomm Inc. (QCOM) KRW260 billion ($208 million) for
abusing its dominance in the local chipset market and ordered the global mobile chipmaker to end its
"unfair" business practices. Qualcomm said it disagrees with the ruling and will appeal in a South Korean
court against it. The fine imposed on the U.S.-based company was the largest ever levied against a single
business by the Fair Trade Commission since it imposed a KRW113 billion fine on KT Corp. in 2005, the
watchdog said in a statement.
China:
China likely to block BHP Rio JV SteelGuru August 3, 2009 Reuters quoted Chinese lawyers and
officials said the detention this month of four Rio Tinto employees in China in the midst of
bruising iron ore prices negotiations, could be just a sign of things to come as BHP Billiton and
Rio seek regulatory clearance for their iron ore joint venture.Mr Michael Komesaroff a consultant
on Chinese industry at Urandaline Investments in Australia referring to the detention of four Rio
employees said "If the government is prepared to use security services in support of its own
companies, then we cannot preclude that they will use the laws on their books to block the joint
venture."
Japan:
Qualcomm in sights of Japanese regulators The Japan Fair Trade Commission (JFTC) has set
its sights on Qualcomm, less than a week after the US wireless technology titan was fined over
200 million dollars by South Korea's antitrust watchdog. Qualcomm stated that it had not seen
the evidence for the JFTC complaint and "has not, until today, even been aware of many of the
allegations."
Indonesia:
KPPU Denies Being Pressured To Halt Certain Investigations Jakarta Globe June 21, 2009
The country's antimonopoly watchdog remains committed to upholding the law, promoting transparency and
ensuring accountability, a senior antitrust official said on Saturday, in response to public anxiety over the
body's recent decisions to halt a number of investigations. "We're on the right track in applying the
Antimonopoly Law, which requires professionalism and integrity in our investigations into unfair business
practices," said Ahmad Junaidi, communications director for the Business Competition Supervisory
Commission (KPPU).
South America:
Argentine court suspends Telecom antitrust ruling July 28, 2009 An Argentine court ruled that
representatives from Telecom Italia (TLIT.MI) may participate in management decisions
regarding its local affiliate, Telecom Argentina (TEO.N) (TEC2.BA ).The Federal Civil and
Commercial Chamber issued the ruling on Monday, overturning an earlier antitrust ruling,
according to a court document seen by Reuters.
INVESTMENT & SOVERIEGN WEALTH FUNDS...
China's Sovereign Wealth Fund Makes Big Bet in Canada Canadian mining and processing
company Teck Resources is selling a 17% stake to China Investment Corp. Business Week July
6, 2009 Canadian mining and processing company Teck Resources on Friday announced that it
will sell a 17.2% stake to China Investment Corporation (CIC) via a private placement. By taking
an interest in Teck, CIC is contributing the trend of Chinese investment in foreign resource
companies.
China wealth fund buys Diageo stake in push for foreign holdings Financial Times July 21 2009
China's sovereign wealth fund has acquired 1.1 per cent of theDiageo drinks group, giving it a
stake worth £221m, in a sign of its emerging strategy to spread its investments over different
global markets and asset classes.The move by China Investment Corp, which manages $200bn
(£120bn) of the country's $2,132bn in foreign exchange reserves, makes the fund the UK-based
group's ninth-largest investor.
***The Global Regulatory Cooperation (GRC) Project issues a regular report of recent and planned activities as well as interesting links to
important articles. This report reflects the work that the GRC Project has underway in partnership with other divisions across the U.S.
Chamber of Commerce. If you have any questions about what is contained in this report or to be added/removed from this distribution list
contact us at [email protected].***
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