Annual Baxt Lecture

2018

The 9th Annual Baxt lecture, Woodward Conference Centre, Melbourne Law School

Competition Policy for the Matchmaker Economy: Insights from the New Economics of Multisided Platforms

Date: Tuesday 9 October

Times: Cocktail reception from 5:45pm; Formalities commence 6:30pm; Event concludes by 8:30pm

Venue: Woodward Conference Centre, Melbourne Law School

Speakers: The Baxt Lecture will be delivered by Dr David Evans, Chairman, Global Economics Group, to be followed by a panel of commentators: Associate Professor Sora Park, Director, News and Media Research Centre, University of Canberra, Lauren Solomon, CEO, Consumer Policy Research Centre, Dr Katharine Kemp, University of New South Wales Allens Hub, Technology, Innovation and the Law, and others to be confirmed.

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David Evans lecture

Matchmakers operate platforms that enable different types of participants, like drivers and passengers in the case of Uber, to connect and exchange value. These types of businesses have been around for millennia but have become much more common and important, as a result of technological change.  Several of the largest companies in the world, such as Apple, Google, and Facebook, follow this business model as do many of most valuable startups, such as Uber and Airbnb.  The new economics of multisided platforms provides important insights into competition policy for these businesses. Competition authorities and courts have already incorporated some of the new learning into their analyses.  After providing an overview of the economics of matchmakers this event will examine outstanding issues on how to define markets, analyse competitive effects, and reduce false positive and negative findings for platform-based industries. Its timing is significant given the current global debate about the impact of platforms on competition in various markets and in Australia, particularly so in light of the inquiry being conducted by the Australian Competition and Consumer Commission into digital platforms. David Evans is one of the world’s leading authorities on the economics of multi-sided platforms and he is the co-author of the widely acclaimed book on the topic, Matchmakers: The New Economics of Multisided Platforms.

David S Evans is an economist.  He is Chairman of Global Economics Group, based in its Boston office, and is Executive Director of the Jevons Institute for Competition Law and Economics and Visiting Professor at University College London. His academic work has focused on industrial organization, including antitrust economics, with a particular expertise in multisided platforms, digital economy, information technology, and payment systems.  He has authored 8 books, including two award winners, and more than 100 articles in these areas.  His most recent book, with Richard Schmalensee, is Matchmakers: The New Economics of Multisided Platform. Dr. Evans has taught courses related to antitrust economics, primarily for graduate students, judges and officials, and practitioners, and has authored handbook chapters on various antitrust subjects. He has served as a testifying or consulting expert on many significant antirust matters in the United States, European Union, and China. He has a Ph.D. degree in economics from the University of Chicago.

Panel discussion

The timing of this event is significant given the current global debate about the impact of platforms on competition in various markets and in Australia in light of the Australian Competition and Consumer Commission’s Inquiry into Digital Platforms.The lecture will be followed by a discussion by a panel dealing with issues raised by the ACCC’s inquiry.  Panellists include:

• Associate Professor Sora Park, Director, News and Media Research Centre, University of Canberra
• Lauren Solomon, CEO, Consumer Policy Research Centre
• Dr Katharine Kemp, University of New South Wales Allens Hub, Technology, Innovation and the Law
• Others to be confirmed.

The Law School gratefully acknowledges the sponsorship of Gilbert + Tobin and HoustonKemp Economists for this year’s event.

Gilbert + Tobin’s market-leading Competition + Regulation practice is one of the largest in Australia. Working on some of the most complex and high-profile transactions across Australia and the Asia Pacific region. We are the “go-to” firm for ground breaking competition and regulatory work and have been acknowledged by numerous independent publications and directories both locally and overseas.

2017

The 8th Annual Baxt lecture, Woodward Conference Centre,  Melbourne Law School

'Designing Cartel Sanctions: A Continuing Debate'

Judge Douglas Ginsburg, Federal US judge on the Court of Appeals for the District of Columbia and Professor of law, George Mason University 

Introduction by Roger Featherston, ACCC Commissioner

Slides from Judge Douglas Ginsburg presentation are available here.

Wednesday 21 June 2017

Abstract: Questions regarding the most appropriate and most effective sanctions for cartel conduct continue to engage the minds of competition authorities and commentators worldwide. Corporate fines remain the sanction of choice for most authorities and in the United States and Europe at least, fining levels continue to spiral in the search for optimal deterrence. This lecture will challenge the conventional wisdom of ever-increasing corporate fines to solve the problem of under-deterrence. It will propose two guiding principles in the determination of the optimal sanctions for so-called hard core cartels : first, that the total sanction be great enough, but no greater than necessary, to take the profit out of price-fixing; and second, that the individuals responsible for the price-fixing should be given a sufficient disincentive to discourage them from engaging in the activity. The lecture will explore the implications of applying such principles, including altering the distribution of criminal sanctions as between corporations and the individuals who fix prices on their behalf, imposing liability on officers and directors based on negligence and relying on debarment as a sanction for individuals to a greater extent than is currently the practice. In examining these principles and their application, the lecture will draw primarily on the extensive experience in antitrust enforcement in the United States, while reflecting also to some extent on experiences in Europe and other jurisdictions.

Judge Douglas Ginsburg is a federal US judge on the Court of Appeals for the District of Columbia. He has extensive experience as a member of the US judiciary, Department of Justice and leading academic institutions in the area of antitrust. After graduating with a B.S. from Cornell University in 1970, he obtained his J.D. from the University of Chicago Law School in 1973. Following law school, he clerked for Judge Carl McGowan of the U.S. Court of Appeals for the D.C. Circuit and for U.S. Supreme Court Justice Thurgood Marshall. From 1975 to 1983, he was a Professor at Harvard Law School. He then served as deputy assistant attorney general for regulatory affairs in the Antitrust Division of the U.S. Department of Justice, from 1983 to 1984; administrator of the Office of Information and Regulatory Affairs, in the Office of Management and Budget, from 1984 to 1985; and assistant attorney general in the Antitrust Division of the Department of Justice from 1985 to 1986. He was appointed to the United States Court of Appeals in November 1986. Concurrent with his service as a federal judge, Judge Ginsburg has taught at the University of Chicago Law School and the New York University School of Law and he is currently a Professor of Law at the George Mason University Scalia School of Law and the New York University School of Law, and a visiting professor at the University College London, Faculty of Laws. He has published widely on antitrust and taught as well as trained other judges in the area. In 2014 Judge Ginsburg founded the Global Antitrust Institute at the Scalia Law School and is now Chairman of its International Advisory Board. He also serves on the Advisory Boards of: Competition Policy International; the Harvard Journal of Law and Public Policy; the Journal of Competition Law and Economics; the Journal of Law, Economics & Policy; the Supreme Court Economic Review; the University of Chicago Law Review; the New York University Journal of Law and Liberty; and, at University College London, both the Centre for Law, Economics and Society and the Jevons Institute for Competition Law and Economics. Judge Ginsburg is a recipient of the Lifetime Achievement Award given annually by the Global Competition Review.

2016

The Seventh Annual Baxt lecture, Woodward Conference Centre,  Melbourne Law School

'The Regional Imperative for Competition Law and Policy: The Promise and Limits of Regional Agreements'.

Professor Eleanor Fox, Walter J. Derenberg Professor of Trade Regulation (New York University), Woodward Conference Centre, Level 10, Melbourne Law School

Thursday 04 August 2016

Abstract:

In the wake of failed multilateralism, nations are shifting to regionalism to solve problems of the global economy. Indeed, projects for regionals are proliferating, from Association of South East Asian Nations to Trans-Pacific Partnership Agreement.

First, what can we expect from regionalism? Are there tasks in the world of competition law and policy that cannot be done well at nation-to-nation level and that can be done regionally? This lecture will explore the gaps between trade and competition policy and consider what work regional agreements can do to fill or bridge them.

Second, what are the limits of regional projects? The lecture will argue that, absent a single regional substantive law with adjudication at the center, divergences and tensions regarding substantive competition law principles will continue to exist. Nations' laws have their own roots. Even within nations, the “competition order” is much debated, in view of values, priorities, and the local economic and political terrain.

The Final Report and Recommendations of the Australian Competition Policy Review and the debate surrounding it, compared with the debates in the US and in the EU, with focus on single firm offenses, will be used to exemplify the divergences. Despite the calls for convergence on the formulation and application of substantive law principles, this lecture will argue that the continuing dialectic among perspectives is good and can actually enhance the value of regionals as long as positions are transparent and the member states embrace a vision of the common economic interest of the community in limiting beggar-thy-neighbor strategies.

Professor Eleanor Fox

Eleanor M. Fox is the Walter J. Derenberg Professor of Trade Regulation at New York University School of Law. She is an expert on antitrust and competition policy, and teaches, writes and advises on competition policy in nations around the world and in international organizations. She has a special interest in trade and competition, institutional networks and global governance. She also has a special interest in developing countries and explores how opening markets and attacking privilege, corruption and cronyism can alleviate marginalization and open paths to economic opportunity and inclusive growth. Fox received her law degree from New York University School of Law in 1961; she received an honorary doctorate degree from the University of Paris-Dauphine in 2009. She was awarded an inaugural Lifetime Achievement award in 2011 by the Global Competition Review for "substantial, lasting and transformational impact on competition policy and practice." She received the inaugural award for outstanding contributions to the competition law community in 2015 by ASCOLA, the world network of academic law and economic competition experts. Her books include a US antitrust casebook (West 2012), a European Union law casebook, co-authored (West 2015), and a book on the design of competition law institutions with Michael Trebilcock (Oxford 2013). Professor Fox is writing a book on competition and markets in sub-Saharan Africa.

2015

Sixth Annual Baxt Lecture, University of Melbourne, Friday 24th April 2015. Sponsored by Jones Day.

'The Institutional Design of Competition Authorities: International Debates and Trends'

Professor Frederic Jenny, ESSEC Business School in Paris, Judge at the Supreme Court of France (Cour de Cassation) and Chairman of the OECD Competition Law and Policy Committee (since 1994)

Prof Frederic Jenny

Prof Frederic Jenny, Prof Caron Beaton-Wells and Nick Jones

Abstract: The institutional design of competition authorities has attracted much attention in the recent years both in countries which follow an administrative model and in countries which have a prosecutorial model.In a large number of countries with an administrative model changes in the nature, structure, scope of intervention, governance or tools of competition authorities have been implemented or contemplated.

Heated debates on the optimal institutional design of competition authorities have taken place in many of these countries, including the United Kingdom, Spain, the Netherlands, Korea and Chinese Taipei. However, such discussions have also taken place in countries with a prosecutorial model – Australia among them, as seen in the recent and ongoing Competition Policy Review.

The lecture explored the reasons for renewed interest in the institutional design of competition authorities and sought to explain the determinants of the existing variety of institutional designs throughout the world. Drawing on the recent work of the OECD and Professor Jenny's extensive experience in this field, the lecture discussed whether there is a best model of institutional design for competition authorities or, if there is no such model, the pros and cons of existing models. The trends in changes in institutional design of competition authorities was also critically analysed with a view to enriching the Australian debate. To listen to the recorded lecture, click here.

Dr Frédéric Jenny is Professor of Economics at ESSEC Business School in Paris, Judge at the Supreme Court of France (Cour de Cassation) and Chairman of the OECD Competition Law and Policy Committee (since 1994). He has studied in France and the United States and holds a Doctorat en sciences Economiques (University of Paris) and a Ph.D in economics ( Harvard University). He has written extensively on Industrial Organization, Competition law, Trade and Economic Development and has been a Visiting Professor at leading institutions, including University College, London, the University of Cape Town, Keio University, Tokyo and Wuhan University in China. Dr Jenny has consulted to governments and competition authorities around the world and has held numerous positions on national and international advisory and editorial boards.  He has been awarded France's highest honour, as an Officier, Ordre de la Légion d'Honneur.

2014

Fifth Annual Baxt Lecture, University of Melbourne, Monday 19 May 2014.

'Economics in the design and implementation of competition policy'

John Fingleton, CEO Fingleton Associates and former Chief Executive of the UK Office of Fair Trading 2005-2012. This event also included a Policy Review Panel Discussion.

John Fingleton and Prof Caron Beaton-Wells. Photographer: Michael Silver

John Fingleton. Photographer: Michael Silver

Chris Jose and Prof Bob Baxt AO. Photographer: Michael Silver

Abstract: This lecture addressed how economics influences the design and implementation of competition policy, canvassing issues and themes that are highly relevant in the context of the Competition Policy Review currently under way in Australia. The emphasis of the lecture was on competition as an instrument of economic policy, and thus wider than law enforcement. It was based primarily on the UK experience, but drew on international evidence more generally, and considered briefly how this experience may be drawn upon in the Australian Review. The lecture examined how the economic objectives of competition policy translate into the design of the law and institutions, including competition law directed at private firms and competition advocacy aimed at government behaviour. It also examined how competition policy interacts with other policies such as consumer protection, sector-specific economic regulation, industrial policy, etc. In terms of the implementation of competition policy, the lecture addressed how economics can inform the strategies pursued by agencies such as prioritisation, evaluation, the design of sensible bright line rules and other guidance.  It also covered specific areas such as abuse of dominance, agreements, mergers, market studies and competition advocacy.

John Fingleton is CEO of Fingleton Associates and was formerly the Chief Executive of the UK’s Office of Fair Trading from 2005 to 2012, having previously run the Irish Competition Authority. He was Chair of the Steering Group of the International Competition Network from 2009-2012. As an academic economist at the London School of Economics, Trinity College Dublin and the University of Chicago, he has written and taught game theory, economics of industry and regulation. In government, he oversaw merger regulation, enforcement of competition rules, consumer protection, and credit regulation. He has been a strong advocate for the removal of government restrictions on competition and supply side reforms to improve productivity growth.

The lecture was followed by:

Australia’s Competition Policy Review: An Expert Panel Discussion

In 2014 the government commissioned an independent review of competition policy and law and its administration – the Competition Policy Review (CPR). Promoted as a sequel to the landmark National Competition Policy Review in 1992 that was chaired by Professor Fred Hilmer (the speaker at the 2013 Annual Baxt Lecture), the overarching aim of the CPR is to identify competition-enhancing micro-economic reforms to drive ongoing productivity growth in the economy and improvements in the living standards of all Australians.  To be chaired by Professor Ian Harper, the CPR’s agenda is ambitious and its terms of reference are wide.  An Issues Paper was released, submissions were sought up until 10 June 2014, and a final report to be produced within 12 months of that date. The CPR is a significant opportunity not only to tackle the unfinished business of the Hilmer review in the areas of regulatory review and privatisation, amongst others, but also to address essential reforms to the competition provisions of the Competition and Consumer Act 2010 to ensure that it is coherent and effective, as well as consistent with international best practice.

Building on the economic themes and overseas experience relevant to competition policy and law addressed in the 2014 Lecture by John Fingleton, the Law School hosted an expert panel discussion on issues central to the CPR immediately after the Lecture.

The panel

The panel comprised four of Australia’s most eminent economists, all of whom have a long and distinguished record in influencing debate and practice in the field of competition policy, law and enforcement in this country.

Professor Allan Fels AO

Allan Fels is most widely known for his role as Chairman of the Australian Competition and Consumer Commission (ACCC) from 1995 until 30 June 2003. having previously chaired the Trade Practices Commission from 1991 to 1995 and the Prices Surveillance Authority from 1989 to 1992.  He was subsequently foundation Dean of the Australia and New Zealand School of Government (ANZSOG) until January 2014.  He is currently an Honorary Professional Fellow at this Law School and continues to be involved in competition law activities globally.  He also plays other major roles including as Chairman of the National Mental Health Commission, the Victorian Taxi Industry Inquiry, the Visy Australasia Governance Board and the China Advanced Leadership Program. Click here to view Professor Allan Fels' slide presentation.

Professor Henry Ergas

Henry Ergas is Senior Economic Adviser, Deloitte, and Professor of Infrastructure Economics at the University of Wollongong’s SMART Infrastructure Facility. Henry has broad experience in virtually every area of applied economics, focussing on issues of efficient resource allocation. He has been closely involved in dealing with regulatory issues in many industries, including public utilities, Defence, aviation, surface transport and financial services and has worked over many years on issues in the economics of health and aged care.

Professor Stephen King

Stephen King is Professor of Economics and co-director of the Business Policy Forum at Monash University in Melbourne, Australia. Prior to joining Monash, Stephen was a Member of the Australian Competition and Consumer Commission. Stephen’s main areas of expertise are in competition economics, regulation and industrial organization and he has researched and worked in these areas for more than two decades. Stephen has a PhD from Harvard University and received the University Medal from the Australian National University for his undergraduate studies. He is a Fellow of the Academy of Social Sciences in Australia.

Professor Philip Williams AM

Philip Williams is the Chairman of Frontier Economics (Australia). Prior to joining Frontier, he taught full-time at the University of Melbourne from 1978 to February 2002, when he resigned as Professor of Law and Economics in the Melbourne Business School at the University. He is a member of the Competition and Consumer Committee of the Law Council of Australia and was awarded an AM in the Australia Day Honours earlier this year. Click here to view Professor Philip Williams' slide presentation.

The discussion

In an interactive format inspired by the ‘hot tub’ approach to expert evidence in competition litigation, the panel addressed a series of key topics relevant to the CPR, including:

• regulatory impediments to competition;
• privatisation of government-owned businesses;
• competition reforms in sectors with significant government participation;
• the structure and coherence of the CACA, including tests for liability and key exemptions;
• the national infrastructure access regime;
• the structure and scope of the ACCC.

The panel discussion and Q&A was moderated by CLEN Director, Professor Caron Beaton-Wells.

2013

The 4th Annual Baxt Lecture, University of Melbourne, Thursday 12 September 2013

'National Competition Policy Turns 21: An Occasion to Celebrate?'

Professor Frederick Hilmer AO, President and Vice-Chancellor of the University of New South Wales.

Prof Frederick Hilmer. Photographer: Michael Silver

Prof Maureen Brunt and Prof Bob Baxt. Photographer: Michael Silver

Abstract: It has been just over two decades since the significant reforms known as “National Competition Policy” were recommended by an Independent Committee of Inquiry in Australia.  In the 4^th Annual Baxt Lecture, the architect of the reforms, Professor Fred Hilmer, will revisit the goals of National Competition Policy and reflect on the benefits that have been derived for the Australian economy and community from its implementation. He will also examine whether key aspects of the reform package have lived up to their potential, including reforms relating to the institutional framework (the role of the National Competition Council, in particular) and reforms relating to access to essential services (governed by Part IIIA of the Competition and Consumer Act 2010 and currently the subject of review by the Productivity Commission). Professor Hilmer will also argue that there has been a decline in political commitment to competition policy in recent years and, in exploring the reasons for and consequences of this will focus on the demise of regulation review. He will make a case for revitalising the scrutiny of regulations for anti-competitive effects, a process that may resonate with business demands to ‘cut red tape’ but that also highlights the post-GFC challenge of striking the right regulatory balance between safeguarding economic security and stability on the one hand and fostering innovation and competitiveness on the other.

Professor Frederick Hilmer was appointed President and Vice-Chancellor of the University of New South Wales on 19 June 2006. Prior to taking up this position, he was Chief Executive Officer, John Fairfax Holdings Limited from 1998 - 2005. Before joining Fairfax he was Dean and Director of the Australian Graduate School of Management (AGSM) in the University of New South Wales and a Director of Port Jackson Partners Limited. Prior to joining the AGSM, Professor Hilmer was a Director of McKinsey & Company - responsible for managing the Australian practice. He holds a degree in law from the University of Sydney, an LLM from the University of Pennsylvania, and a Master of Business Administration degree from the Wharton School of Finance where he was appointed a Joseph Wharton Fellow. In 1991 the Australian Institute of Management awarded him a special John Storey medal for distinguished contribution to the advancement of management thinking in Australia. Professor Hilmer was appointed an Officer of the Order of Australia in 1998 for his service to management education, competition policy and workplace reform.

2012

The 3rd Annual Baxt Lecture, University of Melbourne, Tuesday 23 October 2012

'The Global Conversation about Merger Review and Powerful Buyers'

Professor Stephen Calkins, Professor, Wayne State University, Member and Director of Mergers Division, The Competition Authority Ireland, Former General Counsel, U.S Federal Trade Commission

Prof Stephen Calkins and Prof Caron Beaton-Wells. Photographer: Michael Silver

Professor Bob Baxt and Ruth Baxt AO. Photographer: Michael Silver

2011

The 2nd Annual Baxt Lecture, University of Melbourne, Wednesday 24 August 2012

'Private Enforcement in Competition Law? European Developments'

Emeritus Professor Richard Whish QC (Hon), King's College, London

Emeritus Professor Richard Whish QC (Hon). Photographer: Michael Silver

Abstract: Private claims for damages to compensate for losses caused by anti-competitive conduct have been a longstanding and, at times, controversial feature of United States’ competition law. In recent years, however, growing momentum in favour of private enforcement of competition law has been seen outside of the US, particularly in Europe. This development raises challenging questions of policy and practice, particularly in the context of collective redress. In Australia, there has been a recent spate of private actions in respect of major cartels.  However, some have argued that the hurdles are too high and that the system weighs too heavily in favour of public enforcement at the expense of compensation for victims of anti-competitive conduct.  Providing insights of great interest to the Australian debate, the Second Annual Baxt Lecture will see one of Europe’s leading competition law scholars address the questions raised by private enforcement based on recent European experience.

2010

The Inaugural Baxt Lecture in Competition Law, University of Melbourne, Friday 13 August 2011.

'Competition Authorities for the 21st Century'

Professor William Kovacic, George Washington University, Univted States and Senior Fellow, Melbourne Law Masters  

Abstract: In a changing political and economic climate, agencies charged with enforcing competition laws face a range of significant challenges in the 21st century.  In the past century major challenges lay in educating and persuading a range of constituencies of the value of competition regulation and in developing the institutional expertise and skills to regulate effectively. In many jurisdictions (Australia among them) those tasks have largely been completed and the competition authority enjoys significant political support and, not unrelatedly, has developed into a highly professional outfit with expertise to match the private sector.  In coming years, there will be new challenges.  Among them will be the expectation that agencies anticipate and be responsive to changes in the nature of competition, and anti-competitive conduct, in a global economic environment. There is also increasing pressure that such agencies take a critical introspective approach to evaluating their performance and that they be accountable in such a way as continues to justify the substantial public resources that they command.

William Kovacic is recognised as one of the world's leading authorities in competition (antitrust) law, and has acted both as a regulator and as an academic. He is currently Global Competition Professor of Law and Policy and Director of the Competition Law Center at George Washington University, Washington. He served as a member of the United States Federal Trade Commission from January 2006 to October 2011 and was Chairman from March 2008 until March 2009. Since January 2009, he has served as the Vice Chair for Outreach of the International Competition Network. Since 1992, he has served as an adviser on antitrust and consumer protection issues to the governments of Armenia, Benin, Egypt, El Salvador, Georgia, Guyana, Indonesia, Kazakhstan, Mongolia, Morocco, Nepal, Panama, Russia, Ukraine, Vietnam, and Zimbabwe. He has published numerous books and articles on competition policy, law and enforcement, and in recent years has developed a particular specialty in the field of competition law institutions.

Co-sponsored by the Melbourne Law School and the Australia and New Zealand School of Government, University of Melbourne

About Professor Baxt

The lecture is named in honour of Emeritus Professor Bob Baxt AO in recognition of his substantial contribution to the development of competition law in Australia. In particular, the lecture acknowledges his significant support for the establishment of competition law as a recognised and sought after discipline at the graduate level at the Melbourne Law School. Professor Baxt is the Chair of the Advisory Board of the competition and consumer law specialty in the Melbourne Law Masters program.