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E-raamat: Global Food Value Chains and Competition Law

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The food industry is a notoriously complex economic sector that has not received the attention it deserves within legal scholarship. Production and distribution of food is complex because of its polycentric character (as it operates at the intersection of different public policies) and its dynamic evolution and transformation in the last few decades (from technological and governance perspectives). This volume introduces the global value chain approach as a useful way to analyse competition law and applies it to the operations of food chains and the challenges of their regulation. Together, the chapters not only provide a comprehensive mapping of a vast comparative field, but also shed light on the intricacies of the various policies and legal fields in operation. The book offers a conceptual and theoretical framework for competition authorities, companies and academics, and fills a massive gap in the competition policy literature dealing with global value chains and food.

The idea of a chain of production that straddles the boundaries of national states is central to understanding the workings of the global economy; this book focuses on how a range of countries at different stages of development and regulatory capability deal with the regulation of food production and distribution.

Arvustused

'This book is an invaluable contribution to the analysis of politically important, complex and often ignored competition issues related to the global food value chain. It discusses the intellectual property regime of fertilizers and seeds, the imbalance in negotiating power along the chain that have exploitative and exclusionary effects, the horizontal concentration reinforced by mergers and the role of international trade and cartels in a number of agricultural inputs, as well as the abuses of buying power by large scale retailers. It analyzes why competition law enforcement has largely failed to deal with those issues and provides a powerful and thought provoking invitation to rethink both the goals and the instruments we use. In short, it is a must read.' Frederic Jenny, President, OECD Competition Committee 'This collection is a ground-breaking exploration of a quiet global economic transformation by way of Global Value Chains epitomized by the food industry. Chapter by chapter, it paints a large canvass revealing new sources of power and describes how the gains are allocated (from vulnerable to powerful, from developing to developed countries).  This comprehensive book will surely prod major rethinking of the traditional paradigms of antitrust analysis to account holistically for the new global realities.' Eleanor Fox, Walter J. Derenberg Professor of Trade Regulation at New York University School of Law 'Global Food Value Chains and Competition Law has a reach that goes far beyond the specialized technical focus suggested by its title. It deals with a subject of vast practical importance: food security for humanity. It asks how the world's population can be fed under a regime that prevents commercial intermediaries from seizing the lion's share of the gains of this most indispensable form of trade. It explores the ways in which producers in the food-producing economies can be fairly and attractively remunerated without putting the rest of the world on its knees. Competition and competition law represent only the surface of a solution. The countries that feed the world must be helped to turn their agricultural systems into departments of the knowledge economy, based on advanced science, technology, and practice, to enhance productivity without compromising nature. And the countries that consume the food must become their partners in this transformation. The commercial intermediaries and the financial interests associated with them must be put in their place. And national governments must step forward to give a decisive example of how the world can govern itself, through cooperation among sovereign states, without world government.' Roberto Mangabeira Unger, Roscoe Pound Professor of Law, Harvard Law School 'A really fascinating collection of different point of view, in a very complex and fast evolving area of law. The authors however maintain an impressive theoretical consistency and interdisciplinary ambition. This is legal scholarship at its prime.' Ugo Mattei, The Alfred and Hanna Fromm Distinguished Professor Emeritus University of California Hastings. Professor of Civil Law, University of Turin, Italy 'This book is essential reading for anyone interested in the next frontier of competition policy. A phenomenal amount of economic activity, production and international trade takes place in the context of Global Value Chains. As antitrust increasingly intersects with geopolitics, a rigorous understanding of GVCs becomes vital to both antitrust scholarship and anti-monopoly campaigning. The GVC concept also contains an intriguing possibility: it allows us to think of dominance beyond the confines of an artificial domestic market. In so doing, it opens up the possibility for an entirely different way of thinking about corporate power, extraction of value and competition, at home and abroad. This book is the first such treatise to integrate GVC thinking into competition law.' Michelle Meagher, Co-Founder at Balanced Economy Project; author of Competition is Killing Us - How Big Business is Harming Our Society and Planet - and What To Do About It 'This important volume advances our understanding of food markets by providing an analytical framework and empirical analysis that interfaces global value chains and competition law and economics.' Professor Imraan Valodia, Dean, Faculty of Commerce, Law and Management, University of the Witwatersrand, Johannesburg, and Director: Southern Centre for Inequality Studies (SCIS) 'As Seneca, the Stoic philosopher of imperial Rome, expressed in 'The brevity of life', food is confirmed to be the mirror of reality. By observing the way in which man relates to the meal, in fact, useful information is gathered on human values, juridical and non-juridical. In this perspective, I would like to recommend the reading of this collective book to nourish not the body, as we usually do, but the individual sensitivity and knowledge of a topic that has already a seminal importance and it will have more and more. Indeed, in the incoming years, we will be forced to face traditional and new legal and economic issues, for example, in governing the food value chain or in financing the agriculture as much as other issues of paramount importance for the human being that this book already considers, analyzes and tries to solve giving deeply technical solutions.' Guido Alpa, Professor of Civil Law at the Faculty of Law of the University of Rome La Sapienza 'To stress the importance of this collective book, I would like to use the words of President John F. Kennedy who, in his Remarks at the Opening Session of the World Food Congress (June 4, 1963), paraphrased the idea of another President of the United States, Franklin Roosevelt, who ' at the launching of the first World Food Congress, declared that freedom from want and freedom from fear go hand in hand, and that is true today'. The relevance of food and its value chains, not merely at a national level but at a global one, is in the public eyes and this relevance is increasing year by year. Therefore, it is thanks to practical and technical works, such as Global Food Value Chains and Competition Law, that we can clearly understand the actual and future trends of a sector that have the utmost importance on the life of each single living being.' Ettore Maria Lombardi, Professor of Private Law, University of Florence

Muu info

A comprehensive overview of the law required to regulate global food value chains and make them more accountable to society.
List of Authors
xv
1 Global Food Value Chains: A Conceptual Guide
1(28)
2 Rents, Power and Governance in Global Value Chains
29(26)
I Introduction
29(2)
II Power, Rent Generation and Rent Appropriation in GVCs
31(3)
III Changing Context in the Global Governance of GVCs
34(1)
IV The Role of Four Key Stakeholders in the Governance of GVCs
35(8)
A The Firm and the Exercise of Governance over GVCs
36(2)
B Civil Society and the Exercise of Governance over GVCs
38(1)
C The Nation State and the Exercise of Governance over GVCs
39(2)
D Supra-National Institutions and the Exercise of Governance over GVCs
41(2)
V In Reality, Who Governs GVCs? Three Case Studies
43(8)
A The Governance of Product Safety Product Standards in Food GVCs
44(1)
B Taxation and the Governance of Rent Appropriation in GVCs
45(3)
C Competition law and the Governance of Market Power Rents in GVCs
48(3)
VI Conclusions: Who Governs GVCs -- A Tentative General Argument
51(4)
3 The Financialization of Land and Agriculture: Mechanisms, Implications and Responses
55(18)
I Introduction
55(3)
II Financialization of the Food Chain: A Move beyond Speculation
58(2)
III The Financialization of Land and Agriculture: Actors, Trends and Drivers
60(6)
IV Local and Chain-Based Responses against a Transnational Phenomenon
66(4)
V Conclusion: Take Finance Seriously and De-Commodify Its Rhetoric
70(3)
4 Agriculture, End to End
73(29)
I Introduction: No Farm Is an Island
73(1)
II The Yeoman's Tale
74(3)
III End-to-End Intelligence in Agricultural Supply Chains
77(5)
A Ecosystem Services
77(1)
B The `End-to-End' Principle
78(4)
IV The Treadmill of the Gods
82(12)
A Menschendammerung: Humanity's Twilight
82(3)
B The Seeds of Discontent
85(4)
C Peak Glyphosate
89(3)
D Transcending the Transgene
92(2)
V Signal, Sound and Fury
94(5)
VI Agriculture End-to-End and the End of Agrarian Independence
99(3)
5 New Forms of Financing the Agricultural Sector in Brazil: The Experience of the Soybean Chain
102(16)
I Introduction
102(1)
II Structural Change in Brazilian Agriculture
103(8)
A The Effects of the Brazilian crisis of the 1980s on Rural Credit
103(4)
B Consolidation of Brazilian Export-Oriented Soybean Agriculture
107(4)
III New Organisational Forms of Brazilian Soybean Chains
111(6)
IV Conclusions
117(1)
6 Economic Concentration and the Food Value Chain: Legal and Economic Perspectives
118(54)
I Introduction: The Changing Landscape of the Industry
118(1)
II Economic Consolidation Through Merger Activity
119(8)
III Economic Concentration and Impact on Prices and Innovation
127(25)
A Seeds and Traits
127(6)
B Crop Protection
133(4)
C Fertilisers
137(3)
D Agricultural Machinery
140(4)
E Animal Genetic Improvement
144(1)
F Food Manufacturing/Processing
145(5)
G Retail
150(2)
IV `Economic Concentration' and `Consumer Welfare' Narrowly Defined
152(6)
V Economic Concentration and Public Policy Concerns
158(9)
VI Conclusions
167(5)
7 The State of American Competition Law with Respect to the Food Chain
172(18)
I Introduction
172(1)
II The Dispersed Institutional Structure
173(2)
III Input Market Issues
175(4)
A Merger Policy
175(2)
B Anticompetitive Conduct in Input Markets
177(2)
IV Output Market Issues
179(9)
A Merger Enforcement
179(2)
B Limiting the Utility of the Packers and Stockyards Act (`PSA') to Protect Livestock and Poultry Growers
181(3)
C Farm Cooperatives' Competitive Conduct
184(3)
D Other Conduct Issues-Information Sharing
187(1)
V The Continuing Issues
188(2)
8 The Brazilian Food Value Chain and Competition Policy: An Overview of CADE's Role - Centrality and Inadequacy
190(19)
I Introduction -- The Recent Round of Mergers in the Food Value Chain and the Brazilian Institutional Apparatus
190(1)
II CADE: Moving towards International Best Practices, but Far From Protecting Brazilian Interests
191(3)
III CADE and the Food Value Chain: The Centrality of the Competition Authority in Shaping Seed-Biotechnology and Fertilizer Markets
194(7)
A Food Production and Global Value Chains
194(1)
B CADE and the Shaping of Food Value Chain Markets in Brazil: Seed-Biotechnology and Fertilizers
195(1)
1 Seed-Biotechnology under the Scrutiny of CADE
195(3)
2 Fertilizers under the Scrutiny of CADE
198(2)
3 A Body with Centrality in the Food Value Chain, but with No Appropriate Institutional or Cognitive Qualities
200(1)
IV Institutional Challenges of the Food Value Chain to Brazilian Development
201(6)
A Internal Challenges: Land and Water Concentration and the Production of Economic Complexity
201(3)
B External Challenges: The Protectionist US State and the Chinese Entrepreneurial State
204(3)
V Conclusion
207(2)
9 Competition Concerns in Fertilizer Import-Dependent Countries like India and China: Analysing the Agrium-PotashCorp Merger
209(14)
I Introduction
209(2)
II Recent History of the Potash Industry and Present Market Outlook
211(1)
III The Agrium-Potash Merger: Competition Concerns in China and India
212(8)
A Merger Review by MOFCOM and CCI
213(1)
1 Concentration and Enhancement of Control over the Global Potassium Chloride (KC1) Market
213(1)
2 Impact on Price Negotiations
214(1)
3 Order and Conditions
214(1)
B Remaining Concerns
215(1)
1 The Limitations of National Competition Laws to Tackle Export Cartels
215(3)
2 Rising Concentration in Potash: Indications of a Possible Throwback to the Period of Dominant Export Cartels
218(2)
IV The Path Ahead
220(3)
10 Russian Competition Policy Over Value Chains in Agricultural and Food Sectors
223(17)
I Introduction
223(2)
II Value Chain Governance Considerations in Russian Competition Policy
225(2)
III Russian Agricultural and Food Sectors as a Target for Protection and Competition Policy
227(3)
IV Enforcement of Competition Law in the Agricultural and Food Sectors: Between Markets and Value Chains
230(3)
V Price Remedies on Fertilisers
233(2)
VI Trade Law: The Protection of Food Suppliers Vis-a-Vis Grocery Shops
235(2)
VII Conclusions
237(3)
11 The Pioneer/Pannar Merger, the Maize Seed Value Chain and Globalisation
240(16)
I Introduction
240(1)
II Background to Maize Seed Sector
241(4)
III The Pioneer/Pannar Merger
245(9)
A Introduction
245(1)
B The Parties' Narratives
246(2)
C The Institutions of Decision Making
248(1)
1 The Tribunal
248(4)
2 The Competition Appeal Court (`CAC')
252(2)
IV Conclusion
254(2)
12 Power in the Food Value Chain: Theory and Metrics
256(59)
I Introduction
256(6)
II Different Dimensions of Bargaining Power in Competition Law
262(19)
A Superior Bargaining Power, Relative Dominant Position and Economic Dependence: Variations on a Theme?
262(3)
B Important Challenges
265(1)
1 Challenges of Measuring Bargaining Power
265(5)
2 Purchasing Co-operation Agreements and Superior Bargaining Power
270(2)
3 Abuse of Economic Dependence Provisions
272(6)
4 Mergers and Effects-Based Analyses Integrating Superior Bargaining Power Generated Unilateral Effects
278(3)
III Superior Bargaining Power Outside the (Normal) Competition Law Toolkit
281(20)
A Resolving Issues Concerning Superior Bargaining Power through Legislation
281(6)
B Opening the Floodgates? Unfair Commercial Practices Resulting from the Competition Law Issue of Superior Bargaining Power
287(6)
C Status-Based Protections of Specific Groups from Superior Bargaining Power
293(5)
D Dynamic Status-Based Protection Framework in the Food Value Chain
298(3)
IV Need for an Overall Theoretical Framework: Concept of Vertical Power
301(11)
A Resource Dependence Power: From Neoclassical Market Power to Exclusionary Power
302(2)
B Positional Power in a Network
304(3)
C Value Chain Level Metric of Vertical Power
307(1)
1 More Precise `Vertical Power' Theory in the Context of a Value Chain
307(1)
2 Resource-Based Vertical Market Power: Empirical Assessment of the Greek Supermarket Sector
308(2)
a Detergent Supply Chain
310(1)
b Feta Cheese
311(1)
V Conclusion
312(3)
13 Efficiency and Fairness: Interdependent Discourses in Supermarket-Supplier Relations
315(18)
I The Efficiency Discourse in Supermarket-Supplier Relations
319(4)
II The Fairness Discourse in Supermarket-Supplier Relations
323(6)
III The Politics in Supermarket-Supplier Relations
329(2)
IV Broader Reflections
331(2)
14 China's Legal Regulation of the Abuse of Market Power by Large Retailers
333(15)
I Introduction: Overview of China's Large Retailers and Their Market Behavior
333(2)
II The Status of, and Problems in, China's Legal Regulation Concerning the Abuse of Market Power by Large Retailers
335(5)
A Definitions for Retailer and Supplier
338(1)
B Type of Behaviors Subject to Regulation
338(1)
C Law Enforcement Agencies
339(1)
D Liabilities
339(1)
E Issues
339(1)
III Cases Concerning China's Legal Regulation of the Abuse of Market Power by Large Retailers
340(4)
IV Recommendations for the Improvement of China's Legal Regulation of the Abuse of Market Power by Large Retailers
344(4)
15 Superior Bargaining Power in Russian Contract and Competition Law
348(25)
I Introduction
348(2)
II Superior Bargaining Power in Contract Law
350(9)
A Ruling No. 16 and Article 428
351(4)
B Article 428, Sub-Paragraph 1
355(1)
C Article 428, Sub-Paragraph 2
356(1)
D Article 428, Sub-Paragraph 3
357(1)
E Conclusions: Superior Bargaining Power in Russian Contract Law
358(1)
III Superior Bargaining Power under Russian Competition Law
359(4)
IV Federal Law on Trading Activities: New Instrument to Deal with Superior Bargaining Power
363(8)
A Category 1: `Forced Purchase'
365(1)
B Category' 2: `Forced Provision of Benefits'
365(1)
C Category 3: `Imposition of Disadvantages'
366(1)
D Federal Law on Trading Activities
367(4)
V Conclusion
371(2)
16 Regulating Unfair Trading Practices in the EU Food Supply Chain: Between Market Making and Market Correcting
373(24)
I The Goal of Competition Law: A Functional Approach
373(1)
II Buying Power, Unfair Trading Practices, and Competition Law: In Search of a Market Failure
374(6)
III EU Competition Law and `Other' Laws at the National Level: A Difficult Relationship
380(4)
IV Correcting the Market: Prohibited Practices and Minimum Standards of Fairness in the EU Agri-Food Supply Chain
384(5)
V Correcting the Market: From Subsidies to Competition Law Exemptions
389(5)
VI Conclusion: Market-Making and Market-Correcting Go Together
394(3)
17 Food Chain Certification and the Social Pluralism of Competition Law
397(23)
I Introduction
397(3)
II Governance Structures and Blind Spots of Food Value Chains
400(5)
A Upholding Complexity: Contract Governance Meets Standard-Setting
401(3)
B The Hybrid Role of Standards: Consolidating the Social Autonomy of the Food Chain
404(1)
III Certification as Polycontextural Governance
405(4)
A Institutional Design of Certification and Accreditation
407(1)
B The Politics and Economics of Certification
407(2)
IV Competition Law Challenges of Third-Party Certification
409(9)
A Holistic Competition Law: Intra-/Inter-Regime Collisions
410(3)
B Non-welfarist Rationalities under EU Competition Law
413(1)
1 Assessing Sustainable Food Labelling under Article 101 TFEU: Product and Discourse Differentiation
413(4)
2 Unbundling the `Private' in `Private Sustainability Governance'
417(1)
V Conclusion
418(2)
18 Hunger Games: Connecting the Right to Food and Competition Law
420(58)
I Introduction
420(11)
II Understanding the `Right to Food'
431(14)
A The Conceptual Framework of the Right to Food
431(2)
B The Nature of the Obligations on States to Fulfil the RTF
433(7)
C The Enforceability and Justiciability of the RTF
440(5)
III Global Food Value Chains from the Perspective of "Interessenjurisprudenz"
445(4)
A Understanding the Global Food Value Chain
445(1)
B Taking into Account Various Rights and Entitlements
446(1)
1 Promoting Intellectual Property Rights (`IPRs')
446(1)
2 Preserving Biodiversity and Conserving the Environment for Future Generations
447(1)
3 Achieving Economic Efficiency and Inclusive Growth
448(1)
IV Competition Law and the RTF
449(12)
A The Conceptual Dimension of a Competition Law Response to RTF
449(1)
1 The Basic Premise of Competition Law: The Effects of Market Power on Prices and Output
449(4)
2 Gaps in the Conceptual Toolkit of Competition Law as an Instrument Implementing the RTF: A Practical Example
453(2)
B Re-orienting the Focus of Competition Law While Staying within the Mainstream Framework
455(1)
1 Greater Focus on the Exercise of Buyer Power
456(1)
2 Extra-Territorial Reach of Competition Law
457(2)
C Going Beyond Filling the Gaps: The Recommendations of the UN Special Rapporteur on the RTF for Competition Law
459(2)
V Resolving Substantive Conflicts between Competition and RTF Regimes
461(15)
A The `Spheres' of RTF and Competition Law: Separate or Integrated?
461(7)
B The International Trade-Right to Health Debate: An Illustration of What Is Possible and Implications for the Interaction between the Right to Food and Competition Law
468(1)
1 The Nexus Between the WTO TRIPS Regime and International Human Rights
468(1)
2 Zooming in on the TRIPS Agreement: From the Right to Public Health to the Right to Health
469(3)
3 The Role of Competition Law in Progressively Realising the Right to Health
472(3)
4 Lessons for the Implementation of the Right to Food
475(1)
VI Conclusion
476(2)
19 Agribiotech Patents in the Food Supply Chain: A US Perspective
478(26)
I Introduction
478(2)
II The Evolution of Transgenic Seed Protection
480(4)
III Patent Exhaustion
484(14)
A Intent
486(3)
B Post-sale Restrictions
489(2)
C International Exhaustion
491(2)
D Sales and Licenses
493(3)
E Patent Misuse and Antitrust
496(2)
IV Trends
498(4)
V Conclusion
502(2)
20 Mergers and Product Innovation: Seeds and GM Crops
504(32)
I Introduction
504(2)
II Review of the Economic Literature
506(20)
A Competition Policy and Innovation
506(2)
B Innovation and Market Structure
508(6)
C Innovation and Mergers
514(1)
1 Moving from Market Structure to Merger
514(2)
2 Formal Modelling of Merger and Innovation: First Steps
516(4)
3 The Impact of the Conditions of Merger
520(1)
4 Ambiguous Results of Empirical Works concerning the Relationship between Mergers and Innovation
521(2)
5 Determining Points of Concern for Competition Policy: Markets
523(1)
D Key Principles Underlying Approaching the Relationship between Mergers and Innovation
524(2)
III Main Economic Effects and a Proposed Typology
526(10)
A Static Effects
527(2)
B Dynamic Effects: Product Markets
529(1)
1 Mergers without Price Effects
530(1)
a Scenario 1: Independent R&D Programmes and No Sharing of Results
530(1)
b Scenario 2: Independent R&D Programmes and the Sharing of Results
531(1)
c Scenario 3: Integrated R&D Programmes
532(1)
2 Price Effects
533(1)
C Efficiencies
534(1)
1 Economies of Scale and Complementarities in Innovation Markets
534(1)
2 Legal Uncertainty and Patent Thickets
535(1)
D Horizontal Effects on Innovation Markets
535(1)
E Vertical Effects
536(1)
1 Foreclosure in Innovation Markets
536(1)
2 Sequential Innovation
536(54)
F Linking Effects to Market Structure
537(5)
IV Competition Policy Algorithm
542(1)
V The Genetically Modified Crops and Seed Industries: Main Features and Past Mergers
543(7)
A Product and Industry Characteristics
543(1)
B Mergers and the Direction of Innovation
544(1)
C Past Mergers
545(1)
D Vertical Dimensions
546(2)
E BRICS: Special Concerns
548(2)
VI Empirical Discussion
550(28)
A Using Patent Data to Assess Innovation: Methodology and Limitations
550(1)
B The Data
551(1)
1 US Patents
552(1)
2 ESPACENET
553(1)
a The Data
553(10)
b Some Preliminary Observations
563(13)
C Preliminary Evaluation of Certain Major Mergers
576(2)
VII Conclusion
578(12)
Appendix 20A Formal Analysis of the Innovation Effects of a Merger
580(6)
Appendix 20B Mergers
586(4)
21 The Global Grain Trade: From a Ferrymen Oligopoly to the Sustainable Bridge Solution
590(37)
I Introduction
590(4)
II The Market Power of Global Ferrymen
594(3)
III Financialisation as a Driver for the Accumulation of Market Power
597(5)
IV Issue of Concentration
602(10)
V Bridging the Gap: Bringing Sustainability to the Global Grain Trade
612(13)
VI Conclusion
625(2)
Index 627
Ioannis Lianos is the President of the Hellenic Competition Commission and Professor of Global Competition Law and Policy at the Faculty of Laws, University College London (UCL). Alexey Ivanov is the Director of the BRICS Competition Law and Policy Center and the HSESkolkovo Institute for Law and Development, and Associate Professor at the Faculty of Law, National Research University Higher School of Economics (NRU HSE). Dennis Davis, Judge at the High Court of South Africa, served as judge president of the Competition Appeal Court of South Africa for 20 years. He is also an honorary professor in the Department of Commercial Law at the University of Cape Town.