Dr. Francisco Beneke

Edited Works

Los Derechos de Propiedad Intelectual y Libre Competencia, Universidad Externado de Colombia, Bogotá 2021, 644 pp. (together with Ernesto Rengifo Garcia).

• El Departamento de la Propiedad Intelectual de la Universidad Externado de Colombia y el Instituto Max Planck para la Innovación y Competencia se complacen en presentar a consideración de los investigadores y del público en general el libro Los derechos de propiedad intelectual y la libre competencia, cuyo propósito principal es socializar los trabajos de investigación realizados en el campo de la propiedad intelectual, ampliar su entendimiento y propiciar el debate respecto del conflicto o la complementariedad con los diversos aspectos que se conjugan en el mercado para proporcionar bienestar al consumidor.
  El libro se divide en cinco secciones a través de las cuales se examinan el poder del mercado como concepto central del derecho de competencia relacionado con los derechos de autor; el sistema de patentes, su concesión en el campo de las nuevas tecnologías y el posible uso de acciones anticompetitivas; la estrecha relación entre la biotecnología y la agricultura, específicamente en el mercado de semillas; las prácticas colusorias y unilaterales referidas a los diseños industriales, y la posible posición de dominio de los signos distintivos cuando son clasificados como notorios o renombrados. Además, se presenta un análisis comparativo entre las legislaciones de la Comunidad Andina de Naciones, especialmente la colombiana, las de la Unión Europea y la de Estados Unidos relacionadas con los derechos de libre competencia y propiedad intelectual.
  Para el Departamento de Propiedad Intelectual de la Universidad Externado de Colombia esta publicación va en línea con uno de sus propósitos cual es el de su internacionalización y presencia más allá del ámbito local, como un estímulo más para que los profesores investigadores perseveren en sus trabajos y palpen el gusto que genera la satisfacción del deber cumplido: "Res severa verum gaudium".
  

Books and Monographs

Market Entry and Competition Law in Latin America The Role of Economic Development in Antitrust Analysis (Munich Studies on Innovation and Competition, 14), Springer, Berlin; Heidelberg 2022, XVI + 234 pp. DOI

• This book explores the relationship between market entry analysis in competition law and the study of the determinants of aggregate investment. Macroeconomic and social characteristics, such as widespread corruption, political instability, and low levels of education are associated with lower investment rates. Progress on these indicators on the other hand is also strongly associated with sustained growth and higher investment rates. This book analyzes the interaction between these macro variables and the market-specific analysis typical in antitrust cases. Against this background, representative decisions of four Latin American competition authorities – México, El Salvador, Colombia, and Chile – on unilateral conduct are analyzed, focusing on market power assessment. The analysis shows that there is little to no explicit or implicit consideration of the impact of the macroeconomic environment on market dynamism and therefore on market power. This book also explores the influence that EU and US competition law have in the standards to prove ease of market entry developed by the Latin American authorities. Although most of the Latin American authorities share a lack of reliance on market forces, which is characteristic of EU competition law, this book argues that market entry analysis still needs to be adjusted to fit the socio-economic context that affects investment within the country and the degree to which each particular market is affected. Finally, the book proposes a framework on how the macro characteristics covered can be incorporated into competition law enforcement.

Contributions to Collected Editions, Commentaries, Handbooks and Encyclopaedias

Competition Law and Market Regulation – Standards to Avoid Antitrust Overstepping, in: Kreation Innovation Märkte - Creation Innovation Markets - Festschrift Reto M. Hilty, Springer, Berlin; Heidelberg 2024, 1115 - 1129. DOI

• When antitrust provisions regarding coordinated and unilateral conduct are enforced in markets where such behavior is already covered by specific ex-ante or ex-post regulation, risks associated with overstepping arise: non bis in idem concerns, duplication of efforts, infringement of rule of law and separation of powers principles, and error costs due to lack of technical expertise in a specific market, among others. The present contribution presents cases in which these risks arise and attempts to propose standards that allow to balance them against the effective protection of competition taking into account the advantages and disadvantages of competition advocacy as an alternative. The contribution uses a normative approach based on the political economy literature, which introduces into the discussion an aspect that is neglected in previous work on the relationship between antitrust and regulation that is an important determinant of market dynamics: the mutual feedback between market power and political activism of firms seeking to shape regulation and its implementation to their benefit. Finally, although a prominent part of this paper covers EU law, it also considers developments in other jurisdictions in order to take advantage of the rich experience and lessons that can be gained by widening the geographic horizon.

Competition Law and Political Influence of Large Corporations: How Antitrust Analysis Can Capture the Link Between Political and Economic Institutions That Affect Market Competition, in: A Critical Mind - Hanns Ullrich’s Footprint in Internal Market Law, Antitrust and Intellectual Property (MPI Studies on Intellectual Property and Competition Law, 30), Springer, Berlin; Heidelberg 2023, 111 - 129. DOI

• Economic policy determines the intensity of competition in markets. This gives incumbents the incentive to use their financial resources to influence policymaking in order to restrict competition and maintain or increase economic profits. Public authorities should promote the use of profits rather in welfare-enhancing or neutral ways. Is competition law an adequate tool to promote this goal? This paper aims to ground the discussion on legal administrability considerations. The focus is therefore on whether we can design legal standards and identify evidence that courts can use to assess the tradeoffs between static efficiency, political influence of large corporations, and innovation. This paper argues that if political considerations are to be taken into account in antitrust analysis, these should be made explicit and the evidence at hand in each case should be considered, in order to avoid enforcement guided by assumptions such as that increases in market concentration always lead to risks in terms of political influence that can otherwise be revised on a case-by-case basis.

La Propiedad Intelectual en Latinoamérica y su Rol en el Desarrollo Económico y Social [Intellectual Property in Latin America and its Role in Economic and Social Development], in: Marcos Wachowicz, Karin Grau-Kuntz (eds.), Estudos de Propriedade Intelectual em Homenagem ao Prof. Dr. Denis Borges Barbosa [Studies on Intellectual Property in Honor of Prof. Dr. Denis Borges Barbosa], IODA - Instituto Observatório do Direito Autoral, Curitiba 2021, 25 - 64 (together with Reto M. Hilty et al.).

• O texto trata do estabelecimento e evolução dos direitos da propriedade in-telectual na América Latina. Perpassa os contextos nos quais esses direitos foram incorporados ao arcabouço legal doméstico. Ainda que as economias latino-americanas sejam mais ou menos frágeis do ponto de vista da pro-priedade intelectual, as conclusões apontam que há diversos desafios a se-rem enfrentados, mas que os países da região têm potencial para superá-los e avançar na proteção e na utilização dos seus ativos intelectuais.
• This article deals with the establishment and evolution of intellectual property rights in Latin America. It goes through the contexts in which these rights have been in-corporated into the domestic legal framework. Although Latin American economies are more or less fragile from the point of view of intellectual property, the conclusions indicate that there are several challenges to be faced, but that the countries of the region have the potential to overcome them and advance in the protection and use of their intellectual assets.
• https://codaip.gedai.com.br/wp-content/uploads/2021/11/1_Estudos-de-Propriedade-Intelectual-em-homenagem-ao-Prof_Dr_Denis-Borges-Barbosa.pdf

Introducción, in: Ernesto Rengifo García, Francisco Beneke Ávila (eds.), Los Derechos de Propiedad Intelectual y Libre Competencia, Universidad Externado de Colombia, Bogotá 2021, 17 - 31.

Journal Articles

The German Federal Supreme Court's Judgment in Booking.com as a Case Study of the Limitations of Competition Law, IIC 53, 9 (2022), 1374 - 1386. DOI

• The German Federal Supreme Court (BGH) held that the use of narrow price parity clauses (NPCs) between Booking.com and hotels infringed Art. 101 Treaty on the Functioning of the European Union (TFEU), confirming the Federal Cartel Office’s decision. The Supreme Court based its judgment mainly on the following grounds: (1) the use of these clauses restricts intra and inter-brand competition between hotels; (2) NPCs cannot be considered an ancillary restraint in the sense of Art. 101(1) TFEU; and (3) avoiding free-riding through these clauses cannot be considered as a justifying efficiency in the present case under Art. 101(3) TFEU. The present comment focuses on the analysis of the Court regarding (3) and argues that the reasoning in the judgment made conceptual mistakes and statements against settled EU law. The case shows the difficulties the Court had in handling a case where dynamic considerations are important. Therefore, even though the Court may have had valid concerns regarding NPCs, the judgment at hand is a step in the wrong direction regarding the judicial function of guidance of undertakings throughout the economy that wish to comply with competition law.

El análisis de instituciones económicas en el Derecho de competencia, Revista de Derecho Administrativo 2022, 52 - 67.

• La aplicación de las leyes de competencia se nutre del conocimiento que se tiene sobre el fenómeno económico que se pretende regular: el poder de mercado de una o varias empresas. Dicho conocimiento se basa actualmente en los campos de la teoría de precios y la organización industrial. Estos campos de la ciencia económica han, por un lado, ayudado a estructurar un marco en el que es posible analizar factores como estructura del mercado e incentivos de los agentes económicos para poder determinar si una conducta es o no anticompetitiva. Por el otro, cabe preguntarse si las variables que se desprenden de dichos campos son suficientes para un entendimiento completo del desempeño de un mercado. El presente artículo expone dos aspectos de la literatura en el campo del neo-institucionalismo que pueden utilizarse para complementar el marco de análisis de competencia basado en la teoría de precios y la organización industrial moderna: 1. La influencia de empresas con poder de mercado en el proceso de adopción de regulaciones estatales que pueden afectar la intensidad de competencia; 2. La incertidumbre en cuanto a las políticas públicas que pueden afectar las ganancias de un proyecto de inversión.
• Competition law enforcement is informed by the knowledge of the economic phenomenon to be regulated: market power of one or more companies. Such knowledge is currently based on the fields of price theory and industrial organization. These fields of economic theory have helped, on the one hand, to structure a framework in which it is possible to analyze factors such as market structure and incentives of economic agents in order to determine whether a conduct is anticompetitive or not. On the other hand, the question arises as to whether the variables derived from these fields are enough for a complete understanding of market performance. This article shows two aspects of the literature in the field of neo-institutionalism that can be used to complement the analytical framework of competition based on price theory and modern industrial organization: 1. The influence of companies with market power in the process of adopting state regulations that may affect the intensity of competition; 2. Uncertainty regarding public policies that may affect the profits of an investment project.
• https://revistas.pucp.edu.pe/index.php/derechoadministrativo/article/view/26440

Towards a More Complete Understanding of Market Power and Consumer Harm in Antitrust Law, Promarket.org 2021.

• https://promarket.org/2021/12/16/antitrust-consumer-welfare-economics-market-power/

Remedies for Algorithmic Tacit Collusion, Journal of Antitrust Enforcement 2020, 05.08.2020 (together with Francisco Beneke). DOI

• There is growing evidence that tacit collusion can be autonomously achieved by machine learning technology, at least in some real-life examples identified in the literature and experimental settings. Although more work needs to be done to assess the competitive risks of widespread adoption of autonomous pricing agents, this is still an appropriate time to examine which possible remedies can be used in case competition law shifts towards the prohibition of tacit collusion. This is because outlawing such conduct is pointless unless there are suitable remedies that can be used to address the social harm. This article explores how fines and structural and behavioural remedies can serve to discourage collusive results while preserving the incentives to use efficiency-enhancing algorithms. We find that this could be achieved if fines and remedies can target structural conditions that facilitate collusion. In addition, the problem of unfeasibility of injunctions to remedy traditional price coordination changes with the use of pricing software, which in theory can be programmed to avoid collusive outcomes. Finally, machine-learning methods can be used by the authorities themselves as a tool to test the effects of any given combination of remedies and to estimate a more accurate competitive benchmark for the calculation of the appropriate fine.

Artificial Intelligence and Collusion, IIC 50, 1 (2019), 109 - 134 (together with Francisco Beneke). DOI

• The debate over whether, in the absence of overt communications, mere tacit coordination between competitors should be outlawed is neither new nor settled. Current technological developments in the field of artificial intelligence (AI) have added further complexity to the discussion, which has given rise to many works that explore the effects of the use of AI-powered pricing software on competition. This paper attempts to contribute to the debate by addressing some issues not covered in previous works. First, there are risks to consumer welfare associated with AI pricing software’s capacity to solve uncertainty (for example, supra-competitive equilibria may not be disrupted by changes in demand). Second, the use of artificial neural networks can make detection of anticompetitive pricing patterns more difficult. On the other hand, if authorities can harness the power of the technology themselves, detection problems could be alleviated. Third, the black box argument may not be a problem in this application of artificial neural networks since the pricing software industry has been able to develop more transparent algorithms in response to market demands. Finally, the use of AI pricing software brings some changes to the debate on the feasibility of remedies to mere interdependence, although more work needs to be carried out in this area.

Case notes

Ohio v. American Express and the Balancing of Consumer Welfare Effects on Multiple Sides of a Platform - Sherman Act, § 1, IIC 50, 7 (2019), 917 - 927. DOI

• In Ohio v. American Express Co. the U.S. Supreme Court ruled that in the case of transaction platforms, a single relevant market must be defined, where both sides of the platform simultaneously consume the same good, namely, a transaction. Therefore, a plaintiff must show net overall harm to all sides of the market to satisfy its prima facie burden of proof. This case note argues that this rule is ill-suited to distinguish between procompetitive behavior and exercises of market power that can be justified with mere wealth transfers from one side of the market to the other. In line with an alternative allocation of the burden of proof proposed in the literature, this case note proposes a standard for evaluating countervailing benefits on all sides of the platform. Finally, the case note explains why the Court’s analysis of the effects of the anti-steering provisions was based on faulty economic grounds and the cherry-picking of facts on the record developed at the district court.

Reviews

Review of: Maciej Bernatt: Populism and Antitrust – The Illiberal Influence of Populist Government on the Competition Law System Cambridge University Press, 2022. 300 pp. ISBN: 978-1-108-48283-7, IIC 54, 8 (2023), 1304 - 1309. DOI

Review of: Eleanor M. Fox and Mor Bakhoum: Making Markets Work for Africa Oxford University Press, New York 2019, 221 pp., ISBN: 978-0-19-093099-8, GRUR Int 69, 8 (2020), 879 - 881. DOI

Research Papers

Competition Law in Latin America and Global Greenhouse Gas Emissions – The Way Forward (Max Planck Institute for Innovation & Competition Research Paper, No. 24-12), 2024, 43 pp.

• The Latin American region is rich in mineralssuch as lithium and copperthat are critical for the global transition to clean energy, is home to the largest rain forest in the world, and enjoys geographical advantages for the deployment of renewable energy technologies. The latter could provide the region with an opportunity to develop green hydrogen, an energy source with the potential to play a significant role in energy transitions of hard-toabate industries such as steel production. The region has therefore a strategic importance in the global effort to achieve reduction targets of greenhouse gas emissions required for the goal to keep global warming below 1.5 degrees Celsius as established in the Paris Agreement. This paper provides an overview of the possible market power problems associated with the development of this potential, such as high concentration of mining and refining activities, as well as market power in food value chains that may be driving deforestation in the Amazon. The paper sketches antitrust enforcement interventions that do not require changing the prevailing goals and analytical framework of competition law enforcement as well as interventions that would require such a change, identifying areas where future research should be conducted in order to inform policy change.
• Available at SSRN

International Technology Transfer Regimes in Latin America (Max Planck Institute for Innovation & Competition Research Paper, No. 24-07), 2024, 121 pp. (together with Juan I. Correa). DOI

• The present study covers regulation and public policy aimed at promoting international technology transfer in Latin America, focusing on eight countries: Argentina, Brazil, Chile, Colombia, Mexico, Peru, Uruguay and Venezuela. The first part of this comparative study analyses national regulations on technology transfer, whether they incorporate definitions or whether there are specific incentives to encourage international technology transfer between countries. It also examines whether the different jurisdictions establish registration conditions for this type of contract. The second part analyses the contractual regulation from a civil, commercial, and antitrust law perspective. In particular, this study com-pares each country’s approach to regulate restrictive clauses that may hinder the dissemination of technology. Lastly, the study covers international agreements on technology transfer.

Competition Law and Political Influence of Large Corporations – Antitrust Analysis and the Link between Political and Economic Institutions (Max Planck Institute for Innovation & Competition Research Paper, No. 21-12), 2021, 23 pp. DOI

• Economic policy determines the intensity of competition in markets. This gives incumbents the incentive to use their financial resources to influence policymaking in order to restrict competition and maintain or increase economic profits. Public authorities should promote that profits be used rather in welfare enhancing or neutral ways. Is competition law an adequate tool to promote this goal? This paper aims to ground the discussion on legal administrability considerations. The focus is therefore on whether we can design legal standards and identify evidence that courts can use to assess the tradeoffs between static efficiency, political influence of large corporations, and innovation. This paper argues that if political considerations are to be taken into account in antitrust analysis, these should be made explicit and looking at the evidence at hand in each case, in order to avoid enforcement guided by assumptions – such as that increases in market concentration always lead to risks in terms of political influence – that can otherwise be revised on a case-by-case basis.

Technical Aspects of Artificial Intelligence: An Understanding from an Intellectual Property Law Perspective (Max Planck Institute for Innovation & Competition Research Paper, No. 19-13), 2019, 15 pp. (together with Josef Drexl et al.).

• The present Q&A paper aims at providing an overview of artificial intelligence with a special focus on machine learning as a currently predominant subfield thereof. Machine learning-based applications have been discussed intensely in legal scholarship, including in the field of intellectual property law, while many technical aspects remain ambiguous and often cause confusion.
  This text was drafted by the Research Group on the Regulation of the Digital Economy of the Max Planck Institute for Innovation and Competition in the pursuit of understanding the fundamental characteristics of artificial intelligence, and machine learning in particular, that could potentially have an impact on intellectual property law. As a background paper, it provides the technological basis for the Group’s ongoing research relating thereto. The current version summarises insights gained from background literature research, interviews with practitioners and a workshop conducted in June 2019 in which experts in the field of artificial intelligence participated.
• Available at SSRN

Digital Markets, Mobile Payments Systems and Development – Competition Policy Implications in Developing Countries in Light of the EU Experience (Max Planck Institute for Innovation & Competition Research Paper, No. 18-13), 2018, 43 pp. (together with #Namen).

• The digitization of economic activity has important socio-economic development implications and at the same time creates challenges for antitrust analysis. These implications and challenges have been met differently in jurisdictions around the world. In this paper we analyze the different experiences in the EU and developing countries, focusing on mobile payments. We find that this market exhibits special characteristics that need to be taken into account in the analysis of competition conditions. First, it is enabled by mobile telecommunications infrastructure and is offered by network operators, which causes competition in both markets to be closely linked. Second, there are factors, such as the lack of interoperability and geographical reach, that make network effects in this industry different from those present in other platforms. Third, since mobile payments in developing countries serve a niche—the population underserved by mainstream banking—the definition of the relevant market is not straightforward. We propose the criteria to be applied when making such definition. Finally, since mobile payments have associated financial services, there is an interaction between competition and financial stability that needs to be considered.
• Available at SSRN

Market Regulation and Competition Policy – Towards a Dynamic Economy in the Benefit of Consumers, Latin American and Caribbean Law and Economics Association (ALACDE) Annual Papers, University of California, Berkeley 2010, 22 pp. (together with Francisco Beneke).

• Despite the many efforts in the advocacy of competition, we find a great difficulty in determining the appropriate mechanisms to introduce this discipline in the assessment of existing and proposed regulation. Many actors in the public sphere in charge of creating and implementing the regulatory regime ignore the great benefits that competition policy brings to society at large. In addition, when there is a certain level of awareness of such benefits, there is no consensus on the level of importance of analyzing market regulation through the lens of competition policy. This lack of consensus may be motivat ed by the fact that it is not easy to quantify the gains of eliminating the excessive restrictions on competition. Finally, some markets continue to be highly regulated for many different reasons, i.e. political and social goals, which can hinder the task of promoting the efficient allocation of resources.
• https://escholarship.org/uc/item/5s35h94f