Page 80 - Azerbaijan State University of Economics

STUDYING OF SPECIAL PRACTICAL ISSUES OF ABUSE OF DOMINANCE

international licensing agreements would raise costs or reduce incentives (or

both) for technology owners to enter into voluntary arrangements. Voluntary
arrangements are also more likely to promote the host country's

technological advance rather than to promote compulsory measures; they are

more likely to be accompanied by transfer of non-patented know-how and
capital investment, which are necessary to effectively use information

protected by intellectual property rights.
Assessing abuse resulting from government intervention. Broadly,

competition laws apply to firms' practices not to government decisions. If a
(validly enacted) statute or regulation limits competition unnecessarily,

however, a competition agency may have an important role in advocating pro-

competitive change to the legislation.
In this context it is useful to introduce a kind of hierarchy of the

discretionary power of firms. A firm is clearly responsible for its practices if it

makes decisions independently of any public intervention. The same is true if
the government merely encourages firms to move in certain directions but

does not require them to follow specific practices. Further, even if there were a
regulatory intervention and the firm had some discretion over its action,

practices can violate antitrust rules if the firm could reasonably have engaged
in a course of action less restrictive than that chosen.

There are jurisdictions in which a practice stemming from a government

decision can still be subject to antitrust proceedings. For example, in the
United States the State Action Immunity doctrine imposes implied limits on

conduct that may be shielded from liability under antitrust laws by regulatory
actions of state and local governments. Behavior of firms subject to regulatory

intervention is exempted from the law only if the conduct is undertaken
pursuant to a “clearly articulated and affirmatively expressed” state policy and

is “actively supervised” by the state.

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