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China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow 2018 Ohio State University Moritz College of Law

China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow

Texas A&M Law Review

China’s highly publicized crackdown on corruption may affect the type and number of cases in China that arise under the Foreign Corrupt Practices Act (“FCPA”), but it should not be assumed that the crackdown will necessarily lead to fewer FCPA prosecutions. Although there is some overlap of the goals of China’s corruption crackdown and the goals of the FCPA, China’s crackdown also serves important goals of the ruling Communist Party. The main goal of the current crackdown is to reinforce the Party’s power by targeting enemies and rivals of the current leadership. The crackdown is not ...


Keynote Address To The Atlas Conference: “International Business Disputes In An Era Of Receding Globalism”, Lord Peter H. Goldsmith QC, PC 2018 Debevoise & Plimpton LLP

Keynote Address To The Atlas Conference: “International Business Disputes In An Era Of Receding Globalism”, Lord Peter H. Goldsmith Qc, Pc

Georgia State University Law Review

This is a transcript of the luncheon keynote address by Lord Peter Goldsmith at the Sixth Annual Conference of the Atlanta International Arbitration Society (AtlAS) on October 23, 2017.

Lord Peter Goldsmith QC, PC, is London Co-Managing Partner and Chair of European and Asian Litigation at Debevoise & Plimpton LLP. He joined the firm after serving as the UK’s Attorney General from 2001-2007, prior to which he was in private practice as one of the leading barristers in London.

Lord Goldsmith has a long practice in arbitration and in the interface between arbitration and litigation. He appears as counsel for ...


Applying The Rule Of Reason To Two–Sided Platform Businesses, David S. Evans, Richard Schmalensee 2018 University College London

Applying The Rule Of Reason To Two–Sided Platform Businesses, David S. Evans, Richard Schmalensee

University of Miami Business Law Review

In recent years, the federal courts’ analysis of the competitive effects of conduct challenged under the Sherman Act’s rule of reason, which generally includes market definition as a critical step, has been properly guided by sensitivity to business reality and sound economic analysis of the conduct at issue. When it comes to two–sided platforms, the courts should adhere to that same flexible but principled approach and avoid rigid alternatives that would apply regardless of the platform, conduct, or fact–pattern.

In Ohio v. American Express Co., (Case No. 16–1454), now before the U.S. Supreme Court, the ...


Comment On The Draft Report Of The Icca/Queen Mary Task Force On Third Party Funding In International Arbitration, Frank J. Garcia 2018 Boston College Law School

Comment On The Draft Report Of The Icca/Queen Mary Task Force On Third Party Funding In International Arbitration, Frank J. Garcia

Boston College Law School Faculty Papers

No abstract provided.


Assessing The Competitive Effects Of Surcharging The Use Of Payment Mechanisms, Steven Semeraro 2018 Thomas Jefferson School of Law

Assessing The Competitive Effects Of Surcharging The Use Of Payment Mechanisms, Steven Semeraro

University of Miami Business Law Review

The Department of Justice’s theory of liability in its case attacking the non–discrimination provisions in American Express’s merchant contracts contends that point–of–sale competition on the price of making a purchase with a credit card is an instrument creating economic efficiency. That is, the economy would run more efficiently, and consumers would be better off, if merchants were free to charge variable prices for different types of credit cards. After all, charging different prices for using different types of payment mechanisms appears to be just another form of presumptively positive price competition.

The Second Circuit rejected ...


Market Power And American Express, John B. Kirkwood 2018 Seattle University School of Law

Market Power And American Express, John B. Kirkwood

University of Miami Business Law Review

The Second Circuit ruled that American Express did not have market power because it operated in a two-sided market and any leverage it exercised over merchants derived from its successful competition for cardholders. As a result, the relevant market had to include both sides of a credit card transaction, the company’s market share was modest, and it could not exploit both merchants and cardholders. In Market Power and Antitrust Enforcement (forthcoming in B.U. L. REV.), I propose a new approach that infers market power from the likely effects of the challenged conduct. This approach shows that American Express ...


The Case Against Third-Party Funding In Isds: Executive Summary, Frank J. Garcia, Hyun Ju Cho, Tara Santosuosso, Randall Scarlett, Rachel Denae Thrasher 2018 Boston College Law School

The Case Against Third-Party Funding In Isds: Executive Summary, Frank J. Garcia, Hyun Ju Cho, Tara Santosuosso, Randall Scarlett, Rachel Denae Thrasher

Boston College Law School Faculty Papers

No abstract provided.


The Case For An Eu Protagonist Role On Third Party Funding Regulation, Munia El Harti Alonso 2018 Universidad Complutense de Madrid

The Case For An Eu Protagonist Role On Third Party Funding Regulation, Munia El Harti Alonso

Law and Justice in the Americas Working Paper Series

The Lisbon Treaty has enlarged the EU’s competences in external investment policy. The EU could thus increase its protagonist role in third-party funding (TPF) regulation in a manner analogous to its achievements in the investment regime, where the EU managed to rally the member states behind DG Trade’s vision. A treaty-based analysis combined with a political evaluation suggest the EU is expanding its field of competences either when it has a clear mandate or by establishing a modus vivendi as it has been the case with its external relations, particularly at the United Nations. There is therefore a ...


Third-Party Funding As Exploitation Of The Investment Treaty System, Frank J. Garcia 2018 Boston College Law School

Third-Party Funding As Exploitation Of The Investment Treaty System, Frank J. Garcia

Boston College Law School Faculty Papers

Third-party funding of international investment arbitration is on the rise. Through TPF funders will cover the legal fees of investors filing claims under investment treaties in exchange for a portion of the arbitral award. Proponents of third-party funding claim that it provides access to justice for parties that normally would not have the funds to arbitrate against state actors. Given that the international investment law that governs these claims is unbalanced, and that funding only flows towards investor-claimants, and at the expense of states and their taxpayers, allowing third-party funding in investment arbitration risks creating unjustifiable wealth transfers from the ...


Third-Party Funding In Investment Arbitration: Misappropriation Of Access To Justice Rhetoric By Global Speculative Finance, Tara Santosuosso, Randall Scarlett 2018 Boston College Law School

Third-Party Funding In Investment Arbitration: Misappropriation Of Access To Justice Rhetoric By Global Speculative Finance, Tara Santosuosso, Randall Scarlett

Law and Justice in the Americas Working Paper Series

The United Nations Commission on International Trade Law (UNCITRAL) is considering changes to its rules governing international arbitration proceedings. UNCITRAL Working Group III is analyzing possible reforms of the arbitral rules to address the risks associated with the increased prevalence of third-party funded investment arbitration claims. Funders claim that existing regulation is sufficient, arguing in part that funding provides access to justice for impecunious claimants who otherwise would be unable to bring claims. This essay argues that funders’ access to justice reasoning is flawed at best and dangerously misleading at worst. UNCITRAL must take immediate action to address the potential ...


The Regulation Of Third Party Funding: Gathering Data For Future Analysis And Reform, Rachel Denae Thrasher 2018 Global Development Policy Center, Boston University Frederick S. Pardee School of Global Studies

The Regulation Of Third Party Funding: Gathering Data For Future Analysis And Reform, Rachel Denae Thrasher

Law and Justice in the Americas Working Paper Series

Third-party funding (TPF) is a relatively new phenomenon in the field of international investment arbitration. TPF takes place when a non-party to a dispute provides funding to one of the parties (usually the claimant) in return for a percentage of the amount recovered. International investment arbitration is a unique context, however, because investor-states dispute settlement puts States always in the role of respondent and private investors in the role of claimants. Despite this apparent imbalance, TPF proponents argue, among other things, that it provides much needed access to justice for poorer clients and adds value to the system by providing ...


Law School News: 'Marketplace Of Ideas' Imperiled (04-05-2018), David A. Logan 2018 Roger Williams University School of Law

Law School News: 'Marketplace Of Ideas' Imperiled (04-05-2018), David A. Logan

Life of the Law School (1993- )

No abstract provided.


X-Inefficiency In Monopolies, Emily Nowlan 2018 La Salle University

X-Inefficiency In Monopolies, Emily Nowlan

HON499 projects

This paper takes a case study approach to studying the efficiency and causes of decline for monopoly firms. The focus of the analysis will be on two firms: IBM, and Xerox. The main causes of failure studied will be financial issues, mismanagement, and regulatory cases. One theory is that, as monopolies operate, one begins to see a differential between growth of profits and expenditures. Thus, the firms become “fat and slow.” The company may also become bogged down with overhead, attempting to maintain unsustainable and unnecessary levels of employment. Compounding this issue, many managers fail to accurately predict the movement ...


Leak-Driven Law, Shu-Yi Oei, Diane M. Ring 2018 Boston College Law School

Leak-Driven Law, Shu-Yi Oei, Diane M. Ring

Boston College Law School Faculty Papers

Over the past decade, a number of well-publicized data leaks have revealed the secret offshore holdings of high-net-worth individuals and multinational taxpayers, leading to a sea change in cross-border tax enforcement. Spurred by leaked data, tax authorities have prosecuted offshore tax cheats, attempted to recoup lost revenues, enacted new laws, and signed international agreements that promote “sunshine” and exchange of financial information between countries.

The conventional wisdom is that data leaks enable tax authorities to detect and punish offshore tax evasion more effectively, and that leaks are therefore socially and economically beneficial. This Article argues, however, that the conventional wisdom ...


An Examination Of Product Hopping By Brand-Name Prescription Drug Manufacturers: The Problem And A Proposed Solution, Daniel Burke 2018 Cleveland-Marshall College of Law

An Examination Of Product Hopping By Brand-Name Prescription Drug Manufacturers: The Problem And A Proposed Solution, Daniel Burke

Cleveland State Law Review

The balance between incentivizing innovation through exclusivity protection and maintaining competitive market conditions—including prices for consumers—is a difficult line to toe. Product hopping has characteristics that constitute a violation of the Sherman Antitrust Act because companies can maintain monopoly power in the pharmaceutical market. While some monopoly power is justified as an incentive for incredibly costly innovation, extended periods of exclusivity harms consumers by keeping prescription drug prices artificially inflated. Allowing generic drug manufacturers to compete sooner in the prescription drug market by disallowing product hopping by name-brand pharmaceutical drug companies will aid in driving down prices. Courts ...


Healthcare Mergers And Acquisitions In An Era Of Consolidation: A Review And A Call For Agency Collaboration In Antitrust Enforcement, Anna Molinari 2018 Pepperdine University

Healthcare Mergers And Acquisitions In An Era Of Consolidation: A Review And A Call For Agency Collaboration In Antitrust Enforcement, Anna Molinari

Pepperdine Law Review

Healthcare companies are consolidating at an alarming rate. From hospitals, to providers’ offices, to insurance companies, there are increasingly fewer consumer choices and more monopolies, which calls for heightened antitrust enforcement. Interestingly, antitrust enforcement authority in the healthcare industry is shared between the Federal Trade Commission (FTC), which presides over hospital and provider mergers, and the Department of Justice (DOJ), which presides over health insurance mergers. Although the FTC has challenged many hospital and provider mergers, the DOJ has only challenged six health insurance mergers. Furthermore, last year, the DOJ ultimately approved all health insurance mergers. In 2017, in United ...


Antitrust's Unconventional Politics, Daniel A. Crane 2018 University of Michigan - Ann Arbor

Antitrust's Unconventional Politics, Daniel A. Crane

Law & Economics Working Papers

For the first time in a generation, political pressure is growing to reform antitrust in a considerably more interventionist direction. To the bafflement of many observers, these political pressures are emerging simultaneously from both wings of the political spectrum. Although unconventional in presentist right/left terms, antitrust's ideological ambiguity has longstanding historical roots. This Essay examines three historical friction points that help explain the current political dislocations around antitrust reform: (1) the coupling of ideological aversion to large scale in government and business; (2) the shifting meaning of the word "monopoly," from exclusive governmentally granted privilege to privately obtained ...


Why Do Bad Antitrust Decisions Sometimes Make Good Law? The Alcoa And Brown Shoe Examples, C. Paul Rogers III 2018 Southern Methodist University

Why Do Bad Antitrust Decisions Sometimes Make Good Law? The Alcoa And Brown Shoe Examples, C. Paul Rogers Iii

SMU Law Review

No abstract provided.


You Might Just Have To Wait: Interpreting State Action Immunity And The Ability To Appeal Following The Ninth Circuit's Decision In Solarcity Corp. V. Salt River Project, Hunter Malasky 2018 Boston College Law School

You Might Just Have To Wait: Interpreting State Action Immunity And The Ability To Appeal Following The Ninth Circuit's Decision In Solarcity Corp. V. Salt River Project, Hunter Malasky

Boston College Law Review

On June 12, 2017, the United States Court of Appeals for the Ninth Circuit held in SolarCity Corp. v. Salt River Project Agricultural Improvement and Power District that the doctrine of state action immunity confers immunity from liability, and therefore a court ruling granting or denying state action immunity may not be immediately appealed. In concluding this, the Ninth Circuit joined the Fourth and Sixth Circuits in opposition to the Fifth and Eleventh Circuits, which held that state action immunity confers immunity from suit and may be immediately appealed. The interpretation of state action immunity thus directly affects whether a ...


The Other Side Of A Merger: Labor Market Power, Wage Suppression, And Finding Recourse In Antitrust Law, Ioana Marinescu 2018 University of Pennsylvania

The Other Side Of A Merger: Labor Market Power, Wage Suppression, And Finding Recourse In Antitrust Law, Ioana Marinescu

Penn Wharton Public Policy Initiative

Labor market concentration can worsen after a merger takes place, and this heightened concentration can negatively affect wages. The focus of antitrust analysis, however, has been on the prices of consumer products, not the wages of laborers. New research indicates that, on average, labor markets are highly concentrated, and that higher concentration is associated with significantly lower posted wages for new jobs. This brief uses existing economic tools to develop a model for evaluating labor market concentration and its effects, to determine if a merger will run the risk of anticompetitively suppressing wages, employment, and output. Regulators can use this ...


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