Law Commons^™

Review Of The Book By Magdalena Knapp, Legal Protection Of Entrepreneurs In The Public Interest Against The Unfair Use Of A Contractual Advantage, C.H. Beck, Warsaw 2022, Konrad Kohutek

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

No abstract provided.

Allocation Of The Burden Of Proof In Administrative Proceedings Conducted Under The Law On Counteracting The Unfair Use Of Contractual Advantage In The Trade Of Agricultural And Food Products, Krzysztof Kanton

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article analyzes evidentiary aspects in proceedings conducted by the President of the Polish Competition and Consumer Protection Authority (President of UOKiK) on the basis of the legal provisions on counteracting the unfair use of contractual advantage in the trade of agricultural and food products. The above aspects, including the fundamental issue of the allocation of the burden of proof within the framework of administrative proceedings, are currently gaining in importance, taking into account UOKiK’s strict policy of enforcing the above provisions, and the increasing penalization imposed on entrepreneurs under the legislation in question. It is particularly crucial to ensure …

Presumption Of Significant Disparity In Economic Strength Under The Act On Counteracting The Unfair Use Of Contractual Advantage In The Trade In Agricultural And Food Products, Paweł Sopalski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The new Act on counteracting the unfair use of contractual advantage in the trade in agricultural and food products is related to the implementation of Directive (EU) 2019/633 of the European Parliament and of the Council on unfair trading practices in business-to-business relationships in the agricultural and food supply chain. It introduces a presumption of a significant disproportion in economic strength by indicating the thresholds for the annual turnover of entities that are subject to assessment. The presumption is an evidentiary short cut in the course of proceedings. The use of the presumption requires the turnover of the entrepreneur to …

The Decision-Making Practice Of The President Of Uokik In Excessive Delays In Payments Cases, Piotr Gogol, Aleksandra Ziemnicka

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

This article summarizes the key conclusions resulting from the decision-making practice of the President of UOKiK in cases of excessive payment delays in proceedings completed in 2021–2022. The analysis includes the duration of the proceedings, the method of their closure, as well as the problem of the interpretation of the legal concepts affecting the direction of the decisions issued.

The New System Of Civil Appeals: What "Constitutional Or Administrative Law" Is; Whether To Appeal To The Appellate Division Or The Court Of Appeal; And Proposals For Further Reform, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

An application was made under s 95 of the Legal Profession Act to set aside a penalty imposed by the Council of the Law Society. The Court of Appeal held that an appeal lay to the Appellate Division of the High Court, and not the Court of Appeal, because this was not a “case relating to constitutional or administrative law”. The reasoning is problematic: it relied on an overly narrow conception of “public powers”, conflated judicial review with administrative law more broadly, erroneously considered the merits of the application as relevant to the “which court” question, and overlooked the similarities …

Section 25(6) Of The Judicature Act 1873: A ‘Procedural’ Approach, Chee Ho Tham

Research Collection Yong Pung How School Of Law

Section 25(6) was re-enacted as section 136(1), replacing the law French ‘chose in action’ with the more Anglo-Saxon ‘thing in action’, together with other minor differences, but to no substantial effect. Largely unchanged, the construct now found in section 136(1) has been part of English law for 150 years. However, understanding what section 136(1) does, and how it does it, remains muddled. On the one hand, given Lord Macnaghten’s pointed observation in William Brandt’s Sons v Dunlop Rubber that, ‘[section 25(6)] does not forbid or destroy equitable assignments or impair their efficacy in the slightest degree’, Smith & Leslie takes …

Equity In Commerce: Too Much And Too Little?, Man Yip

Research Collection Yong Pung How School Of Law

The interaction and clash between equity and commerce have attracted much attention from judges and academics in recent years. Commercial lawyers may complain about equity introducing uncertainty into commercial endeavours and at times, (mis-)applying the ‘moral standards of the vicarage’ to actors in commercial dealings. However, the objections are not directed at all aspects of equity, but are usually addressed to some ‘disfavoured parts of it’, such as the creation of a new obligation or discretionary remedies. On the other hand, from the perspective of equity lawyers, equity’s interplay with commerce may lead to the contractualisation or commercialisation of equitable …

Proper Purposes And Directors' Duties: Time To Slay The Chimera?, Pearlie M. C. Koh

Research Collection Yong Pung How School Of Law

The statutory statement of directors' duties contained in the Companies Act 2006 imposes a duty on directors to ‘only exercise powers for the purposes for which they are conferred’. The duty has been equiparated with the equitable fraud on a power doctrine. This paper challenges the correctness of this approach, and argues that the unwarranted ‘merging’ of the duty and the doctrine has resulted in a legal chimera standing in the way of a proper understanding of the roles of each of the duty and the doctrine. It is submitted that this erroneous linking of two entirely different concepts is …

Case Comment On The Judgment Of The Polish Supreme Administrative Court (Nsa) Of 17 February 2023, Ref. No. Act: Ii Gsk 1458/19, On The Assessment Of The Constitutionality Of The Sanction Of Repealing The Classifi Cation And Categorization Of An Entity As A Hotel Facility, And The Deletion Of Such Entity From The Register Of Hotel Facilities, Dominik Borek

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

This article quotes the facts described in the judgment of the Polish Supreme Administrative Court (NSA) of February 17, 2023, fi le ref. file: II GSK 1458/19. The commented judgment is of great importance for the Polish hotel market, as it concerns the possibility of issuing, under the current legal regime, of decisions repealing the classification and categorization of an entity as a hotel facility and to its removal from the relevant register of hotel facilities, when it is established that the entity in question does not meet the requirements of fire, sanitary or construction safety. The constitutionality of the …

The Ineffectiveness Of Pactum De Non Cedendo Under The Act On Counteracting Excessive Delays In Commercial Transactions As An Instrument Of Countering Unfair Contractual Practices, Krzysztof Żebryk

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

In contracts concluded in the course of trade, contractual limitations are quite common that exclude or restrict the admissibility of transferring debt, owed to a creditor under a commercial transaction, without the consent of the debtor (pactum de non cedendo). Due to disproportions in contractual strength, which put the weaker party to the contract in a position of economic dependence, contractual clauses of this type may be a problem affecting the financial condition of micro, small and medium-sized enterprises, as well as maintaining their financial liquidity. In a broader context, they may be a problem for maintaining competitiveness overall. The …

Public Law Protection Of Fair Payment Terms In The Light Of The Enforcement Experiences Of The President Of Uokik On The Basis Of The 2020 Act On Counteracting Excessive Delays In Commercial Transactions, Aleksandra Dziurkowska, Tomasz Feliszewski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The aim of the article is to analyze the reasons why the Polish legislator decided to introduce administrative and legal tools in order to fi ght against payment gridlocks. The paper also provides statistical data of previous proceedings conducted by the President of UOKiK on the basis of the Act on Counteracting Excessive Delays in Commercial Transactions. In addition, it discusses how such proceedings look like in practice from the perspective of the undertakings concerned, and what practical problems must be solved by the involved entrepreneurs in order to meet the expectations of President of UOKiK.

The Role And Powers Of Non-Governmental Organizations (Ngos) In Proceedings On Practices Of An Unfair Use Of A Contractual Advantage, Magdalena Knapp, Piotr Włodawiec

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article outlines the actions that a non-governmental organization can take at various stages of proceedings on practices of an unfair use of a contractual advantage. The NGOs can mitigate the effects of the so-called “fear factor”, which allows stronger buyers to impose unfair terms of cooperation on their “weaker” suppliers. The authors analyze the procedural rights of NGOs in administrative proceedings pending before the President of UOKiK, and in judicial proceedings conducted before the Polish Competition and Consumer Protection Court (SOKiK) as a result of an appeal fi led against a decision issued by the President of UOKiK. The …

Protecting The Rights Of Sellers On Multilateral Platforms Under The Digital Markets Act (Dma) Regime – Selected Issues, Adrian Żądło

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

This article discusses the two legal regimes that will apply in the future to the operation of multilateral marketplace platforms – the fi rst arising from general EU competition law, and the second introduced through the application of the Digital Markets Act. The former is discussed based on reports, legal literature, and the decisions issued by the European Commission in the combined cases AT.40462 Amazon Marketplace and AT.40703 Amazon Buy Box. The other legal regime to affect the operation of multilateral marketplace platforms is based on an analysis of the Digital Markets Act and other relevant legislation. Finally, after the …

The Hidden Costs Behind Cheap Clothing: Addressing Fast Fashion’S Environmental And Humanitarian Impact, Alexandra L. Bernard

Vanderbilt Journal of Entertainment & Technology Law

The increasing speed at which social media trends come and go has caused fashion trends to accelerate in response to consumers’ ever-changing demands. To keep up with the latest fads, fast fashion companies design their clothing only to withstand a couple of uses before the item is no longer in good condition. The manufacture and discard of cheaply made clothing creates a variety of environmental issues. Brands conceal the treatment and compensation of their workers throughout the supply chain; the available information suggests that garment workers are mistreated. Finally, the disposal of these clothing items creates tension between the United …

Reinterpreting Repeat Infringement In The Digital Millennium Copyright Act, Hunter Mcghee

Vanderbilt Journal of Entertainment & Technology Law

In 1998, Congress passed the Digital Millennium Copyright Act, which aimed to balance the growth of the internet with the enforcement interests of copyright holders. In exchange for immunity from third-party infringement, the DMCA imposes certain conditions on internet and online service providers. Unfortunately, the law continues to contain many ambiguities in its statutory scheme, not least of which is the requirement that service providers maintain a “repeat infringer policy” to remove individuals that repeatedly infringe intellectual property rights. In response to a review of the Copyright Act conducted by the House Judiciary Committee, the US Copyright Office authored a …

Taking Tennessee Electric With A Private Vehicle Charging Market: An Ev Infrastructure Policy For Conservative States, Claire Bonvillain J.D. Candidate

Vanderbilt Journal of Entertainment & Technology Law

The transition from petroleum to electricity as a fuel source for vehicles is an essential step in the effort to stop harmful climate change. The transportation sector currently produces more carbon emissions in the United States than any other area. Recognizing this, the federal government and several states have recently devoted resources to facilitating the transition to large-scale electric vehicle (EV) use. In particular, there must be a nationwide network of EV charging infrastructure so that EV drivers can confidently drive EVs anywhere. Much of the legal research on increasing the number of EV charging facilities and consumer EV purchases …

Why Punish Pharma For Making Medicine? Preserving Patent Protections And Cutting Consumer Costs, Alex Wharton

Vanderbilt Journal of Entertainment & Technology Law

The push to lower pharmaceutical drug prices has taken a stronger foothold in legislative and executive actions in recent years. With average prices rising continuously over the past decade, many consumers struggle to pay for the medications they need-—insulin being the most often cited example. Accordingly, a variety of solutions have been suggested. Some solutions support reducing barriers for generic drugs to provide competition to the big brands, others push for greater regulation of manufacturers’ ability to price their drugs, and some proposals seek greater transparency to promote price negotiations, especially when compared to prices abroad. Most concerningly, however, one …

Textualism As An Ally Of Antitrust Enforcement: Examples From Merger And Monopolization Law, Robert H. Lande

Utah Law Review

This Article will first briefly present an overview of the textualist method of statutory interpretation. It will then briefly engage in a textualist analysis of important portions of two antitrust statutes: Section 2 of the Sherman Act and Section 7 of the Clayton Act. At least in these areas, textualist analysis should, if anything, help re-invigorate antitrust enforcement.

Consumer-Facing Competition Remedies: Lessons From Consumer Law For Competition Law, Lauren E. Willis

Utah Law Review

Assigning consumers the task of disciplining markets is frequently attempted but rarely achieved. We teach financial literacy classes with the hope that consumers will avoid overly-risky and overly-costly financial products. We require calorie labels with the hope that consumers will use them to reduce obesity. We pre-select a no-overdraft default with the hope that consumers will stick with the default and avoid overdraft fees. None of these approaches are terribly effective at achieving the ends sought because, in each instance, the intervention—the classes, the disclosures, or the defaults—produce unexpected heterogeneous consumer responses and are met with a barrage of firm …

After Ebay: Valid Patents And The Economics Of Post-Trial Judicial Options, J R. Kearl

Utah Law Review

The Supreme Court’s eBay decision creates enormous uncertainty about whether the owner of a valid patent has an exclusive right in the face of actual infringement. The Court’s “traditional equitable” criteria for an injunction fail to consider the context where injunctive relief may be warranted: namely, litigation dealing with patents where a jury or court has found the in-suit patent to be valid and infringed and where, barring an injunction, there will be post-trial infringing uses by the defendant. Specifically, it is highly unlikely that a patent holder can show that it will be irreparably harmed or not be made …

Why Is Frand Hard?, Michael A. Carrier

Utah Law Review

There are many reasons why FRAND is a complex topic. The first four challenges offer low-hanging fruit that could clarify FRAND issues by paying less attention to systemic holdup, jettisoning unsupported positions, not letting industry funding replace reasoned debate, and being aware of the role played by patent trolls. The remaining four challenges pose levels of difficulty that increase from modest (clear SDO rules or facts) to medium (SDO history, industry characteristics, unclear licensee willingness) to significant (determining “fair and reasonable” and “nondiscriminatory”) to extraordinary (global litigation). While not all of these challenges can be addressed with simple solutions, an …

Proportionality V. Categorization: The Issue Of Judicial Balancing Of Rights, Akram Mohamed

Theses and Dissertations

The fact that there is a constant conflict between individual rights and state or social interests has historically provoked the question of how to balance or harmonize such conflicting interests? On what basis shall the legislator or the judge decide in favor of this or that right in his legislation or judgement? Where shall we, for example, draw the line between the right to freedom of expression and the right to protect one’s honor and reputation? How could the legislator find the compromise between the state duty to protect fetus life and its obligation not to interfere with woman’s right …

Front Matter, Tribal Law Journal

Tribal Law Journal

No abstract provided.

A Proposal For A Model Indigenous Intellectual Property Protectiontribal Code (Miipptc), Prof. Tomasz G. Smolinski

Tribal Law Journal

The appropriation of Native American cultural and intellectual property has become commonplace in the United States. At the same time, mainstream, Western cultural/intellectual property laws are inadequate to properly protect traditional Indigenous knowledge. To address this problem, scholars have begun to advocate for a three-tiered system, in which, in addition to national and international legal protections, tribal laws would play a fundamental role in the fight against cultural appropriation. Alas, few Native American tribes explicitly address cultural and/or intellectual property rights in any of their legal instruments. This is especially true with respect to intangible intellectual property, such as traditional …

The Role Of United States V. Cooley And Mcgirt V. Oklahoma In Determining Criminal Jurisdiction In Indian Country, Prof. Dustin Jansen

Tribal Law Journal

Understanding jurisdiction is paramount to deciding whether federal, state, or tribal courts can exercise jurisdiction for crimes committed in Indian country. The evolution of federal Indian law has created a legal landscape that is far from consistent. For the Indian law practitioner, it is important to stay abreast of the latest case law available to understand where proper jurisdiction lies. The latest cases of McGirt v. Oklahoma and United States v. Cooley are the newest case law available that demonstrate the Supreme Court’s reasoning and analysis in determining proper jurisdiction.

“Subsistence Is Cultural Survival”: Examining The Legal Framework For The Recognition And Incorporation Of Traditional Cultural Landscapes Within The National Historic Preservation Act, Wesley James Furlong

Tribal Law Journal

Over the past thirty years, Tribes have exercised growing influence in federal land management and permitting decisions, precipitated, in part, by amendments to the National Historic Preservation Act (“NHPA”) and evolving perspectives in cultural resource management and historic preservation. Despite the increased influence Tribes have gained in federal decision-making processes with the NHPA, it is often an ineffective tool to protect tribal cultural resources. Indigenous cultural resources and perspectives on cultural resource stewardship often do not fit easily within the NHPA’s framework. Nevertheless, until federal law is changed to actually protect Indigenous cultural resources, Tribes must operate within this existing …

Experiments In Legal Hybridity: From Indian Tort Law To Tribal Tort Law, Noah T. Allaire

Tribal Law Journal

Tort law is a broad set of rules designed to compensate people who have suffered injuries and harm by imposing penalties on those who caused the resulting injuries and harm. Indian tort law is the limited set of rules that the United States imposed upon tribal nations over a century ago. Today, tribal courts have the important opportunity and responsibility to articulate tribal tort law. Tribal legislatures, in turn, can codify tribal tort rules to guide future judicial decisionmaking. Through this process, tribal tort law will gradually supplant Indian tort law. Articulating tribal tort law necessarily involves conducting experiments in …

Tribes And H-1bs: Promoting Inclusion Of Tribal Interests In Immigration Policy Through Employment-Based Visas, Alejandro Alvarado

Tribal Law Journal

Tribal law and immigration law provide a comprehensive space, with plenty of crossover issues, for legal practitioners to explore how immigration law may benefit Tribes and Indigenous Peoples. These issues arise from the history of the United States undermining Tribal interests through immigration policy as it created international borders and established citizenship criteria. As a result, Indigenous Peoples have been impacted by U.S. immigration policy with regard to global mobility, family separation, issues related to border security, and economic prosperity. With the continued growth of Tribal economies, U.S. immigration policy risks limiting Tribal interests and welfare by not providing explicit …

Interposition: A State-Based Constitutional Tool That Might Help Preserve American Democracy, Christian G. Fritz

Faculty Scholarship

Interposition was not a claim that state sovereignty could or should displace national authority, but a claim that American federalism needed to preserve some balance between state and national authority.

http://commonplace.online/article/interposition/

Faculty List

Missouri Law Review

No abstract provided.