Antitrust and Trade Regulation | Open Access Articles

Moving All-In With The World Trade Organization: Ignoring Adverse Rulings And Gambling With The Future Of The Wto, Paul Rothstein

Georgia Journal of International & Comparative Law

No abstract provided.

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Can The Tiger Sit Down With The Dragon? An Assessment Of Chinese And Indian Antitrust Laws, R. Matthew Short

Georgia Journal of International & Comparative Law

No abstract provided.

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The Effect Of The Jobs Act On Underwriting Spreads, Usha Rodrigues

Scholarly Works

U.S. underwriting fees, or spreads, have somewhat inexplicably clustered around 7% for years, a phenomenon that some have suggested evidences implicit collusion. The goal of Title I the JOBS Act of 2012 was to make going public easier for smaller firms; certain provisions specifically should make the underwriters’ task less risky, and thus less expensive. Presuming these provisions are effective, then one would predict that underwriting spreads would decrease as the costs to the underwriter for a public offering declined. Admittedly the prior presumption is a big one: it may be that the JOBS Act reforms were largely ineffective, and …

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Defying Conventional Wisdom: The Case For Private Antitrust Enforcement, Joshua P. Davis, Robert H. Lande

Georgia Law Review

The conventional wisdom is that private antitrust enforcement lacks any value. Indeed, skepticism of private enforcement has been so great that its critics make contradictory claims. The first major line of criticism is that private enforcement achieves too little-it does not even minimally compensate the actual victims of antitrust violations and does not significantly deter those violations. A second line of criticism contends that private enforcement achieves too much-providing excessive compensation, often to the wrong parties, and producing overdeterrence. This Article undertakes the first ever systematic evaluation of these claims. Building upon original empirical work and theoretical inquiry by the …

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Patent Ships Sail An Antitrust Sea, Joseph S. Miller

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This brief essay arises from my participation in an April 2006 conference at Seattle University Law School, entitled At the Intersection of Antitrust and Intellectual Property Law: Looking Both Ways to Avoid a Collision. This intersection metaphor is a common one for describing antitrust law's relationship with intellectual property law, among both courts and commentators. This essay explores a different metaphor: patent ships sail an antitrust sea, protecting those aboard from competition's harshest dangers - but only for a time. The nautical metaphor evokes three ideas that the crossroads metaphor does not. First, vigorous competition is the pervasive, baseline reality; …

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A Comparison Between U.S. And E.U. Antitrust Treatment Of Tying Claims Against Microsoft: When Should The Bundling Of Computer Software Be Permitted?, James F. Ponsoldt, Christopher D. David

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This article will analyze the recent U.S. and E.U. judicial approaches to tying charges which stem from software bundling. Part II reviews U.S. tying jurisprudence both generally and as applied to software bundling. Part III outlines the D.C. Circuit's approach to Microsoft's Windows/Internet Explorer bundle. Part IV briefly covers tying jurisprudence in the European Union. Part V describes the European Commission's (“E.C.”) analysis of Microsoft's Window/Windows Media Player bundle. By comparing the two approaches, Part VI shows that neither approach is ideal: although the U.S. approach offers too little guidance to software manufacturers seeking to avoid liability and unduly discounts …

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Unplugging The Cable Franchise: A Regulatory Framework To Promote The Iptv Cable Alternative, Thomas Hildebrand

Georgia Law Review

Internet Protocol Television (IPTV) is a new technology that promises to revolutionize the cable television industry. IPTV combines digital video technologies decades in development with the many advantages of Internet delivery, including cost and interactivity. The characteristics of IPTV that distinguish it from conventional cable television raise many regulatory questions. It is clear, however, that the decades-old cable franchising system, along with other cable-specific regulations, are a poor fit for IPTV. Wholesale application of these regulations could stifle the deployment of IPTV technology. Recently, telecommunications companies have begun rolling out competitive cable systems using IPTV over local telephone networks. To …

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The Antitrust Legality Of Pharmaceutical Patent Litigation Settlements, James F. Ponsoldt, W. Hennen Ehrenclou

Scholarly Works

Several federal courts of appeal have recently ruled on the issue of whether a pharmaceutical patent infringement settlement, pursuant to which a generic drug manufacturer agrees to forgo marketing a particular drug in return for monetary payments from a patent-holding “pioneer” drug manufacturer, is a violation of antitrust law. These payments are termed “reverse payments” because, contrary to normal settlements, the plaintiff makes a lump sum payment to the defendant. Reverse payments have sparked considerable academic comment and controversy. Even more recently, the Federal Trade Commission (“Commission”) and the Solicitor General have expressed views on the issue, in the context …

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Unilateral Refusals To Deal In Intellectual Property As Monopolistic Conduct, Bolanle Meshida

LLM Theses and Essays

Much has been written about the antitrust intellectual property conflict. The former promotes competition by prohibiting monopolies that harm competition, while the latter promotes competition by granting monopolies. This paper focuses on refusals to deal in intellectual property rights as violation of antitrust law. The paper explores refusals to deal as monopolistic conduct in antitrust law and relates this with refusals to deal in intellectual property. The thesis concludes with an analysis of the success rate of antitrust scrutiny of intellectual property rights.

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The Bitter Has Some Sweet: Potential Antitrust Enforcement Benefit From Patent Law's Procedural Rules, Joseph S. Miller

Scholarly Works

No abstract provided.

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Lawyers' Value In Mergers And Acquisitions Under The New World Of Multidisciplinary Practices, Yunling Wu

LLM Theses and Essays

Lawyers are facing strong competition from accounting firms in mergers and acquisitions. Finance and accounting globalization and multidisciplinary practice makes accounting firms more competent, challenging lawyers’ value. However, lawyers create enormous value in mergers and acquisitions, such as structuring the form of transactions, managing due diligence investigation, reducing the costs of acquiring and verifying information, ensuring corporations follow the relevant regulations preventing legal liabilities, and preventing antitrust issues or invoking antitrust challenge. Teamwork will facilitate mergers and acquisitions transactions. Restricted multidisciplinary practice will not affect lawyers’ and accountants’ ethics and independence. Legal education should be improved to help lawyers become …

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Allchin’S Folly: Exploring Some Myths About Open Source Software, Joe Miller

Scholarly Works

The twists and turns in the government’s antitrust case against Microsoft – from the D.C. Circuit’s stormy questioning at the two day oral argument in late February 2001 to its affirmance of the lion’s share of the government’s case in June 2001, and then from the settlement between the United States and Microsoft to the continuing battle by nine states for tougher sanctions – have garnered their share of press attention. But the high-profile antitrust case has not been the only Microsoft-centered controversy during the past year. Another involves the open source software movement about which Microsoft has professed grave …

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Commercial Arbitration In The U.S.: The Arbitrability Of Disputes Arising From Statute-Based Claims, Sylvie Frankignoul

LLM Theses and Essays

A leading contemporary expert in arbitration has explained: "The concept of arbitrability determines the point at which the experience of contractual freedom ends and the public mission of adjudication begins. In effect, it establishes a dividing line between the transactional pursuit of private rights and courts' role as custodians and interpreters of the public interest." 1 A major part of the arbitrability doctrine deals with the kind of claims that can fall within the scope of agreements for private dispute resolution. Arbitration clauses are an integral part of the parties' transactions. Nevertheless, the American judiciary historically has refused to enforce …

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Derivatives And Risk Framework, Ravichandra Vasant Kini

LLM Theses and Essays

The purpose of this thesis is to explore the dynamics of the fast-growing international financial markets and to study in particular the risks associated with the different kinds of financial instruments. The Barrings Bank Crisis, Proctor and Gamble, Gibson Greetings cases against Bankers Trust, and the Orange County Bankruptcy has prompted regulatory authorities to focus on the risks involved in the derivatives markets. In this paper, the first chapter explains the basic working of the different kinds of derivative instruments especially concentrating on Swaps, Futures, and Options. The second chapter goes on to explain, the risks involved in the uses …

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International Cooperative Enforcement Agreements And Antitrust Extraterritoriality In The 21st Century, Basil Dominic Udotai

LLM Theses and Essays

It is the focus of this thesis to critically evaluate the cooperative enforcement option proffered by the US authorities with a view to judging its attractiveness to other nations and its adequacy in solving problems posed by extraterritoriality in today's highly liberalized economy. In this regard, we shall see that the various models of cooperative enforcement arrangements adopted within the United States have failed to result in productive bilateral cooperation. This is due in large part, to the commitment of individual countries to satisfying national interests over cooperative obligations arising under the agreements. Because of these insufficiencies, the thesis reiterates …

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The Role Of Market Power In Vertical-Agreement Doctrine: U.S. Antitrust And Ec Competition Law Compared, Jens H. Quellmalz

LLM Theses and Essays

This LL.M. thesis provides a comprehensive comparative analysis of the role of market power in vertical-agreement doctrine under United States antitrust law and European Community competition law, tracing the doctrinal development from the Sherman Act's Section 1 and the landmark decision in Continental T.V. v. GTE Sylvania through the adoption of the EC's new single block exemption regulation (Commission Regulation No. 2790/1999). Topics include the rule-of-reason and per se dichotomy, the burden-shifting model developed by U.S. lower courts, the theoretical underpinnings of market power measurement (including the Lerner Index and the structural approach of market definition), and the influence of …

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Private And Governmental Barriers Affecting International Market Contestability: Current And Prospective Remedies, Massimo G. Manzoni

LLM Theses and Essays

Several interesting developments indicate that world attention is increasingly focusing on a "novel" category of trade barriers: non-tariff and non-border barriers. Following the Uruguay Round (the eighth round of negotiations under the General Agreement on Tariffs and Trade, "GATT"), scholars and officers of international organizations have expressed hope that international market contestability will become a major goal of future international policy negotiations. Their studies have focused on the links between trade policy and competition policy, and have concluded that anticompetitive business practices are a potent barrier to international market contestability and might cause a loss of confidence in the free …

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Are Tuna And Dolphins The Same? A Rule Of Reason Approach To Resolve The Trade And Environment Conflict, Anantha K. Paruthipattu

LLM Theses and Essays

Trade and environment are both primary values in an ecologically and economically interdependent world; unleashing trade without regard to environmental impact is as detrimental as guarding the environment at the expense of trade and development. Tuna and dolphins have come to symbolize the policy struggle between trade and environment. In early 1990, the United States banned the import of tuna from Mexico and other countries that were fishing in a manner that damaged dolphins in the Eastern Tropical Pacific Ocean. Mexico challenged this ban before a GATT Panel, which ruled against the United States and held that the tuna ban …

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The United States Implementing Legislation Of The Uruguay Round Agreement On Antidumping: Its Problems And Effects On The Bilateral Trade Relation Between The United States And Korea, Changdong Shin

LLM Theses and Essays

Antidumping laws were designed to protect domestic industries from unfair predatory price discrimination from foreign companies, yet these laws are often alleged to be used to protect domestic industries from competition. The U.S. has not been a stranger to these accusations since the 1980s as the U.S.’s trade deficit grew. The Uruguay Round negotiations were aimed at ending this protectionist use of antidumping laws, but many issues were left unsettled by the Uruguay Round antidumping agreement. In particular, interpretation of the agreement is deferred to each country primarily. Thus, the Dispute Settlement Body of the WTO can only determine a …

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Balancing Federalism And Free Markets: Toward Renewed Antitrust Policing, Privatization, Or A "State Supervision" Screen For Municipal Market Participant Conduct, James Ponsoldt

Scholarly Works

The past decade has witnessed an historic rejection of state control of markets in eastern Europe. Expansion of domestic antitrust immunity policy toward municipal businesses based upon federalism concerns, however, which occurred during the same period, has fostered autonomous governmental control of markets. The judicial application of the Parker doctrine to local government has tended to contradict the premise underlying several generations of U.S. foreign policy designed to support emerging competitive market economies outside the country. Academic analysis of the Parker doctrine during the 1980s was heated and creative. A number of commentators, with varying viewpoints, have addressed the bases …

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The Relevant Market In European Merger Law, Benedicte Haubold

LLM Theses and Essays

Due to the rapid acceleration of merger movements in the 1980s, the adoption of new merger regulation was a must for the European market. Before the new merger regulation was adopted in 1989, the European Commission used to apply the general competition rules of the Rome Treaty when dealing with mergers. The Commission used to interpret Articles 85 and 86 of the Rome Treaty as a means to condemn mergers that would lead to an abuse of a dominant position at a European level; at that time, there was an absence of complete and systematic control as far as structural …

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Strategic Alliances: Emerging Trends In Future Corporate Business, Naresh Menghraj Gehi

LLM Theses and Essays

A strategic alliance is an arrangement for economic collaboration between firms at the same level of distribution, involving an exchange of critical skills aimed at buffering the core business strategy, technology, or markets of the partners. Research indicates that the care and thought of the strategic alliance partners increases with the importance of the venture to the strategic objectives of the entity. This paper describes the importance of strategic alliances in today’s competitive world. It examines the benefits of entering into strategic alliances, the legal implications of strategic alliances, and various industries where strategic alliances are dominant. Finally, this paper …

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U.S. Practices In Risk Assessment And Risk Management For Product Safety Under Article 2.2 Of The Agreement On Technical Barriers To Trade, Suckhong Ko

LLM Theses and Essays

Article 2.2 of the Agreement on Technical Barriers to Trade (TBT) was applied to the GATT member countries in 1995. This article provides national product safety agencies with requirements for risk assessment and risk management. However, the terms used in the article are broad and open to interpretation. This paper argues that vast discretion and broad terms cannot solve technical barriers effectively; the “minimum requirements” standard within Article 2.2 of the TBT fails to consider those countries whose technology in product safety is inferior to that of developed countries. The United States has some of the strongest product safety measures, …

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"In The Twinkling Of An Eye": A Proporsal For The Standard Of Legality To Be Applied In Hospital Staff Privileges Cases, Sarah Bartholomew Ellerbee

LLM Theses and Essays

This paper addresses one of the most troublesome aspects of antitrust jurisprudence. What standard of legality governs cases dealing with medical staff privileges decisions? Heretofore, it was generally thought that only two options existed. The most frequently used standard of legality for this type of case is the rule of reason. In using this analysis, the court looks at the restraint of trade of the reasonableness of its nature, and its purpose and effect. The pro-competitive aspects of the conduct are weighed against the restraints that the conduct imposes on the competition. In health care cases, courts have looked at …

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The Antidumping Laws And Principles Under The Gatt: Protecting Protection, The “Dunkel Drafts” And After The Uruguay Round, Heejang Yoo

LLM Theses and Essays

The antidumping laws of the U.S., Canada, Australia, European countries, and other developing countries are seen as protectionist of those nation’s local industries at the expense of foreign exporters. The fact that foreign exporters cannot obtain a meaningful judicial review of these antidumping laws only compounds the matter. This thesis urges nations to adopt multilateral competition-oriented antidumping polices and to abandon producer-oriented protectionist laws. Even if the notion of trade liberalization has been discredited under the GATT, the author advocates a return to such a goal in the context of antidumping laws. In reaching this conclusion, this thesis analyzes current …

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Restrictions On Cartels In Japan Comparing With Those On Horizontal Price-Fixing In The United States, Shinobu Obata

LLM Theses and Essays

This thesis examines restrictions on price-fixing cartels under Japan's Antimonopoly Law (AML) in comparison with U.S. antitrust law governing horizontal price-fixing under Section 1 of the Sherman Act. Written against the backdrop of the 1989–1990 Structural Impediments Initiative (SII), in which the United States urged Japan to enforce its antitrust laws more aggressively against exclusionary cartel practices, the thesis traces the legal history of the AML — from its 1947 enactment under U.S. occupation influence, through its 1953 relaxation (which deleted the strict per se illegality provision and introduced cartel exemptions), to the renewed push for aggressive enforcement in the …

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The Application Of U.S. Antidumping Law To The Imports From The People's Republic Of China: Review Of Evolution And Need For Revolution, Li Yang

LLM Theses and Essays

Despite the dramatic increase in trade between the U.S. and China since the normalization of relations between the countries in 1979, China is still confronted with U.S. laws that hinder trade. The most serious threat to Sino-U.S. trade is the U.S. antidumping law, which authorizes the imposition of a duty on imported merchandise that the Department of Commerce determines is sold at less than fair value, if the U.S. International Trade Commission determines the U.S. industry in that field is materially injured. This law and cases interpreting it are examined. With its low wage rate and lack of cost accounting, …

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Legal Instruments Enabling Cooperation Between Enterprises: A Study On The European Economic Interest Grouping With A Comparative Perspective On American Law, Vincent Mignon

LLM Theses and Essays

The purpose of this study is to examine and evaluate some of the most pertinent legal issues raised by the European Economic Interest Grouping. This study identifies some important unresolved problems pertaining to the EEIG, and propose tentative solutions, and examine the value that an instrument like the EEIG might have for the development similar structures under American law. The analysis aims to determine whether there is a need in American law for a specific legal instrument aimed at fostering cooperation among enterprises.

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Approach To Horizontal Restraint: Reliance On Exemption From Antimonopoly Act In Japan As Contrasted With Antitrust Laws In The United States, Yutaka Sumii

LLM Theses and Essays

American politicians and businessmen have criticized the Antimonopoly Act, Japanese antitrust legislation, for allowing horizontal restraints on trade known as cartels. This paper compares and contrasts U.S. antitrust laws with regards to horizontal restrains on trade from that of Japan. A highlighted difference between U.S. and Japanese antitrust legislation is the use of exemptions. The Antimonopoly Act provides for more exemptions immunizing a cartel, such as exceptions for cartels formed during a depression or when the defendants have little market power, than does similar legislation in the U.S. To illustrate how the exemption for cartels in a depressed industry applies …

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A Review Of Taiwan’S Fair Trade Law Draft By Referring To The U.S. Antitrust Laws, Min-Huang Su

LLM Theses and Essays

Due to the rapid industrialization and commercialization of Taiwan’s economy, many of Taiwan’s old laws regulating economic activity have been rendered obsolete. The lack of proper regulation of modern economic activities has led to the formation of many monopolies and oligopolies in Taiwan which practice price-fixing and output restrictions. The Taiwanese government has responded to this problem with a new antitrust statute, known as the Fair Trade Law (FTL), and a draft FTL was formally adopted in 1986. The strengths and weaknesses of the draft FTL are analyzed with regards to monopolies and oligopolies, mergers and combinations, and concerted actions. …

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Full-Text Articles in Antitrust and Trade Regulation

Moving All-In With The World Trade Organization: Ignoring Adverse Rulings And Gambling With The Future Of The Wto, Paul Rothstein

Georgia Journal of International & Comparative Law

Can The Tiger Sit Down With The Dragon? An Assessment Of Chinese And Indian Antitrust Laws, R. Matthew Short

Georgia Journal of International & Comparative Law

The Effect Of The Jobs Act On Underwriting Spreads, Usha Rodrigues

Scholarly Works

Defying Conventional Wisdom: The Case For Private Antitrust Enforcement, Joshua P. Davis, Robert H. Lande

Georgia Law Review

Patent Ships Sail An Antitrust Sea, Joseph S. Miller

Scholarly Works

A Comparison Between U.S. And E.U. Antitrust Treatment Of Tying Claims Against Microsoft: When Should The Bundling Of Computer Software Be Permitted?, James F. Ponsoldt, Christopher D. David

Scholarly Works

Unplugging The Cable Franchise: A Regulatory Framework To Promote The Iptv Cable Alternative, Thomas Hildebrand

Georgia Law Review

The Antitrust Legality Of Pharmaceutical Patent Litigation Settlements, James F. Ponsoldt, W. Hennen Ehrenclou

Scholarly Works

Unilateral Refusals To Deal In Intellectual Property As Monopolistic Conduct, Bolanle Meshida

LLM Theses and Essays

The Bitter Has Some Sweet: Potential Antitrust Enforcement Benefit From Patent Law's Procedural Rules, Joseph S. Miller

Scholarly Works

Lawyers' Value In Mergers And Acquisitions Under The New World Of Multidisciplinary Practices, Yunling Wu

LLM Theses and Essays

Allchin’S Folly: Exploring Some Myths About Open Source Software, Joe Miller

Scholarly Works

Commercial Arbitration In The U.S.: The Arbitrability Of Disputes Arising From Statute-Based Claims, Sylvie Frankignoul

LLM Theses and Essays

Derivatives And Risk Framework, Ravichandra Vasant Kini

LLM Theses and Essays

International Cooperative Enforcement Agreements And Antitrust Extraterritoriality In The 21st Century, Basil Dominic Udotai

LLM Theses and Essays

The Role Of Market Power In Vertical-Agreement Doctrine: U.S. Antitrust And Ec Competition Law Compared, Jens H. Quellmalz

LLM Theses and Essays

Private And Governmental Barriers Affecting International Market Contestability: Current And Prospective Remedies, Massimo G. Manzoni

LLM Theses and Essays

Are Tuna And Dolphins The Same? A Rule Of Reason Approach To Resolve The Trade And Environment Conflict, Anantha K. Paruthipattu

LLM Theses and Essays

The United States Implementing Legislation Of The Uruguay Round Agreement On Antidumping: Its Problems And Effects On The Bilateral Trade Relation Between The United States And Korea, Changdong Shin

LLM Theses and Essays

Balancing Federalism And Free Markets: Toward Renewed Antitrust Policing, Privatization, Or A "State Supervision" Screen For Municipal Market Participant Conduct, James Ponsoldt

Scholarly Works

The Relevant Market In European Merger Law, Benedicte Haubold

LLM Theses and Essays

Strategic Alliances: Emerging Trends In Future Corporate Business, Naresh Menghraj Gehi

LLM Theses and Essays

U.S. Practices In Risk Assessment And Risk Management For Product Safety Under Article 2.2 Of The Agreement On Technical Barriers To Trade, Suckhong Ko

LLM Theses and Essays

"In The Twinkling Of An Eye": A Proporsal For The Standard Of Legality To Be Applied In Hospital Staff Privileges Cases, Sarah Bartholomew Ellerbee

LLM Theses and Essays

The Antidumping Laws And Principles Under The Gatt: Protecting Protection, The “Dunkel Drafts” And After The Uruguay Round, Heejang Yoo

LLM Theses and Essays

Restrictions On Cartels In Japan Comparing With Those On Horizontal Price-Fixing In The United States, Shinobu Obata

LLM Theses and Essays

The Application Of U.S. Antidumping Law To The Imports From The People's Republic Of China: Review Of Evolution And Need For Revolution, Li Yang

LLM Theses and Essays

Legal Instruments Enabling Cooperation Between Enterprises: A Study On The European Economic Interest Grouping With A Comparative Perspective On American Law, Vincent Mignon

LLM Theses and Essays

Approach To Horizontal Restraint: Reliance On Exemption From Antimonopoly Act In Japan As Contrasted With Antitrust Laws In The United States, Yutaka Sumii

LLM Theses and Essays

A Review Of Taiwan’S Fair Trade Law Draft By Referring To The U.S. Antitrust Laws, Min-Huang Su

LLM Theses and Essays