Antitrust and Trade Regulation Commons^™

Cartel And Its Participant Within The Meaning Of The Act On The Actions For Damages For Infringements Of Competition Law, Maciej Majewski

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

This article concentrates on the problem of interpretation of the term ‘cartel’ used in the Act of 21 April 2017 on the actions for damages for infringements of competition law which implements to the Polish legal system the directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union. To begin with, the analysis covers the rationality behind introducing the term ‘cartel’ to the Polish legal language. Next, presented are certain …

Report On The International Conference ‘Judicial Deference In Competition Law’, University Of Warsaw, 11 October 2018, Laura Zoboli, Magdalena Gniadzik

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

Judicial Deference in Competition law’, University of Warsaw, 11 October 2018

Domestic Asset Protection Trusts: Ushering In The Klackaba Era, Cheyenne Vankirk

Seattle University Law Review

The growth in the U.S. economy has allowed Americans to increase their savings--but how? A novel approach has emerged in seventeen states: domestic asset product trusts (DAPTs). DAPTs are self-settled spindthrift trusts that allow the settlor to retain a beneficial interest in the trust while removing it from the reach of future creditors. Through the lens of the favorable ruling in Klackaba v. Nelson, this Note addresses why DAPTs should be regarded as an effective method of protecting a settlor’s money and argue for more states to follow suit.

Accommodating Capital And Policing Labor: Antitrust In The Two Gilded Ages, Sandeep Vaheesan

Maryland Law Review

In enacting the antitrust laws, Congress sought to prevent big businesses from maintaining and augmenting their power through collusion, mergers, and exclusionary and predatory practices and also aimed to preserve the ability of workers to act in concert. At times, the antitrust laws have benefited ordinary Americans. Antitrust achievements include the restructuring of the oil industry in 1911, the creation of competitive market structures in the mid-twentieth century, and the termination of AT&T’s telecommunications monopoly in 1984.

Yet, the history of antitrust in the United States is not one of uninterrupted successes. Over two forty-year periods, the executive branch and …

Fascism And Monopoly, Daniel A. Crane

Law & Economics Working Papers

The recent revival of political interest in antitrust has resurfaced a longstanding debate about the role of industrial concentration and monopoly in enabling Hitler’s rise to power and the Third Reich’s wars of aggression. Proponents of stronger antitrust enforcement argue that monopolies and cartels brought the Nazis to power and warn that rising concentration in the American economy could similarly threaten democracy. Skeptics demur, observing that German big business largely opposed Hitler during the crucial years of his ascent. Drawing on business histories and archival material from the U.S. Office of Military Government’s Decartelization Unit, this Article assesses the historical …

Nonprofit Governance: The Basics, Lawrence J. Trautman, Janet Ford

Akron Law Review

Nonprofit organizations are prevalent in today’s economy, and many are governed by individuals who have been chosen on the basis of their advocacy of or contributions to various nonprofit causes rather than on the basis of business experience or acumen. Yet effective nonprofit governance, while presenting concerns unique to nonprofits, also presents many of the same concerns as does governance of for-profit entities. This article seeks to provide a primer for nonprofit organizations that need to recruit effective governance talent. First, we discuss the nature of nonprofits, their impact on the business landscape, and their similarities to and differences from …

Gulf Airline Subsidization: Should The European Union And The United States Collaborate To Combat This Alleged Threat?, Savannah H. Moon

Georgia Journal of International & Comparative Law

No abstract provided.

The Case For Doing Nothing About Institutional Investors' Common Ownership Of Small Stakes In Competing Firms, Thomas A. Lambert, Michael E. Sykuta

Faculty Publications

Recent empirical research purports to demonstrate that institutional investors' "common ownership " of small stakes in competing firms causes those firms to compete less aggressively, injuring consumers. A number of prominent antitrust scholars have cited this research as grounds for limiting the degree to which institutional investors may hold stakes in multiple firms that compete in any concentrated market. This Article contends that the purported competitive problem is overblown and that the proposed solutions would reduce overall social welfare. With respect to the purported problem, we show that the theory of anti-competitive harm from institutional investors' common ownership is implausible …

Five Principles For Vertical Merger Enforcement Policy, Jonathan B. Baker, Nancy L. Rose, Steven C. Salop, Fiona Scott Morton

Georgetown Law Faculty Publications and Other Works

There seems to be consensus that the Department of Justice’s 1984 Vertical Merger Guidelines do not reflect either modern theoretical and empirical economic analysis or current agency enforcement policy. Yet widely divergent views of preferred enforcement policies have been expressed among agency enforcers and commentators. Based on our review of the relevant economic literature and our experience analyzing vertical mergers, we recommend that the enforcement agencies adopt five principles: (i) The agencies should consider and investigate the full range of potential anticompetitive harms when evaluating vertical mergers; (ii) The agencies should decline to presume that vertical mergers benefit competition on …

Taming Sherman's Wilderness, Derrian Smith

Indiana Law Journal

This Note proceeds in four Parts. Part I outlines the interpretive difficulties spawned by the vagueness of the Sherman Act—particularly, the judiciary’s necessary but undeniable departures from the text of the statute and the resulting doctrinal confusion. Part II considers ways in which the judiciary’s decision-making in Sherman Act cases approximates agency rulemaking and whether it makes sense to delegate interpretive authority to an antitrust agency. Yet, while the agency solution has upside, it would not easily escape criticisms that the Act does not provide sufficient notice of the conduct it proscribes and that the Act is an impermissible delegation …

Uncitral Working Group Iii On Isds Reform: How Cross-Cutting Issues Reshape Reform Options, Lorenzo Cotula, Thierry Berger, Lise Johnson, Brooke Güven, Jesse Coleman

Columbia Center on Sustainable Investment Staff Publications

The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to …

Draft Text Providing For Transparency And Prohibiting Certain Forms Of Third-Party Funding In Investor–State Dispute Settlement, Brooke Güven, Lise Johnson, Nathalie Bernasconi-Osterwalder, Lorenzo Cotula, Jane Kelsey

Columbia Center on Sustainable Investment Staff Publications

The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to …

Third-Party Rights In Investor-State Dispute Settlement: Options For Reform, Jesse Coleman, Lise Johnson, Brooke Güven, Lorenzo Cotula, Thierry Berger

Columbia Center on Sustainable Investment Staff Publications

The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to …

Draft Treaty Language: Withdrawal Of Consent To Arbitrate And Termination Of International Investment Agreements, Brooke Güven, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to …

Vii Convegno Antitrust Di Trento, Trident (Italy), 11–13 April 2019, Grzegorz Materna

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

No abstract provided.

Termination Of A Distribution Agreement, Olga Sztejnert-Roszak

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

The subject of the article is to analyze the issue of the possibility and mode of termination of a distribution agreement concluded under Polish law, which is an unnamed contract in the meaning of Polish civil law. Distribution agreements, often concluded in an informal manner, do not provide for reasons for their termination, either by notice or immediately. However, their termination is possible, although it is disputable in Polish literature, for example, whether a distribution contract concluded for an defi nite term can be terminated upon notice before the expiry of the period for which it was concluded, and whether …

On The Analytical Framework Of ‘By Object’ Infringements. A Comment On The 30 August 2018 Ruling Of The Court Of Appeals In Warsaw, Case Vii Aga 1114/18 (Ski Team), Jan Polański

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

The article constitutes a critical comment on a ruling delivered by the Court of Appeals in Warsaw. In the ruling, the court disagreed with the position presented by the Polish Competition Authority according to which setting resale prices (RPM) in the case investigated by the Polish NCA amounted to an infringement ‘by object’ under Polish law. In its judgement, the Court of Appeals referred to EU case law and attempted to re-create the analytical framework used by EU courts to establish ‘by object’ infringements. The analysis conducted by the Court of Appeals may, however, raise doubts in the context of …

From The Judgment In The Pierre Fabre Case To The Decision In The Guess Case. An Attempt To Defi Ne The Status Quo Regarding Restraints Related To Online Distribution While Waiting For The Results Of The Review Of Vertical Block Exemptions, Marta Dominika Banaś, Mikołaj Piaskowski

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

Alongside the popularity growth of selective distribution systems, the evaluation of the admissibility and risks related to restrictions, especially in the Internet, imposed by suppliers onto distributors becomes more of a current issue. This paper analyses the approach to this problem expressed by competition authorities and courts starting from the Pierre Fabre case and to the most recent Guess case. It also aims to show the key issues that should be considered within the consultation process conducted by the Commission related to Regulation 330/2010 and the related Guidelines.

Distribution Models Of Electronic Contents On The Example Of E-Books, Wojciech Łyszczarz

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

E-books can be distributed via Internet platforms according to two principal models. On one hand, a wholesale model can be applied, where e-books are sold to retailers at a wholesale price for further re-sale, the retail prices of which are freely set by the retailers. On the other hand, an agency model can be used, where the retailer acts as an intermediary in e-book sales and charges a commission from the publisher. Experiences of the US and European competition authorities show that application or change of the distribution model can have negative consequences in the area of competition law. This …

Distribution Agreements In The Eu: Restrictions Of Competition In Ipr Clauses, Joanna Kruk-Kubarska

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

The paper discusses typical contractual clauses related to IPR that appear in distribution contracts in the European Union, and which might amount to a restriction of competition. The paper covers, among others, the accepted method of analysis of, applicable in parallel, national regulations concerning IPR and EU competition law, as well as the conditions for the exemption from the prohibition of competition restricting agreements. The aim of the paper is to present these issues in the light of the decisional practice of the European Commission and the jurisprudence of EU courts.

Joint Selling Groups As A Potential Counterweight Of Purchasing Power Of Joint Purchasing Groups, Eliza Iwaniszyn

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

Joint selling agreements (alliances) remain one of the least popular topics in antirust literature. As a rule, they are acceptable under current regulations, however their practical application is subject to numerous restrictions and concerns. This article is an attempt to take up on a rather diffi cult legal subject matter which, in the era of progressive consolidation of entrepreneurs, may have considerable practical signifi cance. The article includes, fi rst of all, a quick look at the regulation of purchasing and sales groups from the United States, EU and Polish perspective. Secondly, it presents the areas of the largest antitrust …

Bid Rigging – A Practical Review Of Risks. Judgment Of The Court Of Competition And Consumers Protection Of 8 November 2018, Ref. Xvii Ama 26/16, Antonina Falandysz-Zięcik

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

No abstract provided.

Moment Of Initiation Of Antitrust Proceeding – The Moment Of Issuing Or The Moment Of Delivering A Statement On Initiating The Proceeding? Judgment Of The Court Of Competition And Consumers Protection Of 6 June 2018, Ref. Xvii Ama 48/15, Anna Żochowska-Sychowicz

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

No abstract provided.

Frank Wijckmans, Filip Tuytschaever, Agata Jurkowska-Gomułka, Małgorzata Modzelewska De Raad, Olga Sztejnert-Roszak, Porozumienia Dystrybucyjne W Prawie Konkurencji. Unia Europejska-Polska [Distribution Agreements In Competition Law. European Union-Poland], Warszawa 2018, Agata Jurkowska-Gomułka

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

No abstract provided.

Seminar ‘Aiding And Abetting As A Special Form Of Participation In Antitrust Agreements – In Light Of Eu And Polish Law’, Inp Pan, Warsaw, 3 April 2019, Artur Szmigielski

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

No abstract provided.

Online Sale Restrictions In Franchising Agreements, Fabian Elżanowski

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

The rules applicable to franchising agreements under EU competition law are the main focus of this article. This publication elaborates on the economic nature of franchise distribution systems and the regulatory framework in place. The application of the ancillary restraints doctrine to franchising agreements is reviewed. The article outlines recommended changes to EU competition policy with respect to restrictions on online sale in franchise distribution systems.

Pre-Contractual Disclosure Obligation In A Franchise Agreement. Comparative Legal Analysis Based On Polish Legislation And Selected Jurisdictions, Magdalena Kowalczuk-Szymańska

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

The article focuses on the presentation of the issue of pre-contractual disclosure obligation in franchisor – franchisee relations and distribution systems based on a franchise agreement. The author presents not only the approach to this subject matter under Polish law, but also the regulations in force in other jurisdictions, both in Europe and worldwide. The analysis of different national legislation, sometimes also at the domestic level (United States of America), makes it possible to assess which of the models seems to be the most suitable for the principle of fair play in business, balancing the interests of both parties of …

The Dark Side Of Reputation, Emily Kadens

Cardozo Law Review

This Article seeks to contribute to the literature challenging the role of reputation in disciplining commerce. The historical disputes discussed here, which arose in the supposedly privately-ordered zone of the premodern merchant, add nuance to our understanding of how commerce works in the real world. Part I briefly reviews some of the problems the economic and network theory literature has identified with reputation. Part II turns to the history and demonstrates how trust could be cheaply manufactured due in part to potential partners' failure to look beyond superficial indicia of reputation. Part III then considers why reputation might have been …

Temptation To Tamper: The Ineffectiveness Of The Nba's Anti-Tampering Policy And Why The League May Be Forced To Take Drastic Measures To Fix It, Colin Rizzo

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane

Articles

State and local regulations that anticompetitively favor certain producers to the detriment of consumers are a pervasive problem in our economy. Their existence is explicable by a variety of structural features—including asymmetry between consumer and producer interests, cost externalization, and institutional and political factors entrenching incumbent technologies. Formulating legal tools to combat such economic parochialism is challenging in the post-Lochner world, where any move toward heightened judicial review of economic regulation poses the perceived threat of a return to economic substantive due process. This Article considers and compares two potential tools for reviewing such regulations—a constitutional principle against anticompetitive parochialism …