Comparative and Foreign Law Commons^™

Universal Anti-Bribery Legislation 
Can Save International Business: A Comparison Of The Fcpa And The Ukba In An Attempt To Create 
Universal Legislation To Combat
 Bribery Around The Globe, Lindsey Hills

Richmond Journal of Global Law & Business

No abstract provided.

Speculative Tech: The Bitcoin Legal Quagmire & The Need For Legal Innovation, Paul H. Farmer Jr.

Journal of Business & Technology Law

No abstract provided.

The Law And Economics Of (Functional) Antitrust Standing In The United States And The European Union, Jeffrey L. Harrison

UF Law Faculty Publications

To date, and despite pressures toward convergence, the United States and the European Union have taken different paths with respect to the enforcement of antitrust laws by private parties and, therefore, differ dramatically in levels of functional standing. U.S. law is more encouraging to private enforcement than E.U. law but has a narrower view of whom those private parties are permitted to be. In the European Union, the eligible parties are broad but the motivation of any single party to bring an action is quite low. In the United States, the substantive law and much of the procedural law flow …

Merger Control Under China's Anti-Monopoly Law, D. Daniel Sokol

UF Law Faculty Publications

This essay explores the factors that drive merger outcomes under China's Anti-Monopoly Law (AML). While there are currently only a small number of published merger decisions, this paper overcomes that obstacle by utilizing a unique practitioner survey of antitrust lawyers across multiple jurisdictions. This survey captures transactions contemplated, but never undertaken (deterred by the merger regime), as well as mergers notified for approval under the AML. The survey allows for broader inferences to be drawn about the development of Chinese antitrust law, including: the welfare standard used in merger analysis, what industrial policy and other political factors may impact merger …

Counting Once, Counting Twice: The Precarious State Of Subsidy Regulation, Wentong Zheng

UF Law Faculty Publications

Subsidy regulation is in a precarious state. While it has been so ever since the conception of the current subsidy regulation regime, the recent disputes between the United States and China over the “double counting” or “double remedies” of subsidies have threatened the mere functionality of the current regime. This Article argues that the double counting controversy reveals the self-contradictions of the current subsidy regulation regime as to the fundamental question of why subsidies need to be regulated. These self-contradictions make it impossible to devise a coherent solution to the double counting problem within the framework of the current subsidy …

Welfare Standards In U.S. And E.U. Antitrust Enforcement, Roger D. Blair, D. Daniel Sokol

UF Law Faculty Publications

The potential goals of antitrust are numerous. Goals matter to antitrust. We believe that it is total welfare rather than consumer welfare that should drive antitrust analysis. We use this Article as an opportunity to explore both a comparative analysis of welfare standards across E. U. and US. competition systems and the impact of welfare standards on global antitrust systemwide welfare.

In this Article, we analyze two types of situations in which there would be a different outcome based on the goal implemented. One scenario involves resale price maintenance (RPM). For RPM, we argue that even if there were a …

Asia And Global Competition Law Convergence, David J. Gerber

All Faculty Scholarship

No abstract provided.

Pitfalls In Brazilian Bankruptcy Law For International Bond Investors, Jeffrey M. Anapolsky, Jessica F. Woods

Journal of Business & Technology Law

No abstract provided.

Exiting The Euro, Frederick V. Perry, Wendy Gelman

Richmond Journal of Global Law & Business

The Crisis in the Euro Zone threatens to break up the Euro and perhaps derail the European Union itself. Many argue that a Member State exiting the Euro would be not only unthinkable, but also a practical impossibility, given the status of the “constitutionality” of European law, the treaties forming the European Union and the Euro, and customary European law. Europeans have been, for centuries, very creative in forging economic and trading alliances—some that appeared to be political alliances and even elementary union. They have also, on more than one occasion, attempted to confect monetary stability. Some of these attempts …

Legal Framework For Soviet Privatization, Olga Floroff, Susan Tiefenbrun

Pepperdine Law Review

No abstract provided.

A New Prescription To Balance Secrecy And Disclosure In Drug-Approval Processes, Gerrit M. Beckhaus

University of Michigan Journal of Law Reform

To obtain approval to market a drug, a manufacturer must disclose significant amounts of research data to the government agency that oversees the approval process. The data often include information that could help advance scientific progress, and are therefore of great value. But current laws in both the United States and Europe give secrecy great weight. This Article proposes an obligatory sealed-bid auction of the sensitive information based on the experience with similar auctions in mergers and acquisitions, to balance manufacturers' interest in secrecy and the public interest in disclosure.

Price-Fixing: Hefty Penalties On Big-Biz Cartels Will Provide Level Playing Field To Small Businesses, John M. Connor, Robert H. Lande

All Faculty Scholarship

Cartels are illegal in India, as they are almost everywhere. They are subject to heavy fines. Why, then, do businesses frequently try to fix prices? Because doing so usually is profitable. On average cartels raise prices by more than 20%, and probably face less than a 25% chance of being caught and convicted. Based upon a sample of 75 international cartels, the authors calculate that the expected profits from price fixing almost always exceed the penalties. No wonder businesses often try to fix prices.

Consumer Choice As The Best Way To Describe The Goals Of Competition Law, Robert H. Lande

All Faculty Scholarship

This article is both a short introduction to the Consumer Choice explanation for Competition Law or Antitrust Law, and also a short advocacy piece suggesting that Consumer Choice is the best way to articulate the goals of European Competition Law and United States Antitrust Law.

This article briefly:

1. defines the consumer choice approach to antitrust or competition law and shows how it differs from other approaches;
2. shows that the antitrust statutes and theories of violation embody a concern for optimal levels of consumer choice;
3. shows that the United States antitrust case law embodies a concern for optimal levels of consumer …

“Advancing With The Times: Industrial Design Protection In The Era Of Virtual Migration”, Horacio E. Gutiérrez

IP Theory

No abstract provided.

Antitrust Economics For Proof Of Concerted Price-Fixing: Practical Points For U.S. And Korean Antiturst Jurisprudence, Chang-Su Choe

Brigham Young University International Law & Management Review

No abstract provided.

Regionalization, Development And Competition Law: Exploring The Political Dimension, David J. Gerber

All Faculty Scholarship

In discussions of the regionalization of competition law, the political dimension often leads a shadowy existence. Regionalization tends to be presented with a hint of a halo around it. States are presented as acting for a shared policy objective intended to benefit all, and political issues often sit uncomfortably with that image. This is particularly true when regionalization involves ‘developing countries’. Here there is often a further level of ‘common good’ discourse. Regionalization is here portrayed not only as a communal experience and goal, but also as one designed to reduce poverty and aid economic development. Where regionalization involves competition …

Extraterritorial Protection Of Trade Secret Rights In China: Do Section 337 Actions At The Itc Really Prevent Trade Secret Theft Abroad?, 11 J. Marshall Rev. Intell. Prop. L. 523 (2012), Steven E. Feldman, Sherry L. Rollo

UIC Review of Intellectual Property Law

With an ever increasing number of United States ("U.S.") companies conducting business abroad or conducting business with foreign entities there is more need than ever for the U.S. companies to consider how they can protect their intellectual property assets. The Federal Circuit‘s recent TianRui Grp.Co. v. Int’l Trade Comm’n and Amsted Indus. decision highlights the potential of section 337 of the U.S. Patent Act as a tool to prevent the exploitation of misappropriated trade secrets embodied in products that are imported into the United States. This article explores the potential impact of the TianRui decision on business practices abroad, particularly …

Opportunistic Discipline: Using Eurasian Integration To Improve Sanctions Against Belarus, Ilya Zlatkin

Richmond Journal of Global Law & Business

No abstract provided.

Iosco: The World Standard Setter For Globalized Financial Markets, Antonio Marcacci

Richmond Journal of Global Law & Business

As the current endless crisis clearly proves, world financial markets are closely interconnected. In order to provide a legal backdrop, a soft-law body, named the International Organisation of Securities Commissions (IOSCO), was established and tasked with encouraging an efficient flow of capital. Funded as a Pan-American, and subsequently worldwide, forum more than thirty years ago, IOSCO is a multilateral regulatory network whose members are the public regulators of more than ninety percent of the world’s securities and futures markets. It is devoted to promoting common and efficient regulations, setting the floor for the exchange of information between its members, improving …

Rethinking Merger Efficiencies, Daniel A. Crane

Articles

The two leading merger systems-those of the United States and the European Union-treat the potential benefits and risks of mergers asymmetrically. Both systems require considerably greater proof of efficiencies than they do of potential harms if the efficiencies are to offset concerns over the accumulation or exercise of market power The implicit asymmetry principle has important systemic effects for merger control. It not only stands in the way of some socially desirable mergers but also may indirectly facilitate the clearance of some socially undesirable mergers. Neither system explicitly justifies this asymmetry, and none of the plausible justifications are normatively supportable. …

Method, Community And Comparative Law: An Encounter With Complexity Science, David J. Gerber

All Faculty Scholarship

Assume that you are attending a symposium on comparative law being held in conjunction with the annual meeting of the American Society for Comparative Law. Comparative law scholars from many universities are present, and a few legal practitioners are attending as well. One speaker begins as follows: “This talk will be about complex adaptive systems—the emerging science of complexity.” Based on experience in similar contexts, I would anticipate several common reactions among members of the audience. The most common might be “he’s in the wrong room.” Another set of reactions is likely to be “What? What’s that? Never heard of …

"Consumer Choice" Is Where We Are All Going - So Let's Go Together, Neil W. Averitt, Robert H. Lande, Paul Nihoul

All Faculty Scholarship

Globalisation of business makes it important for firms to predict how their behaviour is likely to be treated in the roughly 200 nations that have competition laws. In that context, a crucial question is: are we in a position to develop a common intellectual framework that would give coherence to policy statements made on specific competition related issues and, at the same time, be acceptable, broadly, in a variety of legal systems, not necessarily based on identical assumptions? We believe that the answer is “yes.” A concept is emerging as a possible source of unification for competition policies around the …

Toward A Unified Theory Of Exclusionary Vertical Restraints, Daniel A. Crane, Graciela Miralles

Articles

The law of exclusionary vertical restraints-contractual or other business relationships between vertically related firms-is deeply confused and inconsistent in both the United States and the European Union. A variety of vertical practices, including predatory pricing, tying, exclusive dealing, price discrimination, and bundling, are treated very differently based on formalistic distinctions that bear no relationship to the practices' exclusionary potential. We propose a comprehensive, unified test for all exclusionary vertical restraints that centers on two factors: foreclosure and substantiality. We then assign economic content to these factors. A restraint forecloses if it denies equally efficient rivals a reasonable opportunity to make …

Towards An International Dialogue On The Institutional Side Of Antitrust, Philip J. Weiser

Publications

The antitrust world is now globalized and interconnected, requiring ever-increasing awareness as to how different agencies operate. The need to promote convergence on substantive doctrines has received, and will continue to receive, considerable attention. What is less appreciated is the need to focus on institutional design and practice, particularly as to the promotion of transparency and procedural fairness in the conduct of antitrust investigations. This Essay makes the case for such a focus, explaining how one of the healthy aspects of a multijurisdictional world is that sister agencies can challenge one another and model means of improving our institutional practices. …

American Antitrust Jurisprudence Applied To European Commission V. Intel, Paul Jones

Brigham Young University International Law & Management Review

No abstract provided.

After The Fall: Financial Crisis And The International Order, Robert B. Ahdieh

Faculty Scholarship

Recent years have challenged the international order to a degree not seen since World War II — and perhaps the Great Depression. As the U.S. housing crisis metastasized into a financial and economic crisis of grave proportions, and spread to nearly every corner of the globe, the strength of our international institutions — the International Monetary Fund, the World Trade Organization, the Group of Twenty, the Basel Committee on Banking Supervision, and others — was tested as never before. Likewise tested, were the limits of our national commitment to those institutions, to our international obligations, and to global engagement more …

American Precedent, Australian Legislation—Are The Rules Of Golf In Violation Of Antitrust Law, Lynden Griggs, Leela Cejnar

Brigham Young University International Law & Management Review

No abstract provided.

Vertical Separation Of Telecommunications Networks: Evidence From Five Countries, Robert W. Crandall, Jeffrey A. Eisenach, Robert E. Litan

Federal Communications Law Journal

The widespread adoption of mandatory unbundling in telecommunications markets has led to growing interest in mandatory "functional separation," i.e., separation of upstream network operations from downstream retail operations. Since 2002, vertical separation has been implemented in five OECD countries: Australia, Italy, New Zealand, Sweden, and the United Kingdom. In 2008, the International Telecommunications Union noted "a tremendous amount of interest" in functional separation around the world; and, in April 2009, the European Parliament held its second reading on a new regulatory framework that embraces functional separation as an "exceptional measure." While the U.S. does not currently require unbundling of broadband …

Anthropology, History And The "More Economic Approach" In European Competition Law - A Review Essay, David J. Gerber

All Faculty Scholarship

In several works over the last decade, Wolfgang Fikentscher has reminded us that there are ways of viewing competition law that need not begin and end with economics—its concepts, its language, and its science-based normative stance. Discussions of competition law in the United States and increasingly in Europe generally dismiss or marginalize views of competition law that are not circumscribed by economic science. In the works reviewed here, Fikentscher takes issue with the so-called “more economic approach” to law, particularly, competition law. As he has said on other occasions, he favors “a less economic approach” to competition law. Many in …

Convergence In The Treatment Of Dominant Firm Conduct: The United States, The European Union, And The Institutional Embeddedness Of Economics, David J. Gerber

All Faculty Scholarship

Discussions of the competition law treatment of dominant firms often center on the issue of whether EU and U.S. law in this area are likely to converge and thereby provide a more uniform legal terrain for the activities of such firms. Curiously, however, discussions of convergence seldom pay careful attention to key issues such as “What are the differences in the role of economics in the respective legal systems and which factors are likely to affect significantly the likelihood of convergence?”. They often hover in a somewhat mystical realm in which convergence is just expected to “happen”.

In this essay, …