Comparative and Foreign Law Commons^™

Network Neutrality Between False Positives And False Negatives: Introducing A European Approach To American Broadband Markets, Jasper P. Sluijs

Federal Communications Law Journal

Network neutrality has become a contentious issue both in Europe and the United States. Regulators on both sides of the Atlantic face digital divides in their society, and are confronted with potentially conflicting policy goals-to incentivize private investment in next-generation broadband while maintaining "neutral" and competitive broadband networks.

This Article compares nascent American and European network neutrality policy in terms of regulatory error costs. Emerging markets, such as broadband, are more likely to be affected by regulatory errors, and these errors have graver consequences in emerging markets than in regular markets. U.S. telecommunications policy traditionally has advanced a trial-and-error approach …

Transplanting Antitrust In China: Economic Transition, Market Structure, And State Control, Wentong Zheng

UF Law Faculty Publications

This Article examines the compatibility of Western antitrust models as incorporated in China's first comprehensive antitrust law – the Antimonopoly Law ("AML") – with China's local conditions. It identifies three forces that shape competition law and policy in China: China's current transitional stage, China's market structures, and pervasive state control in China's economy. This Article discusses how these forces have limited the applicability of Western antitrust models to China in three major areas of antitrust: cartels, abuse of dominant market position, and merger review. Specifically, it details how these forces have prevented China from pursuing a rigorous anti-cartel policy, how …

The Impact Of China's Antitrust Law And Other Competition Policies On U.S. Companies, Susan Beth Farmer

Faculty Scholarship

This article is based on the author's testimony for part of the hearings on “The Impact of China’s Antitrust Law and Other Competition Policies On U.S. Companies,” held by the House Committee on the Judiciary, Subcommittee on Courts and Competition Policy on July 13, 2010. It describes developments in the enforcement and application of the Chinese Anti-Monopoly Law, interpretation and enforcement during the two years since the AML came into effect, with particular attention to merger review. It comments on the organization and staffing of the enforcement agencies and the publication of numerous procedures, guidelines and regulations, which suggests that …

Limiting Anticompetitive Government Interventions That Benefit Special Interests, D. Daniel Sokol

UF Law Faculty Publications

When government regulates, it may either intentionally or unintentionally generate restraints that reduce competition ("public restraints"). Public restraints allow a business to cloak its action in government authority and to immunize it from antitrust regulation. Private businesses may misuse the government's grant of antitrust immunity to facilitate behavior that benefits businesses at consumers' expense. One way is by obtaining government grants of immunity from antitrust scrutiny. A recent series of Supreme Court decisions has made this situation worse by limiting the reach of antitrust law in favor of sector regulation. This is true even though the Supreme Court refers to …

The Future Of International Antitrust And Improving Antitrust Agency Capacity, D. Daniel Sokol

UF Law Faculty Publications

This Essay focuses on how both external—international institutions—and internal—agency capacity and technical assistance—dynamics shape the capacity of younger agencies to undertake antitrust in their jurisdictions. Both approaches play an important role in improving capacity. In the case of technical assistance, this Essay analyzes survey data from recipient agencies of antitrust technical assistance to determine the most effective means of improving antitrust agency capacity. Part I explains the type of capacity building that antitrust agencies undertake themselves. The rest of this Essay focuses upon international efforts that can assist agencies in capacity building. Part II describes the work that international antitrust …

Competition Law And The Institutional Embeddedness Of Economics, David J. Gerber

All Faculty Scholarship

Transnational debates about the role of economics in competition law have paid relatively little systematic attention to the embeddedness of economics in institutions. They typically proceed as if embeddedness were not an issue. The assumption often appears to be that economics looks, acts and functions in the same way wherever it is applied. This assumption is frequently the basis for claims supporting increased use of economics in competition law systems around the world.

This article examines that assumption and argues that the institutional embeddedness of economics needs to be taken into account when we wish to evaluate and analyze the …

The Distinctive Characteristics Of Section 337, 8 J. Marshall Rev. Intell. Prop. L. 231 (2009), Jay H. Reiziss

UIC Review of Intellectual Property Law

In an investigation by the International Trade Commission (“ITC” or “Commission”) under Section 337 of the Tariff Act of 1930 (“Section 337”) a complainant must satisfy two unique statutory criteria. First, a complainant must establish that the ITC has jurisdiction, usually by showing importation of an accused product. Second, a complainant must demonstrate that a domestic industry exists or is in the process of being established. A practitioner can be assured that the ITC’s jurisdiction is expansive and reaches foreign-based activities that affect U.S. commerce. Such actions can involve any unfair act and can be brought regardless of whether personal …

Post-Litigation Enforcement Of Remedial Orders Issued By The U.S. International Trade Commission In Section 337 Investigations, 8 J. Marshall Rev. Intell. Prop. L. 248 (2009), Merritt R. Blakeslee

UIC Review of Intellectual Property Law

There is a common misperception that enforcement of International Trade Commission (“ITC”) remedial orders is automatic and self implementing. In reality, such remedial orders are not self-implementing, are less-than-perfect enforcement tools, and their effective enforcement carries with it a number of practical difficulties. This paper explores the realities of enforcing the ITC’s remedial orders – exclusion orders, consent orders, and cease-and-desist orders – with the goal of giving both complainants and respondents a heightened appreciation of the tactics and strategies that can be effectively deployed following the conclusion of a Section 337 investigation and the issuance of one or more …

Gray Market Trademark Infringement Actions At The U.S. International Trade Commission: The Benefits Of The Forum And Analysis Of Relevant Cases, 8 J. Marshall Rev. Intell. Prop. L. 271 (2009), Joseph H. Heckendorn, Lyle B. Vander Schaaf

UIC Review of Intellectual Property Law

Trademark owners continue to enforce their trademarks against imports of gray market goods using Section 337 of the Tariff Act of 1930. In comparison to the federal court alternative, the International Trade Commission (“ITC”) offers a number of distinct advantages. In addition, ITC decisions in In re Certain Agricultural Vehicles and Components Thereof and In re Certain Hydraulic Excavators and Components Thereof have clarified what is required to enforce trademarks at the ITC. Trademark owners should heed the recent ITC decisions in deciding how to curb imports of infringing gray market goods.

Competition Policy And Comparative Corporate Governance Of State-Owned Enterprises, D. Daniel Sokol

UF Law Faculty Publications

The legal origins literature overlooks a key area of corporate governance—the governance of state-owned enterprises ("SOEs"). There are key theoretical differences between SOEs and publicly-traded corporations. In comparing the differences of both internal and external controls of SOEs, none of the existing legal origins allow for effective corporate governance monitoring. Because of the difficulties of undertaking a cross-country quantitative review of the governance of SOEs, this Article examines, through a series of case studies, SOE governance issues among postal providers. The examination of postal firms supports the larger theoretical claim about the weaknesses of SOE governance across legal origins. In …

Private Enforcement Against International Cartels In Latin America: A Us Perspective, Daniel A. Crane

Book Chapters

A recent empirical study estimates that from 1990 to the end of 2005, 283 private international cartels were discovered and that the overcharges from these cartels totaled $500 billion. Estimates of the percentage of all detected cartels range from one in six or seven to one in 10. If the one in 10 number is correct, that would mean that overcharges from international cartels in the last 15 years were $5 trillion, or about $330 billion per year. Even assuming that the detection rate is higher today due to the success of the US Justice Department's leniency program and stepped …

China's New Anti-Monopoly Law: A Perspective From The United States, Thomas R. Howell, Alan Wm. Wolff, Rachel Howe, Diane Oh

Washington International Law Journal

In August 2007, China enacted an Anti-Monopoly Law, becoming one of roughly ninety nations to establish a comprehensive regulatory regime governing competition. Since the advent of China’s economic reform program beginning three decades ago, China has been moving to integrate its economy within the global trading system. This article provides an overview of China’s Anti-Monopoly Law (“AML”) emphasizing key areas of significant apparent divergence from U.S. antitrust policy. The article addresses the evolution of anti-monopoly policy in China and the United States, observing that, where differences exist, China’s AML frequently reflects principles similar to those once embedded in U.S. antitrust …

The Evolution Of Chinese Merger Notification Guidelines: A Work In Progress Integrating Global Consensus And Domestic Imperatives, Susan Beth Farmer

Faculty Scholarship

China is among the most recent entrants into global competition enforcement, having adopted the first competition law of general application, the Anti-Monopoly Law (AML) after more than a decade of drafting. The AML and Merger Notification Thresholds, rules issued by decree of the State Council, became effective on August 3, 2008. Both the law and the guidelines were subject to public review and comment, and went through a number of drafts before final adoption.

This article is a comprehensive comparison of merger standards across jurisdictions, with particular focus on the evolution of merger regulation in China. It comprises six parts; …

Skating Toward Deregulation: Canadian Developments, Timothy J. Brennan

Federal Communications Law Journal

Canada had recently undertaken significant steps to forbear from regulating the last regulated offering in the telecommunications sector, local exchange service. Tests that Canada's telecommunications regulatory agency had imposed were overturned by order from the Canadian Cabinet Ministers. Notably, competitors to the incumbent local exchange carriers ("ILECs"), primary cable systems offering voice over Internet protocol ("VoW"') service, argued for the retention of regulation to prevent the ILECs from cutting price to customers who had switched to cable VoIP or were most likely to do so. We review here both the institutional developments leading to the forbearance decision and a number …

Economics, Law And Institutions: The Shaping Of Chinese Competition Law, David J. Gerber

All Faculty Scholarship

China has been considering enactment of an anti-monopoly (antitrust) law since 1993, and it has now enacted such a law. Given the potential importance of this legislation, there is much uncertainty about what the enactment means and what roles it is likely to play in influencing the development of the Chinese economy. This article applies a neo-institutionalist analysis in examining some of the factors that have influenced the shaping of the legislation and that are likely to influence the operation of competition law and its organizations. The main argument is that the central dynamic in both the creation of the …

Two Forms Of Modernization In European Competition Law (Symposium), David J. Gerber

All Faculty Scholarship

In European competition law, the term "modernization" has been a catchword and focus of attention since the late 1990s. Usually, the reference is to "procedural" or "institutional" modernization. The European Commission used the term "modernization" in referring to the important set of changes in the institutional structure and procedures of competition law that it introduced in 2004, and it has fundamentally changed important procedures for developing and applying competition law in Europe. During the same period in which this form of modernization was proceeding, another form of "modernization" was also taking shape that represents a fundamental reorientation of much of …

International Legal Practice Involving England And New York Following Adoption Of The United Kingdom Legal Services Act Of 2007, Sydney M. Iii Cone

Northwestern Journal of International Law & Business

This article deals with the regulation of legal services in England and New York in the context of, first, multidisciplinary practice ("MDP") and, second, permitted investment in legal practice. The article summarizes both the background of and potential differences between the regulations in those two jurisdictions, and comments on the possible reconciliation of those differences. Because, chronologically, New York was the first of the two jurisdictions under consideration to adopt rules on MDP, the New York rules will be considered first, and the more recent statute, known as the United Kingdom Legal Services Act 2007 (hereinafter "U.K. Act"), will then …

China's Competition Policy Reforms: The Anti-Monopoly Law And Beyond, Bruce M. Owen, Su Sun, Wentong Zheng

UF Law Faculty Publications

In August 2007, China adopted the Antimonopoly Law, its first comprehensive antitrust legislation, thirteen years after the drafting of the law began. Such a protracted legislative process is highly unusual in China, and can only be explained by the controversies the law presents. This paper discusses the fundamental issues in China’s economy that give rise to the challenges China faced in the drafting and adoption of the Antimonopoly Law. Those fundamental issues include the role of state-owned enterprises, perceived excessive competition, mergers and acquisitions by foreign companies, administrative monopolies, and the enforcement of the Antimonopoly Law. How China will enforce …

Cuban Claims: Embargoed Identities And The Cuban-American Oedipal Conflict (El Grito De La Yuma), Jose M. Gabilondo

Faculty Publications

No abstract provided.

Deal Or No Deal: Reinterpreting The Fcc's Foreign Ownership Rules For A Fair Game, Cindy J. Cho

Federal Communications Law Journal

With the changing racial and linguistic composition of the American market and the emerging strength of the Mexican market, American broadcast companies are facing a new competitive playing field.. Section 310 of the Communications Act of 1934 ("Act") establishes the guidelines for when a foreign national is eligible to apply for a broadcast license from the FCC. The FCC currently interprets these limits on foreign ownership very leniently, favoring a policy of deregulation in an attempt to further open up the United States market. This Note argues that once foreign nationals have cleared the hurdle of § 310's foreign ownership …

Monopolists Without Borders: The Institutional Challenge Of International Antitrust In A Global Gilded Age, D. Daniel Sokol

UF Law Faculty Publications

Antitrust has entered a gilded age of increased international cooperation and enforcement at levels never before seen. Yet, increased globalization creates challenges to combat international anticompetitive conduct. Part I introduces the Article. Part II provides a brief overview of the history of international antitrust. This overview departs from previous historical analyses as it focuses on participation within each of the international antitrust institutions to explain these historical limitations. Part III identifies and explores three case studies which are generally representative of international antitrust. These case studies have been chosen because the issues they address have been at the top of …

From Free Trade To Fair Trade: Reclaiming Special And Differential Treatment, Mahmoud Ahmed Sabry

Archived Theses and Dissertations

No abstract provided.

Private Enforcement Of Competition Law: A Comparative Perspective, David J. Gerber

All Faculty Scholarship

Private enforcement has long been a central part of US antitrust law experience, while it has played minor roles or none at all in European competition law systems. This contrast is fundamental to understanding differences between European and US competition law and to assessing the potential consequences of increasing the role of private enforcement of competition law in Europe. It is also central to decisions about competition law development in much of the world, because in this respect most competition law systems in the world resemble European competition laws rather than US antitrust law.

In this essay, I examine the …

Peru's Too Expensive - I'Ll Get My Cheese From Chile: The Agricultural Market Access Provisions Of The U.S.-Chile Fta And The U.S.-Peru Tpa, Guillermo Gabriel Zorogastua

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Richard Lillich Memorial Lecture: Nurturing A Transnational System Of Innovation, Jerome H. Reichman

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Outsourcing Drug Investigations To India: A Comment On U.S., Indian, And International Regulation Of Clinical Trials In Cross-Border Pharmaceutical Research, James Cekola

Northwestern Journal of International Law & Business

The traditional research and development model of large pharmaceutical companies is arguably unsustainable in current times. For example, estimated research and development costs increased as much as twelve percent over the last year while pharmaceutical sales grew only seven percent over the same period. Current estimates put the price to develop a new drug and bring it to market between $800 million and $1.5 billion per drug. These costs are increasing, driving large pharmaceutical companies to find more cost-effective research and development models. One cost-saving initiative is to globalize the system. In particular, companies have increasingly outsourced the required investigational …

Contagious Efficiency: The Growing Reliance On U.S.-Style Antitrust Settlements In Eu Law, George S. Georgiev

Articles

This Article analyzes the impact of the introduction of U.S.-style antitrust settlement procedures in EU law, which occurred in 2004 as part of an ambitious antitrust modernisation program. After documenting the lack of a settlement tradition in the EU legal system or the legal systems of EU member states, I argue that the new procedures were transplanted from U.S. law and that this was done without sufficient tailoring. Relying on lessons from the longstanding U.S. experience with antitrust settlements and on emerging evidence about the EU's own approach since 2004, I analyze the effects from the introduction of settlements at …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

The Death Of The Doha Round. What Next For Services Trade?, Rafael Leal-Arcas

ExpressO

With the indefinite suspension of the WTO multilateral trade negotiations in July 2006 by WTO Director-General Pascal Lamy, the world trading system must now find ways and means to unblock what is perceived as a danger to the world order. This article analyzes the legal and policy implications of the currently fatal Doha Round for the two main developed WTO Members, i.e., the U.S. and the EC, and the most relevant developing countries of the WTO. The specific focus of attention will be mainly on services trade. Thoughts on alternative ways to move forward in the multilateral trading system are …

China-Australia Free Trade Agreement New Icing On An Old Cake-An Opportunity For Fair Trade?, Benedict Sheehy, Jackson N. Maogoto

ExpressO

The on-going challenge in economic development and globalization, particularly for developing countries, is the issue of development and equality in society. The issue becomes particularly problematic when confronted in matters of international trade. Often misnamed anti-globalization activists and pro-globalization activists fail to take note of the underlying assumptions that lead them to conflict—namely, the actual costs and benefits to society that result from their particular positions. In essence, both activists are searching for ways to improve the lives of people in the domestic context and to minimize the damage to their society and environment. China’s impressive economic record is threatened …