Antitrust and Trade Regulation 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.

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.

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.

Navigating Name, Image, And Likeness Policy In College Athletics – Issues And Solutions, Daniel Erber

Brooklyn Journal of Corporate, Financial & Commercial Law

College athletics, specifically the NCAA, has faced legal challenges throughout its history. In the wake of Alston and other Supreme Court decisions regarding antitrust violations tied to student-athlete benefits, many states proposed and passed laws explicitly allowing student-athletes at NCAA institutions to utilize their names, images, and likenesses for commercial purposes. With the state laws in direct conflict with NCAA rules, college sports entered an era of extreme uncertainty. While the NCAA attempts to maintain its grip on the commercial endeavors of student-athletes and member institutions, states and society are pushing a free market agenda geared towards liberalizing the economic …

Minor League With A Major Issue: How Baseball's Federal Antitrust Exemption Has Devastated Minor League Baseball, Hallie Arena

West Virginia Law Review Online

In 1922, the United States Supreme Court exempted Major League Baseball (“MLB”) from the Sherman Antitrust Act in the landmark decision Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs. Despite growing criticism from the players, fans, and the courts, this exemption holds true today. Although MLB players have slowly been given greater contracting rights, minor league players have been left behind in this fight. MLB’s antitrust exemption negatively affects MiLB and allows league owners to exploit players for little salary, often forcing them to live at or below the poverty line. Poor living conditions, coupled …

Antitrust For Dominant Digital Platforms: An Alternative To The Monopoly Power Standard To Restore Competition, Jordan Ramsey

Senior Honors Theses

Antitrust law is meant to promote competition by prohibiting anticompetitive business practices such as mergers and acquisitions as well as exclusionary conduct. Judicial interpretation of antitrust law has allowed dominant digital platforms to undertake anticompetitive actions without prosecution. The Sherman Antitrust Act should be amended to remove the monopoly power standard that allows firms to engage in anticompetitive conduct as long as the conduct does not create or uphold monopoly power. The amendment would make anticompetitive conduct illegal regardless of monopoly power, as long as six proof requirements are met. This would result in lessened market concentration, which would benefit …

Gamestopped: How Robinhood’S Gamestop Trading Halt Reveals The Complexities Of Retail Investor Protection, Neal Newman

Faculty Scholarship

Should brokers have the unfettered right to restrict investor trading? GameStop, a brick-and-mortar video game retailer, had been experiencing declining revenues since 2016. However, GameStop saw its share price climb almost 1000 percent in the span of a one- week period from January 21, 2021 to January 27, 2021 due to retail investors buying significant amounts of GameStop shares during that period. Melvin Capital, a hedge fund, ended up losing billions as they were betting that GameStop shares would lose value instead of increase—a practice referred to as short selling. On January 28, 2021, brokers inexplicably halted trading on GameStop …

Monopolizing Digital Commerce, Herbert Hovenkamp

William & Mary Law Review

Section 2 of the Sherman Act condemns firms who “monopolize,” “attempt to monopolize,” or “combine or conspire” to monopolize—all without explanation. Section 2 is the antitrust law’s only provision that reaches entirely unilateral conduct, although it has often been used to reach collaborative conduct as well. In general, § 2 requires greater amounts of individually held market power than do the other antitrust statutes, but it is less categorical about conduct. With one exception, however, the statute reads so broadly that criticisms of the nature that it is outdated cannot be based on faithful readings of the text.

The one …

Gotta Get Those Ill-Gotten Gains: Improving The Ftc's Authority To Seek Disgorgement In Antitrust Cases, Kathryn Buggs

Michigan Law Review

Disgorgement is an equitable monetary remedy that requires a defendant to give up all ill-gotten gains from their illegal conduct. Unlike damages, which can be compensatory, deterrent, or even punitive in nature, disgorgement focuses primarily on deterring future illegal conduct. It relies on the simple moral premise that wrongdoers should not be allowed to retain the profits of their wrongdoing. Especially in antitrust litigation involving complex, multilayered supply chains, damages can underestimate the true harm suffered as a result of anticompetitive conduct. Disgorgement, if calculated properly and litigated thoughtfully, has the potential to provide redress for the full amount of …

Comments On Federal Trade Commission Non-Compete Ban Proposed Rule, Matter No. P201200, Chaz D. Brooks

Scholarly Articles in Law Reviews & Journals

Within signed law professors and law students submitted this letter to the Federal Trade Commission, writing in their individual capacities, not as agents of their affiliated institutions, in support of the Federal Trade Commission’s proposed rule to ban most non-compete clauses (the “Proposal”) as an unfair method of competition.

This letter offers comments in response to areas where the FTC has requested public comment. To make our views clear, this letter contains the following sections: I. Summary of the Proposal; II. The Commission Should Consider Expanding Its Definition of Non-Compete Clauses to Prevent Employers from Requiring Workers to Quit Before …

The Power Of The Purse: Instigating Social Change Through Strategic Municipal Bond Investments, Jenna Reifler

University of Miami Business Law Review

Municipal bonds are generally understood as mutually beneficial for both issuer and holder—they allow cities to secure capital for local improvements and investors to earn reliable and tax-exempt profits. It turns out, however, that the lack of disclosure for issuing general obligation bonds presents the perfect camouflage for cities to secure funding despite their local social responsibility inadequacies.

Cities quietly shell out millions of dollars in settlements to the victims of police-misconduct. Largely unreported and untracked, many municipalities fund such settlements through general obligation bonds, which are colloquially termed police brutality bonds. As a result, and often unbeknownst to the …

Taking Care Of Business: An Empirical Examination Of The Top S&P 500 Companies And Their Role As Public Health Regulators During The Covid-19 Pandemic, Megan M. O’Malley

University of Miami Business Law Review

Data from the top 15 constituents by weight on the S&P 500 is assembled to identify trends among the policies these companies implemented in the United States during the COVID-19 pandemic. Some policies were fairly consistent across the board, especially in regard to remote work opportunities and health and safety measures for essential and/or in-person employees. Other policies, including vaccination requirements and vaccine incentives, varied across and within industries. Some companies that were examined went beyond the relevant federal, state, or local requirements in effect at the time, while other companies pushed back against public health guidance.

Overseas Primary Listing: U.S. Stock Markets As A Global Hub For Ipos?, Carlos Ragazzo, Rafael Costa

University of Miami Business Law Review

Between 2007 and 2021, several South American companies carried out IPOs outside their home countries, with the subsequent overseas primary listing of their shares on U.S. stock exchanges. The acceleration of this trend from January 2018 (with the IPO of PagSeguro Digital Ltd. on the New York Stock Exchange—NYSE) is not explained solely by the possibility of adopting dual-class shares structure for companies listed on U.S. stock exchanges. In this sense, factors such as: (1) biases and subjectivities in the decision-making process; (2) cultural proximity and history of successful precedents; (3) better valuation in comparison with local markets; and (4) …

Res Grant – An Attempt To Evaluate A New Support Instrument In The Development Of Renewable Energy Sources In Poland, Mariusz Szyrski

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

As of the end of 2022, a new support instrument called an “OZE Grant”, that is, a “RES Grant” has been legally introduced in Poland. Among other things, the relevant legislation is intended to implement the objectives of the programme entitled “Replacement of heat sources and improvement of energy efficiency in residential buildings”, insofar as this measure applies to multi-family residential buildings, as well as the programme “Investments in energy-efficient housing for low- and middle-income households”. The main purpose of this study is to analyze the new legal solution meant to serve other owners (?) and managers of multifamily buildings …

Green Bonds As Debt Securities To Finance Investments In The Age Of Energy Transition, Aleksandra Pęksyk

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

The purpose of this article is to discuss the origins and legal status of Green Bonds, as well as to identify barriers and prospects for the development of this type of securities in Poland. The analysis is based on Polish and EU legal regulations as well as EU legislative plans regarding the standard of European Green Bonds, and also with regard to the existing policies in the field of the ongoing energy transition.

Izabela Filipiak, Władysław Mielczarski, Energy In The Period Of Transition, Wydawnictwo Naukowe Pwn, Warsaw 2023, Marcin Kraśniewski

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

No abstract provided.

Impact Of Climate Risk On Long-Term Core Activity Management In The Power Sector, Dariusz Michalski, Paweł Hawranek

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

The global economy faces the challenges of climate change that generates the climate risk, which essentially affects the operational activity of power companies. The power sector is both, one of the most important greenhouse gases emitters, and an industry especially exposed to widely perceived climate risk. Changes in the natural environment cause negative impacts on the energy infrastructure (physical risk), while regulatory changes and society sentiments (transition risk) reshape the conditions of operational profitability of power companies. These phenomena, currently accelerating changes in the global economy, persuaded the authors to undertake a study on necessary changes in the core activities …