Search

The Fair Trading Amendment Act 2021 introduced a New Zealand prohibition on "unconscionable conduct" in trade. Previously, the law on unconscionable conduct was found in the equitable doctrine of unconscionable bargain. This article describes how New Zealand law has moved away from equitable unconscionability with this new prohibition. This article critically analyses some of the legal, social and economic justifications for introducing the prohibition, finding that some of the Ministry of Business, Innovation and Employment's justifications are not persuasive. The s 7 prohibition is based strongly on an equivalent section in the Australian Competition and Consumer Act 2010 (Cth). It is argued that long-standing doctrinal issues with Australia's prohibition provided a strong basis for New Zealand to pursue a different standard. Finally, this article explores the "unfair commercial practices" doctrines in the United States and European Union through the lens of anticonsumer practices in digital marketplaces. The conclusion is that the unfair commercial practices doctrine captures a wider range of anti-consumer conduct than does unconscionable conduct. [ABSTRACT FROM AUTHOR]

An arrangement to fix, control or maintain prices is the classic competition law per se offence, and is deemed to substantially lessen competition under s 30 of the Commerce Act 1986. However, it is currently unclear when arrangements that do not explicitly concern price fall within the ambit of s 30. This article examines the recent Court of Appeal decision in Commerce Commission v Lodge Real Estate Ltd which found that the defendants were liable under the per se offence provisions.1 It contends that the Court of Appeal took the overseas case law out of context, misunderstood key factual findings made by the High Court at first instance and overlooked important legal and policy considerations. As a result it is argued that Lodge sets an unfortunate precedent that should be overruled or strictly confined to its own facts. [ABSTRACT FROM AUTHOR]

Courts have long held that the Federal Trade Commission1s authority to prohibit "unfair methods of competition" embraces not only the enforcement of the prohibitions of the Sherman and Clayton Acts, but also a "standalone" mandate to challenge practices that violate the spirit but not the letter of these laws. In a 2015 Statement, the Commission announced that it "is less likely to challenge an act or practice as an unfair method of competition on a standalone basis if enforcement of the Sherman Act or Clayton Act is sufficient to address the competitive harm arising from the act or practice." The meaning of the "sufficient to address" condition is not immediately obvious, and the statement1s critics have pointed to it as just one respect in which the statement is unhelpfully vague. Despite a recent surge in scholarship arguing that the Clayton and Sherman Acts as applied are insufficient to promote the original goals of antitrust law, scholars have not devoted extensive analysis to the interpretation of the third prong's language. This Note argues that the third prong reflects the Commission1s determination that the most appropriate use of standalone authority is to fill gaps in the "traditional" antitrust regime of the Sherman and Clayton Acts. The Note proceeds to propose a decision-making framework that the Commission could use to actuate that interpretation. Part II introduces the basic policies of the antitrust laws and the provisions of the Sherman, Clayton, and Federal Trade Commission Acts. Part III reviews the scope of the Commission1s standalone authority under Section 5 of the FTC Act. Part IV analyzes the third prong of the Commission1s 2015 Statement, and argues that it is best interpreted as favoring gap-filling uses of standalone authority relative to other applications. It then develops a framework to guide the Commission in identifying legitimate gaps in the antitrust regime, identifies circumstances in which standalone enforcement may be most appropriate outside of such gaps, and demonstrates how the Commission might apply the framework in weighing a standalone complaint against Google1s allegedly anticompetitive implementation of "Universal Search." [ABSTRACT FROM AUTHOR]

English competition law before 1900 developed over many centuries and reflected changes in political conditions, economic theories and social values. It mirrored the historical movements in England, from the medieval ideal of fair prices and just wages to 16th and 17th century nation-state mercantilism to the 18th and 19th century Industrial Revolution and notions of laissez faire capitalism and freedom of contract. English competition law at varying times articulated three fundamental principles: monopolies were disfavored; freedom to trade was emphasized; and fair or reasonable prices were sought. The Sherman Act truly was a watershed that significantly took a different path from English law as it had evolved. In England, legal challenges to monopolization were limited to the royal creation of monopolies and were concentrated in the 17th and early 18th centuries. A prominent element of English competition law—bans on forestalling—was repealed in the first half of the 19th century. Enforcement of English law against cartels was largely emasculated by the end of the 19th century with the ascendancy of freedom of contract and laissez faire political theory. [ABSTRACT FROM AUTHOR]

In light of the investigation by the Bundeskartellamt against Facebook for abuse of its dominant position in the collection and use of data, the current state of the art in Chile, pertaining to, exclusive and exploitative, anticompetitive risks derived from the use of data, is analyzed. [ABSTRACT FROM AUTHOR]

Lawmakers constantly balance competing interests. They decide where to draw lines so that societal goals are accomplished without ignoring the needs of those who will be affected by their choices. The Washington State Legislature is now in the process of addressing the line between government transparency and the protection of private companies' trade secrets. Companies who provide technology to the federal government are susceptible to losing their trade secrets through a public records request. The Washington State Legislature is currently reviewing the trade secret exception to the Public Records Act to ensure it is continuing to protect companies from losing their trade secrets. This Comment will both address the dangers companies face and evaluate the current proposals to change the law. [ABSTRACT FROM AUTHOR]

Oppression actions in Singapore have been the subject of empirical research in light of the possibility that the use of ‘commercial unfairness’ as the test for oppression in Singapore has favoured plaintiffs to the extent that businesses have been damaged by successful or even unsuccessful oppression suits. The findings, however, only prove that the complexity of oppression actions has increased. Consideration should still be given to whether some form of contractarianism ought to guide this area of law. [ABSTRACT FROM PUBLISHER]

discusses the background of the U.S. Defend Trade Secrets Act (DTSA), including an overview of actionable trade secrets claims in the U.S. Topics discussed include the evolution of trade secrets law; review of notable cases that led to the DTSA's inclusion of an unprecedented ex parte seizure provision in trade secrets law; and DTSA's ex parte seizure provision, including an in-depth comparison of ex parte seizures for other forms of intellectual property.

The article argues how mergers of business firms may violate the antitrust laws when they threaten to lessen competition in the U.S. Topics discussed include general welfare and consumer welfare standards; the burden shifting framework in which the government or private plaintiff challenging a merger must first establish a prima facie case of illegality; and merger litigation under the Merger Guidelines.

The article discusses the conflicts arising from the application of competition rules by arbitration tribunals, and examines the extent in which cooperation mechanisms designed for national courts could applied to arbitration tribunals in the European Union. It explores why better cooperation is important for effective arbitration awards and competition in the internal market.

Since its launch in 2007, Android has become the dominant mobile device operating system worldwide. In light of this commercial success and certain disputed business practices, Android has come under substantial attention from competition authorities. We present key aspects of Google’s strategy in mobile, focusing on Android-related practices that may have exclusionary effects. We then assess Google’s practices under competition law and, where appropriate, suggest remedies to right the violations we uncover. [ABSTRACT FROM AUTHOR]

The article examines Prior Substantiation Doctrine and the U.S. Federal Trade Commission (FTC) general enforcement powers. Topics discussed include ways in which FTC's Substantiation Doctrine restricts commercial speech that has no evidentiary basis; ways a party funding research can manipulate outcomes and hide unfavourable results; the power of FTC to enforce advertisement claim restrictions pursuant to the FTC Act; and FTC's Policy Statement Regarding Advertising Substantiation.

Recent developments result changes in the concept of accounting and cause economical and social inequalities among the accounting professionals. Like many other professions, accounting face several occupational problems, including unfair competition. Aim of the Study: Aim of the study is to determine the drivers of unfair competition, which occurs due to economical, sociological, legal etc. reasons between the accounting professionals that work in Isparta city center. The drivers of the unfair competition have been investigated in details by the experience of the accounting professionals. The projects, suggesting solutions to the problem have been also investigated and recent information and opinions have been obtained by conducting an empirical study. Method of the Study: The method of this research consists of literature research, determining the sample, defining the aim and hypothesis of the study, preparing the questionnaire, coding and arranging the data, running the statistical analyzes and discussing the results. The questionnaire has been distributed to total 152 accounting professionals in Isparta city center by carrying out a face-to-face survey. A total of 70 valid responses have been collected. The questionnaire consists of 31 questions in two sections about demographic details and the opinions regarding unfair competition. Findings and Results: It was found that payment and collection problems mainly cause the unfair competition among the accounting professionals while any other business that they also work increases its effects. Accounting professionals find the present legislation insufficient in terms of determining and solving the existing problems. It was understood that unfair competition negatively affects the prestige of the accounting professionals in the society and blocks their efforts to reach the level of prestige that they deserve. The overall finding of the research suggests that occupational unfair competition has been widely accepted. Furthermore, it was discovered that this problem causes economical and sociological damages to the accounting professionals. [ABSTRACT FROM AUTHOR]

The transposition of the Directive on unfair commercial practices through Law 29/2009, of December 30, has been also the amendment of the law relating to unfair competition and advertising, providing the opportunity to order an instrument improving legal protection of economic interests of consumers and users. The current unfair legal system provides a full array of actions in order to address the contestable behavior of entrepreneurs in their dealing with consumers. In addition to the civil action, the protection of the consumer in the Spanish legal system has other mechanisms of protection of an administrative nature, which consisted mainly of mediation and arbitration system consumption. While through the mediation agreement is reached that minimizes inter partes conflict, arbitration award binds the parties that have joined the system voluntarily. [ABSTRACT FROM AUTHOR]

The article discusses a case before the Oberlandesgericht (District Court of Appeals) in Bremen, Germany, decided on April 12, 2012, which involved the use of parts of the terms of service of a business in advertising in the context of electronic commerce. The author examines the relevant sections of German commercial law, including from the Gesetz gegen den unlauteren Wettbewerb (Unfair Business Practices Act, UWG) and from the Bürgerliches Gesetzbuch (Civil Code, BGB).

The article focuses on the economic and competition policies in Europe, highlighting the impact of merger control decisions in the industry. It describes competition as a self-organised, decentralised coordination process that coordinates suppliers and customers on markets through price signals that reflect changing scarcities. It notes that the impact of merger control decisions should be to protect and maintain competition by preventing the emergence of anti-competitive mergers. and stresses that merger control decisions should impose a low degree of interventionism into markets by preventing anti-competitive collaboration of enterprise ownership.

The article examines the concept of value in the free global economy. According to the author, fair trade is one proposal for reforming the market and upholding an improved quality of life for workers. The author adds that many economic observers support fair trade since it enables people to combine their values with their actions as consumer and fair trade networks attempt to shorten the social distance between consumers and producers. The author notes that despite the higher prices that the system generates, many consumers are in favor of fair trade.

Law 256 of 1996 contains a General Prohibition Clause in its article 7 in which Commercial Law principles and broad terms are used to describe the conducts that are prohibited by it. This clause has been extensively developed in the jurisprudence of the Superintendence of Industry and Trade. Given the broad nature of the norm, this paper takes a tour of this jurisprudence to clarify the nature and scope that Article 7 has as a general clause of prohibition and also to extract its rules of application and interpretation. [ABSTRACT FROM AUTHOR]

The article focuses on market definition as a generalizing model for antitrust determination. Topics include antitrust law in the U.S., unfair competition in economic modeling, and the promotion of specific brands through price. Information is provided on the organizational structure of markets and enforcement errors in antitrust law.

The author presents an argument against using market definition or market-oriented approaches to analyze the legality of business conduct under U.S. antitrust law. Topics include the anticompetitive-intent test, market-oriented analytic approaches, and quality-or-variety-increasing (QV) investments.

The article focuses on the failing condition of the firm defense under the antitrust regulation in the U.S. It outlines the purpose of the defense which applies the antitrust principles to protect companies from anti-competitive transactions. However, it advises the need for the Antitrust Regulator to implement a stronger Assets Exiting Defense to better protect companies from unfair competition rather than a distressed economy.

After almost four years since the entry into force of the so-called «leniency program» in Spanish antitrust law, the national competition authority has applied the new rules in several cases. This article summarizes theses cases and the chief legal issues raised. [ABSTRACT FROM AUTHOR]

The article focuses on the condition of the competition law enforcement system in Estonia. It states that the country's competition regulation is complicated due to its different types of procedures that are mostly dependent on the type of infringement in question. It examines how the government deals with competition infringement, which is considered as crimes and be dealt with in criminal proceedings. It also mentions the different rules of procedure and possible sanctions of the competition violation depending on the type of procedure. An overview of the main features of the procedure in handling antitrust infringement is provided.

The article focuses on the government agencies responsible for overseeing antirust regulations in Denmark. It highlights the respective roles played by the country's Competition and Consumer Authority (CCA), Competition Council (CC), and Competition Appeals Tribunal (CAT) to ensure the proper enforcement of the competition law. It also mentions the coordination of the agencies in handling complaint and infringement. It details the procedure of the hearing of the associated violations of the regulation, which will be handled by the CC, and outlines its corresponding sanctions.

The article focuses updates on the competition law in Belgium. It notes the order of the Minister of Economic Affairs (MEA) for the College of Auditors (CA) to conduct an investigation into potential competition law infringement. The CA's investigation was powered by the Belgian Competition Act to set enforcement priorities whether or not to pursue a particular complaint. It mentions that the investigation was carried out by the Directorate-General for Competition under the authority of the CA. An overview of the investigation report is provided.

The article focuses on the effort of the ordoliberals to explore the ideas of the competition law in Germany. It examines the impact of the private economic power during the Weimar period, which destroyed the political and social institutions in the country. It notes how the Weimar experience motivated the ordoliberals to demand the reduction of political and economic power by expanding liberalism to protect individuals from the power of the government. It also mentions the courage of the ordoliberals to advocate for competition law and economic policies to ensure fair competition.

The article focuses on the modernization of interpretation and application of the European Union's (EU) competition regulations by the European Commission (EC) in Europe. It notes the review of the Article 101 of the Treaty on the Functioning of European Union (TFEU) as well as its approach to abusive exclusionary conduct by dominant undertakings under Article 102. It examines the steps undertaken by the organization to improve the regulation, as well as its initial formalistic approach in determining why the reform was necessary. An overview of the background and provisions of the Article 101 is provided.

The article focuses on the important role played by the Office for the Protection of Economic Competition (OPEC) in Czech Republic. It states that OPEC is responsible for the public enforcement of competition law and it prosecutes criminal offences related to antitrust infringement. The Office carries out a whole investigation as well as decision-making process related to the regulation, and it conducts oral hearings pursuant to the Administrative Procedure Code (APC) to exercise the rights of the participants. However, OPEC's decision concerning competition infringement shall also be subject to judicial review before administrative courts.

The article discusses the concept of open standards in the context of public policy and competition law perspectives in Europe. It cites the development of two interrelated policies by the European Commission (EC) such as the modernization of the European Union's (EU) International and Communication Technologies (ICT) as well as the upgrade of the guidance on the application of competition law to standards setting. It mentions the EC's requirement to use open standards concept in the regulations to ensure openness and transparency once they will be implemented.

The article focuses on the development of the European Competition Network (ECN) by the European Commission (EC) and the member states of the European Union. It states that the system aims to provide quality control and information exchange between the competition authorities to ensure proper coordination in the enforcement of competition policy across EU. It also mentions the provisions of the EC's Merger Regulation and examines the outcome of the decentralized merger control. It analyses the two stands of the merger control such as those predicts that a merger will be brought before a competition authority and those that will receive more strict antirust scrutiny.

The article discusses the development of the U.S. antitrust law. It highlights the law's failure to incorporate definitional clarity in the jurisprudence it has created and explains the positive repercussions of that shortcoming. It explores how the courts assess practices that result in offsetting intertemporal effects, and should the courts treat conduct that unquestionably gives rise to enhance prices.

The Spanish Unfair Competition Act 1991 has been significantly modified as a consequence of the implementation of the EU Directive 2005/29/EC through the Spanish Act No. 29/2009. One of the most noticeable new provisions is Article 8, whereby the regulation of aggressive commercial practices as an unfair competition practice is set forth. Specifically, the said provision provides that behaviours which use harassment, coercion and undue influence are unfair competition practices if they significantly impair or are likely to significantly impair the addresses' freedom of choice or conduct and therefore affect their economic behaviour. [ABSTRACT FROM AUTHOR]

Legal scholars have argued for years that trade secrets are the oldest set of intellectual property rights. However, formal protection for trade secrets only came to be after 1810 with the issuance of the Napoleonic Penal Code. This article argues that ancient civilizations, Roman law and medieval guilds did not perceive trade secrets as intangible property, but rather as a confidentiality obligation, and that, currently, the concept of trade secrets has not changed: its protection does not depend on the exercise of a right of property, but rather of an unfair act or the breach of a contract by a third party. [ABSTRACT FROM AUTHOR]

El artículo analiza diversos decretos y sentencias en el área de Derecho de la Competencia emitidos en la Unión Europea entre diciembre de 2009 y abril de 2010. Entre las regulaciones discutidas se encuentran la adopción de un nuevo marco legal sobre acuerdos verticales y exención por categorías, así como decisiones relacionadas con la compraventa de empresas por corporaciones, en las cuales existía la posibilidad de monopolio.

Circular priority problems are endemic in secured transaction law. A circular priority situation arises when there are three or more parties with competing claims to the same asset and there is no clear ranking of priority among them. There are multiple approaches applied by courts or advanced by commentators to resolve circular priority problems. The different mechanisms used by the courts to resolve a circular priority problem are evaluated using criteria that reflect the general values and goals of commercial law, and the mechanism that best accords with this criteria is identified. Although consensus on the best way of breaking a circularity will reduce litigation costs, it does not provide a complete solution, as it can be undermined by ex post bargaining among creditors. Given this instability, priority rules should be designed so as to limit the occasions when such problems can arise. [ABSTRACT FROM AUTHOR]

The new Antitrust Law in Colombia introduced a new regime related to the penalties and fines that shall be imposed to Restrictive Trade Practices, by increasing 50 times more the fines ceiling compared to the Decree 2159 de 1992. The new law also supplemented the discretional faculty of the Superintendent of Industry and Commerce to decide over the termination of investigations related to Restrictive Practices in those cases when the companies under investigation provide enough guaranties to assure the suspension or modification of the actions. The purpose of this article is to study how the changes in the ceiling of fines are capable of preventing conspiracy, predatory prices and abuse of market power that restrains free competition, compared to the insufficient improvements in the guaranties regime, which needs a deeper and broader development of the conditions and parameters for its acceptance to cease being a formula for avoiding penalties and to bring equal benefits to the antitrust agency and the community. This article studies the effect of the penalties and the guaranties as modified by the new Antitrust Law. [ABSTRACT FROM AUTHOR]

This article categorises the emerging conceptualisations of Fair Trade and explores which of them offers the best characterisation of the project. It introduces Fair Trade and establishes a set of desiderata to guide the process of conceptualisation. It is argued that the practices and rhetoric of the project suggest it is best characterised as an attempt to establish a form of interim global market justice in a non-ideal world. Three alternative conceptualisations are explored, some including sub-categories. In each section a description of the view is outlined and it is argued that each such alternative is either an unpersuasive account of Fair Trade or cannot better the one already defended. In the final section the normative debate surrounding Fair Trade conceptualised as an attempt to establish interim global market justice in a non-ideal world is introduced. The article suggests that there are avenues for the project's ethical defence but concludes that this can be settled only with further research. [ABSTRACT FROM AUTHOR]

The article provides an overview on the Economic Espionage Act (EEA) of 1992 in the U.S. It states that the law was specifically created to provide a case study of how intellectual property (IP) law is used to police real world boundaries. It also indicates that the EEA makes the theft of trade secrets either across international borders or domestically a federal crime.

In this article I will address the question of whether substantive statutory convergence, by which is meant that national statutory law holds norms that are substantively the same as European law norms, is followed by spontaneous procedural convergence. This question will be addressed in focusing on Dutch competition law, which is substantively the same as EC competition law. This means that at the statutory level there is substantive convergence, but not necessarily statutory procedural convergence. Following a general assumption that procedural law is shaped by substantive law, the expectation may be that the statutory substantive convergence in Dutch competition law will give rise to procedural convergence at the level of the courts. Though this article focuses on the influence of European procedural law on national Dutch court proceedings, its findings have a wider relevance, because of the implications these findings may have on the thesis of a general developing procedural ius commune. [ABSTRACT FROM AUTHOR]

In this article the author discusses the advantages of soft law, which generally refers to general to instrument of normative nature with no legally binding force and which are applicable only through voluntary acceptance. He points out the four challenges to harmonization that may be lessened by soft law including the mandate, the different legal traditions, and the advantages of soft law instruments. An overview of the cautionary concerns of soft law instruments is offered.

The article discusses the role of Article 6(3) of Rome II in the forging of a Community system of private enforcement of antitrust law and the implications of the rule enshrined in Article 6(3) of Rome II for party autonomy in Europe. It states that the Article 6(3) of the Rome II Regulation will reduce the range of divergence in national solutions by harmonising conflict of laws. Moreover, Article 6(3) foresees the concurrent and distributive application of all relevant national laws. Furthermore, the escape clause of public policy enshrined in the Rome II Regulation must be given with proper attention.

The article discusses the relevance between consumer and antitrust law in Europe. Authors highlight the positive and negative effects of commercial law in businesses and in the economy. It overviews the implementation of antitrust and commercial law as primary tools of determining consumer failures and explores how behavioral economics may facilitate identifying consumer failures and create efficient remedies for consumer protection. Lastly, it also examine the role of behavioral economics (BE) plays in controlling consumer failures within antitrust and consumer law.

Copyright law's principal justification today is the economic theory of creator incentives. Central to this theory is the recognition that while copyright's exclusive rights framework provides creators with an economic incentive to create, it also entails large social costs, and that creators therefore need to be given just enough incentive to create in order to balance the system's benefits against its costs. Yet, none of copyright's current doctrines enable courts to circumscribe a creator's entitlement by reference to limitations inherent in the very idea of incentives. While the common law too relies on providing actors with incentives to behave in certain ways, it recognizes that its incentive structure has outer limits and that failing to calibrate an entitlement or liability with these limits in mind is likely to prove inefficient. The principal mechanism that it employs to this end is the concept of foreseeability. Premised on the idea that individuals do not ordinarily consider consequences that are temporally or causally far removed from their actions, foreseeability allows courts to balance a regime's ex ante incentive effects against its ex post costs when determining liability. This Article argues that if copyright law is to remain true to its theory of incentives, and thereby the need to balance monopoly control with the social costs that are central to the theory, it needs to internalize the idea that creators, like actors elsewhere, are incapable of fully anticipating all future contingencies associated with their actions, which in turn limits the effectiveness of incentives. To this end, this Article proposes a test of "foreseeable copying" to limit copyright's grant of exclusivity to situations where a copier's use was reasonably foreseeable at the time of creation - the point when the incentive is meant to operate. Adopting a test of foreseeability is thus likely to better align copyright law with its underlying purpose and provide courts with a mechanism by which to give effect to copyright's theory of incentives in individual cases - thereby according the theory more than just rhetorical significance. [ABSTRACT FROM AUTHOR]

The article asses the anti-cartel enforcement policy of the European Commission in consideration with the theories developed in the context of penal theory underpin Commission anti-cartel enforcement in Europe. It states that the use of pick-and-mix approach as a punishment rationales is unhelpful, thus desert approach must serve as the primary rationale in cartel cases. Moreover, the rehabilitation approach will constitute as an alternative secondary rationale, if the deterrence approach is seen to have failed.

The article offers information on how economic analysis and enforcement experience support the idea that cartel activity must be viewed as a serious crime and must be punished with serious sanctions on business enterprises and individuals in Europe. It states that banning cartel activity is a cornerstone of competition law since it is the antithesis of unrestrained interaction of competitive forces. Moreover, deterring cartel activity requires substantial fines levied on the business enterprise and prison sentences for culpable executives.

Until the year 2000, there was no specific statute enacted in Jordan that regulates unfair competition. In the year 2000, the Jordanian Unfair Competition Law No. 15 of 2000 was enacted. The Law deals with the issue of unfair competition in a very generic way. In addition to the Jordanian Unfair Competition Law, the principal statutory source of protection is implemented through the general rules and principles of civil law, particularly, tort law and injurious acts. Although the Jordanian Unfair Competition Law purports to implement a general legal regime on unfair competition, it includes very little in terms of substantive or procedural protection of unfair competition. Presently, the Jordanian legal system provides only very limited protection which is not adequate to accommodate unfair competition cases. Therefore, statutory changes are needed. [ABSTRACT FROM AUTHOR]

This article offers the author's views on the implementation of the Antimonopoly Law (AML) by the People's Republic of China in 2008. He states that the AML is based on antitrust law from foreign countries and gives only little significance in developing consumer welfare to favor protectionism and populism and efficient competition. He cites that political interests will always prevail in market competition despite the implementation of developed antitrust laws. He believes that there will be difficulties in determining whether the country has reached its goals in enforcing the AML.