bluuebunny/crossref_metadata_2025 huggingface dataset:
The Front Polisario Verdict and the Gap Between the EUs Trade Treatment of Western Sahara and Its Treatment of the Occupied Palestinian Territories
Authors: Harpaz Guy
Published: April 2022

Morocco’s control over Western Sahara and Israel’s control of the West Bank bear similar features in terms of public international law. Yet, when it comes to the application of its Common Commercial Policy, the EU has been treating the two cases differently. With respect to Israel, the EU determined that the 1995 EU-Israel Association Agreement is not applicable to the West Bank and Gaza Strip, thereby denying Israel any trade benefits with respect to the Territories, whereas for many years it insisted that its 1996 Association Agreement with Morocco is applicable to occupied Western Sahara, thereby enabling Morocco and Moroccan corporations to enjoy trade benefits with respect to Western Sahara. The willingness of the EU to pursue its CCP vis-à-vis Morocco and Western Sahara (de facto application with no de jure recognition) in a manner inconsistent with, if not contradictory to its practice towards Israel and the West Bank and Gaza Strip (no application and no recognition), raised much criticism. In December 2016 the European Court of Justice adopted a verdict that rejects the applicability of the EU-Morocco Association Agreement to Western Sahara (The Front Polisario Verdict). This article aims to (1) analyse the gap between the EU’s trade policy and practice in these two cases and the legal and other implications thereof, and (2) address the question whether the verdict in Front Polisario eliminates this gap. Within this context, the article analyses the interface between the CCP and international law. In tackling these themes, the article will contribute, more broadly, to scholarship dealing with the interface between public international law (including issues of statehood, occupation and self-determination) and international trade, with specific reference to the applicability of international trade agreements to disputed and occupied territories.
A Commentary on US National Security Import Restraints: The Situation with Crude Oil
Authors: Zedalis Rex J.
Published: April 2022

The US has recently shown an increased willingness to raise ‘national security’ to restrain imports. Given past reliance on that principle to affect foreign crude oil imports, another decline in the world market price of crude, like that experienced in the aftermath of the recent financial collapse, could lead to ‘national security’ being again invoked to provide protection to US domestic crude oil producers. As the US currently has no GATT article II tariff ‘binding’ on crude oil imports, it has great latitude with respect to using ordinary customs duties to restrain imports. However, any claim that GATT Article XXI(b)’s ‘national security’ exception permits an entirely ‘self-judging’ basis for restraints on crude oil (or even non-energy products) would seem troublesome for at least four reasons. Each reason is explored with relevant reference to Article XXI(b)’s text, context, negotiating history, and GATT/WTO decisional and administrative processes. Irrespective of the use of such standard tools of interpretation, interpretive exercises necessarily yield a product coloured by one’s perspective. Currently, there seems reason to believe the Trump Administration views unilateralism as preferable to reliance on multilateral processes and institutions and, thus, may argue Article XXI(b) requires total deference when ‘national security’ is invoked.
The Life and Death of a Non-Recurring Subsidy: the Role of Change in Ownership of Subsidy Recipient
Authors: Rovnov Yury
Published: April 2022

This article is yet another attempt to tackle the issue of subsidy extinguishment, the enduring conundrum of WTO law. Early dispute settlement reports that addressed the matter concluded that privatization of a subsidy recipient at arm’s length and for fair market value terminates a benefit conferred by a subsidy, but were vague on why and how this specifically happens. Academic commentators criticized this outcome as economically irrational, since privatization does not result in a withdrawal of subsidized assets from the subsidy recipient and thus does not, per se, remedy the market distortion created by the subsidy in the first place. This article argues that privatization – or, in fact, any sale of a subsidy recipient – may extinguish a government subsidy if the buyer converts it into a private investment by paying for the subsidized asset the full amount of the government’s financial contribution less depreciation. However, effecting the transaction at arm’s length and for fair market value is not a sufficient condition for this to happen.
Piercing the Veil of Foreign Legal Services in China
Authors: Gopalan Sandeep , Tao Christina Siyu
Published: April 2022

China has revised and enacted measures to implement its legal services commitments; however, these measures have also led to the World Trade Organization (WTO) compliance concerns from other WTO members. Meanwhile, local decrees have been promulgated to allow deeper collaborations between local and foreign firms than China’s commitments to the General Agreement on Trade in Services (GATS). This situation is confusing understandings of foreign legal services in China. To pierce the veil and determine what is occurring, this article assesses whether China’s domestic measures are consistent with its WTO obligations, analyses the factors causing trade limitations, and envisages a mechanism to further the liberalization of foreign legal services. Moreover, this article provides a comprehensive understanding of foreign legal services in China.
Regulating the State Capitalism: Is There an Optimal Regulatory Model for Sovereign Wealth Fund Investment?
Authors: Yin Wei
Published: April 2022

The sovereign wealth funds (SWFs), as the rise of ‘state capitalism’, are shaping the current political arena and global economic order. Questions have been raised with regard to the motivation of these funds and the plausible regulatory responses to this phenomenon. After a brief review of SWF investment in global markets and the literature review on the controversy surrounding SWFs, this article will examine critical points that need to be considered when regulating SWFs. It argues that legal measure should tackle specific issues but not discriminate the nature of state ownership. By considering subjective and objective elements, three general regulatory models and further suggestions for international regulation of SWFs are proposed and examined. The political economy dimension of SWFs may easily mislead the direction of the necessary legal response. Policymakers have to navigate between attracting foreign capital and protecting the legitimate national security. The article suggests that the rights and obligations of SWFs should be guaranteed and balanced. It finds that unilateral actions vary from jurisdiction to jurisdiction and there is no one-size-fits-all approach for every country while there could be a plausible approach via international regulation, i.e. incorporating soft law rules into hard law investment treaties.

Sovereign wealth funds, state capitalism, national security, state ownership, market access, international investment treaty, corporate governance, soft law
Trade Mark Restrictions under the TRIPS Agreement: The WTO Panel Findings on Australia’s Tobacco Plain Packaging Legislation
Authors: Upreti Pratyush Nath
Published: April 2022

On 28 June 2018, the World Trade Organization (WTO) circulated the Panel Reports of the highly awaited Australia-Tobacco Plain Packaging disputes, adopted by the Dispute Settlement Body (DSB) on 27 August 2018. The decision was highly anticipated and significant in two aspects. First, it reaffirmed that the right to use a trademark is not a positive right; and tobacco plain packaging law does not come in conflict with relevant provision of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Second, it was perhaps the last opportunity for giant tobacco companies to set aside the law related to tobacco plain packaging. This article aims to analyze trade mark issues related to the Panel Reports on Australia’s tobacco plain packaging. The first section will provide a general background and briefly summarize the main findings of the Panel Reports. The second section will analyze the main arguments of parties and the Panel findings on the trade mark issues. Finally, the last section presents the most significant lessons and questions which require further attention.
Litigating, Arbitrating and Mediating Japan–Korea Trade and Investment Tensions
Authors: Claxton James M.
Published: April 2022

In July 2019, Japan introduced measures tightening export restrictions to South Korea on three chemicals critical to the manufacture of consumer electronics. The restrictions prompted an animated response by the Korean government that has included WTO consultations and threats to terminate an intelligence-sharing agreement with Japan. Meanwhile, the controversy has filtered down to the public with boycotts of Japanese products in Korea. Tension between the states has been unusually high since late 2018 when the Korean Supreme Court affirmed a judgment against Japanese companies accused of forcing Korean nationals to labour for them during Japan’s colonial rule. Japan argues that such claims are precluded by a 1965 treaty normalizing post-war relations. While Japan states that its trade restrictions were not motivated by the judgment, the disputes have together contributed to the worst breakdown in cross-border relations in five decades. This article evaluates Korea’s trade claims against Japan, means of resolving them, and the challenges that the claims face in the WTO dispute settlement system. The article also considers claims from the Japanese side through the International Court of Justice (ICJ), inter-state arbitration, and investor-state dispute settlement. We conclude that formal mediation offers an effective means to facilitate negotiations and centralize the WTO and other treaty disputes in a single forum involving multiple stakeholders.

WTO, Japan, Korea, ISDS, mediation, arbitration, export, international trade law, investment treaties
National Security Exception in the General Agreement on Tariffs and Trade (GATT) and India–Pakistan Trade
Authors: Ranjan Prabhash
Published: April 2022

India and Pakistan, two nuclear-armed South Asian neighbours who have shared a turbulent relationship for last seventy years, recently came close to almost fighting a war with each other. The recent terror attack in Pulwama in Kashmir by a terror group based in Pakistan, led India to revoke Pakistan’s most favoured nation (MFN) status under the World Trade Organization (WTO) by imposing 200%tariff rates on all Pakistani imports. This decision was followed by a limited military confrontation between the two countries. Such unilateral increase in the customs tariff rates violate India’s MFN obligation towards Pakistan. This article discusses whether India can justify this measure under Article XXI of GATT – the national security exception. The paper, in light of the scholarly commentary and the recent WTO Panel’s decision in the Russia – Transit case, discusses the key concepts of Article XXI and applies them to the India–Pakistan situation. The paper finds that while a situation of international emergency did exist between the two countries, the Indian measure cannot be justified under Article XXI of GATT.

India, Pakistan, National Security, Article XXI, GATT
Judicial Conflicts between Panels and the Appellate Body in the WTO Safeguard Jurisprudence
Authors: Ahn Dukgeun , Kim Hyerim
Published: April 2022

Interestingly, there occur huge discrepancies in understanding and interpretation of the safeguard system between the World Trade Organization (WTO) panels and the Appellate Body (AB), even in its core concepts ranging from pre-conditions such as unforeseen developments to import increases, causation, types of injury, and permissible extent of the measure. These phenomena, which originate from the different approaches – contextual or literal – have contributed to the current debacles in the WTO dispute settlement system as well as egregious misuse of safeguard measures by WTO members. Future endeavours to reform the WTO system should therefore pay more attention to the safeguard system, especially where it causes unsettling jurisprudence.
Towards a New Treaty on Digital Trade
Authors: Burri Mira
Published: April 2022

Digital trade is one of the very few areas of trade law, where one can observe a willingness shared by the international community to move forward and actively engage in new rule-making. The article contextualizes and explores this development by looking at the relevant e-commerce provisions in preferential agreements, in particularly by highlighting the legal innovation in the most advanced templates of the Comprehensive and Progressive Agreement for Transpacific Partnership (CPTPP) and the United States Mexico Canada Agreement (USMCA), as well as in dedicated digital trade agreements, such as the ones between the United States and Japan and between Chile, New Zealand and Singapore. The article then looks at the WTO negotiations and tries to identify points of convergence and divergence reflected in the latest negotiation proposals tabled by WTO members. It is the article’s objective to test these proposals, as to their potential to permit the adoption of a new treaty on digital trade and to their ability to adequately address the practical reality of the data-driven economy.

digital trade, electronic commerce, World Trade Organization, preferential trade agreements, data and data flows, CPTPP, USMCA, DEPA
Electronic Government Procurement in the EU-Vietnam Free Trade Agreement: An Opportunity for Increased Transparency and Accountability?
Authors: Kerr William A. , Khorana Sangeeta
Published: April 2022

The use of electronic government procurement systems has grown in recent years. Policy makers are increasingly employing e-government procurement tools to generate competition, increase transparency, streamline procuring processes and cut red tape to improve governance. This article examines the rationale for e-government procurement provisions in bilateral trade agreements and highlights the benefits from using electronic systems. Using the case of the EU-Vietnam trade agreement we elaborate on how electronic government procurement can be a mechanism to enhance transparency and accountability, and reduce opportunities for corruption in Vietnam.

e-procurement, transparency, free trade agreements
One Step Forward and Two Steps Back? Evolution of Bilateral Safeguard Provisions in Preferential Trade Agreements
Authors: Xu Jia
Published: April 2022

There is an emergence of including bilateral safeguard provisions in Preferential Trade Agreements (PTAs). Most PTAs embed bilateral safeguard provisions to buffer the risk of import surges caused by tariff reductions in the intra-PTA trade. These provisions can be applied only between the PTA members, and they mainly have legal effect during the transitional period of forming a customs union or a free trade area. These provisions are linguistically similar to the multilateral safeguard codes (MSCs), i.e., Article XIX General Agreement on Tariffs and Trade (GATT) and the Agreement on Safeguards (SA), some of them even directly incorporate or copy some of the language from MSCs. This article observes that these bilateral safeguard provisions reveal ‘evolving’ features and can be mapped into three generations. Aside from the great similarity as compared to the MSCs, in the Laissez-faire of PTAs, bilateral safeguard provisions deviate from the WTO rulings: on the one hand, they are more trade-friendly since they primarily limit the form of safeguard measures to tariffs, and the duration is significantly shorter; on the other hand, they deviate from the important value of WTO since the special and differential treatment for the developing countries are hardly addressed in the North-South PTAs, the same applies to the prohibition of ‘grey area’ measure.

bilateral safeguard, WTO, preferential trade agreement, ‘grey area’ measure, de minimis provision, special and differential treatment, Committee on Safeguards
Inadequacy of SCM Rules of Benefit Determination in the Context of Non-market Economies
Authors: Srinivas Kuna Harsha
Published: April 2022

China’s decision to withdraw from the dispute pertaining to its Non-Market Economy (NME) status has bolstered the Member States’ intentions of resorting to stronger disciplinary actions against China and other NMEs. While anti-dumping measures have traditionally been pursued against NMEs, in recent years Member States have resorted to anti-subsidization measures as well. Even though the Appellate Body has warned against double counting, Member States continue to undertake Countervailing Duties (CVD) investigations against NMEs in addition to Anti-Dumping Duties (ADD) investigations. This article moves beyond the conventional discussions around double counting and attempts to determine whether the emphasis on antisubsidization measures against NMEs is justified. The paper focusses on the specifics of the Subsidies and Countervailing Measures (SCM) Agreement, particularly the rules on benefit determination. There have been instances where the Appellate Body has adopted innovative methods of benefit determination to deal with situations where governments’ actions have distorted the markets. Can these same rules be applied against NMEs? And if so, are they effective and do they factor in all aspects of market distortions in NMEs? This article attempts to answer these questions by relying on China as an example.

SCM Agreement, Benefit Determination, NME, NME Methodology, Alternative Benchmarks
A Curious Case of Unreasonable Profit: US – OCTG (Korea)
Authors: Lee Hyuntaik
Published: April 2022

Anti-dumping investigations involve a highly technical process of dumping margin calculations that use voluminous and complex data. Investigating authorities often find that ideal sources of such data enabling accurate calculations are unavailable. While the WTO Anti-Dumping Agreement (ADA) sets out the basic rules on anti-dumping investigations, it provides a certain level of flexibility and discretion to investigating authorities. However, such flexibility may lead to disputes and abuse by investigating authorities. Article 2.2.2 of the ADA, which establishes the rules regarding the calculation of a reasonable amount of profit for constructed value, is one such example. The provision envisages situations in which the actual data of relevant profit are unavailable and provides three alternative sources of data to be used in such situations. In the US – OCTG (Korea) case in 2017, the key issue was the US investigating authority’s use of a controversial source for the calculation of a reasonable amount of profit under one such alternative. While the panel ruled that the US investigating authority’s use of the source was inconsistent with Article 2.2.2, the issues raised in the case and the difficult questions the panel did not answer laid bare the ambiguities and incoherence in the ADA that can be abused by investigating authorities.

WTO Anti-Dumping Agreement, WTO Panels, Constructed Value, CV Profit, USDOC, Anti-Dumping Investigation, US – OCTG (Korea), Reform, Best Information Available
The General Theory of the Natural Course of World Trade: Special Circumstances to Initiate Trade Remedy Investigations
Authors: Comnenus George Arie
Published: April 2022

Via the Vienna Convention on the Law of Treaties, this article proposes a definition of the “special circumstances” that sanction authorities to self-initiate trade remedy proceedings per article 5.6 of the WTO Anti-dumping Agreement. In effect, it optimizes the world economy by enabling authorities to self-detect unfair trading practices – without a complaint of the domestic industry. This inability likely restrains trade remedies’ potential as a finer, more fruitful alternative for the indiscriminate imposition of bulk-tariffs – visible in the Sino-American trade war. Arguably, the “special circumstances” occur when the pace of country-specific import significantly exceeds the pace of the worldwide import, through significant price undercutting which stems from transnational price discrimination rather than a cost-efficient industry. To ascertain whether an absence of price discrimination is due to a particular market situation, the general theory introduces a new criterion. This criterion provides the first definition of “sales in the ordinary course of trade”, wholly derived from Article 2.2 of the WTO Anti-dumping Agreement.

trade remedies, initiation, dumping, special circumstances, particular market situation, price undercutting, ordinary course of trade
Facilitating Sustainable Investment To Build Back Better
Authors: Chi Manjiao , Berger Axel , Hoekman Bernard , Moïse Mbengue Makane , P. Sauvant Karl , Stephenson Matthew
Published: April 2022

Foreign direct investment (FDI) flows are at a low point as a result of not only the COVID-19 pandemic but also restrictive FDI policies adopted in recent years. Investment facilitation has gained in importance as a set of practical measures to increase the transparency and predictability of investment frameworks and promote cooperation to advance development. Investment facilitation can help to reduce the transactional and administrative costs faced by foreign investors and contribute to a resilient and sustainable economic recovery. Discussions on a distinct set of investment facilitation policies and measures have gained momentum in recent years. Negotiations are undertaken at the bilateral and regional levels, for example, in the context of the Regional Comprehensive Economic Partnership (RCEP) or the Sustainable Investment Protocol of the African Continental Free Trade Agreement (AfCFTA). Another important initiative is underway among members of the World Trade Organization (WTO) which are negotiating an Investment Facilitation Framework for Development. This article develops a set of key recommendations for policy-makers on how investment facilitation frameworks can be designed to help attract sustainable FDI for sustainable development and recovery in general. These recommendations can be summarized in three guiding principles: contribute directly to sustainable development, focus on conflict prevention and management, and learn from experiences from other processes such as trade facilitation.
EU-Ukraine Arbitration: Will WTO Law Become More Deferential Outside the WTO?
Authors: Rovnov Yury
Published: April 2022

The first dispute brought by the EU under its bilateral trade agreements, Ukraine – Export Restrictions on Wood, was in many respects a typical World Trade Organization (WTO) case. A panel of three arbitrators, including two prominent and highly experienced WTO adjudicators, was to rule on consistency of the respondent’s export bans with Articles XI and XX of the General Agreement on Tariffs and Trade, incorporated by reference into the EUUkraine Association Agreement. The latter, moreover, explicitly requires that arbitrators rely on the WTO jurisprudence – which they, technically, did. Yet, the arbitration panel appears to have shown more deference to the respondent than any WTO panel ever has (or would). By contrasting the reasoning of the arbitration panel with that of WTO panels deciding similar issues, the article questions whether WTO law may take a more deferential path outside the WTO.

WTO law, GATT, Article XX(b), EU-Ukraine Association Agreement, wood export ban, dispute settlement, judicial deference
The ‘Equivalent’ Standard in WTO Arbitrations of Trade Remedy Disputes
Authors: Kim Kyounghwa
Published: April 2022

This article examines systemic issues arising from the calculation of the level of retaliation against WTO-inconsistent anti-dumping/countervailing duty (AD/CVD) ‘measures’ by focusing primarily on two Article 22.6 arbitration cases, i.e., US – Washing Machines (Article 22.6) and US – Anti-Dumping Methodologies (Article 22.6). The two cases show that trade remedy disputes make the choice of the ‘reasonable’ counterfactual difficult, and require careful consideration in analysing the reference period for the counterfactual scenario and the calculation of nullification or impairment, given the unique circumstances in which the aggrieved country is confronted by WTOinconsistent AD/CVD measures. The article also examines that the Armington-based partial equilibrium model employed in both arbitrations is a useful tool for calibrating the effect of a straightforward reduction in AD/CVD tariffs, but it does not elicit the ‘equivalent’ level of nullification or impairment (NOI) because of the assumptions and data used.

The ‘Equivalent’ Standard, WTO Article 22.6 Arbitration, Trade Remedy Disputes, US – Washing Machines (Article 22.6), US – Anti-Dumping Methodologies (Article 22.6)
Demand-side Efficiencies in Merger Control
Authors: Padilla Atilano Jorge
Published: April 2022

Firms may be able to create new and improved products as a result of merging. These “demand-side efficiencies” should be considered by competition authorities in considering whether to allow a merger. Unlike reductions in costs that merged firms may not pass on to consumers, new and better products necessarily make consumers better off. Moreover, the value of demand-side efficiencies can be quite large, as recent studies of improved products ranging from toilet paper to minivans has demonstrated. Of course, competition authorities should seek evidence that mergers will facilitate new and improved products and weigh these benefits against increased prices and other costs the merger may create. A review of European Union merger cases shows that the Commission needs to consider demand-side efficiencies, and provides further caution against making efficiencies an “offence” rather than a “defence”.
The Interface Between Competition Policy and International Trade Liberalisation. Looking into the Future: Applying a New Virtual Anti-Trust Standard
Authors: Mehta Kirtikumar , Durand Benoît , Font Galarza Andrés
Published: April 2022

The article contends that the case for the beneficial effects and rationale of the on-going trade policy expansion into the competition realm has already been proven and, apart from political aspects, exhausted. The authors take the reverse angle to approach the interface between trade and competition in a new and more challenging perspective. Could competition policy benefit from the trade policy contamination?

Could modern competition policy improve its rigour and internal coherence as a result of an international convergence that will naturally try to shift and broaden the present competition legal paradigm? How would competition policy assess controversial anti-trust practices such as export cartels and certain vertical restraints under a new virtual global welfare standard?

The authors use economic models to hint at a number of legal answers. The article is intended to trigger an innovative follow-up debate.
Private Antitrust Enforcement in Europe: A Policy Analysis and Reality Check
Authors: Jones Clifford A.
Published: April 2022

The right of individuals who have suffered loss from infringements of competition rules to bring private damages claims, long a mainstay of antitrust enforcement in the United States, is increasing in viability in the European Union as a result of judgments of the European Court of Justice, new legislation such as Regulation 1/2003, and numerous policy statements by the Commission and the European Parliament. Further remedies legislation may be forthcoming at EU or Member State level. However, some feel that private antitrust cases are undesirable from an economic and policy perspective and should be discouraged even as supplemental enforcement. This article argues that private enforcement has great value as a supplement to public enforcement and as the primary means of compensating victims of infringements whose interests are to be protected by national courts. Academic arguments against private enforcement based on misapplication of economic theory do not justify elimination or discouragement of private actions. The theoretical economic arguments presented in favour of such elimination or discouragement are weak, insufficient, and lack an observable basis in the real world.
Fiscal State Aid in the EU: The Limits of Tax Autonomy
Authors: Nicolaides Phedon
Published: April 2022

This article reviews the application of the European Community’s State aid rules to tax measures. It updates and extends a previous review published in this Journal in 2001 and evaluates critically recent policy trends.

Although there is no doubt that State aid rules apply to national tax measures even where there are no specific Community fiscal provisions, during the past couple of years the Commission has widened the scope of application of State aid rules. The Commission has recently found a number of national measures to be incompatible with State aid rules on the grounds that they indirectly favour certain enterprises by assessing their tax liability using special methods of calculating their relevant costs. This article examines how tax measures can be caught in this way by State aid rules.

The article also evaluates a case where regional tax measures were found to be a form of State aid because they deviated from national measures. This is the most worrisome policy development because it appears to restrict the fiscal autonomy of local and regional authorities and to contradict the principle of subsidiarity. Using economic analysis, the article finds that when regions have fiscal autonomy there is no a priori reason to expect that their tax rates will remain uniform. It concludes that in this respect the Commission has stretched the meaning of State aid too far.
The Future of the Postal Monopoly: American and European Perspectives after the Presidential Commission and Flamingo Industries
Authors: Geradin Damien , Sidak J. Gregory
Published: April 2022

In December 2002, President Bush established the Presidential Commission on the United States Postal Service for the purpose of proposing how government provision of mail delivery services might be reformed or transformed. The Commission reported in July 2003 that the Postal Service should not be privatised but rather should remain a public entity that would increasingly be run like a commercial enterprise. In 2004, however, the Supreme Court moved the Postal Service farther away from being a true commercial enterprise when it held in the Flamingo Industries case that the agency is immune from antitrust law. In this article, we argue that the Postal Service already operates like a commercialised governmental enterprise and that pursuing that path even further would increase rather than decrease the problems faced by the US postal sector. Although we support privatisation, that option may not be politically feasible. Consequently, we examine how postal reform might proceed incrementally in the form of an improved government agency. That approach would entail two broad principles for postal reform. The first is to define the Postal Service’s mission in terms of remedying conditions of market failure. That goal encompasses universal service, quality of service, and reasonableness of rates. The second broad principle is to avoid competitive distortions through the pricing and product offerings of the Postal Service. This principle entails avoiding government production in markets that are or can be served satisfactorily by private firms, as well as avoiding discrimination among mailers and among competitors in secondary markets. We then present specific recommendations that would advance these two broad goals if the Postal Service remains an agency of the federal government. Those recommendations encompass costing, universal service, rate design and mail classification, the postal monopoly, and market entry and exit as well as legislative reversal of Flamingo Industries
Cartels and Collusion: Failing Competition Policy in Hong Kong
Authors: Williams Mark
Published: April 2022

Hard core cartels have received increased international attention since the 1990s from many developed nations and from international organisations, especially the OECD. Cartel-busting has become a priority for many competition authorities. Penalties have been substantially increased, with many jurisdictions introducing criminal sanctions including the possibility of imprisonment for individual executives who organise cartel activities. The general opprobrium visited upon cartels is not, however, universally accepted. The Hong Kong authorities have an ambivalent attitude to cartel activity that is driven by an ostensible ideological commitment to ``free markets’’ at all costs. The Hong Kong government has a politico-economic agenda that refuses to acknowledge the pernicious effects of cartel activity and, in any event, denies that cartels are a significant problem in the territory. This article seeks to briefly examine the recent trend towards tougher cartel enforcement internationally. Hong Kong’s cartel policy is then contrasted with international developments and critically analysed. Cartel activity in Hong Kong is described and explained. The future development of competition policy in Hong Kong is considered.
Procedural Aspects of Private Enforcement of EC Antitrust Law: Heading Toward New Reforms?
Authors: Brkan Maja
Published: April 2022

This article aims to examine the necessary requirements for an effective private antitrust enforcement from the point of view of the civil procedures of Member States. It elaborates on the question whether and how these requirements can be satisfied in different civil procedures and which procedural rules could present potential obstacles for effective private antitrust enforcement. It focuses on issues of jurisdiction, standing, class actions, burden, standard of proof and costs and examines certain private enforcement cases in Member States. It compares the situation in the European Union with private enforcement in the US courts. Finally, the article argues that a certain degree of harmonisation of Member States’ civil procedures is required for the purpose of promoting and facilitating private enforcement in the European Union and puts forward a substantive proposal for such harmonisation.
Innovation and Market Definition under the EU Regulatory Framework for Electronic Communications
Authors: Madiéga Tambiama
Published: April 2022

This article provides a thorough analysis of market definition under the EU regulatory framework for electronic communications. Part I questions the implementation of the forward-looking approach to market definition in the context of the fast innovation process driving the electronic communications sector. Section I.A argues that demand-side substitution must address the competitive constraints imposed by the emerging services. Section I.B stresses that supply-side substitution is becoming a criterion increasingly relevant to delineate market boundaries given the convergence process in the communications industry. Section I.C points out that, in assessing supply substitution, regulators are required to take into account the likelihood of potential competitors to enter the market within a reasonable time frame. Accordingly, it is argued that potential competition must be addressed in defining the market (and not subsequently when assessing market power) whenever the financial ability and the profitability for potential competitors entering the market is established. Part II illustrates the challenges posed to market definitions by the rapid pace of innovation as the regulation of the emerging Voice over Internet Protocol (``VoIP’’) services comes under the EU policy spotlight. Section II.A argues that VoIP services put at risk the present definition of the relevant markets. In particular, regulators should carefully consider whether Voice over Broadband (``VoB’’) services are substitutable for traditional telephony. Section II.B stresses that addressing the constraints imposed by the substitutable VoIP services at the stage of the market definition is necessary to conduct a consistent market analysis and accurately apply ex ante regulation, especially given the development of bundling strategies. This article has been shortlisted for the 1st World Competition Young Writer Award.
Are the Brazilian Competition Authorities being Responsive? An Analysis based on the Benign Big Gun Model
Authors: Pagotto Leopoldo Ubiratan Carreiro
Published: April 2022

This article examines whether the Brazilian competition authorities are being responsive. Within this context, it answers the following questions: (i) whether the theoretical conditions for the use of responsive regulation and the benign big gun are present in Brazil and (ii) if they are present, how the authorities have been using the benign big gun. The model suggested by Ayres and Braithwaite in the book “Responsive Regulation---Transcending the Deregulation Debate” is used as a guideline for assessing the environment the Brazilian competition authorities operate within.The article describes the conditions necessary for the benign big gun to operate (presence of a hierarchy of sanctions and interventionism, adequate height of the enforcement pyramid, use of a TFT strategy) and concludes that the model can be applied to the competition system. Furthermore, the basic tools for the benign big gun are available to the Brazilian competition authorities but the use of TFT is inadequate.This condition impacts on the use of persuasion and negotiation techniques, the results of which are far from those predicted by the model. The failure to escalate convincingly has an adverse impact on the credibility to make threats and consequently, on using the benign big gun. This article has been shortlisted for the 1st World Competition Young Writer Award.
State Aid Reform: Some Reflections on the Need to Revise the Notice on Guarantees
Authors: Prete Luca
Published: April 2022

In June 2005, the Commission launched the “State Aid Action Plan”, which is a roadmap for a comprehensive reform of EC State aid rules that the Commission intends to undertake in the 2005/2009 period. Among the texts which the Commission is planning to revise is its Notice on State aid in the form of guarantees, a communication published in 1999 with the aim of outlining the Commission’s approach to State aid awarded by means of public guarantees. The purpose of this article is to briefly illustrate some flaws and shortfalls of the current Notice, and how this has negatively affected the Commission’s past practice. In fact, in the last years the Commission has had to deal with a large number of cases which concerned aid granted through public guarantees or other equivalent forms of support, and these cases have highlighted the limits of this piece of legislation. It is therefore submitted that the Commission should not miss the momentum created by the publication of the State Aid Action Plan, in order to conduct a careful reflection on the rules laid down in the Notice on Guarantees, and to produce a new text, more in line with the fundamental principles of EC State aid law developed in the jurisprudence of the Community Courts. This article has been shortlisted for the 1st World Competition Young Writers Award.
Standardization and Technological Innovation: Some Reflections on Ex-ante Licensing, FRAND, and the Proper Means to Reward Innovators
Authors: Geradin Damien
Published: April 2022

In today’s technology-driven world, industry standardization, device interoperability, and product-compatibility have become critical to promoting innovation and competition. Under the current system applied in most standard-setting organizations (SSOs), firms holding patents that they deem essential to a standard considered by an SSO commit to license these patents on fair, reasonable and non-discriminatory (FRAND) terms. This system, which has allowed standardization to proceed in a wide range of sectors, is currently under attack by firms suggesting that it may lead to opportunistic behaviour on the part of essential patent holders. Proposals have thus been made in a variety of fora to replace the current FRAND regime. They include the development of a regime of ex ante auctions run by SSOs, which would allow SSO members to choose among the various bids made by essential patent holders (the Swanson-Baumol model) or a system of joint negotiations by essential patent holders and standard implementers of licensing terms. Proposals have also been made by some members of ETSI that its current IPR policy be revised in order to introduce the principles of “aggregated reasonable terms” and “proportionality” into the definition of FRAND. This paper argues that these proposals are flawed because they are based on a series of misconceptions. Their implementation would also be highly impractical, raise antitrust concerns, and harm innovation.
A Class Action Model for Antitrust Damages Litigation in the European Union
Authors: Polverino Fabio
Published: April 2022

This article reviews the legal and economic structure of the class action litigation model in the United States, as set forth by rule 23 of US civil procedure, exploring the requirements for obtaining class certification and maintaining a class action. I analyse a number of critical issues and inefficiencies connected to the adoption of class action as a tool for adjudicating controversies. The article, then, takes into consideration the issue of private antitrust litigation in the European Union, at the moment still underdeveloped. A Green Paper recently published by the EU Commission includes proposals for the adoption of private antitrust damages litigation in the EU, but, even suggesting the possible adoption of a collective action model, never mentions class action as a viable solution. I consider some of the questions raised by the EU Commission in the Green Paper. Relying on the fact that US courts have repeatedly stated that antitrust controversies are suitable for class action treatment, I consider whether the US model of class action litigation might provide, although in an amended version, a satisfactory answer to the problematic issues raised by the Green Paper and represent an efficient tool for the private enforcement of antitrust law in the European Union.
Toward an EU Competition Court: “Article-6-Proofing” Antitrust Proceedings before the Commission?
Authors: Andreangeli Arianna
Published: April 2022

This article will assess the proposal made by the Confederation of British Industry (CBI) for the establishment of an “EU Competition court”, responsible primarily for the fast and effective review of merger decisions, and its implications for the judicial architecture and the wider institutional structure of the EU. It will argue that, rather than for merger control, the introduction of more exacting degree of judicial scrutiny, entrusted with a specialised court, may be necessary to secure the compliance of the EU antitrust enforcement proceedings with the notion of “administrative due process” enshrined in the European Convention on Human Rights.

However, the article will demonstrate that the creation of this judicial body, endowed with the necessary powers to ensure consistency with the Convention requirements, despite being an appropriate solution, might constitute too wide a departure from the judicial and overall institutional structure of the EU and could thus require a Treaty amendment, which could lack political support. It will suggest that instead of altering the judicial structure of the EU the whole system for the enforcement of the competition rules should be rethought to reconcile the need for speedy and final judicial scrutiny with the observance of “fairness” principles.
The French Competition Council and Parallel Trade in the Pharmaceutical Industry: A Step Ahead of EU Case Law?
Authors: Herrenschmidt Fleur
Published: April 2022

This article focuses on the French competition authorities’ analysis of the validity, from a competition law perspective, of various distribution policies implemented by pharmaceutical companies in France which aimed to reduce parallel trade. In France, the pharmaceutical sector is notably characterised by: the existence of a specific “export–only” wholesaler status; numerous but imprecise public service obligations on “fullline” wholesalers which in particular require that they permanently supply all pharmacists with all products in a given time period; a strict capping of end retail prices and also of financial advantages (margins, rebates, etc.) which operators on the national market may grant or benefit from; and a quasitotal market transparency (in terms of both prices and volume). In this context, the French competition authorities have considered to be legitimate some of the policies which unilaterally limit parallel trade, in some cases by discriminating between export–only and full–line wholesalers. Although none of the pharmaceutical companies concerned had actually implemented dual pricing policies in France, the Court of Appeal went as far (in anticipation) as validating such policies in principleÐthus following before the issue was even dealt with at European level, the direction that the European Court of Justice has invited the Commission to follow in its recent Glaxo Dual Pricing judgment. The Competition Council, through its various decisions, has now in fact regulated the relationships between the various operators in the market. Its final commitment decisions raise, however, the question of to what extent a competition should be entitled to use commitment procedures as a preventive regulatory tool.
A League of Their Own: Landmark Supreme Court Judgment Clears Irish League of Credit Unions of Abuse of Dominance
Authors: Massey Patrick
Published: April 2022

In a unanimous judgment handed down on 8 May 2007, Ireland’s Supreme Court upheld an appeal by the Irish League of Credit Unions (ILCU) against a High Court judgment that ILCU had abused a dominant position. The Irish Competition Authority had alleged that ILCU had abused its dominant position in the market for savings protection services (SPS) by limiting access to SPS services to its own members. The Authority claimed that this amounted to tying as credit unions wishing to obtain SPS services were required to also purchase credit union representation services from ILCU and that such tying amounted to an abuse of dominance by ILCU. This was the first abuse of dominance case brought by the Competition Authority to go to a full hearing, the first to be appealed to the Supreme Court and the first Irish case under EC Regulation 1/2003. The judgment clarified a number of important issues. The case raised a number of economic issues, which are of interest in the context of the debate on the need for a more economics based approach to Article 82. It has led to some significant innovations in the hearing of competition cases by the Irish courts.