bluuebunny/crossref_metadata_2025 huggingface dataset:
WTO and Renewable Energy: Lessons from the Case Law
Authors: Farah Paolo Davide
Published: April 2022

This contribution illustrates some unresolved issues and tensions that characterize the way the WTO deals with renewable energy subsidies. Indeed, the indisputable urgency to address the negative impacts of climate change on the one hand, and the use of subsidies to boost and support a country’s renewable energy sector on the other, provide momentum to better define the legal framework offered by the World Trade Organization (WTO). It is fundamental to ascertain whether the current framework represents an adequate model to address renewable energy subsidies, or whether a more flexible interpretation of WTO Agreements toward sustainable development and the protection of the environment should be adopted instead. In view of that, this paper carefully investigates the evolution of the WTO subsidies disciplines, focusing in particular on the approach of the WTO towards renewable energy subsidies. This article is divided in three sections. The first one offers an overview of WTO disputes involving subsidies in the renewable energy sector, the second one focuses on the recent decisions in the Canada – Renewable Energy and Canada – Feed-in Tariff Program disputes and on some important issues they raise, while in the last one we draw our conclusions.
Inter-Mingling TRIPS Obligations with an FET Standard in Investor-State Arbitration: An Emerging Challenge for WTO Law?
Authors: Lin Tsai-Yu
Published: April 2022

The boundary and shape of evolving investment regimes are heavily influenced by investors’ claims. Bringing a host state’s obligations under other trade agreements as a part of the Fair and Equitable Treatment (FET) standard in investment treaties represents a new challenge. As argued here, a host state’s violation of the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) establishing a violation of the FET standard not only serves as a unique single issue to be decided in an investment dispute, but would also have important legal implications. That is, investor-state arbitration might function as a competing forum with the WTO for setting future trade matters, and the risk of fragmenting WTO law in various arbitral awards would be increased. Ultimately, the security and predictability of the WTO law system would be undermined and eroded in the context of investment treaties. It is suggested that WTO Members should develop more efficient rules to safeguard the integrity of WTO law from undue interferences by investors in their investment treaties.
CFIUS under Review: National Security Review in the US and the WTO
Authors: Wang Zhu (Judy)
Published: April 2022

Ralls v. CFIUS is the first and only CFIUS challenge that has been heard by United States federal courts. In granting standing to the foreign investor, the DC Circuit determined that the purchaser had gained protectable property interests and was therefore guaranteed due process rights. However, this privilege is circumscribed insofar as factual considerations cannot touch on issues of national security and classified sources. These limitations render the “justiciability” of CFIUS decisions toothless, much in the same way that Article XXI issues are effectively non-justiciable before the GATT Panel.
Sixty Years of EU-Israeli Trade Relations: The Expectations-Delivery Gap
Authors: Heimann Gadi
Published: April 2022

This article identifies a common thread throughout the sixty years of European-Israeli relations, namely a gap that has prevailed between the lofty rhetoric of the EU regarding envisaged special trade relations and its much more modest willingness/ability to establish such relations. At various junctures of these relations (three of which are analysed in this article), turgid European promises were not fully realized. Consequently, a wide gap has been created between rhetoric and concrete actions and between the de jure and de facto economic and trade value of the legal regimes governing EU-Israel bilateral relations. The article reveals that gap and offers a typology and analysis of various factors which contributed to the creation and widening of the Expectations-Delivery Gap.
National Treatment and the GATS: Lessons from Jurisprudence
Authors: Muller Gilles
Published: April 2022

Non-discrimination is one of the fundamental principles of the World Trade Organization (WTO). The National treatment is one of the provisions that translate the principle into concrete legal obligations. Under the General Agreement on Trade in Services (GATS), it aims to avoid discrimination between domestic and foreign services and service suppliers. The application of this obligation is subject to the fulfilment of cumulative conditions that are subject to interpretation. This has raised numerous issues regarding both the scope of application and requirements of Article XVII GATS. Over the past decade, WTO adjudicating bodies have issued several reports that address the interpretation of national treatment under the GATS. While this has clarified some points, other issues remain largely unresolved. This article discusses the interpretation of national treatment in the light of these recent developments.
Intersecting Trade, Politics and Human Rights: The Negotiation Phase of the Australia-China Free Trade Agreement
Authors: Grunberg Benjamin , Petrovic Jadranka
Published: April 2022

This article concerns a free trade agreement (FTA) between Australia and China signed on 17 June 2015. It has been acclaimed that this agreement lays the foundation for the next phase of Australia’s economic relationship with China and predicted that it will unlock significant opportunities for Australia as China is Australia’s largest export market for both goods and services, accounting for nearly a third of total exports, and a growing source of foreign investment. However, concerns have been expressed that the Australia-China Free Trade Agreement is likely to have a number of retrogressive effects on the protection and promotion of human rights, including labour standards. This article explores differences between the free trade agreement negotiating precepts and cultures of China and Australia and the status of human rights in those negotiations, with an emphasis on understanding representative Australian attitudes. Although those negotiations are now a faint accompli, they are nevertheless of great interest. The article’s focus on the fate of human rights in the negotiation phase of the Australia-China Free Trade Agreement from the Australian perspective, together with the dynamics and nuances of the negotiation process giving rise to the Agreement, provides timely and significant insight on the implementation process, as well as a lesson-learned for future free-trade negotiations. The article argues that human rights should not be overlooked in the negotiations that lead to a free trade agreement. The article comprises seven parts. Section 1 introduces the subject-matter. Section 2 provides a historical overview of trade relations between Australia and China. Section 3 considers the complexity of negotiations between the two States and their different expectations and approaches. Section 4 outlines Australia’s major international human rights obligations including labour standards. Section 5 highlights specific human rights concerns raised in Australia during the Australia-China Free Trade Agreement negotiations. Section 6 observes other States’ approaches to human rights issues when negotiating their FTAs with China. Section 7 concludes that robust safeguards must be embedded and that a close consideration should be given to the implementation process, including the ex post human rights impact assessment of the Australia- China Free Trade Agreement.
Trade and Investment Agreements: Implications for Health Protection
Authors: Stuckler David , McNeill Desmond , Barlow Pepita , Birkbeck Carolyn Deere , Fukuda-Parr Sakiko , Grover Anand , Schrecker Ted
Published: April 2022

Trade and Investment Agreements (TIAs) have been widely criticized for their potentially negative effects on health. Many governments, particularly from low- and middle-income countries, have voiced concerns that mega-regional agreements such as the Trans-Pacific Partnership agreement, and the Transatlantic Trade and Investment Partnership, will erode governments’ scope for health protection, weakening for instance those options that remain permissible under World Trade Organization rules. Further, these mega-regional agreements will set default standards and rules of the game that even non-signatories will need to emulate in order to be competitive in the global market.

This article begins by reviewing the changing structure of trade and investment policy, global production, and the relation between the two. The effects of TIAs on health are then analysed, based on some of the most relevant evidence. Key power asymmetries within the global trade and investment architecture are described, and the way they influence how trade rules are made, implemented and adjudicated. Section 5 examines a particularly striking and topical instance of such power asymmetries, investor-state dispute settlement provisions in TIAs, and their relevance to health. The article concludes with recommendations to mitigate the potential negative health externalities of TIAs.
The WTO Dispute Settlement System 1995-2016: A Data Set and Its Descriptive Statistics
Authors: Mavroidis Petros C. , Johannesson Louise
Published: April 2022

In this article, we provide some descriptive statistics of the first twenty years of the WTO (World Trade Organization) dispute settlement., that we have extracted from the data set that we have put together, and made publicly available (http://globalgovernancepro gramme.eui.eu/wto-case-law-project/). The statistical information that we present here is divided into three thematic units: the statutory and de facto duration of each stage of the process, paying particular attention to the eventual conclusion of litigation; the identity and participation in the process of the various institutional players, that is, not only complainants and defendants, but also third parties, as well as the WTO judges (panellists and Appellate Body members); and, finally, information regarding the subject-matter of various disputes, regarding the frequency with which claims regarding consistency of measures with the covered agreements (but also, at a more disaggregate level, e.g. specific provisions) have been raised. We call our work ‘descriptive statistics’, because, in an effort to provide raw material that will help researchers to conduct their research as they see fit, we have consciously refrained from systematically interpreting the data that we have assembled.
Using Trade for Achieving the SDGs: The Example of the Environmental Goods Agreement
Authors: Monkelbaan Joachim
Published: April 2022

Ensuring that trade contributes to sustainable development is an explicit objective of both the WTO and of the 2030 Agenda for Sustainable Development (including the Sustainable Development Goals or ‘SDGs’). The purpose of this article is to demonstrate how trade and technology together can be mobilized for achieving the SDGs and in particular for addressing climate change. The article first discusses the general linkages between trade, technology, sustainable development, and the SDGs. Then the article explores the contribution that trade in environmental goods and services (EGS) and the Environmental Goods Agreement (EGA) more specifically can make to achieving different SDGs.

This assessment is among others based on a recent European Commission Sustainability Impact Assessment (SIA) on the EGA. The article therefore assesses the potential economic, environmental, and social impacts of the EGA. It rounds up by explaining the state-of-play of the EGA negotiations. The assessment was conducted through desk research, econometric and C02 modelling, and stakeholder consultation, including two regional workshops and an open questionnaire.
Standards, Tariffs and Trade: The Rise and Fall of the Raisin Trade Between Greece and France in the Late Nineteenth Century
Authors: Swinnen Johan , Meloni Giulia
Published: April 2022

There is much debate on the impact of product and process standards on trade. The conceptual arguments are complex and empirical evidence is mixed. We analyse the impact of standards and tariffs on the dramatic rise and fall of the raisin trade between France and Greece in the course of 25 years at the end of the nineteenth century. The case illustrates how product standards can be used to address consumer concerns and to protect producer interests. Economic conditions and French policies first stimulated Greek raisin imports. Later, changing conditions and political pressures led to the introduction of tariffs and wine standards which caused major declines in Greek exports and ultimately the bankruptcy of the Greek economy. Interestingly, this trade episode of more than a century ago still has a regulatory legacy in today’s EU wine regulations.
Enabling the Energy Transition and Scale-Up of Clean Energy Technologies: Options for the Global Trade System  Synthesis of the Policy Options
Authors: Sugathan Mahesh , Meléndez-Ortiz Ricardo
Published: April 2022

The urgency of climate-change mitigation is well-accepted. Yet, the scale-up of clean energy which it requires is hampered by numerous trade-related obstacles and a lack of clear governance frameworks on trade and clean energy that increase costs of clean energy technologies (CETs) as well as increasing uncertainty for investors. This article proposes a number of policy options to address obstacles to trade in CETs, improve energy trade governance, and use trade policy proactively in support of clean energy. Whereas many of the systemic options are challenging, requiring a great degree of convergence among the full WTO membership, short-term proposals more easily within reach are also identified. A variety of options are also suggested for improving market access. Relevant policy processes, including regional trade agreements, the Environmental Goods Agreement (EGA), and the Trade in Services Agreement present interesting opportunities for implementing several of these options. The article further proposes that existing policy space, in particular in the area of subsidies, needs to be clarified, and in some cases strengthened.
Data Localization: The Causes, Evolving International Regimes and Korean Practices
Authors: Chung Chan-Mo
Published: April 2022

As control of information is the primary source of power in the information society, countries, corporations, and individuals are eager to gain control over more data and information and to hand over less of them to adversaries. National experiences show that there are some incentives for a country to move toward data localization. Some of the localization measures may be consistent with the current state of free-trade agreements such as the World Trade Organization’s General Agreement on Trade in Services. Even international trade agreements on the horizon, such as the Trans-Pacific Partnership and Trade in Services Agreement, allow some room for data localization. Drawing the fine line between prohibited and permitted data localization measures should wait for the future development of case law and state practice. Non-violation of the current international agreements, however, does not guarantee the best policy. Data localization tends to cause Galapagos syndrome, in which a short-term comfortable life in isolation leads to long-term extinction. This is particularly true in the market for electronic commerce, which is by its nature global rather than local. Data localization is a temporary abnormal phenomenon that occurs in a transient situation in which internet service providers fail to meet their social responsibility toward the community where the customers exist and incipient cooperation among national legal authorities fails to tackle the trans-border problems effectively.
The Preferential Trade Conundrum and the Multilateral Market Access Negotiations in Agriculture
Authors: Dixit Diwakar , Parajuli Thakur
Published: April 2022

Regional trade agreements have increasingly become important as a medium for effecting trade liberalization. The trend is not expected to recede. There is not to suggest that multilateral trading system under the WTO has to be relegated. Regional trade agreements may be a good avenue to pursue market access reforms, but they do have an obvious limitation in making a foray into rule-making. They rely rather heavily on multilateral trade rules and on the expectation that these fundamental trade rules are implemented so as to build upon them within the preferential setting. This is evident when one looks at the treatment of subsidies, regulatory measures, safeguards and other trade remedy instruments within these regional trade agreements.

 This article examines the situation of exports and imports in ten major agricultural trading countries or territories to assess the share of preferential trade in the overall trade profile. While the situation varies across the group, a significant share of trade continues to originate in or destined for countries under (MFN) Most-favoured Nation terms. In a number of regional trade agreements, including those involving the ten major countries, various sensitive agricultural sectors like dairy, meats, sugar, cereals have either been exempted from tariff elimination or preferential tariff treatment has been offered through a minor reduction in high MFN tariffs or tariff rate quotas. Tariff reforms for a number of such sensitive agriculture sectors have proven to be difficult partly because of the linkage between tariff policies and governmental internal policies and subsidies granted to such sensitive sectors. This linkage hinders commitments on tariff liberalization for the relevant sensitive sectors, especially in a preferential setting where domestic subsidy reforms might not be feasible. In order to exploit the synergy between regional trade agreements and the multilateral trading system and negotiations, it has been suggested in this article to consider reforms of sensitive agricultural sectors within the multilateral negotiations where both tariff liberalization and subsidy reforms may be pursued together.
Towards State Avoidance of Conflicts between the SPS Agreement and the Cartagena Protocol on Biosafety: A Fresh Perspective
Authors: Zhao Jingjing
Published: April 2022

This article takes the relationship between the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) and the Cartagena Protocol as a case study of the persisting debate on the potentially conflicting relationship between international trade and environmental laws. In order to investigate how conflicts between the treaties can best be avoided within the ambits of international law, this article focuses on the legal implications of the regulation of international trade in genetically modified organisms (GMOs), and studies the legislative and implementing activities in this regard at the domestic level. It involves a systematic exploration of how conflicts between the SPS Agreement and the Cartagena Protocol could be avoided from a national perspective which has rarely been discussed, and the extent to which this approach might influence how treaty conflicts should be dealt with generally in international law. Particularly, the article examines areas of possible synergies and potential conflicts between the treaties, and where potentially conflicting provisions are found, how such can best be avoided with a view to facilitate the adequate and effective international and domestic regulation of GMOs in manner that, on the whole, supports trade and biosafety
Exploring Border Areas Between the Law of State Responsibility and WTO Law
Authors: Åhman Joachim
Published: April 2022

This article examines the relationship between the law of State responsibility and WTO law, by focusing on three important, still rather unexplored, areas: acts and actors; circumstances precluding wrongfulness of an act; and cessation of a wrongful act. In certain respects, it is easy to see that WTO law contains special rules, replacing the general rules, or that there are no special provisions regulating State responsibility issues. However, one of the main arguments in this article is that, when examining the above relationship, it is more relevant to talk about ‘border areas’, than ‘borders’. In many cases, it will not be possible to draw clear borders be-tween general and special rules. For example, State responsibility rules can be applied directly in WTO dispute settlement, or used as tools for interpreting WTO provisions. But it can of-ten be complicated to determine whether there is a gap, calling for direct application, or if there is a special provision, which needs to be interpreted. To a large extent, the relationship be-tween the two regulatory frameworks is instead characterized by mutualism, where the under-standing of a certain concept in one framework can contribute to the understanding of the same concept in the other.

State responsibility; WTO law; act; actor; State organ; internationally wrongful act; circumstances precluding wrongfulness; exceptions; cessation; withdrawal.
WTO Legal Reform: The Need for Revisiting the Treatment Accorded to China as a Non-Market Economy in Trade Remedies
Authors: Ramírez Martínez Luis Carlos
Published: April 2022

The case of China’s non-market economy treatment at the WTO might be the typical case where (economic) reality outdoes (legal) theory or, perhaps, expectations. By 2001, when the WTO let China in, its Protocol of Accession (PoA) included special trade remedies provisions regarding China’s economic model. Today, China and other members fight fiercely at WTO, and elsewhere, over the validity and scope of some PoA's expired rules that set out the commitments by which -arguably- China was expected to become a market economy by December 2016. Aimed at contributing to the debate, this paper analyzes and thus proposes elements for a reform to the WTO’s trade remedies legal framework, so as to solve those conflicts by means of multilateral negotiations in lieu of complex judicial adjudications. Negotiation is hence suggested as the most legitimate, pragmatic, and long-lasting means to ensure the preservation of the trade remedies mechanism. Otherwise, the use of de facto measures, coupled with increasing bilateral disputes, shall steadily undermine its creditworthiness.

WTO, trade remedies, China, negotiation, pragmatism, market economy.
Executive Powers within the International Trading System – A Comparative Analysis of EU, Swiss, U.S. and Canadian Frameworks
Authors: Beckerle Sebastian
Published: April 2022

Varying approaches to structuring executive powers with respect to unilateral trade measures within various legal systems predominantly determine the status and development of international trade policies. By analyzing the related frameworks of the European Union, Switzerland, the United States and Canada, this paper not only elucidates procedural and institutional differences, but also examines to what extent the respective major trading players adhere to the fundamental doctrine of separation of powers. An overall analysis reveals a significant misbalance on part of the United States which proves to be a relevant factor explaining some of the current turbulences of the world trading system.

Executive powers, separation of powers, judicialreview, unilateral trade measures, economic sanctions, European Union, Switzerland, United States, comparativean alysis
Export Credit Guarantee and Prohibited Subsidies Under the SCM Agreement
Authors: Man Kim Sang
Published: April 2022

Export credit guarantee or insurance covers non-payment risks in exports. Many countries have established export credit agencies (ECAs) to promote exports through export credits including export credit guarantee or insurance. Officially supported export credits have brought the concern that they may distort fair competition in international trades. Export credit guarantee or insurance programmes with inadequate premium rates are likely to fall under the prohibited subsidies. ECAs need to understand the requirements of the prohibited subsidies under the Agreement on Subsidies and Countervailing Measures (SCM Agreement). This article will discuss features and functions of export credit guarantee or insurance in international trades. This article will also discuss some issues concerning the elements of a subsidy and illustrated list of prohibited export subsidies with regard to export credit guarantee or insurance by analysing the relevant provisions of the SCM Agreement and WTO Panel or Appellate Body Reports.

countervailing measure, export credit, export credit insurance, export credit guarantee, prohibited subsidy, the SCM Agreement, subsidy
China’s Pursuit of Industrial Policy Objectives: Does the WTO (Really) Have an Answer?
Authors: Tyagi Kalpana
Published: April 2022

In the year 2016, according to estimates by the Chinese Bureau of Statistics, joint ventures (JV) with foreign partners contributed over 25% of foreign investment inflows in China. To the extent these JV help emerging economies such as China become more competitive and innovative is a positive consequence that is widely welcomed by the international community. However, the alleged forced technology transfer in these ventures is the Achilles heel that has evoked various retaliatory responses from governments worldwide. The United States recently studied the issue in its section 301 investigation and subsequently implemented various measures, including tariffs worth over USD 250 billion, which led to the onset of the so-called US-China trade war. The European Union (EU), on the other hand, called for the regulation of forced technology transfer and resorted to a more restrained manner by officially filing a complaint before the World Trade Organization (WTO). The EU’s complaint confirms the onerous set of conditions – such as forced technology transfer for approval of investments in strategic areas such as electric cars and the biotech sector – that stand in clear contrast to the China’s commitments when it first joined the WTO. For the companies, particularly those in the high tech sector, intellectual property is a key source of competitive advantage. Knowingly sharing this source of advantage means that rational firms that seek profit maximization derive some unrivalled gains through these collaborations.

Against this mixed backdrop, using inter-disciplinary insights from law and business strategy, this article, a part of series of articles on the subject, critically assesses the contemporary debate and different approaches to China’s practice of ‘discriminatory licensing’ and ‘forced technology transfer’.

Technology Transfer, Discriminatory licensing, Joint Ventures, section 301 US Trade Act, European Union, Market Economy Status, State Owned Enterprises, WTO
WTO Dispute Settlement and the Appellate Body: Insider Perceptions and Members’ Revealed Preferences
Authors: Saluste Maarja , Mavroidis Petros C. , Wolfe Robert , Hoekman Bernard M. , Fiorini Matteo
Published: April 2022

The WTO dispute settlement system is in crisis, following the decision of the United States to block new appointments to the Appellate Body (AB). The AB went into hibernation in December 2019, not having enough sitting members to be able to operate. What do WTO members think of the performance of WTO dispute settlement? How much do WTO members care about the existence and operation of an appeals mechanism? In this article, we report on the results of a survey of WTO Members’ perceptions of the AB and the role it plays (should play). We complement this with data on Members’ revealed preferences in their use of the dispute settlement system, their intervention in WTO debates on the AB crisis and their responses to demise of the AB. The data reveal strong support for the basic design of the dispute settlement system but also that the United States is not alone in perceiving that the AB went beyond its mandate. There are substantive questions that need to be addressed if the Appellate Body impasse is to be resolved.

WTO, Appellate Body, dispute settlement, conflict resolution
Pragmatic Literary Theories and WTO Treaty Interpretation
Authors: Bhala Raj , Witmer Eric
Published: April 2022

‘No connection!’ That may be the thought of conventional, old-fashioned thinking as to ‘literary theory’, on the one hand, and ‘WTO treaty interpretation’, on the other hand. In fact, the conventional wisdom as to how the World Trade Organization (WTO) Appellate Body must interpret disputed terms in a treaty is incomplete.

That orthodoxy says the Appellate Body is restricted to the tools provided by Articles 31– 32 of the 1969 Vienna Convention on the Law of Treaties. The key such tool is a lexicographic hammer, namely, finding the plain meaning of a word or phrase at issue in a case between two WTO Members, with occasional recourse to surrounding passages or to the purpose of the treaty in which the disputed term is located. But Articles 31–32 comprise a larger tool kit than obsessive focus on the definition of a disputed word or phrase.

In truth, those Articles allow not only for Textualist and Contextualist techniques, but also Pragmatic ones. All such techniques are rich, nuanced tools familiar in English Literary Theory. An honest, open-minded account of the tools the Appellate Body has at its disposal to make decisions should acknowledge the possibilities this tripartite taxonomy affords, rather than castigate the Appellate Body for judicial activism if it allegedly strays from strict constructionism.

interpretation, treaty, WTO Appellate Body, pragmatic, literary, Vienna Convention, trade
ASEAN, Asia Pacific Economic Co-operation, and Hemispheric Free Trade for the Americas
Authors: Rudner Martin
Published: April 2022

Herein, again, we only shave the common fate of all nations; for not only do all touch one another more closely than of old, but—and especially in Asia—conditions external to all are drawing the regard of all towards a common centre, where as yet nothing certain is determined, where the possibilities of the future are many, and diverse, and great.

A.T. Mahan, The Problem of Asia (1900)
Andersen and the "Failing Firm"
Authors: Joergens Konstantin
Published: April 2022

Although the "failing firm defence" is part and parcel of the merger analysis the European Commission has traditionally confined its application to exceptional cases. The integration of former Andersen accounting firms in the UK, France and Germany into the network of its competitors led the Commission to apply "failing firm" considerations to a professional service provider. While it did not explicitly apply the rigid traditional three-pronged test, its analysis demonstrated a pragmatic approach towards a "truncated" defence. This article looks at the application of the defence by the Commission and discusses the need to make adjustments to the established criteria when assessing a merger that involves a "failing" service provider. The appraisal of the practice of the Commission may even lead to the conclusion that rather than refining the defence, it may be more appropriate to focus on the substance of the causality test which has proved to be its core element. Arguably, the failing firm defence could even be considered as one application of the causality test. Hence, instead of trying to force the merger analysis into the Procrustes¨ bed of the defence, the Commission may centre its analysis on the causal connection between the concentration and the adverse effects on competition. It would avoid overstretching a concept and would help focus on the essence of the merger test.
The Integration of Competition Law Principles in the New European Regulatory Framework for Electronic Communications
Authors: de Streel Alexandre
Published: April 2022

A new regulatory framework for electronic communications (fixed and mobile telephony, Internet, cable TV, . . .) is due to be applicable in the Member States of the European Union in July 2003. One of the main important aspects of the framework is the regulation of the operators enjoying significant market power, which has now been aligned on competition law principles. This article describes the three steps to be followed by a national regulatory authority to impose obligations upon these operators: selection of markets to be regulated and delineation of their boundaries, determination of the dominant operators on these markets, and choice of the remedies to be imposed. The article then characterises the remaining differences between sectoral law and general competition law. Finally, the article underlines the implicit vision of the new framework: economic sectoral law is a complementary tool—and not a substitute to—competition law, and would only intervene in case of hard-core market power that antitrust would be inefficient to control.
The Proposed New Technology Transfer Black Exemption
Authors: Pilola Anu , Dolmans Maurits
Published: April 2022

This article discusses the legal and economic foundations, as well as the practical implications of the Commission's proposal for a new technology transfer block exemption regulation (``TTBER'') and associated Guidelines.

The article concludes that the new TTBER brings desirable flexibility to the assessment of the competitive effects of technology licensing agreements by abolishing the current division of the clauses into four categories of exempted, white, black and grey clauses. The Commission's proposal is also praised for extending the scope of the Regulation to software copyright licences and for exempting some efficiency-enhancing restrictions that currently fall outside of the TTBER. The article, however, adopts a critical stand towards market share ceilings that the new TTBER introduces and criticises the overly stringent approach that the Commission adopts towards licensing between competitors. Finally, the article discusses some implications of the tightening of the rules on territorial restrictions. The article suggests alternatives, which, according to the authors, would lead to a more effective regulatory framework and to more efficient dissemination of new technologies
“Pass-on” in Merger Efficiency Defence
Authors: Kiljanski Kamil
Published: April 2022

Efficiency pass-on requirement has been traditionally regarded as one of the most controversial aspects of merger efficiency analysis. Theoretical studies on pass-on suggest that in the case of most oligopolies intermediate market shares lead to the greatest firm-level pass-on. This underlines the need to seriously recognise efficiency considerations in view of the “non-collusive oligopoly” interpretation of the EC Merger Regulation dominance test proposed in Commission’s Draft Merger Guidelines. At the same time, distilling the pass-on rate into workable guidelines in isolation from the whole competitive effects analysis is not only difficult, but also sub-optimal from an economic theory point of view. This article proposes a formalised conceptual framework of incorporating efficiency analysis into a merger review and then draws pass-on and general merger efficiency defence implications.
The Combination of the Investigative and Prosecutorial Function and the Adjudicative Function in EC Antitrust Enforcement: A Legal and Economic Analysis
Authors: Wils Wouter P. J.
Published: April 2022

In the current system of EC antitrust enforcement, the European Commission combines the investigative and prosecutorial function with the adjudicative or decision-making function. The purpose of this article is to analyse the advantages and disadvantages of this system, in comparison with a system in which the adjudicative function is separated from the investigative and prosecutorial function, such as the US system in which the Department of Justice or the Federal Trade Commission (under the pre-merger notification programme) investigates and prosecutes before a federal court. The first chapter of the article contains a description of the current EC system, a comparative description of the US system, an overview of the legal debate on the compatibility of the current EC system with Article 6 ECHR and on the scope for change under the current EC Treaty, and an introduction to the wider policy debate. The second chapter deals with accuracy, in particular the question whether there is a risk of prosecutorial bias in a system in which the investigative and prosecutorial function is combined with the adjudicative function. The third chapter deals with administrative cost, in particular the question whether a system in which the European Commission would prosecute before the Community Courts would be more expensive or slower than the current system. The fourth and last chapter contains a summary and conclusion.
Competition Law in Thailand: Seeds of Success or Fated to Fail?
Authors: Williams Mark
Published: April 2022

Thailand’s competition regime was substantially overhauled in 1999 in the aftermath of the Asian Financial Crisis as part of a wide-ranging reform of economic regulation. The new law was recognisably pro-competition and had ambitions to enhance the competitive capacity of Thai industry so as to be better able to withstand the increased competitive pressures from international business that was obtaining greater access to the Thai economy as international trade regimes liberalised. This article seeks to place Thailand’s new competition regime within the context of international competition law developments, especially in relation to developing and transitional economies, analyse the structure and content of the new law and the institutions established to enforce the statute. The article then attempts to assess the success of the first five years of implementation of the new regime. The observed weak enforcement of the new law is explained in terms of the incapacity of the state to implement the law effectively that is compounded by the absence of political commitment by the current government to a pro-competition economic policy. This lack of political will is due to leading government ministers having chronic conflicts of interest, immature and fragile institutional structures and, at root, the absence of a ``functioning’’ democracy.
Tying Under Article 82 EC and the Microsoft Decision: A Comment on Dolmans and Graf
Authors: Padilla Atilano Jorge
Published: April 2022

The recent article by Maurits Dolmans and Thomas Graf summarises their views on the analytical framework adopted under EC tying law and applies this framework to the European Commission’s March 2004 decision in Microsoft. We appreciate the opportunity this article provides for engaging in a healthy debate about sound approaches towards tying practices and for examining the permissible limits of product design by dominant firms. Both have significant ramifications for the development of the Common Market.
Microsoft Europe and Switching Costs
Authors: Le Net
Published: April 2022

Developing the studies of economic authors on switching costs, I hypothesise that a dominant software incumbent abuses his market power if he prejudices consumers without justification. Consumers will suffer detriment when their switching costs (S) are higher than the maximum utility surplus brought to consumers by an entrant’s product (Max ?U), or when the incumbent intentionally raises switching costs without justification. To remedy this, the incumbent should grant the entrant a licence to access any interfaces or data formats which could reduce S. A refusal to grant a licence may result in an abuse, unless it is otherwise justified on the grounds of sunk costs and free riding.
Buyer Power Assessment in Competition Law: A Boon or a Menace?
Authors: Kokkoris Ioannis
Published: April 2022

In recent decades, the development of very large buyers in previously more fragmented industries makes buyer power a recurrent issue in competition law cases. Buyer power can simultaneously be a boon and a menace for markets and competition. It may provide a countervailing force to enhanced seller power, and unless it leads to successive power, it can lead to lower prices in the downstream market. However, buyer power may also be socially detrimental, when it is not in the presence of strong seller power. It may undermine the long-term viability of suppliers and their willingness for innovation. Thus, the impact of buyer power in the economy is ambiguous. Analysis of buyer power should be on a case-by-case basis and involve an assessment of the likely distortion in both the upstream and the downstream markets. There should be no presumption that buyer power per se is infringing competition law.

This article will focus both on analysing countervailing buyer power and anticompetitive buyer power (or buyer market power). The article will address the issue of market definition and analyse the measures for assessing buyer power. It will also analyse cases involving buyer power under Articles 81 and 82 of the EC Treaty as well as under the European Control Merger Regulation (ECMR). This article has been shortlisted for the 1st World Competition Young Writer Award.
Using Conjoint Analysis for Market Definition: Application of Modern Market Research Tools to Implement the Hypothetical Monopolist Test
Authors: Hildebrand Doris
Published: April 2022

Market definition is instrumental to the assessment of market power and central to competition policy. Until recently, the assessment of market boundaries has been primarily a qualitative judgemental process. However, the past years have not only seen the development of new quantitative methods of defining markets, but also a growing demand for these econometric methods. This article discusses some of the issues arising in the empirical implementation of the Hypothetical Monopolist Test by econometric tools. In particular, the article shows how a certain empirical methodology which has found broad acceptance in market research, Conjoint Analysis, can be applied to market definition
Settlements of EU Antitrust Investigations: Commitment Decisions under Article 9 of Regulation No. 1/2003
Authors: Wils Wouter P. J.
Published: April 2022

Article 9 of Regulation (EC) No. 1/2003 provides for formal settlements of investigations by the European Commission into suspected infringements of Articles 81 or 82 EC. This article analyses the origin and optimal use of this provision, the procedure for the adoption of commitment decisions, the content and effect of such decisions, and the scope for judicial review. It also explores the possibilities of informal settlement, and of settlements that include the payment of a fine.
UK Tractors, Paris Luxury Hotels and French Mobile Telephony Operators: Are All Oligopoly Information Exchanges Bad for Competition?
Authors: Lévêque François
Published: April 2022

The European Commission handed down its first decision relating to a pure information exchange in 1992 with UK Agricultural Tractor Registration Exchange. France’s competition authority recently referred to that decision when it found against seven Parisian luxury hotels and three mobile telephony operators. The companies shared sales information with each other on a regular basis for several years. This article discusses the UK Tractors case from an economic standpoint and its application to the French competition authority’s recent two decisions. The author calls for a clarification in the enforcement of Article 81 of the EC Treaty between evidence of tacit collusion and evidence of static anticompetitive effects of information exchanges.
Draft Commission Guidelines on the Assessment of Non-Horizontal Mergers: Do They ”Defend” the Efficiency Defence?
Authors: Svetlicinii Alexandr
Published: April 2022

The Draft Guidelines on the assessment of non-horizontal mergers released by the Commission in February 2007 provides academia, industry and the larger public with an opportunity to comment on the treatment of non-horizontal concentrations under the new substantive test of the 2004 EC Merger Regulation. The Draft Guidelines is one of the continuous steps towards clarification of both substantive and procedural aspects of the reformed EC merger control. One of the issues that was expected to be clarified in the future Non-Horizontal Guidelines is the treatment of the efficiencies and incorporation of the efficiency defence in merger assessment process. As economic theory demonstrates, vertical and conglomerate concentrations are more likely to generate efficiencies that reduce costs and improve production or distribution processes and quality of the products thus ultimately benefiting the final consumer. As the efficiency defence was recognized in principle, but not yet applied by the Commission or Community courts, the future Non-Horizontal Guidelines have special importance in clarifying this legal concept and its practical application. Present work analyses the Draft Guidelines in the light of the preceding administrative guidelines issued by the Commission and recent case law developments in the area of EC merger control. The author submits that the Draft Guidelines fall short of improving the chances of the efficiency defence being effectively applied by the merging parties in view of the increasing standard of proof and judicial review. The article advocates the elaboration of more detailed and specific rules concerning the efficiency defence that would provide the parties with a functioning procedural mechanism giving a chance for efficiency claims to be considered against the alleged competitive harm.
In Pursuit of an Innovation Policy Rationale: Stakes and Limits under Article 82 TEC
Authors: Govaere Inge
Published: April 2022

This article addresses the topical question of whether or not one may discern a clear and coherent innovation policy rationale underlying the modernisation process of Article 82 TEC in recent policy statements and practice of the European Commission. From this perspective it first briefly reviews the impact of the Article 82 Review Discussion Paper and considers what modifications could be expected from the Lisbon Reform Treaty if it were to enter into force. In a second step the article gives an appraisal of the stakes posed for the IP–competition debate in Europe by recent cases, such as inter alia Microsoft, Rambus, Qualcomm and AstraZeneca. In so–doing it goes in search of the stakes and limitations of the Article 82 TEC remedy. The concluding part tries to identify a new course of action aspiring to combine dynamic competition and innovation in furtherance of the Lisbon Strategy.
Ways to Promote Workable Private Antitrust Enforcement in Italy
Authors: Rosso Selene
Published: April 2022

While the European Commission is retreating its proposal to import the US model of private antitrust enforcement, this is gaining ground in Italy, where double damages have been awarded in the well-known Manfredi case.

Nevertheless, it is still difficult to be awarded antitrust damages by an Italian court because of several reasons: (1) the labyrinth of the Italian courts, (2) the pliability of the Government to lobbying pressures, and (3) the courts’ reluctance/inability to deploy economic concepts in calculating the amount of damages.

Bearing in mind such issues, this article aims to propose viable ways of encouraging private parties to claim antitrust damages before the Italian courts, having regard to the more consolidated US experience and the suggestions put forward by the Commission at EC level. In particular, it shows the benefits of the following proposals: (1) to eliminate the exclusive competence of the Courts of Appeal so that all the cases concerning antitrust damages would go through the normal steps of the Italian judicial hierarchy and (2) to involve the National Competition Authority (NCA) in private litigation, by giving it the task of quantifying antitrust damages.