bluuebunny/crossref_metadata_2025 huggingface dataset:
Gendered Perspectives on Services Trade and Investment
Authors: Sauve Pierre
Published: April 2022

The service economy, and services trade and investment, are potentially important sources of inclusive growth by supplying considerable employment opportunities for female workers in light of the skills and work attributes often at play in services work. Services can play an important role in closing gender gaps, alleviating poverty and addressing the many forms of workplace discrimination weighing more heavily on female workers, managers and business owners. Economies around the world at all development levels are experiencing patterns of structural transformation resulting in a sustained rise in the share of services in key economic aggregates – output, employment, trade and foreign direct investment (FDI). Cross-border trade and investment can accelerate the pace at which economies specialize in tertiary output, employment and cross-border exchange. And trade and investment policies designed to induce an orderly process of structural change can help promote greater inclusiveness and address gender gaps in employment and work conditions. But trade policy alone cannot address a range of factors holding back the employment and economic opportunities of women and often confining them to a narrow range of service sectors and occupational categories. Trade-induced increases in employment opportunities for women often may not necessarily lead to reduced inequalities, such as gender segregation in types of occupations and activities, gender gaps in terms of wages and working conditions, and gender-specific constraints in access to productive resources, infrastructure, and services. Policies aimed at affording women higher levels of social protection, lessened time burdens flowing from household responsibilities, better access to education, vocational training, finance and information networks as well as strengthened entrepreneurial skills all form important complements for sustained improvements in female empowerment in services and beyond, as do steps taken to combat gender discrimination in all its forms.

Trade in services, gender, structural change, female empowerment, international trade negotiations, World Trade Organization.
Domestic Sources of India’s Trade Policy Preferences in RCEP Negotiations
Authors: Singh Surendar , Singh Ram
Published: April 2022

After negotiating for seven years, fifteen member countries of the Regional Comprehensive Economic Partnership (RCEP) agreement concluded text-based negotiations on 4 November 2019 at a summit held in Bangkok, conveying that participants will sign the agreement in 2020. However, India refused to join the RCEP agreement on the ground that its ‘outstanding and domestic concerns’ remained unresolved. This article examines key factors that shaped India’s decision not to participate in the RCEP. To examine these key factors, two-level game literatures are used to focus on domestic factors and interest groups explaining the role of actors that shaped India’s trade policy preferences regarding the RCEP. Specific cases from the steel and agricultural sector are used to examine powerful sector-specific interest groups in this article. Findings show that powerful and well-organized interest groups within the steel sector successfully pressurized the government to withdraw from the RCEP. In the agricultural sector, interest groups are fragmented, but because of their large number as an electoral group, farmers and workers provided power to influence the government to opt out from the RCEP.

RCEP negotiations, free trade agreements, India, WTO, sector-specific groups, domestic lobby, interest groups, and industry associations
The Trade: (Cyber)Security Dilemma and Its Impact on Global Cybersecurity Governance
Authors: Mishra Neha
Published: April 2022

Governments are adopting various measures to address cybersecurity-related concerns. Some of these measures restrict cross-border flows of digital services/data, and thus inconsistent with obligations in trade agreements such as General Agreement on Trade in Services (‘GATS’). However, certain governments might argue that such measures are justified under the GATS security exception (Art. XIVbis) as they protect national security. This article investigates whether GATS Art. XIVbis is relevant in justifying cybersecurity measures and its potential impact on cybersecurity governance. It argues that GATS Art. XIVbis has limited relevance, and is potentially problematic, when used in justifying majority of cybersecurity measures. First, a large majority of cybersecurity measures do not fall within the limited set of exceptional circumstances listed in GATS Art. XIVbis. Further, in applying this exception to cybersecurity measures, WTO Panels will be unfairly forced to balance trade and security interests in an environment of political, technological and policy uncertainty. Given these practical limitations and the normative boundaries of GATS Art. XIVbis, countries must avoid casually relying upon security exceptions as a basis for adopting/implementing unilateral measures on cybersecurity, but rather engage in meaningful cyber-diplomacy and regulatory cooperation mechanisms to resolve their differences on cybersecurity governance.

cybersecurity, GATS, WTO law, security exception, digital trade, internet governance,national security, cyberspace
BRI 2.0: Cosmetic Repairs or a Change of Course?
Authors: Wang Zhiqiong June , Chen Jianfu
Published: April 2022

At the Second Belt and Road Forum for International Cooperation in April 2019, China began to directly address some of the criticisms of the Belt and Road Initiative (BRI) practices, and started to emphasize the needs of local communities, economic and environmental sustainability, and mutual understanding among all parties and people involved in BRI projects. China also began to stress the importance of international law principles and common practices, and a multilateral approach to the implementation of BRI. Together with its pledge, made in September 2018, to waive debts for selected least developed African countries, there is now talk of a ‘BRI 2.0’. However, is this BRI 2.0 fundamentally different from its original version?

This article starts with a brief examination of the notion of BRI and its development in the last six years. It then reviews the various criticisms levelled against the BRI and its practices. This is followed by an analysis of recent responses from China to various concerns and misgivings. In its analysis, this article examines the BRI in a geopolitical context and argues that much more fundamental changes are needed for the ‘BRI 2.0’ to gain genuine support from Western developed nations.

Belt and Road Initiative (BRI), China, Investment, Geopolitics, Sustainability, Global Governance
Testing for Consistency: Certain Digital Tax Measures and WTO Non-Discrimination
Authors: Ogbu Okanga Okanga
Published: April 2022

Few issues have challenged tax policymakers and commentators as much as digital taxation has in recent years. Ongoing efforts to reconstruct the rules of international tax to ‘properly’ govern the taxation of the global digital economy have evoked some important tax and trade related considerations. As regards the latter, unilateral attempts by various states – partly spurred on by a lack of multilateral consensus – to tax nonresident digitalized businesses threaten to disrupt international trade relations, with threats of trade war exchanged between some World Trade Organization (WTO) Member States over the propriety of the proposed tax measures. As the conversation on the underlying tax issues progresses, this article examines the consistency of some features of the various unilateral digital tax measures with the fundamental WTO principle of non-discrimination, as contained in the General Agreement on Trade in Services (GATS). Using the French Digital Service Tax (French DST) as a focal point, the article argues that there is a case to be made that some common features of the unilateral digital tax measures violate either the most favoured nation or national treatment rules of WTO non-discrimination.

International Tax, International Trade, Digitalization, E-Commerce, WTO, Non-discrimination, Most Favoured Nation, National Treatment
Why and Whither the US-China Trade War?: Not Realist ‘Traps’ but Political Geography ‘Capture’ as Explanation
Authors: Zhang Xiaotong , Flint Colin
Published: April 2022

This article attempts to understand the profound political-economic, geographic, and historical force behind the Trump trade policy ‘revolution’ from the perspective of world-systems analysis. The trade war launched by the United States against China is essentially motivated by a profound political-economic and geographic logic: the US and China are competing to ‘capture’ core processes in the world-economy. The real imminent challenge facing the US-China relations and the rest of the world is actually not the so-called ‘Thucydides Trap’ (China challenges American global power), or ‘the Kindleberger Trap’ (America gives up global economic leadership while China is not ready to take over American role). The underlying economic driver of the trade war is the emergence of new core processes in the capitalist world-economy and the attempts by governments to ‘capture’ those processes within cities within their country. As the paired Kondratieff cycle and hegemonic cycle model tells us, economic depression accelerates hegemonic decline, and ushers in a period of restructuring and transition. Therefore, our forecast is that the US-China ‘trade war’ will not stop, and will be an ongoing component of the restructuring of the global geopolitical order in the coming years.

trade war, US-China relations, ‘Thucydides Trap’, ‘Kindleberger Trap’, Political- Geography Capture, core processes, Capitalist World-Economy, Kondratieff Cycle, hegemonic cycle, global geopolitical order
Some Lessons that Might Be Learnt from Brexit Britain’s Trade Negotiations with the European Union
Authors: Swinbank Alan
Published: April 2022

The UK-EU negotiations for new arrangements to cover trade in goods, following the UK’s decision to leave the EU, were long and complex. What lessons might politicians, trade negotiators, and academics learn from this long-drawn-out saga? This article focuses on five of the ways in which the UK misplayed, misunderstood, or misrepresented the consequences of Brexit. First, there was no plan for Brexit. Second, the implications for the Irish border and peace progress were not appreciated. Third, World Trade Organization (WTO) rules were not understood. Fourth, by threatening to break international law the UK undermined its credibility as a negotiating partner and increased the EU’s resolve to protect its market. Fifth, Boris Johnson’s unwillingness to acknowledge that leaving the EU’s customs union and Single Market would result in UK-EU trade barriers, distorted debate and raised unfulfilled expectations.

Brexit, Ireland, EU, WTO, rules of origin, free trade area, customs union
A Soft Landing for Developing Countries and Non-Discrimination in Digital Trade: Possible Lessons from Asian Countries
Authors: Collins David , Park Tae Jung , Lee Joo-Hyoung
Published: April 2022

The article suggests the implementation of certain legal devices to enable developing countries to achieve policy flexibility to take advantage of the opportunities presented by the expansion of digital trade while balancing some of the risks which this may present to consumers in the sphere of privacy as well as threats to governments in the form of national security. These include a ‘renegotiation clause’ as well as the familiar classification of ‘special and differential treatment’ for developing or least-developed countries.

Digital Trade, Non-discrimination, Renegotiation clause, Special and Differential Treatment, Developing or least developed countries, Korea, China and Japan, Post-Covid-19
Is the MPIA a Solution to the WTO Appellate Body Crisis?
Authors: Starshinova Olga
Published: April 2022

In an attempt to overcome the current WTO Appellate Body crisis, a number of WTO Members agreed to participate in the Multi-Party Interim Appeal Arbitration Arrangement pursuant to Article 25 of the Dispute Settlement Understanding (MPIA). The majority of the WTO Members have not yet agreed to participate in the MPIA have been attempting to assess the effectiveness of the MPIA in meeting their interests. This leads to the question as to whether the MPIA can serve as the temporary solution for the Appellate Body crisis. Is it a practically effective mechanism for dispute resolution, or is it simply a political declaration by MPIA participants that they stick to the two-tier dispute settlement system? To respond to these questions, this article analyses the legal basis of the MPIA and its negotiating history. This article also addresses the differences between the appeal mechanisms provided for in the MPIA and the Dispute Settlement Understanding (DSU) and provides a conceptual discussion with regard to the legal nature of the MPIA. Finally, the article identifies the main advantages and drawbacks of MPIA. It should be taken into account that the effectiveness of the MPIA will only be assessed when any of the disputes submitted for consideration under the MPIA rules is resolved.

WTO Anti-Dumping Agreement, WTO Panels, Constructed Value, CV Profit, USDOC, Anti-Dumping Investigation, US – OCTG (Korea), Reform, Best Information Available
“We Protect Competition, You Protect Competitors”
Authors: Fox Eleanor M.
Published: April 2022

It is widely stated, in contemporary antitrust circles, that antitrust law protects consumers, not competitors. This article explores two questions: Do these words have a clear and uniform meaning, and, Is the statement a fair description of what antitrust laws in fact do? Antitrust laws protect competition. But the laws do not mandate competition; they simply intervene to prevent certain obstructions. This mission may take one or more of three paths: 1) prevent direct harm to consumer welfare by output-limiting acts or transactions, 2) also, protect the openness of markets, and 3) also, put a lid on aggressive competition that might destroy a market of smaller, weaker firms. This article argues that only the third category unabashedly protects competitors. The second category takes a broad view of a dynamic process that “should” not be degraded. It is not designed to protect competitors from competition. But the second category could err on the side of protecting competitors unless the jurisdiction gives serious regard to efficiency justifications, even while the first category could err on the side of perpetuating the power of dominant firms.
Some Comments on Procedure and Remedies under EC Merger Control Rules: Something Rotten in the Kingdom of the EC Merger Control?
Authors: Winckler Antoine
Published: April 2022

This article surveys the law and policy of the Commission’s approach to remedies in Merger Control to date. Underlying much recent criticism have been two problematic procedural characteristics of the EC system. The first is practical: the stringency of deadlines in the Merger procedure, while constituting one of its great benefits, can also mean that there is insufficient time for full and adequate discussion of remedies at each stage in the process. This problem of lack of time has been exacerbated by the Commission’s increasing demands for broader, more severe, and more detailed remedies (such as identification of an “up-front” buyer), which in turn are more time-consuming to formulate. The second problem is structural: the Merger procedure in its present form is insufficiently transparent and offers inadequate procedural safeguards to notifying parties. This criticism is founded in the often competitor-driven nature of the review process, the “judge and jury” syndrome of the Merger Task Force, and the difficulty in obtaining effective judicial review of merger decisions. While developments such as the new Draft Merger Regulation and recent judgments of the Court of First Instance go some way towards alleviating these concerns, they are no panacea for the present difficulties.
IP Licences and Competition Rules: Striking the Right Balance
Authors: Peeperkorn Luc
Published: April 2022

The Commission is currently reviewing its competition policy approach towards technology transfer agreements. This article deals with some of the background issues and questions relevant for an appropriate perspective on how to find the right balance when applying competition policy to licensing agreements. It is argued that intellectual property law and competition law do not have conflicting aims. It is also quite evident that intellectual property and intellectual property law may not always stimulate innovation. There are therefore good reasons for competition law to prevent the possible anti-competitive effects of licensing agreements. The high importance of innovation for growth and welfare does not mean that competition policy towards licensing agreements needs to be fundamentally different or less strict, not in general and not for certain sectors. Accordingly the proposed new block exemption regulation and draft guidelines contain an approach similar to the approach applied in recently adopted regulations and guidelines for other types of vertical and horizontal agreements, including the creation of safe harbours with the help of market share thresholds.
Ferring Revisited: the Altmark Case and State Financing of Public Service Obligations
Authors: Louis Frédéric
Published: April 2022

On 24 July 2003, the Court of Justice of the European Communities (``the Court of Justice'') rendered its eagerly awaited judgment in the Altmark case, ending the controversy surrounding the application of the EC State Aid control regime to compensation granted to undertakings in consideration for public service obligations imposed on them, which had divided the Court of Justice and the Court of First Instance of the European Communities, and sparked a wide debate between four of the Court of Justice's Advocates General.

The Court held that State compensation for public service obligations does not confer an advantage on the undertakings concerned, and hence does not constitute State Aid within the meaning of the EC Treaty (``EC''), provided four stringent conditions are satisfied, which will serve as safeguards to make sure that its ruling is not used by Member States to favour certain undertakings under the guise of compensating them for the costs incurred in discharging public service obligations.

This judgment is meant to enable Member States to organise public services without having to submit their financing mechanisms to prior European Commission scrutiny under the State Aid control rules. However, the conditions determined by the Court of Justice will ensure that only the most clear-cut cases will benefit from the generous treatment provided for by the Altmark ruling. A number of issues remain unresolved and it is to be hoped that the Commission will now act quickly to provide Member States with the necessary guidance in this important field.
Decentralisation of EC Competition Law Enforcement: Judges in the Frontline
Authors: Lenaerts Koen , Lenaerts Koen
Published: April 2022

With the entering into application of Regulation 1/2003, national courts are thrown into the arena of EC competition law enforcement. The Commission seems to firmly believe that they have an essential role to play in applying competition rules in order to complement the enforcement activities of the public authorities. This article analyses the role of national courts under the new decentralised system with due regard for the concerns generally expressed at their ability to handle complex antitrust cases and at the consistency of judicial interpretation of Articles 81 and 82 EC throughout the Union. The Community Courts will also be affected by Regulation 1/2003 even if no specific arrangement has been made to help them face a likely increase in workload. It is argued however that their traditional tools, i.e. preliminary ruling and control of legality, remain suitable to support national courts and to ensure a proper application of EC competition law by the Commission. Finally the article tries to draw some lessons from the long experience of judicial enforcement of the antitrust laws in the United States and offers some thoughts on the role of counsel in the success of the decentralisation venture.
The Case of Unilateral Patent Ambush Under EC Competition Rules
Authors: Petritsi Eliza G.
Published: April 2022

Recent action in the United States signals that improper patent disclosure within a standard setting organisation could have antitrust consequences. Enforcement actions are underway to combat the so-called patent ambushing strategies under US unfair trading rules and allegations of monopolisation or attempted monopolisation. On the other hand the European Union has not yet addressed these issues. This article analyses patent ambushes under EC competition rules. It addresses the issues raised by unilateral patent ambush strategies under Articles 81 and 82 of the EC Treaty. It offers some thoughts on whether EC competition rules could be a viable tool to fight those strategies at EU level as well. It briefly presents a comparison with the situation in the United States and tries to draw some conclusions as to the best way to deal with the patent ambush scenarios, not necessarily through the antitrust avenue. It is argued that EC competition tools might not be useful in attacking patent ambushes as such, other than in exceptional circumstances.
Who’s Afraid of Conglomerate Mergers? A Comparison of the US and EC Approaches
Authors: Burnley Richard
Published: April 2022

The GE/Honeywell decision exposed a fundamental difference of opinion between the US and the EC competition authorities in the assessment of conglomerate effects. Within the context of merger control, which is by nature speculative, it is no surprise that two different authorities could reach different conclusions about one and the same merger. What is striking is that the Commission appeared to rely on theories that were largely discredited in the US during the early 1980s. Given that both regimes place consumer welfare at the heart of competition law, is the EC’s approach outdated, even deficient?

Analysis of the legal background to the GE/Honeywell decision reveals that the Commission’s reasoning is well founded in existing legal principles. In the absence of objective empirical evidence that beneficial effects derive from all conglomerate mergers, the author sees no reason for the Commission to conform to economic standards applied in other jurisdictions. The EC should not be afraid of its own unique objectives and legal culture.
Innovation, Leveraging and Essential Facilities: Interoperability Licensing in the EU Microsoft Case
Authors: Lévêque François
Published: April 2022

This article provides an economic analysis of the European Commission’s decision against Microsoft’s refusal to supply information on interoperability. It surveys the exceptional circumstances examined by the Commission in applying the essential facility doctrine to the case. It analyses the Commission’s reasoning on Microsoft’s leveraging its market power from one market to another. It discusses the amount Microsoft can request as reasonable remuneration for the licensing of its property rights on interface. According to the author, the analysis of incentives to innovate, as proposed by the Commission, provides a sounder test for ordering compulsory licensing than the new product condition introduced in Magill. However, the author points out that the assessment of incentives to innovate in the whole industry cannot be conclusive in the absence of more guidance on what constitutes a reasonable, non discriminatory and non strategic license. Regarding leveraging, the author considers that the Commission proposes a convincing story. Prejudice to consumers remains however hypothetical.
Competition in the Internet Backbone Market
Authors: Buccirossi Paolo , Ferrari Bravo Laura
Published: April 2022

This article presents a competitive assessment of the global market for the provision of universal Internet connectivity (backbone market). We discuss the approach followed by the European Commission in two important merger cases. The main argument is for a restless evolution of the structure of the market, whereby a highly concentrated US-centric industry, with a strict vertical hierarchy between Internet Service Providers (ISPs) and a neat separation between first-level ISPs and the rest of the market, is going to be superseded by a more horizontal-shaped configuration. It is argued that as the landscape of the industry is subject to continuous change, the approach followed by the European Commission in assessing the competitive forces that drive the industry is likely to be no longer appropriate. New behavioural strategies, such as differentiation through the introduction of new enhanced Internet services based on the concept of Quality of Service and, related to that, new competitive threats seem to characterise the foreseeable future of the Internet. We then investigate the competitive concerns that might emerge in the new environment.
Beyond Leniency: Enhancing Enforcement in EC Antitrust Law
Authors: Riley Alan
Published: April 2022

This article looks at two ways that the application and enforcement of Community competition law can be enhanced in the early years of the 21st Century. It argues first that the European cartel enforcement revolution, ushered in by the 2002 EC Leniency Notice provides the basis for the first time for a major development of European civil antitrust litigation. The flood of cartel prohibition decisions adopted by the Commission as a result of leniency applications permit victim-plaintiffs of cartel members to step over the most serious barrier to civil litigation: lack of effective discovery rules, and obtain redress in the national courts. Second, it makes the case for developing a second cartel-busting instrument to stand alongside the Leniency Notice. It identifies the US Civil False Claims Act, as a legal model than can be adapted into a powerful antitrust instrument to detect and prosecute many more cartels. The adoption of a second powerful cartel-busting antitrust instrument would in turn increase the number of cartel prohibition decisions and thereby increase the scope for many more civil antitrust cases in the national courts. It is contended that together these two American innovations, leniency and the CFCA, could lay the foundations for the rise of a powerful European antitrust litigation practice which would police the antitrust rules and ensure that victims were justly compensated.
The Defence of “Objective Justification” in the Application of Article 82 EC
Authors: Loewenthal Paul-John
Published: April 2022

As a general rule, an undertaking will not abuse its dominant position under Article 82 EC if it can provide an objective justification for its conduct. This rule has been stated by the European Commission and the European Courts on a number of occasions, but no systematic approach has ever been taken to its application. This article sets out to remedy this problem by providing a framework within which the defence of objective justification can be applied under Article 82. It does this, first, by examining how the defence fits within the overall analysis of Article 82. Second, by determining what types of objective justification a dominant undertaking may advance for its conduct and identifying the requirements which every defence must comply with in order to be effective. Third, it investigates how the defence of objective justification reacts to the anti-competitive effects of a dominant undertaking’s conduct. Finally, it concludes that a structured approach to the defence of "objective justification’’ ensures the uniform application of Article 82 post-modernisation.
Consolidating Antitrust Damages in Europe: A Proposal for Standing in Line with Efficient Private Enforcement
Authors: Schinkel Maarten Pieter , Rüggeberg Jakob
Published: April 2022

One of the lessons from US private antitrust practice is that limitation of defendants’ and plaintiffs’ rights should not be imposed lightly. Three Supreme Court decisions in Hanover Shoe, Illinois Brick and ARC America denying the pass-on defence and limiting standing to sue have resulted in a complex system of multi-district and multi-party litigation that achieves neither fair compensation nor efficient deterrence. Excluding the pass-on defence in Europe is a first step in a similarly irreversible sequence of further corollary requirements. We caution against taking this route and instead propose an alternative institutional design for the European Union. The proposal involves a centralised consolidation of fragmented individual antitrust damage claims. The assessment of damages is allocated to a central authority, which acts as amicus curiae upon a definitive infringement decision in an initiating action before a national court. This advisory position would most naturally be designated to a competition authority. It would conduct a public investigation and assess and specify the combined economic damages caused by the infringement. Its consolidated damage report is offered as an advice to the court, which subsequently apportions individual damages to the initiating plaintiff. Later related claims can refer to the report in consequential actions before national courts. The procedure provides an efficient, single, consistent and complete damage estimate, while still utilising the full detection potential of unrestricted private damage actions. This allows for an effective and efficient mechanism of private antitrust enforcement, whilst achieving compensation of actual damages for those injured by anti-competitive acts.
A Tale of Two Competition Law Regimes — The Telecom-Sector Competition Regulation in Hong Kong and Singapore
Authors: Cheng Thomas K.
Published: April 2022

Competition law has seen very active development in Asia in recent years. Ironically, Hong Kong and Singapore, as two of the freest and most competitive economies in the region, long held a sceptical attitude towards competition law. Singapore enacted its first cross-sector competition law in 2004, some say only due to American pressure. For years, the Hong Kong government defended its sectoral model and insisted that the city had no need for a cross-sector competition law. However, that obstinate attitude shifted in March 2007, when the government announced that Hong Kong would follow Singapore’s footsteps. Until the new law is passed, however, telecommunications remain one of the two sectors in both economies that are subject to active competition law enforcement. The telecom-sector regimes hence may provide useful examples for the new general competition regulator in Singapore, and for Hong Kong as it drafts its new cross-sector law. These telecom-sector regimes also carry independent significance. They are part of the two governments’ effort to liberalize their respective telecom sectors. This article evaluates these two regimes in light of their avowed objective of facilitating liberalization, and draws lessons from their experience to shed light on Hong Kong’s effort to adopt a cross-sector competition law.
The Role of Investments in Refusals to Deal
Authors: Van Rooijen Ashwin
Published: April 2022

Under the “essential facilities” doctrine, dominant firms may have a duty to deal with competitors. A principal objection to imposing a duty to deal is uncertainty as to whether a firm can recoup its investments in the facility that the competitor seeks access to. This article discusses the role of investments in essential facility cases. The purpose of this article is twofold. First, it observes that many “essential facility” cases seem to originate from allocation of rights rather than from anticompetitive conduct. Second, it proposes that courts attribute a more significant role to the analysis of investments underlying these facilities. It is expected that greater emphasis on the investments at stake can limit the chilling effects caused by mandatory sharing. This article has been shortlisted for the 3rd Young Writer’s Competition Award.
The Incentive Effect of State Aid: Its Meaning, Measurement, Pitfalls and Application
Authors: Nicolaides Phedon
Published: April 2022

This article examines how the incentive effect of state aid is defined and measured. It also considers how the use of the incentive effect may impact on the behaviour of aid recipients. The availability of state aid would naturally induce them to undertake riskier projects that are not normally included in business plans that tend to be conservative. Therefore, if business plans are the benchmark by which the incentive effect of state aid is established, then this benchmark may be a too easy test of the existence of the incentive effect. The article also argues that the timing of the assessment of the need for state aid has a decisive impact on the determination of whether aid has an incentive effect or not. Lastly, the article examines the Commission Decision on the proposed training aid to DHL and suggests that that aid could have had an incentive effect if it were offered to DHL before it made its decision to establish a logistics centre in Leipzig.
The Increased Level of EU Antitrust Fines, Judicial Review and the ECHR
Authors: Wils Wouter P. J.
Published: April 2022

Some lawyers and businesses have claimed that, because of an increase in the level of antitrust fines imposed by the European Commission in recent years, these fines have become criminal in nature and that the current institutional and procedural framework in which fines are imposed by the European Commission, with subsequent judicial review by the EU Courts, is no longer compatible with the European Convention on Human Rights (ECHR). This paper critically examines those claims. The main point to be retained is that the case law of the European Court of Human Rights distinguishes between, on the one hand, the hard core of criminal law and, on the other hand, cases which are ‘criminal’ within the autonomous meaning of the ECHR but which do not belong to the hard core of criminal law. Irrespective of any increase in their level, the antitrust fines imposed by the European Commission only belong to the second, broader category of criminal penalties, and the European Court of Human Rights has consistently held that it is compatible with the ECHR for such penalties to be imposed, in the first instance, by an administrative or non-judicial body such as the European Commission.
Banking Competition in Europe: Antitrust Authorities at Work in the Wake of the Financial Crisis
Authors: Giannetti Caterina , Carletti Elena , Spagnolo Giancarlo , Caiazza Stefano
Published: April 2022

In the financial intermediation industry, competition issues interact with those concerned with stability, as the current crisis unfortunately reminded us. This paper discusses and summarizes recent inquiries into retail banking undertaken by the European Commission and various National Competition Authorities, commenting on the methodologies and perspectives that these institutions have used to analyse competition in a sector that was, for a long time, considered ‘special’. While the identified competitive problems and solutions closely match those highlighted by academic research, too little attention still appears to be given to risk considerations, which would allow competition authorities to counter the likely forthcoming attacks that will again be aimed at isolating the financial industry from appropriate competitive checks.
A New Approach to Resolving Refusal to License Intellectual Property Rights Disputes
Authors: Kwok Kelvin Hiu Fai
Published: April 2022

This article proposes a new approach to resolving the conundrum of a monopolist refusing to license Intellectual Property Rights (IPRs) to a competitor, one of the most complex issues at the interface between Intellectual Property (IP) and competition law. It reviews the approaches adopted by the competition authorities in both the European Union (EU) and United States when confronted with this perplexing issue and argues that the extreme positions they took - either that competition should trump IPRs or that IPRs should trump competition - were mistakenly simplistic. This article proceeds to argue that the preferred approach is to strike an appropriate balance between anti-competitive effects and pro-competitive effects of a refusal to license and, accordingly, allocative efficiency losses and dynamic efficiency gains. A substantial part of this article is devoted to a proposed framework illustrating how the balance can be struck, emphasizing how the refusal at issue interacts with various circumstantial factors such as market power, network effects, monopoly leveraging, predatory intent, degree of follow-on innovation, and the causal connection between IPR protection and innovation incentives. Reference will be made to precedents from the EU (Magill, IMS, and Microsoft) and United States (Kodak and Xerox) in explaining how the framework works in practice.
No Longer Presumed Guilty? The Impact of Fundamental Rights on Certain Dogmas of EU Competition Law
Authors: Bronckers Marco
Published: April 2022

That the penalties imposed under European Union (EU) competition law amount to criminal sanctions within the meaning of Article 6 of the European Convention on Human Rights (ECHR) has been settled for some time. Yet whether the entry into force in December 2009 of the Charter on Fundamental Rights (as part of the Lisbon Treaty), and the EU's intended accession to the ECHR, should bring about changes in the operation of EU competition law is a question frequently debated now. Most of that debate has focused on the institutional make-up of competition law enforcement in the EU, notably on whether the European Commission ought to adapt its multiple roles of being simultaneously investigator, prosecutor, adjudicator, and policymaker, its practices relating to dawn raids, etc. This article takes a different tack and calls attention to the potential impact of fundamental rights on certain procedural or even substantive concepts in EU competition law. For many years now, the Commission has used presumptions to ease its administrative burden in bringing competition law cases. These presumptions have weighed heavily on defendant companies. This article submits that such administrative presumptions need to be curtailed in order to avoid conflicts with the fundamental presumption of innocence and the attendant rights of the defence. We will illustrate this thesis by reference to the presumptions inherent in the parental liability for anticompetitive conduct of subsidiaries and in the infringement attributed to the exchange of future price information between competitors.
The Oral Hearing in Competition Proceedings before the European Commission
Authors: Wils Wouter P. J.
Published: April 2022

This paper deals with the (formal) oral hearing in competition proceedings conducted by the European Commission for the enforcement of Articles 101 and 102 TFEU (antitrust proceedings) and under the EU Merger Regulation (merger proceedings). It analyses the legal basis and the nature and purpose of the oral hearing, examines who can request an oral hearing, and who can attend and speak at the oral hearing, compares the oral hearing with state of play meetings, and provides some general observations as to what factors may make addressees of a statement of objections decide in favour or against requesting an oral hearing.
Did They Do It? The Interplay between the Standard of Proof and the Presumption of Innocence in EU Cartel Investigations
Authors: Melícias Maria João
Published: April 2022

This article examines the need for EU Courts to clarify the appropriate standard of proof in cartel proceedings. It discusses the usefulness of this legal benchmark in antitrust procedure, having regard to the Member States different legal traditions re the rules of evidence and the implications of a dissimilar approach to the problem across the EU, in a system of parallel enforcement regimes. In the absence of an EU provision on the matter, the article observes that the presumption of innocence, which is a generally recognized international standard, provides for a workable solution, considering the evidence based safeguards that stem from it, in light of both the Strasbourg and the EU courts case law. Bearing in mind the intrinsic distinctive nature between competition law cases, the article finally explores whether it is appropriate to argue the existence of a single uniform standard of proof and review and submits that these inevitably vary according to the subject matter of each case, notably, to whether the presumption of innocence is applicable or not.
Intellectual Property Rights & Compulsory Licensing: The Case of Pharmaceuticals in Emerging Markets
Authors: Boscheck Ralf
Published: April 2022

On 9 March 2012, India's Controller General of Patents, Designs and Trademarks granted a non-exclusive and non-assignable compulsory license to NatcoPharma to manufacture and sell a generic version of Bayer's cancer drug Nexavar at a discount of 97% on the innovator price. The ruling revives a drawn-out debate on the use and abuse of intellectual property rights in international commerce. The inclusion of the agreement of trade-related aspects of intellectual property rights (TRIPS) in WTO rules in 1994 committed member countries to honour patent rights and to apply common compulsory licensing standards when seeking market relief. Lately, however, the criteria for such interventions seem to have been slipping. Applying the 'public non-commercial use' rationale to non-emergency, non-infectious diseases, Thailand converted compulsory licensing into an effectively unconstrained method of pure cost containment. Widespread use of that model would require the developed world to shoulder a disproportionate share of the necessary R&D expenditures while simultaneously presenting it with an attractive option to shed that burden. The decision taken by India's Controller General of Patents, Designs and Trademarks in the case of Nexavar may present a first step into that direction. The US Hatch-Waxman Act provides a means for India Inc. to sustain its generic business model in a TRIPS-compliant fashion. Advancing from here requires the country or any other emerging economy to refocus R&D efforts on product technology and, for their own benefit, to insist on a nation-blind enforcement of intellectual property rights. Compulsory licensing is not an alternative to this. Neither is it a substitute for indigenous technology, nor does it provide a solid foundation for upgrading a country's pharmaceutical sector. It is legitimate in a range of circumstances, but standards and implementation principles must be clear to avoid stifling the benefits of technological progress and global commerce. Going forward there is a need to recall some of the principal differences between corporate and political responsibility in attaining socially preferred outcomes, to clarify the role of WTO rules as constituting global trade, and to promote genuine national debates on healthcare and funding.
Merger Control in China: Four and a Half Years of Practice and Enforcement  A Critical Analysis
Authors: Furse Mark
Published: April 2022

This article looks back at developments in the Chinese merger control regime from its entry into force until January 2013.The decisions published by the Ministry of Commerce are analysed, with particular reference to the imposition of remedies. The relevant guidance, and its development in the light of decisions is also considered, along with the broader enforcement patterns, including the extent to which decisions have involved non-Chinese parties. The argument is made that whilst there have been very significant steps taken in the development of the regime, there remain areas of concern, including the intrusive behavioural nature of the majority of remedies, the lack of clarity as to the operation of the substantive test, and a perceived imbalance in the targets of enforcement.
Abuse of Collective Dominance: The Need for a New Approach
Authors: Gjendemsjø Ronny , Hjelmeng Erling J. , Sørgard Lars
Published: April 2022

The purpose of this article is to discuss the application of Treaty on the Functioning of the European Union (TFEU) Article 102 to abuse of collective dominance. We demonstrate that while the concept of collective dominance has developed in line with a sound economic approach focusing on coordinated effects, no genuine concept of abuse in such situations has been established. Instead, the concept of abuse has been closely linked to the abuse concept in single dominance cases. We argue that there is a need to adapt the concept of abuse to the particular challenges posed by collective dominance and that Article 102 TFEU should primarily focus on conduct having as its object or effect the strengthening of the collective dominant position by reinforcing the oligopolistic interdependence and the tightening of the oligopoly. In this respect, Article 102 represents an as yet underdeveloped tool.
Towards Decentralization of State Aid Control: The Case of Services of General Economic Interest
Authors: Fiedziuk Natalia
Published: April 2022

The prospect of decentralization in State aid control has been traditionally viewed with scepticism, mostly due to the high potential of political influence at the national level. It has also been regarded as a threat to the consistency and uniformity of the application of State aid rules. In that relation, the European Commission has been granted an institutional 'monopoly' with regard to the assessment of compatibility of State aid measures. While national courts perform some, albeit limited, role in State aid control, national competition authorities have not been vested by EU law with any tasks with regard to examination of State aid. In the area of services of general economic interest, however, there are signs that the decentralization process is already under way. The adoption of the Altmark judgment, and more importantly, the increasing role of Member States in examining State aid compatibility under Article 106(2)TFEU show that, in the future, national authorities could exercise a more substantial and active role in the enforcement of State aid rules.
Competition Law and UK Retail Banking
Authors: Graham Cosmo
Published: April 2022

This article examines the application of competition law and policy in the UK retail banking sector from 2000 to the present. It focuses on the control of mergers between banks, attempts by the competition authorities to improve the conditions of competition and recent developments following the report of the Independent Commission on Banking. It argues that the traditional arrangements and understandings regarding the banking industry in the UK have broken down but it is as yet unclear what will replace them. Although the competition authorities have attempted to improve the competitive conditions of retail markets, progress has been limited, in part because of market structure issues. The problem for the competition authorities has also been that important decisions are not within their control and that, in some significant cases, the government has taken decisions contrary to their advice.