bluuebunny/crossref_metadata_2025_split huggingface dataset:
Abuse of Dominant Position: Main Elements
Authors: Lianos Ioannis , Korah Valentine , Siciliani Paolo 
Published: August 2024

Abstract
This chapter examines the main elements of EU and UK competition law with regard to abuse of dominant position. In addition to punishing collusive practices and providing remedies, competition law in the EU and UK prohibits unilateral conduct. Unilateral conduct may infringe Article 102 TFEU and Chapter II of the UK Competition Act of 1998 (CA98). These provisions apply only if a dominant undertaking has abused its dominant position. The chapter first provides an overview of the relevant laws governing abuse of dominant position before discussing the specific aims of the prohibition of such abuse. It then considers the concept of dominant position, taking into account the relation between dominant position and market power as well as direct evidence of market power and dominant position. It also analyses dominant position in aftermarkets, collective (joint) dominant position, and the concepts of abuse and ‘objective economic justification’.
Update to Chapter 4: Subject-matter Scope: Civil and Commercial Matters
Authors: Hartley Trevor C 
Published: August 2024

Abstract
This chapter examines subject-matter scope, which refers to the scope covered by a measure as regards its subject matter, that is to say the branches and areas of the law to which it applies. In the case of the instruments with which this book is concerned, the relevant provisions are contained in Article 1 of Brussels 2012 and Lugano, and Articles 1 and 2 of Hague. Article 1(1) of all three instruments provides that the instrument in question 'shall apply in civil and commercial matters'. Brussels 2012 and Lugano add 'whatever the nature of the court or tribunal'. This phrase is not found in the Hague Convention, though no doubt it is understood. The importance of the phrase 'whatever the nature of the court or tribunal' is that a civil claim joined to criminal proceedings can nevertheless be within the subject-matter scope of Brussels or Lugano, even though it is ancillary to criminal proceedings. The chapter considers the general concept and then looks at specific problems. The cases explored show that the distinction between a civil matter and a public matter is far from straightforward.
Update to Chapter 25: Conventions on a Particular Matter
Authors: Hartley Trevor C 
Published: August 2024

Abstract
This chapter assesses the relationship of Brussels and Lugano with certain other instruments. Certain other EU instruments, often ones dealing primarily with substantive law, contain provisions relating to jurisdiction and judgments. Brussels 2012, Article 67, provides that the Regulation will not prejudice the application of these provisions or of national measures adopted to give effect to them. This is based on the idea that specialized provisions should prevail over general ones. Meanwhile, prior to the adoption of the Brussels Convention, there was a network of mainly bilateral conventions between different Member States dealing with the recognition and enforcement of judgments. Brussels 2012, Article 69, provides that, as between Member States, Brussels 2012 supersedes these conventions to the extent that they cover the same matters as it does, though they continue to apply in relation to matters to which it does not apply. Specialized conventions are dealt with by both Brussels 2012 and Lugano 2007. Brussels 2012, Article 71(1), provides that Brussels 2012 will not affect any conventions to which the Member States are Parties and which, in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments. Lugano 2007, Article 67(1), contains a similar provision.
European Private International Family Law
Authors: Wilderspin Michael 
Published: August 2024

Abstract
This book provides the new Brussels IIb Regulation (Regulation 2019/1111) which covers jurisdiction, the recognition and enforcement of decisions in matrimonial matters, matters of parental responsibility, and international child abduction. This regulation replaces the Brussels IIa Regulation, which has been the cornerstone of European Private International Family Law since August 2004, and is applicable from 1 August 2022. This volume analyses in detail every provision of the new Regulation and explores relevant cases from the European Courts of Justice and of national courts, and the principles derived from them. The book offers practical assistance on how properly to apply the new Regulation and highlights where it has changed in relation to the previous one.
Insulation of Contract from Foreign Laws
Authors: Wood Philip R 
Published: August 2024

Abstract
This chapter reviews the insulation or immunisation or protection of contracts from foreign laws, such as a moratorium, by the choice of an external governing law as opposed to the law of the debtor’s country. It surveys article VIII 2b of the IMF Agreement, which can override the external governing law in the case of exchange control regulations and identifies the countries which do or do not permit this override. It also discusses the impact on insulation of local insolvency proceedings or illegality at the place of performance. It concludes that the IMF article can in some jurisdictions allow sovereign states to change their obligations unilaterally, explains that sovereign states already enjoy privileges when they are insolvent which are not enjoyed by ordinary corporations or individuals, that the external assets of sovereign states are often de facto immune because their sovereign assets are held by separate state entities, and proposes that the article should be abolished.
Insolvency Law Indicators and Risks
Authors: Wood Philip R 
Published: August 2024

Abstract
This chapter discusses why insolvency law shows the credentials of a jurisdiction and describes methods of risk mitigation. The chapter explains the essentials of insolvency law through the use of work-outs, judicial rescue proceedings, and final liquidations, and including governing law under the EU Insolvency Regulation 2015 and the UNCITRAL Model Law. As key indicators, it chooses the three triple super-priority insolvency claims of insolvency set off, security interests, and commercial trusts, as well as other indicators such as the bankruptcy ladder of priorities, prohibitions on contract and lease terminations, entry criteria, the revocation of preferences, and encouragement of private work-outs.
Insolvency Set-Off
Authors: Wood Philip R 
Published: August 2024

Abstract
This chapter discusses the essentials of insolvency set-off and netting, the policies involved, carve-out statutes, and central counterparties. It reviews how to protect insolvency set-off by a choice of governing law and contains a comparative survey of insolvency set-off in the main families of jurisdictions. It also discusses set-off mutuality, the avoidance of build-ups of set-offs, and set-off against assignees and other third parties. It concludes that English law has a very strong policy in favour of insolvency set-off, but this is less true of insolvency set-off in Germany and its associated jurisdictions. Insolvency set-off was originally not permitted in France and related jurisdictions, but there has been a move away from this approach in France and more particularly in Belgium and Luxembourg. It is weak or absent in most of the new or transition group. Most developed countries have a carve-out statute authorising insolvency set-off and netting for eligible contracts and eligible parties, particularly for financial markets.
Protecting a Governing Law
Authors: Wood Philip R 
Published: August 2024

Abstract
This chapter proposes an institution to protect a legal system which is a national asset, such as English law. The maintenance of a legal system is required not only to keep up with changing circumstances but most of all to protect the legal system from short-term government policies and from special interests who do not take a larger view of the role of an important legal system internationally. Where a legal system is used internationally, there is no room for provincialism or insularity. This chapter mentions a number of national and international bodies tasked with the duty of surveillance and reform. These include the American Law Institute, the English Law Commission, and a number of international bodies, together with multilateral development banks. English law is an international ideology and an international public utility, and it would seem remiss if England did not go to special lengths to maintain its legal system. This chapter briefly describes the constitution on a protective body.
Conclusion
Authors: Wood Philip R 
Published: August 2024

Abstract
This chapter discusses the weighting of the main themes and stresses the importance of the value of freedom both in our societies and in their laws. It explains that there is no fixed answer as to the relative importance of the main themes dealt with in the book, such as predictability, insolvency set-off, or insulation of the transaction from the local laws of one of the parties. The importance of each factor depends on the detailed facts and circumstances of each transaction, on such factors as whether the party concerned is a debtor or a creditor, and also on the market practice for the transaction. The law is necessary for survival and the societies in the world reflect many divergent solutions. One result is that there is competition between legal systems. This is as it should be.
Jurisdiction over Consumer Contracts
Authors: Bonomi Andrea 
Published: August 2024

Abstract
This chapter discusses Arts 17-19 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council on Jurisdiction and the Recognition and Enforcement of Judgments (Recast) on rules of jurisdiction over consumer contracts. It covers provisions on the jurisdiction of Member State courts in consumer contract cases and restrictions upon choice-of-court agreements.
Jurisdiction over Individual Contracts of Employment
Authors: Merrett Louise 
Published: August 2024

Abstract
This chapter discusses Arts 20-23 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council on Jurisdiction and the Recognition and Enforcement of Judgments (Recast) on rules of jurisdiction over individual employment contracts. It covers provisions on claims of employees against employers, claims of employers against employees, and restrictions upon choice-of-court agreements.
Introduction: Starting From First Principles
Authors: Niels Gunnar , Jenkins Helen , Kavanagh James 
Published: August 2024

Abstract
This introductory chapter starts by setting out the main contributions of economics to competition law: from the original idea that competition is ‘good’ and monopoly is ‘bad’, through to an understanding and quantification of the effects of business practices on competition and consumers. The economics ‘toolkit’ is based on microeconomics, industrial organization (IO), finance, behavioural economics, and econometrics. The chapter then explains basic economic concepts such as demand, supply, substitution, economies of scale, and efficiency, in the way of the ‘economic naturalist’, trying to make the reader think like an economist and develop some economic intuition. The chapter ends with some health warnings on competition (what it can and cannot achieve), on competition policy (what competition authorities and courts can and cannot achieve), and on competition economists.
Market Definition
Authors: Niels Gunnar , Jenkins Helen , Kavanagh James 
Published: August 2024

Abstract
This chapter explains the principles of market definition, which remains a key intermediate step in many competition cases. It gives an overview of the dimensions of a relevant market and of the basic economic principles of demand (including substitution and elasticities). The chapter explains the hypothetical monopolist (SSNIP) test and critical loss analysis, and discusses specific aspects of market definition such as the cellophane fallacy, supply-side substitution, price discrimination markets, and chains of substitution. It explains how market definition works for aftermarkets, bundles, different layers of the vertical supply chain, product migration, and features other than price (quality and innovation). The chapter also describes the main quantitative tools for market definition—regression and price-correlation analysis—and discusses situations in differentiated-product markets where market definition may be less informative.
Cartels and Other Horizontal Agreements
Authors: Niels Gunnar , Jenkins Helen , Kavanagh James 
Published: August 2024

Abstract
This chapter deals with horizontal agreements between competitors. It discusses the (moving) boundaries in competition law between hardcore cartels and other horizontal agreements, and between infringements by object and by effect. The chapter reviews the main economic characteristics of cartels—what makes them tick, and in which sectors of the economy do they arise most frequently?—and explains the economics of information-sharing arrangements, including ‘hub-and-spoke’ co-ordination. It then explores various forms of co-operation among competitors, including joint purchasing and selling—the joint selling of sports rights being one example—and the participation of banks in four-party payment card schemes. The chapter discusses R&D and technology licensing agreements, and settlement agreements in the pharmaceuticals industry. Finally, it explores how economics can assist competition authorities with cartel enforcement, including the detection of cartels.
Design of Remedies
Authors: Niels Gunnar , Jenkins Helen , Kavanagh James 
Published: August 2024

Abstract
This chapter discusses the design of remedies. Most of the literature on competition law focuses on the identification and analysis of competition problems, not on how to remedy them. The chapter covers structural and behavioural remedies. It sets out structural remedies in merger and conduct cases, drawing on regulatory insights on vertical separation. It then addresses behavioural remedies in merger and conduct cases and sets out the regulatory principles of access and price regulation. This includes discussions of the concept of fair, reasonable, and non-discriminatory (FRAND) in intellectual property licensing cases, and of the lessons from behavioural economics, with the Microsoft and Google cases providing useful illustrations. The chapter also deals with the principles of setting fines (including the question of inability to pay fines), and with cost–benefit analysis, which can be applied to specific interventions and to competition regimes as a whole.
Anti-Suit Injunctions and Exclusive Forum Clauses
Authors: Raphael Thomas 
Published: August 2024

Abstract
This chapter looks at exclusive forum clauses in anti-suit injunctions. The court's approach to anti-suit injunctions is transformed where the injunction defendant is obliged by a contractual exclusive forum clause to resolve his disputes with the injunction claimant in an agreed forum. There are two principal types of exclusive forum clause. An exclusive jurisdiction clause obliges parties to resolve disputes covered by the clause before a chosen court. An arbitration clause obliges them to resolve disputes covered by the clause before an arbitration tribunal. In both cases, the clause imposes negative as well as positive obligations, and so in general prohibits the contracting parties from litigating other than in the chosen forum. In contrast, so far, choice of law clauses have not been interpreted to include any correlative negative obligation.
Non-Exclusive Jurisdiction Clauses
Authors: Raphael Thomas 
Published: August 2024

Abstract
This chapter focuses on non-exclusive jurisdiction clauses. A non-exclusive jurisdiction clause permits litigation to proceed in the selected forum, but does not expressly prohibit litigation elsewhere. The purpose of a non-exclusive jurisdiction clause is ‘to confer jurisdiction and avoid disputes about jurisdiction’. It follows that litigation elsewhere is not in breach of a non-exclusive clause, unless in particular cases it can be said to be prohibited by an implied term of the contract, derived from the non-exclusive clause. Consequently, if there is a non-exclusive jurisdiction clause in favour of a particular jurisdiction, the general tests for the grant of anti-suit injunctions to restrain proceedings abroad will have to be satisfied, save where there is a relevant implied term prohibiting parallel litigation.
Jurisdiction under the Brussels–Lugano Regime
Authors: Raphael Thomas 
Published: August 2024

Abstract
This chapter addresses the application of the jurisdictional rules of the Brussels–Lugano regime to anti-suit injunctions which fall within the material scope of the regime. The Brussels–Lugano regime imposes restrictions on the substantive power to grant anti-suit injunctions in relation to court proceedings elsewhere in the Brussels–Lugano zone. In short, if the other proceedings are elsewhere within the Brussels–Lugano zone, and within the material scope of the Brussels–Lugano regime, the English court will be precluded from granting anti-suit injunctions. In contrast, the application of the jurisdictional rules of the Brussels–Lugano regime imposes no inherent barrier to anti-suit injunctions. The English case law accepts that (1) final anti-suit injunctions are capable of falling within the Brussels–Lugano heads of jurisdiction; and that (2) interim anti-suit injunctions are capable of falling within the ancillary jurisdiction available under the Brussels–Lugano rules, where the court has jurisdiction over the merits.
England
Authors: Khanna Devika 
Published: August 2024

Abstract
This chapter discusses the arbitration system of England, first by tracing the history of the country’s arbitration law and then providing an overview of the current status of the law. It also considers the distinction between national and international arbitration, the practice of arbitration in England, and the jurisdiction of the arbitral tribunal. In particular, it examines the arbitration agreement itself, taking into account the requirements as to the content of the agreement as well as the applicable law for the interpretation of arbitration clauses. The chapter proceeds by analysing arbitrability (‘personal arbitrability’, ‘objective arbitrability’), the constitution of the arbitral tribunal (eg appointment of arbitrators), extent of party autonomy to determine the arbitral procedure, deliberations and agreement on the arbitral award, form of award and deposition, and the question of liability of arbitrators. Finally, the enforcement rules for national awards versus foreign awards in England are explained.
International Agreements
Authors: Bacon Kelyn 
Published: August 2024

Abstract
This chapter provides an outline of the main international agreements concerning State aids and subsidies which affect the EU, and which provide the international context within which the EU State aid rules are developed and implemented. These include the European Economic Area and European Free Trade Agreement, and the State aid provisions within Stabilisation and Association Agreements concluded with countries that are candidates for European Union membership. This chapter also outlines the subsidy provisions contained within the framework of the World Trade Organization, including the differences between the notions of WTO subsidies and EU State aid, and the relationship between WTO subsidy law and EU State aid law. The chapter concludes with a brief discussion of the important topic of the interaction between EU State aid law and international investment law.
Rescue and Restructuring Aid
Authors: Bacon Kelyn 
Published: August 2024

Abstract
This chapter deals with the Commission’s rules relating to State aid for rescuing and restructuring non-financial firms in difficulty. It begins by considering the specific issues for the existence of aid under Article 107(1) in this area. It then provides detailed discussion of the Rescue and Restructuring Guidelines, dealing with the basic concepts contained in those guidelines, the specific authorisation criteria, and procedural issues.
Corporate Governance, Financial Information, and Mar
Authors: Di Noia Carmine , Gargantini Matteo 
Published: August 2024

Abstract
This chapter discusses public disclosure of inside information. Proper management of information is a crucial element of banks' corporate governance, and an equally challenging task. Prudential regulation and the regulatory framework on market integrity are both concerned with the circulation of information in banks and bank groups. The EU regulatory framework in market abuse — which comprises Regulation (EU) No. 596/2014 (MAR) and Directive 2014/57/EU (MAD II) — particularly restricts the possibility that inside information freely circulate, unless this is justified on specific grounds and on exceptional basis. The chapter then addresses the impact of the MAR and MAD II regime on selective disclosure of inside information on the governance of banks having their securities admitted to trading on a regulated market or a multilateral trading facility (MTF). It also identifies some of the issues concerning the uneasy relationship between MAR and bank governance.
Engagement of Institutional Investors
Authors: Ungureanu Cristina 
Published: August 2024

Abstract
This chapter examines the engagement of investors in the governance of financial institutions. In its 2012 Action Plan on company law and corporate governance, the European Commission announced several actions in the area of corporate governance, particularly to encourage long-term shareholder engagement and to enhance transparency between companies and investors. Consequently, the role of shareholders has been amplified through enabling the ‘say on pay’ system on various countries, which has been introduced as a governance mechanism allowing shareholders of companies across industries to have a voice on the suitability of companies' executive compensation. All these initiatives have directed investors to step up and exercise their own ownership rights in an active and conscious manner in all issuer companies, irrespective of industry and sector. More recently, there has been consensus that good governance practices and related disclosure should benefit not only shareholders, but also other stakeholders such as creditors and employees.
Banco Espírito Santo
Authors: Antunes José Engrácia 
Published: August 2024

Abstract
This chapter traces the history of the Banco Espírito Santo (BES), the oldest and one of the largest Portuguese banks. The BES was a Portuguese institution with one and half century of history. While the story of the BES collapse is to be fully unveiled, there is a set of plausible causes of its death which, at least in abstract, may be considered. A first possible cause of the BES collapse is the global economic and financial crisis of 2007–2008. In fact, this crisis brought to light some hidden vulnerabilities of the Portuguese banks. Another usual suspect for banking crisis is banking supervision: although it is not a supervisor’s role to prevent bank failures, supervisory oversight is crucial to reduce both the probability and impact of such failures.