bluuebunny/crossref_metadata_2025_split huggingface dataset:
Countervailing Measures and China’s Accession Protocol to the WTO
Authors: Van Vaerenbergh Pieter , Bungenberg Marc 
Published: April 2022

The existing policy tools of the European Union (EU) to fight against dumping and foreign subsidies do not cover all potential effects of foreign subsidies or support schemes by third countries on the EU internal market. As part of the ongoing discussions to address these distortive subsidies, this article highlights section 15(b) of China’s Accession Protocol to the World Trade Organization (WTO). The provision remains largely unexplored, both in practice and in case law, but offers advantages in its application compared to the normal trade remedy calculation rules: There is no explicit stipulation of an expiration (no fifteen-year timeframe), the threshold to rely on the section is relatively low (only ‘special difficulties’ need to exist), and the way how to determine the benchmarks for the benefit is open (both adjustments and alternative methodologies are foreseen). Particularly, within the stage of examination of ‘special difficulties’, the Commission has considerable latitude and may introduce a shift of burden of proof, putting the onus on Chinese exporters to prove they do not benefit from state subsidies. WTO Members should start conducting well-coordinated countervailing investigations domestically and initiate cases at the WTO at the same time to find out where the WTO system sets the limits of applying section 15(b) Chinese Accession Protocol (CAP).
Countervailing Duties, Anti-Subsidy, China’s Accession Protocol, section 15(b) CAP, Industrial Policy, Foreign Subsidies, State-Owned Enterprises, Burden of Proof, Alternative Benchmarks, Subsidy Benefit
The Chinese Conception of the Rule of Law and Its Embodiment Under the ‘Belt and Road’ Initiative (BRI)
Authors: Che Luyao 
Published: April 2022

Although China has consolidated the aim of reforming its society towards the rule of law, the Chinese version of the rule of law differs significantly from its counterparts in the Western tradition. Increasing attention is being paid to the peculiarities of the Chinese conception as China strives to expand its influence through launching the ‘Belt and Road’ Initiative (BRI). This article focuses on the question of whether and by what means various BRI projects are impacted by and impact upon the Chinese conception of the rule of law. The uniqueness of the Chinese approach can be examined from three dimensions: the ontological dimension, describing the preference for integration over convergence in the governance models of economies; the epistemological dimension, in which a posteriori justifications prevail over a priori ones; and the methodological dimension, in which the coordination between the public and the private spheres overshadows the confrontation between them. Following this, the paper profiles the practices of BRI investment and assesses whether these practices present consistently with the Chinese conception. Finally, this article examined the strong needs often embedded within BRI projects that call for sustainable cooperation, market-generating governmental intervention, as well as the coordination of various social interests. All these factors are consistent with the peculiarity of the Chinese conception of the rule of law. The paper argues that the BRI is highly consistent with the Chinese conception of the rule of law and may help further enhance it. This conclusion further suggests that the distinctive conception is not solely the result of ideological or political factors but also of the unique demands of certain types of economic undertakings.
World Trade Organization, WTO, World Economic Forum, WEF, business community, stakeholder engagement, institutional change, collaboration, reform (OFDI), state-owned enterprises (SOEs), state-directed economies
Labelling Settlement Products: When EU Consumer Law Meets Public International Law (But Ignores International Trade Law)
Authors: Harpaz Guy 
Published: April 2022

How should products produced in occupied territories be labelled for export? In recent years, Courts in the UK and Canada addressed this technical yet politically-charged question, in the context of the Israeli-Palestinian conflict. More recently, the Court of Justice of the EU was asked to determine the mandatory requirements under EU consumer law of indication of origin of products produced in settlements situated in territories occupied by the State of Israel, namely the Golan Heights, theWest Bank and East Jerusalem. In Organisation juive européenne the Court of Justice established that although EU consumer law refers to the need to supply information regarding the country of origin or the place of provenance, those provisions should be interpreted as requiring that foodstuffs originating in an occupied territory must bear not only the indication of that territory but also the indication of that provenance (i.e. indication that it comes from an ‘Israeli settlement’). In imposing broad labelling requirements, the Court heavily relied on both the notion of ‘ethical considerations’ under EU consumer law and on international law, boldly addressing some of the contentious legal and political issues at stake. In adopting this approach, the Court contributed to the harmonious reading of EU consumer law and public international law. Yet its heavy reliance on public international law should be contrasted with its failure to rely on international trade law, a neglect that contributed to selective and discriminatory treatment of Israeli settlement products. Moreover, in imposing broad labelling requirements, the Court shifted its focus from the EU and its Member States to the ultimate EU consumers, thereby advancing the private enforcement of international law in lieu of public enforcement.
settlement products; interface between public international law and international trade law, EU-Israel relations
Standardization of Complex and Diversified Preferential Rules of Origin
Authors: Jitsuya Hasegawa 
Published: April 2022

The growing number of free trade agreements (FTAs) and economic partnership agreements (EPAs) and the divergent contents of their preferential Rules of Origin (RoO) have led to the increasing complexity and diversity of such regulations. This has caused considerable concern among all parties involved in international trade. Although there has been some progress in attaining convergence of RoO in some product areas, particularly chemicals, similar initiatives have not been successful in other sectors, such as agricultural products, textiles, iron, steel and machinery. Instead, preferential RoO in these industries remain heterogeneous and often incompatible. This article examines the current state of preferential RoO. The regulatory rationale is analysed by separating the ‘content of rules’ from the ‘way of expressing rules’, with a focus on the World Trade Organization’s HarmonizationWork Programme of Non-Preferential Rules of Origin (HWP) and how this has influenced the development of preferential RoO. In addition, this article proposes the standardization of preferential RoO in key product sectors by harmonizing and simplifying the ‘way of expressing rules’ according to the ‘content of the rules’ to reduce disparities in the regulations.
Rules of Origin, Preferential Rules of Origin, Non-Preferential Rules of Origin, Free Trade Agreements, Economic Partnership Agreements, World Trade Organization, Harmonization Work Programme
The Boundary of Supranational Rules: Revisiting Policy Space Conflicts in Global Trade Politics
Authors: Guan Chuanjing , Xu Qinyi 
Published: April 2022

While global value chains (GVCs) necessitate effective global economic governance in providing a stable, rule-oriented international economic order for the cross-border flow of factors, it is witnessed that there’s an inevitable decline of multilateralism in the WTO in the contemporary era of deep globalization. This empirical puzzle has stimulated various theoretical explorations, including research on the multilateral trade negotiation model, North–South structural conflicts, and the absence of great power responsibility. The increasing friction between great powers around trade policy has illustrated that policy space conflicts constitute the central challenge of global trade governance. Policy space as a concept illustrates the scope and conditionality of domestic policy instruments when framed by supranational rules. By revisiting existing research, this article clarifies the nature of policy space and categorizes its conflict modes as regulatory diffusion, regulatory differentiation, regulatory competition, and regulatory conflict. The practice of global economic governance shows that deep globalization requires the convergence of diverse domestic regulations that reduce policy space; while maintaining competitive advantage of sovereign states in the global production system requires the preservation of certain flexibilities, especially in areas like interventionism, sequential reforms, or capacity building. This inherent tension causes policy space conflicts to evolve in kind with the escalation of competition among great powers in the global division of labour. Since 2017, the WTO reform agenda, US–EU–Japan trilateral coordination, and intense Trumpian trade wars have all proved that regulatory conflict has offered the dominant model. This shift has led to the decline of multilateralism and the weakening of the multilateral trading system.
policy space, multilateralism, global value chains, regulatory competition, global trade politics, convergence and de-convergence, WTO reform
Taxonomy of Non-Market Economics for European Competition Policy The Search for the True Competitive Price
Authors: McNutt Patrick A. 
Published: April 2022

We argue that competition is a process, and as such can be described, rather than defined. No parameter of interest to competition assessment should be estimated in isolation without reference to the history of prices and quantities in a market and the strategic interactions of the firms. An alternative to the approach adopted by DG Competition for modelling tacit collusion and dynamic coordination would be to incorporate directly into competition assessment models some reason for history to matter. With a new package of reforms from DG Competition in Brussels, now may be the time for European competition analysis to embrace more fully elements of public choice, law and economics, and game theory. Collectively, they represent non-market economics. Nonmarket economics for the purposes of this article is therefore based on the conception of economics as the science of rational choice and strategic reaction rather than merely the study and analysis of economic markets. Understanding competition law and understanding non-market economics are challenges that go hand in hand. “The pleasures of the retrospective view; attractive though they are, are not for me—or you—since we always must renew; the habit of re-learning how to see.”
Predatory Pricing in Canada, the United States and Europe: Crouching Tiger or Hidden Dragon
Authors: Facey Brian A. , Ware Roger 
Published: April 2022

In the area of competition law, comparative legal scholarship can provide insights into differences in the laws of nations and can identify gaps that affect the multinational businesses subject to such laws. It also provides opportunities for convergence initiatives, such as those envisioned by the International Competition Network, to work towards filling those gaps. In this article we attempt to contribute to the literature relating to the comparative study of antitrust law through our review and analysis of the predatory pricing laws in Canada, the United States and Europe. We begin with an explanation of the economic theories behind predatory pricing. While the laws of nations are generally limited by borders: the norms of economics are not. Thus, the discipline provides a normative barometer for the analysis of such laws. The topic is timely because Canada has proposed changes to its enforcement policies in the area. Our observation is that predatory pricing has historically been an area of divergence between Canada, the United States and Europe. Our conclusion is that in a time of increased convergence in the area of antitrust, predatory pricing remains an area of divergence, and one that may see further divergence if Canada does in fact change its enforcement policy as it has suggested.
Damages for the Infringement of Art. 81 EC by Cartel Agreements According to sec. 33(3) GWB: The Changes of Law Concerning “Protective Law” Requirement and the “P
Authors: Andrelang Christian 
Published: April 2022

On 1 July 2005, the German legislator amended 33 GWB [Act against Restrictions of Competition] and introduced a specific statutory basis for the private enforcement of European Competition Law.
This article focuses on damages claims for the infringement of Art. 81 EC by cartel agreements in German courts and highlights the legal changes to the eligibility to damages. Previously, German courts were forced to utilize general tort law when awarding damages for the infringements of Art. 81 EC. However, some German courts were very reluctant to award damages. Only a person who was the direct target of cartel was considered to be eligible for damages. The article establishes that this jurisdiction, to which some courts might still resort when judging on damages claims for cartel agreements prior to 1 July 2005, is inconsistent with European Law principles and irreconcilable with the ECJ’s decision in Courage Ltd. v. Crehan.
Furthermore, the article addresses the statutory exclusion of the “passing on“ defence. Cartel members are now prevented from arguing that applicants passed higher prices on to their customers and did not suffer any economic loss. Yet, as far as cartel-inflicted prices of processed goods are concerned the exclusion of the “passing on“ defence can prove to be irrelevant depending on the method of assessing damages.
Global Antitrust Prosecutions of International Cartels: Focus on Asia
Authors: Connor John M. 
Published: April 2022

International cartelists today face antitrust investigations and possible fines in a score of national and supranational jurisdictions. This article aims at providing quantitative information about the size and impacts of international cartel activity in Asia and uses a sample of modern private cartels to evaluate the relative effectiveness of three prominent Asian antitrust authorities. The sample consists of legal and economic information on 433 international cartels detected in Asia and the rest of the world during 1990–2007.The need for assertive anti–cartel enforcement in Asia is demonstrated by the large affected commerce and economic injuries of known international cartels. Affected sales of detected Asian–region cartels combined with global cartels that fixed prices in Asia totals at least US$1.1 trillion in 1990–2007. The losses imposed on Asian consumers were at least $500 billion.
While more than $45 billion in penalties has been imposed world wide, it is doubtful that such monetary sanctions can deter modern international cartels. Optimal cartel deterrence is frustrated by the failure of compensatory private suits to take hold outside of North America, a reluctance to act against global cartels, and the low fines in most Asian jurisdictions. Of the three selected jurisdictions, the Korean FTC has the best record of anti–cartel enforcement in Asia, but even the KFTC?s surcharges are recouping less than 15 percent of damages to its citizens. Without significant increases in cartel detection, in the levels of expected fines or civil penalties, or expansion of the standing of buyers to seek compensation,international price fixing will remain rational business conduct.
A Dual Language in Modern Competition Law? Efficiency Approach versus Development Approach and Implications for Developing Countries
Authors: Bakhoum Mor 
Published: April 2022

Every cultural mode of thought has its own concept of market, competition, economy in general, property, collectivity goods, trust and decency. Unless we understand, and respect, those modes of thought, we are not entitled to superimpose our concept of market and competition, and our understanding of economy, belonging and efficient behavior upon other, non-Western, cultures. Doing so leads to cross cultural misuses, confusion, and strife. This article discusses the parallel development and diverging trends on modern competition law. On the one hand, we seem to be heading to a soft convergence in the theory and practice (with efficiency as a core principle) of competition law. On the other hand, developing countries advocate a different competition law language: the language of development that goes beyond a mere focus on efficiency. This is true when we look at the goals of competition law in developing countries, which often encompass non-economic objectives, such as public interest, fairness, competitiveness of Small and Medium Sized Enterprises (SMEs), and preservation of employment. A growing scholarship has also started do discuss a different paradigm of competition law in developing countries that takes into account their development concerns. This paper argues that although efficiency is very relevant in the context of developing countries, it should be applied in a broader context, taking into account non-economic goals such as redistribution and inclusiveness in order to achieve an 'efficient development.' The impact of a dual language on a potential international framework on competition law is also discussed.
Collective Redress in EU Competition Law: An Open Question with Many Possible Solutions
Authors: Andreangeli Arianna 
Published: April 2022

This paper analyses the current trends of the debate in the area of collective redress of injuries caused by the consequences of anti-competitive behaviour in the EU in light of the more recent case law governing class certification of antitrust collective complaints in the US federal courts and of the legislative developments occurring in several European jurisdictions. Whilst not advocating the total 'transplantation' of opt-out class actions in EU competition law, it will illustrate that the Commission's concerns as to the viability of these collective lawsuits have become less pressing and consequently, will argue for a more open-minded discussion of how to create effective and fair mechanisms for the collective redress of individual rights. It will first provide a brief examination of the current approach adopted by the Commission to collective redress in the area of competition law and, more specifically, in respect to 'diffuse torts'. Thereafter, the paper will analyse the case law of the US Superior Federal Courts concerning the class certification of collective antitrust complaints and illustrate that the Commission's scepticism as to the viability of these actions may no longer be justified. It will be shown that the scrupulous scrutiny of the proposed class filings, conducted by the American courts can contribute effectively to 'identifying' prima facie unmeritorious claims and thereby allowing only truly 'suitable' complaints to proceed as class actions. In light of the forgoing, it will be concluded that the Commission's position on these issues seems difficult to sustain and could even become an obstacle to discussing how to respond to the demands of ensuring effective redress to the victims of torts having a widespread impact on society and the economy, for which individual dispute settlement may be inefficient.
Market Integration and Economic Efficiency at Conflict? Commitments in the Swedish Interconnectors Case
Authors: Willems Bert , Sadowska Malgorzata 
Published: April 2022

According to the European Commission, Svenska Kraftnät, the Swedish network operator, might have violated competition rules by limiting cross-border transmission capacity to relieve congestion within Sweden. Eventually, the case was settled and Svenska Kraftnät offered commitments to address the Commission's concerns. As an interim remedy, it committed to reduce transmission flow of electricity on internal network bottlenecks primarily by introducing national measures and by not reducing interconnection capacity. As a final remedy, Svenska Kraftnät agreed to split the Swedish market into multiple price zones. Congestion within Sweden would then be solved by adjusting the prices of those zones. We analyse the economic effects of the alleged abuse and the remedy package. We make three observations. First, it might be socially optimal to reduce cross-border capacity in response to internal congestion. Hence, without an in-depth economic analysis the Commission risked preventing efficient behaviour. Second, the interim remedy of handling internal congestion primarily by national measures is not socially optimal, and it cannot be ruled out that it reduces overall welfare. Third, even though splitting the market into price zones may improve allocative efficiency within Sweden, it does not prevent Svenska Kraftnät from potential manipulation of cross-border transmission capacity.
A Counterfactual on Information Sharing: The Commissions Horizontal Guidelines 2011 Applied to the Leading Cases
Authors: Robertson Viktoria H.S.E. 
Published: April 2022

For the first time, the European Commission's Horizontal Guidelines of 2011 contain a section exclusively dedicated to the competition law analysis of 'pure' information exchanges, i.e., information exchanges that do not underpin any other anti-competitive behaviour. By way of a counterfactual analysis, this article aims at clarifying whether the Guidelines merely codify the Court of Justice's quite controversial case law in this area, or whether and to what extent they introduce a more refined - and economics-based - approach to the assessment of information sharing. For this purpose, the Guidelines' framework of analysis is set out before applying it to four leading cases on information sharing: John Deere, Asnef-Equifax, T-Mobile Netherlands, and most recently , Dole. It will be seen that the Guidelines try to strike a balance between 'just enough economics' and 'just enough legal certainty'. They limit the finding of a restriction of competition by object to a very narrow set of cases and want to provide companies in the internal market with incentives to share those kinds of information that will indeed enhance efficiencies and ultimately benefit consumers.
A Practitioners Guide to Price Concentration Analysis
Authors: Akinrinade Temi , Wirth David 
Published: April 2022

In recent years there has been a growing trend towards the use of quantitative techniques in UK and EU competition law. Price Concentration Analysis ('PCA') is one such technique which has played an important role in a number of recent high profile merger cases at both the UK and EU level. It has also played a decisive role in a number of recent market investigations in the UK, which has led to remedies (including divestments) being imposed, and specific data rooms being set up so that the analysis can be closely scrutinized by the parties' economists. The appeal of PCA is that it provides a quantitative way of assessing the extent to which prices (or margins) are affected by market concentration, and has wide applicability in a range of situations. However, the increasing use of PCA by the UK and EU competition authorities, and the growing weight that is attached to the results of this type of analysis, means that all practitioners (and not just the economists) need to understand both the benefits and pitfalls of this quantitative technique. This article seeks to provide a non-technical explanation of the mechanics and uses of PCA, and to highlight some of the key issues and sensitivities that arise with this type of analysis.