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This book focuses on the debates concerning aspects of intellectual property law that bear on access to medicines in a set of developing countries. Specifically, the chapters look at measures that regulate the acquisition, recognition, and use of patent rights on pharmaceuticals and trade secrets in data concerning them, along with the conditions under which these rights expire so as to permit the production of cheaper generic drugs. In addition, the book includes commentary from scholars in human rights, international institutions, and transnational activism. The case studies presented from eleven Latin American countries have many commonalities in terms of economics, legal systems, and political histories, and yet they differ in the balance each has struck between proprietary interests and access concerns. The book documents this cross-country variation in legal norms and practice, identifies the factors that have led to differences in result, and theorizes as to how differentials among these countries occur and why they endure within a common transnational regulatory regime. The work concludes by putting the results of the investigations into a global administrative law frame and offers suggestions on institutional mechanisms for considering the trade-offs between health and wealth.

To date, world antitrust and regulatory agencies have invariably described large technology companies—such as Google, Amazon, Microsoft, Apple, and Facebook—as dominant, bottleneck or gatekeeping companies comparable to the textbook monopolists of the early twentieth century. They have proceeded on this basis to discipline their business activities with unprecedented financial penalties and other regulatory obligations. This “techlash” is the subject of this book. Proceeding from the observation that big tech firms engage in both monopoly and oligopoly competition across digital markets, the book introduces a theory of moligopoly competition. It suggests that rivalry-spirited antitrust and regulatory laws are both conceptually and methodologically impervious to the competitive pressure that bears on big tech firms, resulting in a risk of well-intended but irrelevant policy intervention. The book proposes a refocusing of competition policy towards certain types of tipped markets where digital firms extract monopoly rents, and careful adoption of regulation toward other social harms generated by big tech’s business models.

Bingo Capitalism uses bingo—a female-dominated and notoriously self-effacing game—to think differently about regulation and political economy. A key objective is to make bingo, as lens, more central to our debates about the regulation of economy and society. Part I sets the scene, responding to the query: why bingo? Part II explores the legal and political history of bingo. Part III analyses the regulation of people, while Part IV examines the regulation of products, places, and technologies. In so doing, the book uses bingo to better understand the role of the state in shaping the classed and gendered interrelation between diverse economies, especially in relation to non-commercial and commercial gambling. Bingo Capitalism offers the first sociolegal account of bingo as a globally significant and immensely popular pastime, centring implementation experiences alongside the broader political, economic, and social context to legislative reform. While considering the perspectives of lawmakers, who have debated what the game reflects about the nation and its economy, the book also centres the experiences of those who work in, and play, bingo, to trace how gambling law and regulation impact people in everyday life. The book identifies the central historical role of non-commercial, mutual aid play to UK gambling law and policy, and traces the ongoing relevance of this realm for current debates about the interrelation between capitalist and more-than-capitalist everyday economies. Bingo Capitalism also uses bingo as a case study of research into the gendered nature of regulation, showing how gender shapes, and is shaped by, diverse state rules on gambling.

This book addresses two problems surrounding the interpretation and application of Article 81 of the EC Treaty: what is competition and how does Article 81 ensure that competition is protected? After over forty years of application and a period of modernisation, decentralisation, and reflection, it is possible to understand Article 81 and what it seeks to achieve. The book's aim is to reveal the intellectual order and rational structure underlying the law so as to enable the reader to understand Article 81 in a clear and rigorous manner. This is done by breaking Article 81 down into its constituent elements and examining the function that each element serves. Arguing that jurisdiction rests on a public/private distinction, both the substantive and the justificatory rules are cast to generate obligations appropriate for private actors to perform. Actors and activities falling within the scope of Article 81 are subject to the substantive element prohibiting contrived reductions in output. Since output reduction can co-exist with cost reduction/innovation, and given that these latter features are desirable, cost reduction and innovation operate to justify infringement of the substantive obligation. Thus this book argues that output, cost and innovation are the only legitimate issues in an Article 81 analysis. It is in this sense that the monograph is concerned with the boundaries of Article 81 EC.

This book explores the clash between antitrust, a body of law originally designed to address market failures in western democracies, and China, an economic superpower under authoritarian control. It analyses two simultaneous sources of conflict. The first is the significant challenges Chinese antitrust regulation poses to foreign multinational companies doing business in China. The second is the tremendous difficulties Chinese firms face in complying with antitrust rules in foreign countries. Ultimately, the book offers a cautionary tale of the challenges globalization poses to law and economic order by showing that the conflicts observed today are deeply rooted in institutional factors, both political and economic.

This book provides an account of European competition law from the perspective of its coherence, in the context of modernization. Coherence is defined as consistency towards a clearly defined objective, in this case identified as the internal market. In addition, the performance on the variables efficiency and legitimacy is charted. While the focus is on antitrust, the book also examines merger and state aid control, as well as the sectoral regulatory frameworks for energy and electronic communications. For each of these the book looks at objectives, rules, and exceptions, as well as the way in which enforcement is organized. The findings are that the objectives of EU competition law are fairly straightforward as are the rules, but that the available exceptions vary widely between the different instruments and are disputed. Within antitrust and sectoral competition law enforcement is coordinated effectively between the EU Commission and networks of national (competition) authorities and can be deemed a success. For merger and state aid control a centralized model persists instead that resembles that of antitrust prior to modernization. Among future charges in the interest of coherence, legitimacy, and effectiveness of harmonization of remedies and procedure (now largely in the realm of national law) is likely.

The more than 100 competition/antitrust laws around the world play major roles both at home and in other countries. They influence each other in ways that affect decisions everywhere. The book is a new kind of guide that makes this world accessible to anyone, anywhere. It provides a new set of tools to organize the vast amount of data about competition laws in ways that reveal what is happening and what is driving decisions. Using a global perspective, it defines competition law in a way that is applicable to all competition law systems and then examines competition law goals, methods, and institutions and the forces that drive them. It devotes an entire chapter each to US antitrust law and European competition law as well as sections for East Asian, Latin American, and developing country competition law patterns. It shows how competition law regimes relate to each other as parts of a global system with its own patterns and dynamics. Transnational public and private institutions, including law firms, management and economic consultancy firms, accounting firms, and others are part of this system. By combining clear analysis of the elements of individual regimes with the transborder forces that influence them, it gives lawyers, students, officials, and scholars the tools they need to understand and operate in this complex and often misunderstood world.

This book presents a new stage in the contributions of the BRICS countries (Brazil, Russia, India, China, and South Africa) to the development of Competition Law and policy. These countries have significant influence in their respective regions and in the world. The changing global environment means greater political and economic role for the BRICS and other emerging countries. BRICS countries are expected to contribute nearly half of all global gross domestic product growth by 2020. For more than a century, the path of Competition Law has been defined by the developed and industrialized countries of the world. Much later, developing countries and emerging economies came on the scene. They experience many of the old competition problems, but they also experience new problems, and experience even the old problems differently. Where are the fora to talk about Competition Law and policy fit for developing and emerging economies? The contributors in this book are well-known academic and practising economists and lawyers from both developed and developing countries. The chapters begin with a brief introduction of the topic, followed by a critical discussion and a conclusion. Accordingly, each chapter is organized around a central argument made by its author(s) in relation to the issue or case study discussed. These arguments are thoughtful, precise, and very different from each another. Each chapter is written to be a valuable freestanding contribution to our collective wisdom. The set of case studies as a whole helps to build a collection of different perspectives on competition policy.

Controlling market power is a crucial issue in a liberalised telecommunications market where incumbents usually remain dominant for some time after the opening of the market to competition. Controlling market power can be achieved through two distinct sets of rules and institutions: economy-wide antitrust rules and institutions, which have been in place in most industrialised countries for several decades, and infrastructure or sector-specific rules and institutions which have been specifically adopted to promote competition and control market power in telecommunications or in particular infrastructure sectors. In this context, the relationship between the two sets of rules and institutions becomes an issue of growing importance. Relying on a comparative analysis of five countries (the United States, New Zealand, the United Kingdom, Chile, and Australia), the present book seeks to shed some light on how economy-wide and infrastructure or sector-specific components of the regulatory framework should be designed and on what the respective roles of such components should be based to maximise the efficiency of economic regulation in telecommunications.

Both antitrust and intellectual property laws are intended to facilitate economic growth. Antitrust is meant to encourage competition of all kinds and intellectual property law should offer inventors and artists the correct incentives to develop new ideas and technologies, but the harsh reality is that antitrust and IP laws have wandered off this course. This book analyzes the current state of competition (antitrust) and intellectual property laws, and proposes realistic reforms that will encourage innovation. As with antitrust and a reform process that aligned injury requirements in lawsuits with the incentive to compete, this book proposes similar reforms for patent and copyright law, and considers both the uses and limitations of antitrust as a vehicle for intellectual property law reform. This book considers how antitrust and IP law should engage practices that restrain rather than promote innovation, and covers the troubled topic of IP “misuse,” which the chapters suggest needs broader reach but narrower remedies. The book examines the uses and limits of antitrust to address a variety of practices in innovation intensive markets, including interconnection in networks, duties to deal, and internet neutrality. The book constructs a framework and rules for governing the “innovation commons,” or the vast area that involves collaborative innovation. Finally, it considers ways to further competition in the licensing and distribution of IP rights, and offers several proposals for specific reforms, most of which can be instituted by the courts without the need for new legislation.

Cartel activity is prohibited under EU law by Article 101(1) TFEU. Firms violating this provision face severe punishment from the European Commission, the NCAs, and the national courts, which regularly impose stiff fines. Recently, however, it has been recognized that punishment should focus on the individuals within the firms responsible, as well as the firms themselves, leading to a growing tendency to criminalize cartel activity in the EU Member States. Some crucial challenges need to be met if the underlying enforcement objectives are to be achieved in practice without violating prevailing legal norms. First, given the severe consequences of a custodial sentence, criminal antitrust punishment must be justifiable in principle: a robust normative framework rationalizing the existence of criminal cartel sanctions is needed. Second, for it to be legitimate, antitrust criminalization should respect the mandatory legalities of the European jurisdiction in question, including the accused's due process rights and the principle of legal certainty. Finally, the correct practical measures (e.g., a criminal leniency policy and a correctly defined criminal cartel offence) are needed to ensure that the punishment achieves its aims in practice while maintaining its legitimacy. These challenges can be conceptualized respectively as theoretical, legal, and practical. They are analysed in this book to further the understanding of the complexity of the European antitrust criminalization process. The book also acknowledges that the challenges should not be considered in isolation and that, in fact, there is a dynamic relationship between them and that an effective antitrust criminalization policy recognizes and respects this complex interaction.

Competition (or antitrust) law is national law. More than 120 jurisdictions have adopted their own competition law. Is there a need for convergence of the competition law systems of the world? Much effort has been devoted to nudging substantive law convergence in the absence of an international law of competition. But it is widely acknowledged that institutions play as great a role as substantive principles in the harmonious — or dissonant — application of the law. This book provides an in-depth study of the institutions of antitrust. It does so through a particular inquiry: Do the competition systems of the world embrace substantially the same process norms? Are global norms embedded in the institutional arrangements, however disparate? Delving deeply into their jurisdictions, the chapters illuminate the inner workings of the systems and expose the process norms embedded within. Case studies feature Australia/New Zealand, Canada, Chile, China, Japan, South Africa, the USA, and the European Union, as well as the four leading international institutions involved in competition: the World Trade Organization, the Organization for Economic Cooperation and Development, the United Nations Conference on Trade and Development, and the International Competition Network; and the introductory and synthesizing chapter draws also from the new institutional arrangements of Brazil and India. The book reveals that there are indeed common process norms across the very different systems; thus, this study is a counterpart to studies on convergence of substantive rules. The synthesizing chapter observes an emerging ‘sympathy of systems’ in which global process norms, along with substantive norms, play a critical role.

International competition law has grown in importance as national economies have become more integrated, at the same time as national competition laws have proliferated and enforcement efforts have been strengthened. This system is beset with conflicts arising where States perceive that the way that another country does or does not apply its competition law adversely affects its interests. This book clarifies the nature and origin of these conflicts, and explores possible ways to reduce them. The legal and policy issues associated with the control of restrictive business practices and anticompetitive mergers in international markets are analysed. International cartels, dumping, private market access barriers, and mergers between international firms subject to multi-agency review are discussed. Topics include the harmonization and coordination of competition laws, cooperation between enforcement agencies, international judicial assistance, and the role of trade agreements and the WTO in international competition law. The problems that States have in regulating conduct beyond their borders and the merits of a variety of potential responses are also examined. It contends that there is an evolving international competition law system. States are only just beginning to see the system as a whole and are struggling to identify where their long-term interests lie. This book describes the elements of the system and their interactions, and explains how the system is evolving; suggesting what States, individually and collectively, could do to modify the system to their mutual advantage.

The book addresses the interaction of Article 11 TFEU’s obligation to integrate environmental protection requirements and competition law, State aid law, and free-movement law. The three areas are the core provisions protecting the internal market by prohibiting certain actions of the Member States and undertakings. The monograph covers a highly topical issue with an ongoing debate about the value of environmental protection at EU level. It first conceptualizes and develops a novel framework for integration of other policies into the areas of competition, State aid, and free-movement law. This framework is not only applicable to environmental protection but also paves the way for a more transparent and consistent integration of other policies into these areas. In particular, the monograph addresses the environmental integration clause and examines the obligations that derive from it. The book is a comprehensive and comparative study of competition law, State aid law, and free-movement law. It compares the application of the different tests for determining the scope and for balancing environmental protection with other objectives in competition, State aid, and free-movement law. Based on the experiences gained in these three fields, this comparison provides an opportunity for cross-fertilization which suggests innovative approaches to common issues relating to scope and balancing.

Regulation of foreign investment presents one of the most topical and controversial subjects in EU law and international investment law. The introduction of EU competence over foreign direct investment (FDI) in Article 207 TFEU after the Lisbon Treaty as well as the recent successful challenge of Member States Bilateral Investment Treaties (BITs) regarding their compatibility with EU law, indicate the emerging importance of EU foreign investment law. Within this framework, the purpose of this book is to identify whether and to what extent the EU has become an international actor in the field of foreign investment. Exploring the existing legal framework on the scope and exercise of EU competence and its legal effects, it examines the foundations upon which EU investment policy is based and will be based in the future. The book examines EU foreign investment law firstly from an EU law perspective. It addresses questions relating to the definition of foreign investment, the scope of EU competences, the actual exercise of EU powers, the substantive content of existing and future EU International Investment Agreements (EU IIAs), the objectives of EU investment policy and its EU law effects, in particular as regards the compatibility of Member States BITs with EU law. Secondly, the book examines the influence that the EU exerts on international law and regulation of foreign investment. Specific attention is paid to the substantive content and orientation of EU IIAs, taking a comparative approach to the content of BITs, as well as to the ramifications of EU foreign investment regulation for international law, especially with regard to the EU's international responsibility. Taking into account the recent developments in this field, this book addresses the legal, practical and political concerns that the creation of an EU common investment policy creates.

This monograph presents a detailed, lively, and original chronicle and analysis of New Zealand’s competition law. The modern era began with the Commerce Act 1986 and since then a steady corpus of case law has traversed all the major areas of antitrust law: cartels, resale price maintenance, exclusive dealing, tying, monopolization, predatory pricing, mergers, private and public enforcement, and so on. The volume explains the rationale for the major reforms of the Commerce Act and traces the development of key concepts such as effective competition, efficiency, market power, market definition, entry barriers, wealth transfers, and public benefit over the last 34 years. The book provides an extended critique of the landmark cases and legislative amendments. It assesses the desirable, and undesirable, aspects of competition law’s interpretation and doctrinal development by the courts and Commerce Commission. Systemic issues are explored such as: how well has New Zealand moulded its own competition law, whilst, nonetheless, selectively drawing upon the policy prescriptions, case law, and wisdom from foreign jurisdictions? How well has it adapted its competition law to the reality of it being a small, distant, isolated, deregulated, open economy? How has the transplanted Harvard School versus Chicago School debate played out in New Zealand? How have unique, if not rash, experiments such as its “light-handed” regulation for utilities worked? It concludes by drawing together the common threads that mark the modern era and offering some predictions about how the next decades of New Zealand competition law might unfold.

Article 102 of the Treaty on the Functioning of the European Union prohibits the abuse of a dominant position as incompatible with the internal market. Its application in practice has been controversial with goals as diverse as the preservation of an undistorted competitive process, the protection of economic freedom, the maximisation of consumer welfare, social welfare, or economic efficiency all cited as possible or desirable objectives. These conflicting aims have raised complex questions as to how abuses can be assessed and how a dominant position should be defined. This book addresses the conceptual problems underlying the tests to be applied under Article 102 in light of the objectives of EU competition law. Adopting an interdisciplinary approach, the book covers all the main issues relating to Article 102, including its objectives, its relationship with other principles and provisions of EU law, the criteria for the assessment of individual abusive practices, and the definition of dominance. It provides an in-depth doctrinal and normative commentary of the case law with the aim of establishing an intellectually robust and practically workable analytical framework for abuse of dominance.

This book examines the relationship between law and economic globalization. It focuses on national and international efforts to protect the competitive process, exploring the critically important relationships between those two domains and the way the resulting system shapes economic activity in all parts of the world. The laws, institutions, and principles of the international domain increasingly influence national competition law development, and national competition law experience provides both the lenses through which decision makers view transnational competition issues and the incentive structures that generate their competition law decisions. The analysis examines the ideas, institutions, and people that provide the legal framework for global competition; how they evolved, how they operate today, and the forces that are likely to influence their future development. US anti-trust experience has long been at the center of this global governance picture, but European competition law experience is also rich, varied, and potentially of great value for future competition law development. China, Japan, Korea, and newer players in Latin America and Africa will also play a key role in this future, and the analysis pays close attention to them as well. On the basis of this analysis, the book analyzes current global competition law proposals and outlines a strategy that utilizes these discussions, but more specifically addresses global economic development needs. This strategy may be developed within the institutional framework of the WTO, but it may also be pursued independently.

Shedding new light on the foundations of European competition law, this book is a legal and historical study of the emerging law and its evolution through the 1980s. It retraces the development and critical junctures of competition law not only at the level of the European Economic Community but also at the level of major Member States of the EEC. The chapters here reflect a close collaboration among lawyers and historians and capitalize on previously unavailable source materials. The book examines several key themes including: the influence of national and international competition law on the development of EEC competition law; the drafting of the regulations that lead to the development of modern EU competition law; the role of the European Court of Justice in establishing the protection of competition as a central pillar of the Common Market; the internal dynamics, ideologies and tensions within the Competition Directorate General (DG IV) of the European Commission; and the role of industrial policy in European integration.

This book provides a comprehensive treatment of the history, structure, and behavior of the various US institutions that enforce antitrust laws, such as the Department of Justice and the Federal Trade Commission. It addresses the relationship between corporate regulations and antitrust, the uniquely American approach of having two federal antitrust agencies, antitrust federalism, and the predominance of private enforcement over public enforcement. It also draws comparisons with the structure of institutional enforcement outside the United States in the European Union and in other parts of the world, and it considers the possibility of creating international antitrust institutions through the World Trade Organization or other treaty mechanisms. The book derives its topics from historical, economic, political, and theoretical perspectives.