The effectiveness of technical assistance, socio-economic development and the absorptive capacity of competition authorities

Includes bibliography

Best practices in defence of competition in Argentina and Brazil: useful aspects for Central America

Includes bibliography

The abuse of intellectual property rights and regulations in China: a law and economic analysis

From the institutional point of view, the legal system of IPR (intellectual property right, hereafter, IPR) is one of incentive institutions of innovation and it plays very important role in the development of economy. According to the law, the owner of the IPR enjoy a kind of exclusive right to use his IP(intellectual property, hereafter, IP), in other words, he enjoys a kind of legal monopoly position in the market. How to well protect the IPR and at the same time to regulate the abuse of IPR is very interested topic in this knowledge-orientated market and it is the basic research question in this dissertation. In this paper, by way of comparing study and by way of law and economic analyses, and based on the Austrian Economics School’s theories, the writer claims that there is no any contradiction between the IPR and competition law. However, in this new economy (high-technology industries), there is really probability of the owner of IPR to abuse his dominant position. And with the characteristics of the new economy, such as, the high rates of innovation, “instant scalability”, network externality and lock-in effects, the IPR “will vest the dominant undertakings with the power not just to monopolize the market but to shift such power from one market to another, to create strong barriers to enter and, in so doing, granting the perpetuation of such dominance for quite a long time.”1 Therefore, in order to keep the order of market, to vitalize the competition and innovation, and to benefit the customer, in EU and US, it is common ways to apply the competition law to regulate the IPR abuse. In Austrian Economic School perspective, especially the Schumpeterian theories, the innovation/competition/monopoly and entrepreneurship are inter-correlated, therefore, we should apply the dynamic antitrust model based on the AES theories to analysis the relationship between the IPR and competition law. China is still a developing country with relative not so high ability of innovation. Therefore, at present, to protect the IPR and to make good use of the incentive mechanism of IPR legal system is the first important task for Chinese government to do. However, according to the investigation reports,2 based on their IPR advantage and capital advantage, some multinational companies really obtained the dominant or monopoly market position in some aspects of some industries, and there are some IPR abuses conducted by such multinational companies. And then, the Chinese government should be paying close attention to regulate any IPR abuse. However, how to effectively regulate the IPR abuse by way of competition law in Chinese situation, from the law and economic theories’ perspective, from the legislation perspective, and from the judicial practice perspective, there is a long way for China to go!

European Community Communications Law : An Introduction

The present article is an abridged version of a chapter to the book EC Electronic Communications and Competition Law (London: Cameron May, 2007). It provides an introduction to the rules at the European Community level governing the electronic communications sector (previously and more traditionally referred to as telecommunications). Such an introduction encompasses essentially an enquiry into the relevant competition law rules, of which here particular attention is paid to abuse of dominant position and the essential facilities doctrine, as well as an analysis of the EC sector specific regulatory framework, which has substantially evolved since the liberalisation of the telecommunications sector back in the beginning of the 1990s. It is the objective of the article to explore to what extent both regulatory tools could deal with the specificities of communications markets, and where they may fail to do so.

Poder da marca: interações entre direito antitruste e direito industrial

O presente trabalho busca analisar os diferentes tratamentos dispensados à marca no âmbito do controle preventivo e no controle repressivo de condutas. A análise da função social das marcas demonstrou que esta é uma propriedade que se realiza na concorrência e pela concorrência. Nesse sentido, não há dúvidas de que está sujeita aos princípios do Direito Concorrencial. Todavia, a maneira como esses princípios balizam a marca no controle de atos de concentração, de um lado, e no controle repressivo de condutas, de outro, difere. No âmbito do controle de atos de concentração, a atuação da autoridade concorrencial é orientada por uma variante do princípio da precaução, o que a autoriza a tomar decisões e impor restrições aos direitos marcários mesmo em um contexto de incerteza. No âmbito do controle repressivo de condutas, todavia, a intervenção do CADE está sujeita aos princípios do Processo Administrativo Sancionador. Neste contexto, as condutas que envolvem o uso de direitos de propriedade intelectual, incluindo as marcas, devem ser analisadas à luz do princípio da estrita legalidade. Um critério jurídico objetivo é necessário para distinguir o lícito do ilícito, sobretudo em um cenário no qual estão em jogo duas políticas públicas distintas: a de proteção à concorrência e a de proteção à direitos de propriedade industrial. Sendo essas duas políticas instrumentais e parciais, voltadas a um fim maior de política econômica, devem harmonizar-se, e não sobrepor-se uma a outra. Ademais, o escopo de atuação da autoridade concorrencial em processos que investiguem o uso abusivo de direitos marcários e atos de concorrência desleal deve ser esclarecido. O direito concorrencial, enquanto ramo autônomo do direito, com princípios e métodos interpretativos próprios, pode analisar institutos e figuras de outros ramos que com ele guardem relação sem ter de ficar adstrito ao posicionamento de outras instâncias.

The Jewish Law Firm: Past and Present

The rise and growth of large Jewish law firms in New York City during the second half of the twentieth century was nothing short of an astounding success story. As late as 1950, there was not a single large Jewish law firm in town. By the mid-1960s, six of the largest twenty law firms were Jewish, and by 1980, four of the largest ten prestigious law firms were Jewish firms. Moreover, the accomplishment of the Jewish firms is especially striking because, while the traditional large White Anglo-Saxon Protestant law firms grew at a fast rate during this period, the Jewish firms grew twice as fast, and they did so in spite of experiencing explicit discrimination. What happened? This book chapter is a revised, updated study of the rise and growth of large New York City Jewish law firms. It is based on the public record, with respect to both the law firms themselves and trends in the legal profession generally, and on over twenty in-depth interviews with lawyers who either founded and practiced at these successful Jewish firms, attempted and failed to establish such firms, or were in a position to join these firms but decided instead to join WASP firms. According to the informants interviewed in this chapter, while Jewish law firms benefited from general decline in anti-Semitism and increased demand for corporate legal services, a unique combination of factors explains the incredible rise of the Jewish firms. First, white-shoe ethos caused large WASP firms to stay out of undignified practice areas and effectively created pockets of Jewish practice areas, where the Jewish firms encountered little competition for their services. Second, hiring and promotion discriminatory practices by the large WASP firms helped create a large pool of talented Jewish lawyers from which the Jewish firms could easily recruit. Finally, the Jewish firms benefited from a flip side of bias phenomenon, that is, they benefited from the positive consequences of stereotyping. Paradoxically, the very success of the Jewish firms is reflected in their demise by the early twenty-first century: because systematic large law firm ethno-religious discrimination against Jewish lawyers has become a thing of the past, the very reason for the existence of Jewish law firms has been nullified. As other minority groups, however, continue to struggle for equality within the senior ranks of Big Law, can the experience of the Jewish firms serve as a “separate-but-equal” blueprint for overcoming contemporary forms of discrimination for women, racial, and other minority attorneys? Perhaps not. As this chapter establishes, the success of large Jewish law firms was the result of unique conditions and circumstances between 1945 and 1980, which are unlikely to be replicated. For example, large law firms have become hyper-competitive and are not likely to allow any newcomers the benefit of protected pockets of practice. While smaller “separate-but-equal” specialized firms, for instance, ones exclusively hiring lawyer-mothers occasionally appear, the rise of large “separate-but-equal” firms is improbable.

European Criminal Law and General Principles of Union Law. Research Papers in Law, 5/2005

From the Introduction. The European Court of Justice, partly followed in this by the European legislator, has regulated Community law and policy through a set of general principles of law. For the Community legal order in the first pillar, general legal principles have developed from functional policy areas such as the internal market, the customs union, the monetary union, the common agricultural policy, the European competition policy, etc., which are of great importance for the quality and legitimacy of Community law. The principles in question are not so much general legal principles of an institutional character, such as the priority of Community law, direct effect or Community loyalty, but rather principles of law which shape the fundamental rights and basic rights of the citizen. I refer to the principle of legality, of nulla poena, the inviolability of the home, the nemo tenetur principle, due process, the rights of the defence, etc. Many of these legal principles have been elevated to primary Community law status by the European Court of Justice, often as a result of preliminary questions. Nevertheless, a considerable number of them have also been elaborated in the context of contentious proceedings before the Court of Justice, such as in the framework of European competition law and European public servants law.

Public regulation of competitive practices in business enterprise /

Includes indexes.

A közbeszerzés jogi és hatékonysági aspektusai (The legal and efficiency aspects of public procurement)

A közpénzelköltés hatékonyságát hazai viszonylatban az éves közpénzköltés nagyságával és az alkalmazott eljárástípusok, beszerzési tárgyak számával, értékével kapcsolatosan van lehetősége a hivatalos statisztikák elemzése során az érdeklődőnek vizsgálni. A törvény preambulumában található „a közpénzek ésszerű felhasználása átláthatóságának és széles körű nyilvános ellenőrizhetőségének megteremtése, továbbá a közbeszerzések során a verseny tisztaságának biztosítása” célrendszer csak részben érvényesül. A tanulmány arra kíván rávilágítani, hogy a hazai közbeszerzés-kutatás eredményei alapján milyen elképzelés van a GDP közel 5%-án hatékony elköltéséről Magyarországon. Vajon valódi akadálya-e a közbeszerzés a tisztességtelen versenynek, s elősegíti-e a piaci folyamatok érvényesülését annak szabályozása. A szerző válaszai rávilágítanak a közbeszerzési piaci folyamatok, gyengeségek, kevésbé hatékony megnyilvánulások és kritikus vélemények okaira, melyek közvetlen kapcsolatban vannak a közbeszerzés válságos helyzetével, s azonosítják azokat a kritikus pontokat, melyeken érdemes változtatni egy reménybeli hatékonyabb állapot, piaci egyensúlyi helyzet kialakítása érdekében. _______ The analysis of public spending can be based on official statistics showing the figures of annual public spending and the value and number of different procedures and purchased items. However, public procurement spending an annual amount of 1600-1800 billion HUF of public money in an ever changing legal environment, are intended to ensure not only some efficiency in public spending, but to reach several other aims as well. Although the preamble of the public procurement law states, that “a legal environment ought to be created, where the transparency and public accountability of spending public money and fair competition regarding public procurement procedures is ensured”, these requirements are only partially met. This study, based on the results of recent analyses concerning public procurement, wishes to represent our ideas about how to spend efficiently nearly 5% of the Hungarian GDP. Is it really true, that public procurement can be regarded as a genuine means against unfair competition, and can we really foster market processes by regulating public procurement? The author answers highlight the causes of the weaknesses of public procurement procedures, inefficient practices and critical opinions, which are closely connected to the present dire state of public procurement. This study also identifies the crucial elements to be changed in order to achieve a hopefully more efficient state and a preferable market balance.

Derecho comunitario europeo sobre la publicidad y su transposición al derecho español

La publicidad comercial es la principal herramienta de marketing debienes y servicios con que cuentan los empresarios en el mercado,por el fácil acceso al destinatario y su capacidad para influenciarsu decisión de compra. Las normas sobre publicidad colindandirectamente con las disposiciones sobre competencia desleal.Por tal razón, la Unión Europea, consciente de su importanciapara el desarrollo del mercado interior, ha estructurado unconjunto de normas que regulan la publicidad comercial, y quebuscan erradicar los anuncios que conlleven actos desleales quealteren irregularmente el mercado, afectando indistintamente acompetidores y consumidores. España debía transponer al derechonacional las disposiciones normativas comunitarias, exigencia que,para ser cumplida, implicó modificaciones sustanciales y complejasal régimen publicitario preexistente.

The Regulation of Competition and Innovation in the European Union and Spain: Opportunities for the Philippines and the ASEAN

The Philippines are currently facing a process of regional economic integration inside the ASEAN, in some way similar to the process undertaken by Spain and the European Union decades ago. Since January 2016, the ASEAN has become a Common Market, for whose effective achievement Competition and Innovation Law and Policies may play a crucial role. The scope of these pages is to overview the importance of the regulation in these issues and the promotion of competition within the member States throughout the process of regional economic integration. Then, we will consider the role that Competition and Intellectual Property Law and Policies have played in the construction of the European Union, and we will point out some current challenges that are still to be faced. Finally, we will offer some comparative conclusions considering the importance that these norms and policies will have in the construction of the ASEAN as an economic integrated area, and the way the ASEAN might follow the footsteps set by the European Union in its integration process.

The international regulation of transnational mergers

Transnational mergers are mergers involving firms operating in more than one jurisdiction, or which occur in one jurisdiction but have an impact on competition in another. Being of this nature, they have the potential to raise competition law concerns in more than one jurisdiction. When they do, the transaction costs of the merger to the firms involved, and the competition law authorities, are likely to increase significantly and, even where the merger is allowed to proceed, delays are likely to occur in reaping the benefits of the merger. Ultimately, these costs are borne by consumers. This thesis will identify the nature and source of regulatory costs associated with transnational merger review and identify and evaluate possible mechanisms by which these costs might be reduced. It will conclude that there is no single panacea for transnational merger regulation, but that a multi-faceted approach, including the adoption of common filing forms, agreement on filing and review deadlines and continuing efforts toward increasing international cooperation in merger enforcement, is needed to reduce regulatory costs and more successfully improve the welfare outcomes to which merger regulation is directed.

Tax concessions for charities : competitive neutrality, the tax base and "public goods" choice

It is argued that concerns arise about the integrity and fairness of the taxation regime where charitable organizations, which avail themselves of the tax exemption status while undertaking commercial activities, compete directly with the for-profit sector. The appropriateness of the tax concessions granted to charitable organizations is considered in respect of income derived from commercial activities. It is principally argued that the traditional line of reasoning for imposing limitations on tax concessions focuses on an incorrect underlying inquiry. Traditionally, it is argued that limitations should be imposed because of unfair competition, lack of competitive neutrality, or an arbitrary decision relating to a lack of deserving. However, it is argued that a more appropriate question from which to base any limitations is one which considers the value attached to the integrity of the taxation regime as a whole, and the tax base specifically compared to the public good of charities. When the correct underlying question is asked, sound taxation policy ensues, as a less arbitrary approach may be adopted to limit the scope of tax concessions available to charitable organizations.

The new normativity : the innovation imperative

At a quite fundamental level, the very way in which Public Service Broadcasting (PSB) may envisage its future usually captured in the semantic shift from PSB to Public Service Media (PSM) is at stake when considering the recent history of public value discourse and the public value test. The core Reithian PSB idea assumed that public value would be created through the application of core principles of universality of availability and appeal, provision for minorities, education of the public, distance from vested interests, quality programming standards, program maker independence, and fostering of national culture and the public sphere. On the other hand, the philosophical import of the public value test is that potentially any excursion into the provision of new media services needs to be justified ex ante. In this era of New Public Management, greater transparency and accountability, and the proposition that resources for public value deliverables be contestable and not sequestered in public sector institutions, what might be the new Archimedean point around which a contemporised normativity for PSM be built? This paper will argue for the innovation imperative as an organising principle for contemporary PSM. This may appear counterintuitive, as it is precisely PSB’s predilection for innovating in new media services (in online, mobile, and social media) that has produced the constraining apparatus of the ex ante/public value/Drei-Stufen-Test in Europe, based on principles of competitive neutrality and transparency in the application of public funds for defined and limited public benefit. However, I argue that a commitment to innovation can define as complementary to, rather than as competitive ‘crowding out’, the new products and services that PSM can, and should, be delivering into a post-scarcity, superabundant all-media marketplace. The evidence presented in this paper for this argument is derived mostly from analysis of PSM in the Australian media ecology. While no PSB outside Europe is subject to a formal public value test, the crowding out arguments are certainly run in Australia, particularly by powerful commercial interests for whom free news is a threat to monetising quality news journalism. Take right wing opinion leader, herself a former ABC Board member, Judith Sloan: ‘… the recent expansive nature of the ABC – all those television stations, radio stations and online offerings – is actually squeezing activity that would otherwise be undertaken by the private sector. From partly correcting market failure, the ABC is now causing it. We are now dealing with a case of unfair competition and wasted taxpayer funds’ (The Drum, 1 August http://www.abc.net.au/unleashed/2818220.html). But I argue that the crowding out argument is difficult to sustain in Australia because of the PSB’s non-dominant position and the fact that much of innovation generated by the two PSBs, the ABC and the SBS, has not been imitated by or competed for by the commercials. The paper will bring cases forward, such as SBS’ Go Back to Where you Came From (2011) as an example of product innovation, and a case study of process and organisational innovation which also has resulted in specific product and service innovation – the ABC’s Innovation Unit. In summary, at least some of the old Reithian dicta, along with spectrum scarcity and market failure arguments, have faded or are fading. Contemporary PSM need to justify their role in the system, and to society, in terms of innovation.