Enforcement Tools Research Articles

The Italian Guidelines on Antitrust Compliance Programs and the Difficult Goal of Matching Deterrence, Education, and Business Ethics

In 2018, the Italian Competition Authority issued the “Guidelines on antitrust compliance programs”. The Guidelines identify the adoption and implementation of a robust and effective compliance program as a mitigating circumstance in the calculation of fines for anti-competitive violations. Specifically, the Guidelines allow for a reduction of up to 15% of the fine in the event the antitrust compliance program is adopted before the beginning of an investigation (so-called ex ante facto programs) and a more limited reduction, up to 5% of the fine, for compliance programs implemented during the investigation (so-called ex post facto programs). These reductions are applicable to fines imposed as a result of anticompetitive arrangements and abuses of a dominant position under both the European and Italian competition provisions. In this paper we argue that while the decision to incentivize compliance programs is justified by the lack of competition culture and the structure of the Italian industrial sector, the design of the incentive provided for in the Guidelines is wrong. In particular, the Guideines try to protect its most important enforcement tool, i.e. the leniency program, by conditioning the reward for successful compliance programs to the self-reporting to the competition authority. We suggest a different set of incentives that should protect the leniency program while maintaining the interest in adopting a compliance program. We furthermore suggest a change in the Italian fining Guidelines in order to make the incentives for the adoption of ex ante compliance programs more effective, especially for small and medium sized enterprises.

Estimating Benefits of Automated Commercial Vehicle Enforcement

Automated enforcement of commercial vehicle regulations is one potential method through which states can generate revenue and improve safety compliance by more efficiently directing the attention of law enforcement and state Department of Transportation (DOT) officials to non-compliant carriers and identifying carriers who may be evading taxes. This paper estimates the potential benefits of remote enforcement of weight–distance tax regulations in Kentucky, United States (U.S.) using data from camera-equipped Kentucky Automated Truck Screening (KATS) systems and PrePass weigh stations in Kentucky, and links these data sources with administrative tax returns and Kentucky State Police citation data. This research estimates that remote enforcement and identification of tax evaders could generate up to $10.4 million annually in revenue. Implementation of KATS weigh stations increases monthly impounds by approximately $5,000 per station, or about 160%. Overall, the results indicate that remote enforcement can assist state DOTs and law enforcement agencies targeting non-compliant carriers and may be an effective tax enforcement tool for states.

Reforming China’s Securities Civil Actions: Lessons From U.S. PSLRA Reform and Taiwan’s Government-Sanctioned Non-Profit

Reforming China’s Securities Civil Actions: Lessons From U.S. PSLRA Reform and Taiwan’s Government-Sanctioned Non-Profit

Non-convex analytical and geometrical tools for volume truncation, initialization and conservation enforcement in VOF methods

A set of non-convex calculation tools for volume of fluid (VOF) methods in general grids is presented. The complexity of the volume truncation operation and the computation of the interface position to cut off a certain liquid volume fraction from a cell, involved in VOF methods, is greatly increased when non-convex grids and polytopes are considered. Therefore, the tools for convex geometries developed in a previous work by López and Hernández (2008) [32] have required profound adaptation for the different algorithms not only to address the challenges of the new geometry, but also to maintain the efficiency and robustness of previous tools. Also, a new method for the liquid volume initialization in general polygonal and polyhedral cells, either convex or non-convex, is proposed. A comparison with conventional procedures based on convex decomposition is carried out using different tests, whereby it is demonstrated that the proposed tools represent a substantial improvement in computational efficiency. Overall, a speedup of around one order of magnitude is achieved for the reconstruction of several 2D and 3D interfacial shapes.

Tax Controversy Corner: The Internal Revenue Code Injunction Statutes

Under the injunction statutes in the Internal Revenue Code, the U.S. government has broad discretion to seek—and the federal courts to order—the injunction of the preparation of false or fraudulent returns, as well as the aiding and abetting of false tax returns, and the promotion of abusive tax shelters. This power includes enjoining persons and businesses from engaging in specific conduct, and other equitable remedies, such as requiring preparers and promoters to turn over their clients’ identities, notify their clients of the injunction, and disgorgement of fees. The injunction statutes provide a powerful civil enforcement tool for the Department of Justice and the IRS. In many ways, the injunction action is a much worse consequence for a tax promoter or preparer than civil penalties because the action is part of the public record (unlike the results of a preparer or promoter audit, which would be subject to taxpayer confidentiality under Code Sec. 6103), and the court may shut down the preparer’s practice altogether. This column discusses the injunction statutes and two recent cases filed against alleged tax shelter promoters.

Developing Tobacco Control Interventions in Permanent Supportive Housing for Formerly Homeless Adults.

Smoke-free policies are effective population-based strategies to reduce tobacco use yet are uncommon in permanent supportive housing (PSH) for formerly homeless individuals who have high rates of smoking. In this study, we partnered with six supportive housing agencies in the San Francisco Bay Area to examine the implementation of smoke-free policies and cessation services. We administered a questionnaire and conducted in-depth, semistructured interviews with agency directors (n = 6), property management staff (n = 23), and services staff (n = 24) from 23 PSH sites on the barriers to implementing tobacco control interventions. All properties restricted smoking in indoor shared areas, but only two had policies restricting smoking in living areas. While there was staff consensus that smoke-free policies were important to reduce tobaccorelated harm, participants disagreed on whether smoke-free policies were aligned with PSH’s harm reduction framework. Residents’ comorbid mental illness and substance use and the lack of appropriate enforcement tools were barriers to implementation. Using these formative findings, we present a framework for a toolkit of strategies to increase implementation of smoke-free policies and cessation interventions in PSH. Successful implementation of indoor smoke-free policies in PSH will require concurrent cessation services to support smoking cessation efforts and address the mental health and substance use needs of residents.

Regulatory Strategies towards the Commodity Market Financialization Risk: Position Limits’ Regime, Transparency and Enforcement Tools

The commodities market sector has been affected by a large financialization process, raising concerns about the role of financial speculation in this sector. Following the broad international mandate of G-20, both US and EU policymakers issued specific provisions for commodity derivatives in order to increase transparency, addressing the turbulence in the commodity markets during the last decade and curbing negative effects of speculation. The article analyses, from an EU perspective, the main regulatory strategies adopted by legislators, focusing in particular on the new position limits’ regime and product intervention. In light of the exemptions to the general regulatory framework in favour of commercial operators, the article highlights how the new set of rules amplifies the role of supervisory authorities, introducing a range of interventionist tools that, ultimately, will determine the effectiveness of the new measures.

Проблемы обеспечения качества экспертной деятельности (на материале экспертизы информационной продукции в РФ)

The paper deals with the problems of ensuring the quality of expert’s activities which results are used in public administration. As a case, one type of expert evaluation is examined. This type has appeared about six years ago, according to the Federal Law N 436-FZ On Protecting Children from Information Harmful to Their Health and Development, with the purpose to assess the age rating of media content in difficult or disputable cases. The research focuses on two topics: what errors and abuses happen in the practice of expert evaluations; how the procedures of quality ensuring work. Empirical data for analysis include the texts of expert evaluations over the period 2013–2017 years (N 105) and semi-structured interviews with accredited experts (N 10). It was revealed that the quality of expert evaluations is diverse and in some cases is far from satisfactory. Some evaluations can be questioned because of their noncompliance with the law and formal criteria of academic papers. Meanwhile, obvious procedures to ensure quality are not designed in the law or exist but do not actually work. The results of evaluations of similar products differ from each other because of the absence of common methods, common theoretical ground, and unified format of evaluation. The government control of the experts’ work quality and the self-regulation of expert community are very weak. Those circumstances create conditions for distorted attitude of stakeholders to expert evaluation: not as a supplement tool for enforcement of the law on children media safety but as self-sufficient instrument of private interest protection and influence on media.

Enforcement Instruments Against Competition-Distorting Collusion and Unilateral Conduct Within the Intellectual Property Realm: A Study of the Approaches in Iranian Law

In dealing with anti-competitive conduct in the intellectual property domain, competition authorities can utilize a variety of sanctions and remedies to ensure that the technology market is not affected by such conduct and that the innovation growth rate does not decline under the shadow of corporate greed. This article examines competition law measures that can be applied in the intellectual property realm and discusses their framework in the Law on the Implementation of General Policies of Principle (44) of the Constitution, which contains Iranian competition law. Furthermore, we explain the relation between general and special rules regarding intellectual property, and the Iranian legal approaches are challenged and analyzed by comparing them with the standard and established rules of two other legal systems. Some of the approaches adopted by Iranian law have no prior example in other systems and make Iranian law unique. Nevertheless, this study shows that, in the absence of an effective policy regarding intellectual property and a true understanding of different aspects of anti-competitive remedies, as well as being limited to only adopting concepts from foreign legal systems without any effort to adapt them to the national law, the solutions will be deeply flawed and illogical and may bear undesirable results. This necessitates a change in attitude towards the role of competition enforcement tools in the realm of intellectual property and serious reform of Iran’s regulations as a developing country.

Quantum-Resistant Identity-Based Signature with Message Recovery and Proxy Delegation

Digital signature with proxy delegation, which is a secure ownership enforcement tool, allows an original signer to delegate signature rights to a third party called proxy, so that the proxy can sign messages on behalf of the original signer. Many real-world applications make use of this secure mechanism, e.g., digital property transfer. A traditional digital signature mechanism is required to bind a message and its signature together for verification. This may yield extra cost in bandwidth while the sizes of message and signature are relatively huge. Message recovery signature, enabling to reduce the cost of bandwidth, embeds a message into the corresponding signature; therefore, only the signature will be transmitted to the verifier and the message can further be recovered from the signature. In this paper, we, for the first time, propose a novel digital signature scheme in the identity-based context with proxy delegation and message recovery features and, more importantly, our scheme is quantum resistant, in a particular lattice-based signature. Our scheme achieves delegation information and signature existential unforgeability against adaptive chosen warrant and identity. Compared with the seminal lattice-based message recovery signature, our scheme is independent from public key infrastructure, realizes delegation transfer of signature rights, and compresses signature length ulteriorly. To the best of our knowledge, this paper is the first of its type.

An unnatural split: how ‘human interest’ sucks the life from significant news

Human interest might be considered the earliest of the news values, and in the past century, it has been the most flexible, allowing journalists to report and present compelling stories that lie outside more formal news definitions. In this historical and longitudinal analysis of 75 journalism textbooks from 1894 to 2016, I argue that human interest has also been a central enforcement tool for the dichotomy between emotional ‘feature’ stories and rational ‘news’ content – a dichotomy that developed in service of the modern journalistic tenet of objectivity. Whereas news and human interest were nearly synonymous in turn-of-the-20th-century textbooks, the two concepts were soon separated to facilitate the erasure of feeling and emotion from the most significant news events of the day. A key implication of this historical rupture is a century of public affairs news that holds citizens at arm’s length, contributing to widespread detachment from the workings of government and disengagement from civic affairs.

Preventing Risks from Illegal Online Gambling Using Effective Legal Design on Landing Pages

Gambling regulators in several European jurisdictions use website blocking as enforcement tool against illegal online gambling websites. Users trying to access blocked gambling websites are redirected to a landing page provided by the regulator. We analyse how insights from legal design could improve the effectiveness of landing pages as communication channel between regulators and players.

Carpooling and the Pan-European emergency call "eCall 112": Connected cars and their potential for environmental and transport policy

To meet transport sector obligations to emissions reductions, large effects may be derived from intelligent transportation systems (ITS) solutions. Substantial decrease of vehicle miles travelled (VMT) can be achieved using transportation systems management (TSM) measures, especially through high-occupancy vehicles (HOV) incentives. Of these, carpooling and vanpooling approaches proved to be effective. However, there is a lack of reliable enforcement procedures. A review of automated vehicle occupancy verification (AVOV) research and development (R&D) is followed by a proposal focused on the Pan European emergency call 'eCall 112'. The concept explores options for an eCall 112 application as an enforcement tool in TSM operations with vehicle occupancy data contained in the minimum set of data (MSD) as the base for new road transport policy tools. A set of incentives is described which support transport and environmental objectives. The proposed enforcement may impact congestion levels in combination with HOV-lanes and without them. Climate, environment, and the performance of road transportation systems could benefit from integrated road safety and TSM operations.

A Correctness Enforcement Approach for Collaborative Business Processes

Collaborative business processes are indeed complex and difficult to be correctly designed as business processes involved in them are typically developed by different participating organizations and there is no way to foresee all potential interactions at design time. To this end, we propose a novel correctness enforcement approach for collaborative business processes. In this approach, given an original process, we first propose an algorithm for automatically detecting its correctness. Then, in case the original process is partially correct, we prune it to generate its core. The core captures all legal traces in the original process. Finally, an enforced process is yielded from the core through coordination mapping (i.e., inserting additional coordination activities into original processes). Our approach is implemented as a prototype tool called cet (a correctness enforcement tool for collaborative business processes), and a series of experiments is conducted to validate the applicability and effectiveness of the proposed approach.

Effective Enforcement of a Data Protection: A Model for Risk-Based Supervision Using Responsive Regulatory Tools

This paper presents ideas for a new approach to enforcement of a data protection regime, based on risk-based supervision and the use of a range of responsive enforcement tools that could be deployed in advance of a breach to prevent it, or after a breach to mitigate the effects. Building on the risk-based approach to supervision, the model proposes a methodology to identify those entities that potentially pose more risk (to individuals and the system) when the personal data they hold is compromised. Part 2 of this paper proposes a risk-based framework to identify and classify entities based on the risk they pose when the personal data they hold is compromised, using both qualitative and quantitative components. Part 3 sets out an enforcement toolkit for data protection, guided by the paradigm of responsive regulation (that also employs ex ante tools) to prevent and mitigate the effects of a compromise of personal data. This approach is a departure from the post-data breach sanctions that currently dominate data protection regimes worldwide. Part 4 sets out the features of institutional design and inter-sectoral coordination required for effective implementation of such a model approach for risk-based supervision and enforcement of data protection rights.

Kokesh v. SEC: The Market Impact of Reducing SEC Enforcement Powers

We exploit the U.S. Supreme Court decisions of Kokesh v. SEC [2017] and Lucia v. SEC [2018] as a unique identification strategy to investigate the value of securities law enforcement. Both decisions were unanticipated legal changes that substantially weaken the SEC’s enforcement tools. Using an event study framework, we find a significantly negative price response to both the Kokesh and Lucia rulings, indicating shareholders view the weakening of SEC enforcement tools as value destroying for the average firm. Cross-sectional tests reveal that the negative price response is particularly severe for firms where misappropriation risks are more pronounced and for firms located closer to SEC offices, where enforcement tends to be more effective. Our findings can help inform the ongoing debate on the value and importance of public enforcement.

An analysis of challenges to ASIC’s s 920A banning orders against financial services providers in the AAT and the courts

Section 920A of the Corporations Act 2001 (Cth) provides ASIC with a flexible power to ban individuals from the Australian financial services industry on a number of grounds. The objective of this power is to protect consumers through upholding compliance with the law and adherence to professional standards. Banned individuals may apply to the Administrative Appeals Tribunal (AAT) to review the merits of such decisions, and on limited points of law such cases may be further appealed to the Federal Court of Australia (FCA). This article analyses the practice of the AAT and the FCA in determining challenges to s 920A banning orders. The 50 AAT cases examined in the article provide interesting examples of misconduct by financial advisers, stockbrokers and traders, insurance brokers and operators of investment schemes. The article shows that whilst the AAT has shown a flexible approach in considering the circumstances of each banning (setting aside four bans and varying the length of 15 bans), it has nevertheless exhibited a firm approach in the other 31 cases in affirming bans following serious misconduct. The article concludes by suggesting some minor reforms to further enhance the range of protective enforcement tools available to ASIC.

MH Parity Remains Elusive as States Fail to Enforce Law

MH Parity Remains Elusive as States Fail to Enforce Law

Criminalization Through Transinstitutionalization: A Critical Review of the Penrose Hypothesis in the Context of Compensation Imprisonment

In 1939, the Penrose hypothesis suggested that the number of psychiatric hospital beds was inversely related to the size of prison populations. Central to a causal interpretation of the Penrose hypothesis is the idea that a small proportion of any population requires institutional mental care. Several studies re-examining longitudinal and cross-sectional data found that a fall in available psychiatric hospital beds occurred over the same period as a rise in prisoner numbers. The observed inverse relationship was mostly interpreted as being the consequence of a lack of compassion for the disadvantaged in society, while other studies concluded that the correlation was spurious and determined by confounders. In Germany, Austria, and Switzerland, lawbreakers who are unwilling or unable to pay a fine for committing a petty crime such can face compensation imprisonment. Every tenth German detainee serves compensation imprisonment with an average incarceration time of 2–3 months. We analyzed the social-economic backgrounds and the levels of mental disorders in four populations of compensation prisoners, consisting of 100 participants each, in the German capital Berlin in 1999, 2004, 2010, and 2017. Largely, the compensation prisoners were homeless, single, and unemployed, exhibited a high degree of substance abuse and showed an extraordinary high prevalence of mental disorders. Unfortunately, as the average stay in prison is short, there are no decisive concepts for social rehabilitation after imprisonment. In addition to a lack of resocialization, potential job loss, and social stigmatization, the newly acquired subcultural contacts facilitate reoffending. This study aims to give an overview of the medical, sociologic, and psychopathologic examinations on compensation prisoners. By analyzing trends in the prevalence of mental disorders, we will discuss the medical appropriateness and sociologic sense of compensation imprisonment with respect to the Penrose hypothesis. Thereby, we aim at shedding light on the question whether compensation imprisonment is an indispensable tool for law enforcement or if it is a punishment of the poor or mentally ill, which further deteriorates their unfavorable socio-economic situation. Finally, we will propose measures to reduce the number of reoffenders and to enable the compensation detainees to reintegrate successfully into society.

Donald Turner’s Merger Guidelines as an Antitrust Watershed

The idea of agency-issued guidelines as an effective enforcement tool was novel indeed when Professor Donald F. Turner unveiled it as a priority upon being nominated to be head the Justice Department’s Antitrust Division in 1965. This chapter reviews how Turner and we who were on his team worked to create the Merger Guidelines that were issued on his last day in office in May 1968. It also discusses how Turner’s novel merger guidelines idea has since been widely used in United States and globally.