Prior Decisions Research Articles

Change impact analysis for evolving configuration decisions in product line use case models

Product Line Engineering is becoming a key practice in many software development environments where complex systems are developed for multiple customers with varying needs. In many business contexts, use cases are the main artifacts for communicating requirements among stakeholders. In such contexts, Product Line (PL) use cases capture variable and common requirements while use case-driven configuration generates Product Specific (PS) use cases for each new customer in a product family. In this paper, we propose, apply, and assess a change impact analysis approach for evolving configuration decisions in PL use case models. Our approach includes: (1) automated support to identify the impact of decision changes on prior and subsequent decisions in PL use case diagrams and (2) automated incremental regeneration of PS use case models from PL use case models and evolving configuration decisions. Our tool support is integrated with IBM Doors. Our approach has been evaluated in an industrial case study, which provides evidence that it is practical and beneficial to analyze the impact of decision changes and to incrementally regenerate PS use case models in industrial settings.

Abstract P4-10-02: Validation of a clinical informatics system for online multidisciplinary expert opinions: Mapping treatment recommendations to the NCCN resource-Stratified framework

Abstract Background: Most cancer patients in Low and Middle Income Countries (LMIC) cannot afford effective, expensive, evidence based therapies. Therefore, oncologists must tailor treatment plans to individual resource constraints. To support this, NCCN has created a Resource-Stratified Framework® (NCCN-RSF), which is an evidence-based four-tier prioritization scheme. Further, only a fraction of patients in LMIC have ready access to oncologists. In India, there are only ˜1600 oncologists for 1.8 million patients. To bridge this gap, Navya's clinical informatics based mobile ExpertApp combines learning from evidence, prior tumor board decisions, patient resource constraints, and quick review from TMC NCG oncologists to recommend tailored treatment plans to patients via an online expert opinion service. 11865 patients in 22 LMIC have reached out to receive an online expert opinion through Navya (ASCO 2017). This study maps Navya to NCCN-RSF as an evidence-based index for resource-sensitive treatment selection. Methods: All breast cancer patients who received an online expert opinion from TMC NCG Navya between July 1st 2014 and April 30th 2017 were included. Navya systematically gathered information on patient resource constraints (such as affordability for Trastuzumab). Navya recommendations (breast and nodal surgery, radiation site and fractionation, drug and dose density etc.) were mapped to NCCN-RSF resource tiers (Basic, Core, Enhanced, Parent guideline). Reasons were categorized for Navya recommendations not present in NCCN-RSF. Results: 616 patients (36.3% metastatic), mostly from India, received 1203 recommendations. At the specific treatment protocol level, 88.3% of Navya recommendations mapped with at least one NCCN-RSF resource tier (Table 1). 78.5% mapped to the Enhanced tier. Only 8.6% of recommendations mapped to Parent guidelines, and did not require tailoring for resource constraints. Fewer than 2% recommendations mapped to Core and none to Basic. 11.7% recommendations were not present in NCCN-RSF, for minor reasons such as substitution of a drug within the same class (35.8%) (e.g., Epirubicin for Adriamycin), dose dense protocols (14.3%) (e.g., 3 weekly Paclitaxel vs weekly Paclitaxel), and recommending Trastuzumab for less than a year for patients unable to afford year long therapy (14.3%), currently not included in NCCN-RSF. Table 1- Mapping Navya to NCCN RSFNCCN RSF TiersHIGH LEVEL: Multimodality treatment and sequencing (1203)INTERMEDIATE: Within modality treatment categories (1188)GRANULAR: Specific treatment protocols (1140)E.g.Neoadjuvant vs Adjuvant ChemoAnthracycline vs TaxaneHypofractionation vs Standard XRTAt least one Tier98.8%±0.696%±1.188.3%±2Enhanced94.4%±1.391%±1.778.5%±2.7Core1.9%±5.61.2%±5.71.2%±5.8Parent NCCN2.4%±5.63.8%±5.68.6%±5.5 Conclusion: Navya's treatment recommendations are sensitive to resource constraints and map to peer reviewed and evidence based NCCN RSF, primarily at the Enhanced tier. Navya's clinical informatics based online service scales access to resource constrained treatment selection for large numbers of patients in LMIC without easy access to oncologists. Citation Format: Badwe RA, Gupta S, Feldman N, Pramesh CS, Ramarajan N, Srivastava G, Nair N, Anderson BO. Validation of a clinical informatics system for online multidisciplinary expert opinions: Mapping treatment recommendations to the NCCN resource-Stratified framework [abstract]. In: Proceedings of the 2017 San Antonio Breast Cancer Symposium; 2017 Dec 5-9; San Antonio, TX. Philadelphia (PA): AACR; Cancer Res 2018;78(4 Suppl):Abstract nr P4-10-02.

Differences in cognitive performance in nondemented Parkinson’s disease: A latent profile analysis of cognitive subtypes

ABSTRACTIntroduction: Cognitive impairments are common in Parkinson’s disease (PD) patients without dementia. These deficits are quite heterogeneous, which makes it difficult to recognize and treat them. For this reason, many authors have attempted to classify patients into more homogeneous groups with diverse results. The present study was designed to analyze the cognitive heterogeneity in PD patients using a novel data-driven approach, latent profile analysis (LPA), to classify patients according to cognitive characteristics. This methodology, which has been used in previous studies focused on motor and psychiatric symptomatology, seems to be better than traditional cluster analysis for the establishment and comparison between different subgroups because it does not require prior decision making about some theoretical or methodological aspects.Method: LPA was applied to 71 PD patients evaluated with a broad neuropsychological battery including different memory and executive function tests. The clusters obtained from the analysis were described by making comparisons with a control group of 51 healthy subjects matched in age, sex, and educational level.Results: The LPA resulted in a four-cluster solution, which could be described as: (a) executive dysfunction (32.4%), (b) memory and executive dysfunction (28.2%), (c) memory dysfunction (23.9%), and (d) noncognitive dysfunction (15.5%). These four PD cluster differ in age and Mini-Mental State Examination (MMSE) score. However, there were no differences between clusters in disease duration, clinical impression of severity index, depression, and cognitive reserve.Conclusions: LPA is a very interesting method for the establishment of more homogeneous groups of PD patients based on their neuropsychological characteristics. Moreover, the distinction between different cognitive profiles will allow us to design interventions better adapted to each patient.

Willingness to initiate a fight but not contest behaviour depends on intruder size in Lethrus apterus (Geotrupidae)

In resident-intruder contests, residents are expected to win more often than intruders unless the intruder has significantly higher competitive ability that is often determined by its size. Therefore, small intruders are expected to be less motivated to engage in contests than large ones and intruder size is predicted to have a positive relationship with the duration and escalation of the encounters. In a field experiment we tested these hypotheses in Lethrus apterus, a biparental beetle breeding in underground tunnels, by placing either a small or a large male in front of a tunnel occupied by a resident male. In agreement with our predictions residents won most of the encounters. Small intruders were less willing to engage in a contest and were less successful in their takeover attempts than large intruders. Contrary to many studies however, the duration and escalation (measured by the occurrence and latency of the different contest stages) of the fight in front of the burrow did not differ between the two intruder size categories. These findings suggest that in this species, small and large intruders adjust their prior decisions to their competitive abilities but once a fight started, they behave similarly during the contest.

Combining Time and Physical Workload Analysis on Cold Press Working Group for Operator Management in Manufacturing Company

Efficiency improvement in manufacturing company is essential to ensure the cycle of continuous improvement. Prior decision was reducing 6 operators in the cold press team work into 5 workers. Thus significant changes, of course, would resulted in the change of the workload experienced by each operator. The research objective in this study is validating from the productivity of the reduction conducted by measuring the workload with combining Full Time Equivalent (FTE) and Cardiovascular Load Percentage (%CVL). The result states that there are differences in measurement results workload from both methods. Based on the FTE method, all Cold Press operator’s workload has an index in average of 1.4128 with all was above 1.28 indicating the “Overload” condition. On the other hand, based on the physical workload method obtained that % CVL in average was 8.272% with all operator was below 30% which indicates the workload of all Cold Press operators were in a not experiencing fatigue category. Keywords: Workload, FTE, %CVL, productivity, Physical Workload.

GEO-CEOS stage 4 validation of the Satellite Image Automatic Mapper lightweight computer program for ESA Earth observation level 2 product generation - Part 2: Validation.

ESA defines as Earth Observation (EO) Level 2 information product a multi-spectral (MS) image corrected for atmospheric, adjacency, and topographic effects, stacked with its data-derived scene classification map (SCM), whose legend includes quality layers cloud and cloud-shadow. No ESA EO Level 2 product has ever been systematically generated at the ground segment. To fill the information gap from EO big data to ESA EO Level 2 product in compliance with the GEO-CEOS stage 4 validation (Val) guidelines, an off-the-shelf Satellite Image Automatic Mapper (SIAM) lightweight computer program was selected to be validated by independent means on an annual 30 m resolution Web-Enabled Landsat Data (WELD) image composite time-series of the conterminous U.S. (CONUS) for the years 2006 to 2009. The SIAM core is a prior knowledge-based decision tree for MS reflectance space hyperpolyhedralization into static (non-adaptive to data) color names. For the sake of readability, this paper was split into two. The present Part 2—Validation—accomplishes a GEO-CEOS stage 4 Val of the test SIAM-WELD annual map time-series in comparison with a reference 30 m resolution 16-class USGS National Land Cover Data (NLCD) 2006 map. These test and reference map pairs feature the same spatial resolution and spatial extent, but their legends differ and must be harmonized, in agreement with the previous Part 1 - Theory. Conclusions are that SIAM systematically delivers an ESA EO Level 2 SCM product instantiation whose legend complies with the standard 2-level 4-class FAO Land Cover Classification System (LCCS) Dichotomous Phase (DP) taxonomy.

Recurrent Transformation of Prior Knowledge Based Model for Human Motion Recognition.

Motion related human activity recognition using wearable sensors can potentially enable various useful daily applications. So far, most studies view it as a stand-alone mathematical classification problem without considering the physical nature and temporal information of human motions. Consequently, they suffer from data dependencies and encounter the curse of dimension and the overfitting issue. Their models are hard to be intuitively understood. Given a specific motion set, if structured domain knowledge could be manually obtained, it could be used for better recognizing certain motions. In this study, we start from a deep analysis on natural physical properties and temporal recurrent transformation possibilities of human motions and then propose a useful Recurrent Transformation Prior Knowledge-based Decision Tree (RT-PKDT) model for recognition of specific human motions. RT-PKDT utilizes temporal information and hierarchical classification method, making the most of sensor streaming data and human knowledge to compensate the possible data inadequacy. The experiment results indicate that the proposed method performs superior to those adopted in related works, such as SVM, BP neural networks, and Bayesian Network, obtaining an accuracy of 96.68%.

GEO-CEOS stage 4 validation of the Satellite Image Automatic Mapper lightweight computer program for ESA Earth observation level 2 product generation - Part 1: Theory.

ESA defines as Earth Observation (EO) Level 2 information product a single-date multi-spectral (MS) image corrected for atmospheric, adjacency and topographic effects, stacked with its data-derived scene classification map (SCM), whose legend includes quality layers cloud and cloud-shadow. No ESA EO Level 2 product has ever been systematically generated at the ground segment. To fill the information gap from EO big data to ESA EO Level 2 product in compliance with the GEO-CEOS stage 4 validation (Val) guidelines, an off-the-shelf Satellite Image Automatic Mapper (SIAM) lightweight computer program was validated by independent means on an annual 30 m resolution Web-Enabled Landsat Data (WELD) image composite time-series of the conterminous U.S. (CONUS) for the years 2006–2009. The SIAM core is a prior knowledge-based decision tree for MS reflectance space hyperpolyhedralization into static color names. Typically, a vocabulary of MS color names in a MS data (hyper)cube and a dictionary of land cover (LC) class names in the scene-domain do not coincide and must be harmonized (reconciled). The present Part 1—Theory provides the multidisciplinary background of a priori color naming. The subsequent Part 2—Validation accomplishes a GEO-CEOS stage 4 Val of the test SIAM-WELD annual map time-series in comparison with a reference 30 m resolution 16-class USGS National Land Cover Data 2006 map, based on an original protocol for wall-to-wall thematic map quality assessment without sampling, where the test and reference maps feature the same spatial resolution and spatial extent, but whose legends differ and must be harmonized.

Inter-brain synchrony and cooperation context in interactive decision making

People engaged in interactive decision making rely on prior decision behaviors by other persons to make new choices and they exhibit inter-brain synchrony between each other. The functional meanings of such inter-brain synchrony, however, remains obscure. In the present study, dyads (15 pairs, all female) played the Prisoner’s Dilemma game while their brain activities were recorded simultaneously by electroencephalography (EEG)-based hyperscanning technique. We manipulated the context of the game with higher versus lower cooperation index (HCI vs. LCI) and to each participant, we depicted the interaction as involving either another human partner or a machine (H-H vs. H-M). The results showed a higher cooperation rate and larger theta/alpha-band inter-brain synchrony in condition H-H than in H-M. In the condition H-H, there were larger centrofrontal theta-band and centroparietal alpha-band inter-brain synchrony in tasks set for high cooperation (HCI vs. LCI). Enhanced inter-brain synchrony covaried with increased cooperative choices observed between LCI and HCI. Furthermore, a subjective measure of perceived cooperativeness mediated the relationship between game context and inter-brain synchrony. These findings provide evidence for a role of cooperation on inter-brain synchrony during interactive decision making, and suggest distinct underlying neural processes recruited by cooperation contexts to enable high-level social cognitive processing in decision making.

Extending Temporary Status for El Salvador: Country Conditions and U.S. Legal Requirements

In March 2001, the U.S. government announced the designation of El Salvador for Temporary Protected Status (TPS). This designation was premised on the significant disruptions and damage caused by two earthquakes that had ravaged El Salvador in January and February 2001. TPS for El Salvador has been extended over the years, and the current period of designation is set to expire in early March 2018. In the current political moment, there is concern about whether this TPS designation will be extended once again. Recent reporting suggests that the Department of State has recommended to the Department of Homeland Security that TPS be terminated for El Salvador and other countries. This report provides a background on TPS, and also undertakes a detailed examination of the justifications offered over the years for extending TPS for El Salvador. Each of these past extension decisions concluded, as required by the TPS statute, that El Salvador is not able to adequately handle the return of its nationals who are residing in the U.S. with TPS. Our analysis reveals that the U.S. government has premised these past extension decisions on six categories of factors: climate and environment; economy; infrastructure; public health; safety and security; and governance. Drawing on ongoing research on country conditions in El Salvador carried out by American University and research institutions in the region, the report proceeds to assess this same broad range of country condition factors in present-day El Salvador. Findings support the conclusion that TPS for El Salvador should be extended. Consideration of this country condition evidence is compelled by an analysis of prior TPS extension decisions.

The Foundations of Judicial Diffusion in China: Evidence from an Experiment

AbstractChinese judicial opinions were, for a long time, not readily accessible even by the courts. But an emerging norm of judicial transparency, coupled with the technological advances of the last decade, has resulted in the accumulation of vast bodies of cases available for consultation by both the lay and the learned. These recent developments in the Chinese legal landscape allow judges to influence and be influenced by the decisions of judges sitting in other courts. This project is the first to adopt an experimental approach to evaluating the influence of prior judicial decisions on Chinese judges. We find that citation of a case out of a sister court had a substantial and statistically significant effect on judges’ interpretation of a vague, permissive, legal standard. This effect was not, however, accompanied by a reduction in the length of sentences awarded by judges. An additional study suggests that prior judicial decisions have an indistinguishable influence on judges and law students, indicating that role and environment are unlikely to be the explanation for the main result.

Media Supervision, Environmental Regulation and Firm Green Investment

Under economic new normal, green investment is the key to ecological development. It is a prior decision,and can pay attention to from pollution control afterwards to the prevention of pollution in advance. How about the role of government environmental regulation in firm green investment? Can the media effectively supervise firm green investment? Answers to the questions abovementioned are conducive to the definition of the role of environmental regulation and media supervision in firm green investment. Based on the empirical data of A-share listed companies of heavy pollution industry in China,it uses an empirical analysis to explore the relationship among media supervision,environmental regulation and firm green investment. It comes to the following conclusions:firstly,strict government environmental regulation plays an active role in the promotion of firm green investment,and after the distinction between state-owned and non-state-owned samples,state-owned listed companies are usually more active to comply with environmental regulation and thereby input more green funds;secondly, media supervision can significantly promote the exertion of environmental regulation power, and after the distinction between positive and negative media coverage, the promotion role of positive media coverage is more obvious; furthermore, after the distinction between stateowned and non-state-owned samples, state-owned listed companies are more vulnerable to the impact of media supervision,thereby promoting the increase in green investment. The conclusions provide evidence for the perfection and enhancement of environmental regulation institutions like new environmental law and confirm the supervision role of the media as a corporate governance institution in firm green investment.

Triaging the Law: Developing the Common Law on the Supreme Court of India

Legal precedent serves as the foundation of the common law. Judges provide their reasoning through precedent, citing cases to support their conclusion while distinguishing between cases cited by that counsel in favor of an opposing result. Legal precedent also provides the mechanism by which judges communicate with one another, at the same time providing guidance to prospective litigants and the practicing bar. This process is particularly important for supreme courts, whose decisions bind all lower courts within their jurisdiction. For this reason, in most common‐law jurisdictions, the supreme court decides relatively few cases but draws heavily on precedent for the opinions it issues. The Supreme Court in India stands in contrast to its counterparts in countries such as the United States and Canada in that it decides thousands, rather than tens, of cases. Examining the universe of Court decisions from 1950–2010, we find that the Court elects not to cite precedent in nearly half its opinions. In turn, these opinions without citation to precedent are rarely subsequently cited. However, there is a second set of decisions that is more analogous to U.S. Supreme Court decisions. These decisions do cite prior decisions and are cited by later cases. Opinions that do cite precedent gravitate to older opinions, whose salience often endures for decades. These findings suggest the Court is constrained in its ability to process a heavy caseload, and makes strategic decisions as to which opinions to emphasize through its use of precedent.

Who Follows Whom? A Location Study of Chinese Private and State-Owned Companies in the European Union

This paper analyses the location decision of Chinese manufacturing firms for their greenfield investments in Europe. The analysis draws on neo-institutional theory to formulate hypotheses on the importance of mimicry in Chinese firms’ location decisions and how this differs between private and state-owned enterprises. The analysis is conducted at the subnational (regional) level while taking into account economic integration across regions. The results confirm the importance of mimicry and show that Chinese firms not only follow previous Chinese investors in the same sector but also in unrelated sectors. Furthermore, Chinese investors only follow previous investments by Chinese private-owned companies while the results also show that Chinese private-owned companies generally have a higher tendency than state-owned companies do to follow prior investment decisions by compatriot firms. As the empirical evidence demonstrates the importance of bandwagon effects, the implication is that investment decisions can have a lasting influence on the geographical pattern of Chinese investments across regions.

Metabolomics based predictive biomarker model of ARDS: A systemic measure of clinical hypoxemia.

Despite advancements in ventilator technologies, lung supportive and rescue therapies, the outcome and prognostication in acute respiratory distress syndrome (ARDS) remains incremental and ambiguous. Metabolomics is a potential insightful measure to the diagnostic approaches practiced in critical disease settings. In our study patients diagnosed with mild and moderate/severe ARDS clinically governed by hypoxemic P/F ratio between 100–300 but with indistinct molecular phenotype were discriminated employing nuclear magnetic resonance (NMR) based metabolomics of mini bronchoalveolar lavage fluid (mBALF). Resulting biomarker prototype comprising six metabolites was substantiated highlighting ARDS susceptibility/recovery. Both the groups (mild and moderate/severe ARDS) showed distinct biochemical profile based on 83.3% classification by discriminant function analysis and cross validated accuracy of 91% using partial least squares discriminant analysis as major classifier. The predictive performance of narrowed down six metabolites were found analogous with chemometrics. The proposed biomarker model consisting of six metabolites proline, lysine/arginine, taurine, threonine and glutamate were found characteristic of ARDS sub-stages with aberrant metabolism observed mainly in arginine, proline metabolism, lysine synthesis and so forth correlating to diseased metabotype. Thus NMR based metabolomics has provided new insight into ARDS sub-stages and conclusively a precise biomarker model proposed, reflecting underlying metabolic dysfunction aiding prior clinical decision making.

Justice K.S. Puttaswamy (Ret'd) and Anr v. Union of India and Ors

On August 24, 2017, the Supreme Court of India issued a rare, unanimous nine-judge decision holding that the right to privacy is protected by the Constitution of India. The case is all the more noteworthy because the Court reversed its prior decisions holding that the right to privacy was not protected by the country's Constitution. It arose out of the government's creation of a national database of biometric and demographic information for every Indian. Rejecting the government's arguments, the Court found that the right to privacy applies across the gamut of “fundamental” rights including equality, dignity (Article 14), speech, expression (Article 19), life, and liberty (Article 21). The six separate and concurring judgments in Justice K.S. Puttaswamy (Ret'd) and Anr v. Union of India and Ors are trailblazing for their commitment to privacy as a fundamental freedom and for the judges’ use of foreign law across jurisdictions and spanning centuries.

The role of cognitive frames in combined decisions about risk and effort

Cognitive framing influences the subjective valuation of monetary payoffs and an individual’s willingness to exert effort and take risk. In this paper, we explore how cognitive frames created by incentive design and the outcome’s fairness influence decisions on risk and effort. While such decisions are often combined in practice, the theories that study risk-taking and motivation to exert effort remain discrete. We set up a multiperiod, 2×2 experiment in which we analyze the effects of a bonus versus a penalty contract and a fair versus an unfair outcome distribution. We use a modified Sternberg task to measure risk-effort decisions. We hypothesize that in the case of conflicting cues from the two frames, the cue that creates a perception of loss dominates the decision. We also hypothesize that over time, prior performance influences current decisions by creating a new cognitive frame. We find that if the pay is unfair, neither a bonus nor a penalty seems to matter. If it is fair, high risk-effort tasks are stimulated more by a penalty than a bonus contract. The effect of prior performance eventually outweighs the effect of both incentive manipulations. Our results help to advance the management accounting literature by integrating separate theories on risk-taking and effort exertion to better understand interactive cognitive frames in comprehensive decision-making.

Why and how do firms reshore? A contingency-based conceptual framework

Much of the growing body of reshoring literature has focused on why firms reverse a prior location decision. While valuable, this work needs extending to how the decision to reshore is operationalised. Using a two-stage approach, this paper presents a conceptual framework that covers both why and how firms reshore. The framework also utilises contingency theory to identify the factors that influence these decisions. It is therefore claimed to be more comprehensive than others frameworks found in the literature. First, a systematic literature review deductively develops an initial framework. Second, a revised version of the framework is presented using evidence from a single, exemplar case of captive reshoring in the textiles industry. The case evidence identifies new factors and extends a typology of reshoring decisions proposed in the literature to more accurately reflect the dynamic, complex, and incremental nature of the onshore-offshore-reshore location and ownership decision.

Nullity Under Art. 101(2) TFEU

The paper discusses the characteristics of the Article 101(2) TFEU nullity compared to the concepts of nullity in civil law in Belgium, the Netherlands, France and Germany as well as to the concept of non-bindingness in EU consumer law. The Article 101(2) TFEU nullity is an autonomous EU private law sanction. It applies to agreements and decisions infringing Article 101(1) TFEU and not satisfying the requirements of Article 101(3) TFEU. In the case of concerted practices, the act of concertation is not a legal act so there is no need to declare it void. The validity of any legal acts concluded between one of the concerting undertakings and one or more third parties is not a matter of EU law, but of national law. The nullity is automatic; this means that it applies ex lege, no prior court decision being required. The extent to which the Article 101(2) nullity may be invoked by national courts ex officio is disputed in legal scholarship. It seems to follow from the case law of the Court of Justice that such an obligation does exist, except where examination of the issue of breach of Article 101 would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in the application of those provisions bases his claim. In particular, the duty of national courts to apply Article 101(2) ex officio does not seem to interfere with the rules of Article 2 Regulation 1/2003 regarding the burden of proof. The absolute character of the nullity means that the null agreement or decision has no effects between the parties or regarding third parties. Under EU law as opposed to Belgian and French law, the duty to apply Article 101(2) ex officio is rather related to the automatic character of the nullity than to the absolute character of the nullity. The CJEU has recognized that the Article 101(2) nullity may have retroactive effects. This does not mean however that nullity always implies that the act is deemed never to have existed. The act only becomes null and void as of the moment it infringes Article 101(1) TFEU and does not satisfy the requirements of Article 101(3) TFEU. The question whether an act that at one point was null for this reason can revive later on, when it no longer infringes Article 101(1) TFEU or satisfies the requirements of Article 101(3) TFEU, is disputed. It is standing case law of the CJEU that the automatic nullity provided for in Article 101(2) TFEU affects a contract in its entirety only if the clauses which are incompatible with Article 101(1) TFEU are not severable from the contract itself. Otherwise, the consequences of the nullity, in respect of all the other parts of the contract, are not a matter for Community law. The CJEU has not laid down a criterion for severability itself. In case law and legal scholarship the dominant opinion seems to consider that severability is to be determined according to national rules. German scholars however regard the issue of severability as an issue of EU law. Only when the anticompetitive clause is severable from the remainder of the agreement they use §139 to determine whether the nullity is to be extended to the remainder of the contract. National legal systems generally accept the validity of severance clauses, although in Germany they only lead to a reversion of the burden of proof under §139 BGB. According to the Court of Justice it is up to the national law to determine whether the parties may amend their contract in order to prevent it from being void, for example by replacing the void clause by one that is exempted under a block exemption regulation. The Court of Justice did not make an explicit statement about the power of national courts to amend an anticompetitive agreement. In my opinion, chances are significant that the Court would also leave this up to the national legal systems. Currently, Dutch law prohibits such judicial intervention. In Belgium, judicial conversion has long been prohibited, but recently the Belgian Supreme court accepted it, albeit not in a competition law related case. German case law and legal scholarship is divided about judicial conversion, but accepts the application of concrete modification clauses. Although there are certain similarities between the nullity under Article 101(2) TFEU and the concept of non-bindingness under the UCTD, the Article 101(2) nullity and the UCTD’s non-bindingness are two distinct concepts which derive their characteristics from their own distinct purposes: the protection of free competition in the case of Article 101(2) and consumer protection in the case of the UCTD.

Matrimonial Property Regimes and Damages: The Far Reaches of the South African Constitution

Section 18(b) of the Matrimonial Property Act 88 of 1984 allows for non-patrimonial damages to be claimed by a spouse married in community of property against his/her spouse. In Van der Merwe v Road Accident Fund 2006 4 SA 230 (CC) the court extended this exception to the notional purity of community of property to include patrimonial damages on the basis that section 18(b) discriminated unfairly against spouses married in community of property vis-à-vis spouses married out of community. The implications of this decision on commercial intercourse are discussed in this contribution against the background of prior decisions relating to the insolvency of spouses married in community of property.