Relevant Precedents Research Articles

The business judgment rule under Argentine law

Los administradores societarios deben observar estrictos deberes de comportamiento y, si no lo hacen, puede imputárseles responsabilidad. La business judgment rule es una morigeración al régimen de responsabilidad y establece que los jueces no revisarán las decisiones empresarial tomadas por los administradores, quienes no podrán ser responsabilizados por ellas. Son requisitos para aplicarse esa regla: a) que la decisión esté dentro de la esfera de la competencia del administrador, no se trate de una imposición legal y no fuera un comportamiento doloso; b) que no hubiera significado la asunción de riesgos extraordinarios y c) que los managers se informaron en forma adecuada y suficiente antes de tomarla. En el derecho argentino no hay una norma que se refiera a la business judgment rule, no hay antecedentes jurisprudenciales relevantes con relación al tema y son pocos los doctrinarios que se han ocupado de abordar esta problemática. Su aplicación presupone que los administradores no actuaron con dolo ni con culpa grave. En la doctrina vernácula se discute si hay responsabilidad de los administradores por culpa leve o levísima. Un sector de los autores afirma que no, y sostiene que sólo hay responsabilidad si se actuó con dolo o culpa grave y, en este caso, la BJR es inaplicable. Nosotros sostenemos que hay responsabilidad en todos los casos en los que haya culpa, sin importar su grado, y, en este supuesto, adquiere importancia la business judgment rule, que permite sustraer a los managers de responsabilidad cuando no hubieran actuado con dolo ni culpa grave.

Responsabilidade Civil por Ato de Terceiro: Reflexões sobre a Responsabilidade Civil do Administrador de Grupos em Aplicativos de Troca de Mensagens

A evolução das relações sociais traz, dentre outros, o desafio de pensar a responsabilidade civil do administrador de grupos de aplicativos de troca de mensagens pelas manifestações dos seus integrantes. Em nosso direito, a regra é a responsabilidade por ato próprio, sendo exceção a responsabilidade civil por ato de outrem. Assim, cabe questionar se a função do administrador de grupos de troca de mensagens se amolda a alguma das hipóteses previstas em lei. Em sendo positiva a resposta, em qual das exceções o administrador de grupo de aplicativo de troca de mensagem se encaixa? Em sendo negativa, questiona-se se há um dever de moderar as manifestações. Considerando ambas as hipóteses, questiona-se se há limites para essa responsabilidade, decorrentes, por exemplo, da liberdade de expressão. Analisadas essas questões com base em pesquisa bibliográfica acerca do tema, legislação e jurisprudência pertinente, conclui-se que a responsabilidade civil do administrador de grupo de aplicativo de troca de mensagens é por ato próprio, subjetiva e não conflita com a liberdade de expressão. O tema é abordado mediante uso do método dialético. No que se refere ao procedimento, usou-se a pesquisa bibliográfica acerca do tema, incluindo-se análise da jurisprudência pertinente.

The UN Security Council’s Response to COVID-19: From the Centre to the Periphery?

Abstract This article examines the UN Security Council’s response to the escalating COVID-19 pandemic in 2020, which has been criticised as hesitant and half-hearted. It argues that the Council’s inability to respond more assertively to the COVID threat was more predictable than surprising. Indeed, the Council’s approach to the COVID threat tended to follow, rather than diverge from, its past practice, exhibiting three increasingly entrenched features of Council decision-making in a crisis. First, the Council is hesitant and ill-equipped to respond to non-traditional or unorthodox threats to international peace and security, even where relevant precedents exist to support such a response. Second, the Council struggles to act when there is friction between permanent members. Third, when all else fails, the Council can still do reliably well on process.

Urban Regeneration-Is it possible for the environmental regeneration of Hong Kong to begin from Kau Yi Chau Island?

A Transitional Environment is a term recently used to describe a new form of hybrid space and habitat that has emerged within and around the contemporary city. During the last few decades in Hong Kong and China there has been an increased design focus on the distinct social, spatial, and economic characteristics and challenges that emerge in these spaces that sit both between the rural and the urban and the land and the sea. Now, a more holistic and regenerative perspective for urban design is under way, focusing on environments with an ecological mindset. Within the urban design and planning context of Hong Kong in particular, as an archipelago of islands attached to China’s mainland, these transitional environments include existing rural islands that are being adapted to and expanded as part of development proposals. These proposals tend to offer only a limited acknowledgement and engagement with their island or coastal locations and surrounding natural habitats, in favour of dense and environmentally unsustainable podium and tower schemes. With global challenges and specifically climate change and a growing number of threats to both the environment and our way of life there has been an increased focus on new approaches to problem solving that look to the natural world for solutions. This short paper includes case study projects from students at the Hong Kong Polytechnic University for the urban habitat island of Kau Yi Chau in Hong Kong. Supported by a review of relevant precedents and theories, this case study is used to discuss and reflect on the global and local issues and opportunities highlighted in the sustainable development goals (SDGs) established by the United Nations.

Learning styles of ethnic minority students: a matched case-control study in a dental school in Latin America

Introduction and objective: Little is known about the learning styles of ethnic minorities in Latin American universities. The objective of this research was to identify the learning styles of the ethnic minorities attending a dental school. Moreover, their grade point averages were explored. Materials and methods: A total of 30 ethnic minority students were matched with 30 non-minority students. All the students took a systematized questionnaire to categorize their learning styles. Results: A strong association between ethnic minority students and low reflector style was observed in the multivariate model after adjusting for age, sex, and the current semester (OR=11; 95% CI=1.2-99; p=0.03). In addition, a relevant association between minority ethnic group and low theorist style was observed in the multivariate model after controlling for the same variables (OR= 4; 95% CI=1.2-11; p=0.02). Finally, a statistically significant difference was observed in the grade point averages of non-minority and minority groups, with the minority group having the loweraverages (p=0.014). Conclusions: Ethnic minority students presented lower means for all learning styles compared to the control group. Similarly, theirgrade point averages were significantly inferior. These findings represent relevant precedents for creating educational strategies to improve the learning of ethnic minority groups in higher education in Latin America.

Radical Democracy and Sacred Values: John Dewey's Ethical Democracy, Sheldon Wolin's Fugitive Democracy and Politics of Tending, and Cornel West's Revolutionary Christianity

Radical Democracy and Sacred Values: John Dewey's Ethical Democracy, Sheldon Wolin's Fugitive Democracy and Politics of Tending, and Cornel West's Revolutionary Christianity

Negotiating the Pandemic Like an Entrepreneur: Lessons from the Turbulent World of Start‐Up Ventures

The COVID‐19 pandemic has forced many organizations to negotiate existential issues in the context of diminished resources, high stress, heightened uncertainty, and lack of relevant precedent. A predictive approach—in which negotiators conduct research, prepare a strategy, and then act—may be insufficient in these turbulent pandemic conditions. Yet these are the very conditions in which nascent entrepreneurs typically negotiate. We recommend that organizations apply lessons from the start‐up venture context when negotiating during the pandemic: (1) recognize and tap into existing resources; (2) address conflicts directly and early, seeking stakeholder input; and (3) shift from the typical “predictive” negotiation approach to a more entrepreneurial “creative” approach, in which they take experimental action, learn from that experiment, and then plan their next steps.

Identifying gaps in COVID-19 health equity data reporting in Canada using a scorecard approach.

ObjectiveTo assess health equity-oriented COVID-19 reporting across Canadian provinces and territories, using a scorecard approach.MethodsA scan was performed of provincial and territorial reporting of five data elements (cumulative totals of tests, cases, hospitalizations, deaths, and population size) across three units of aggregation (province or territory level, health regions, and local areas) (15 “overall” indicators), and for four vulnerable settings (long-term care and detention facilities, schools, and homeless shelters) and eight social markers (age, sex, immigration status, race/ethnicity, healthcare worker status, occupational sector, income, and education) (180 “equity-related” indicators) as of December 31, 2020. Per indicator, one point was awarded if case-delimited data were released, 0.7 points if only summary statistics were reported, and 0 if neither was provided. Results were presented using a scorecard approach.ResultsOverall, information was more complete for cases and deaths than for tests, hospitalizations, and population size denominators needed for rate estimation. Information provided on jurisdictions and their regions, overall, tended to be more available (average score of 58%, “D”) than that for equity-related indicators (average score of 17%, “F”). Only British Columbia, Alberta, and Ontario provided case-delimited data, with Ontario and Alberta providing case information for local areas. No jurisdiction reported on outcomes according to patients’ immigration status, race/ethnicity, income, or education. Though several provinces reported on cases in long-term care facilities, only Ontario and Quebec provided detailed information for detention facilities and schools, and only Ontario reported on cases within homeless shelters and across occupational sectors.ConclusionOne year into the pandemic, socially stratified reporting for COVID-19 outcomes remains sparse in Canada. However, several “best practices” in health equity-oriented reporting were observed and set a relevant precedent for all jurisdictions to follow for this pandemic and future ones.Supplementary InformationThe online version contains supplementary material available at 10.17269/s41997-021-00496-6.

Equality, Liberty, and Fraternity: The Relevance of Edward Bellamy's Utopia for Contemporary Political Theory

Abstract Contemporary political theories have made significant progress toward identifying the principles for an egalitarian society. From this perspective, Edward Bellamy's radical and pluralistic egalitarianism can be read not only as a relevant precedent but as a source of sophisticated arguments capable of enriching current debates. Although unfairly overlooked as theoretical works, Bellamy's utopias can be read today as offering insights that bring together and combine key modern ideals of liberty, equality, and fraternity. Therefore, this article argues that Bellamy's conception of equality involves several dimensions and functions as a background condition for effective (republican and liberal) freedoms; that these liberties are not at odds with voluntary equality; and that fraternity—understood in Rawlsian terms—makes sense in a free and equal soci- ety, as it is guaranteed both by institutional means and by personal decisions.

EU–US negotiations on law enforcement access to data: divergences, challenges and EU law procedures and options

The EU and the US kicked off negotiations in September 2019 for the conclusion of a very important agreement on LEA access to data. This is the first article to present the context of these negotiations and the numerous challenges surrounding them. There are strong divergences between the EU and the US about what the scope and the architecture of this agreement should be. The US government supports the conclusion of a “framework agreement” with the EU to be followed by bilateral agreements with EU Member States – in order to satisfy CLOUD Act requirements. The EU wishes to arrive at a self-standing, EU-wide comprehensive agreement and is opposed to solutions that might lead to fragmentation and unequal treatment between EU Member States. This article presents a detailed EU Law perspective on all these issues, and refers to relevant precedents concerning the conclusion of law enforcement, data-related or other international agreements. It discusses the division of competence on e-evidence between the EU and its Members States; possible architecture for the agreement and options under EU Law; and the role of the respective European Institutions (Commission, Council, Parliament) in the negotiation and conclusion of such an agreement. The article also studies, using existing case law, what the role of the CJEU could be in relation to such an EU-US e-evidence Agreement. The article will be useful to anyone interested in transatlantic data flows as well as judicial cooperation matters and, beyond its specific scope, could be used as a real “guide” to EU Law procedures, options and precedents in relation to the conclusion of international data-related agreements. NB: This is a pre-copyedited, preprint version of an article accepted for publication in International Data Privacy Law following peer review. The final and updated version will be published here: https://academic.oup.com/idpl. The final version also includes a post-scriptum examining what the effects could be of the July 16th, 2020 Schrems II Judgment of the CJEU on the ongoing EU-US negotiations, as well as the relevance of the October 6th, 2020 data retention/collection judgments of the CJEU.

Black tax: An international exploratory study in the South African context

Orientation: South Africa is a country where the vast majority of residents experience inequality, poverty and deprivation on a daily basis. For many black South Africans, their experience includes the expectation to financially support extended family. Research purpose: This ‘black tax’ provides the government with an opportunity to redistribute wealth through taxation provisions. The study’s purpose is to consider whether South African taxation legislation currently provides for black tax and if not, to provide suggested improvements. Motivation for the study: Whilst South Africa already has a social grant system in place, there is a need to account for varying levels of taxpayer responsibility and to encourage less dependence on the government. Research approach/design and method: Using a doctrinal research methodology, the authors collated relevant legislation and judicial precedents applied in South Africa with respect to supporting extended family and compared these to the taxation systems in the United States of America (USA), Brazil and Nigeria. Main findings: The findings indicate that the current South African taxation legislation does not provide for supporting extended family, including black tax, and the US dependent exemption or rebate is a potential option for consideration in South Africa. Practical/managerial implications: Taxpayers should encourage the South African government to develop a discussion document to encourage wider discourse. Contribution/value-add: The study makes an important contribution to the debate on changing taxation legislation to ensure income and wealth redistribution.

Notes: Investigations, natural justice and reviewability: Msiza v Motau NO & another

The case of Msiza v Motau NO & another 2020 (6) SA 604 (GP) dealt with a report prepared by the first respondent pursuant to an investigation into the VBS Bank looting scandal. The investigation was conducted on behalf of the second respondent, the Prudential Authority. The applicant applied for, and was granted, an order reviewing and setting aside aspects of the report that reflected adversely on him. This was because the first respondent had not afforded the applicant an opportunity to be heard before he wrote the report and submitted it to the second respondent. As such, the case raised questions about the applicability of the right to procedural fairness in investigative proceedings and about the reviewability of reports produced by investigators. This note explores whether (and, if so, in what circumstances) investigations conducted by or on behalf of public bodies constitute administrative action that must be performed in accordance with the audi alteram partem rule. It concludes that the reasoning for the court’s view (that it is incumbent on an investigator who should foresee that his findings will have adverse consequences for another person to hear that person before making such findings) lacked depth and nuance. In determining whether there is a right to be heard in an investigative context, due attention should be given to the applicable statutory framework, the powers of the investigator, the potential impact on affected persons, and relevant precedent.

Trial By Combat in the Modern World

The ancient practice of trial by combat was abandoned hundreds of years ago and has never been employed in America. This has not stopped litigants and others from demanding trial by combat in infrequent — a tactic which, while infrequent, implicates deeper questions of the history of American law. In the past several years, several high profile demands for trial by combat have prompted media attention and caused several commentators to suggest that trial by combat may be an option for civil litigants. Most coverage and commentary only focuses on each instance of trial by combat as they arise — without attention to other examples of demands or references to trial by combat in modern American law. No more. This Article provides a systematic discussion of modern demands and references to trial by combat in American courts. From cases in the early 1800s, to Rudy Giuliani’s infamous call for trial by combat on January 6, 2021, this Article surveys demands and mentions of trial by combat, and how courts have treated such demands. This Article examines what motivates parties who seek trial by combat, noting that the popular television series, Game of Thrones likely plays a role. This Article then examines parties’ legal arguments for trial by combat, finding that they ignore relevant precedents and take a skewed view of history. Recent demands for trial by combat prompt widespread media coverage — coverage which often suggests that trial by combat may be a possibility for litigants. This Article provides historic context for this discussion and, following a systematic review of cases involving or referencing trial by combat, concludes that such demands are not only legally baseless, but that they almost invariably will harm the demanding party’s case. Still, this Article does not count out the possibility that parties may privately contract for a dispute resolution method that mirrors aspects of trial by combat — particularly if such a contract is crafted in a manner that puts both parties on an equal playing field and minimizes the chances of physical harm. While physical trial by combat between parties or champions may be a historic relic, the possibility for parties to agree to virtual trial by combat or similar dispute resolutions remains. And even though demands for trial by combat in court are likely to fail, this has not stopped litigants from making them for centuries, and parties will likely continue to do so in the decades and centuries to come.

Social Media Platforms as Public Trustees: An Approach to the Disinformation Problem

This paper explores relevant precedent for disinformation-related regulation in the U.S. media sector; and then considers whether the underlying rationale that justified such regulation is relevant to the social media context. Specifically, this paper considers whether the public trustee governance model that applies to broadcasting in the U.S. might be applicable in the social media context; and whether the type of disinformation-related regulations that have accompanied this public trustee model might therefore be feasible within the social media context as well. The first section of this paper provides an overview of the current legal and policymaking environment, briefly considering the status of disinformation from a First Amendment standpoint, and current policy initiatives that may directly or indirectly impact the degree of disinformation produced, disseminated, and consumed on social media platforms. The second section reviews some little-known media regulations that directly address disinformation – the Federal Communications Commission’s broadcast hoax and news distortion rules. The third section reviews the regulatory rationales upon which these rules are premised. The fourth section considers whether one of these rationales – the idea of broadcasters as trustees of a public resource – should apply to social media platforms, and the implications of thinking about social media platforms as public trustees, for the viability of some form of disinformation-related government intervention. The fifth section offers some thoughts on the appropriate scope and limitations for this public trustee model. The concluding section considers possible next steps for formalizing this public trustee model and its associated public interest obligations.

From the Elizabethan long gallery to the Turkish sofa: rethinking the art of inhabitation

Alcuni degli spazi archetipi della casa premoderna, nell’ultimo secolo, sono scomparsi dalle planimetrie in nome dell’ottimizzazione della superficie abitativa. Il sofa della casa turca, tra gli altri, potrebbe essere una interessante alternativa, tutta da sondare, per mettere in discussione la configurazione tipica dell’interno domestico occidentale. La sua origine come spazio di soglia lo riconduce a una introflessione della corte anatolica. Ne definiremo l’origine spaziale e tipologica e ci soffermeremo sulla sua inerente modernità, così come è stato rivalutato il ruolo della long gallery. Il sofa consentiva un viaggio domestico costellato da ricchezze visuali, esperienze intime, differenze spaziali. Si estendeva, piegava, allargava a possibili diversi utilizzi nella quotidianità domestica che la casa contemporanea necessiterebbe.

U.S. Supreme Court Amicus Brief of Civil Procedure Professors in Support of Respondents, Ford Motor Co. v. Montana Eighth Judicial District Court, Nos. 19-368 & 19-369

Petitioner Ford Motor Company argues that specific personal jurisdiction “[r]equir[es] that the defendant’s contacts with the forum State have caused the plaintiff’s claims.” This has never been the law, nor should it be. While general jurisdiction may be amenable to narrowly defined categories, specific jurisdiction is not. Ever since this Court’s pathmarking decision in International Shoe Co. v. Washington, specific jurisdiction has been a far more flexible inquiry into the relationship among the forum, the defendant, and the dispute. This is as it should be. Due process does not require that specific jurisdiction rest on a strict causal link between the defendant’s forum-state contacts and the plaintiff’s claims, and inventing such a requirement provides no new benefits, whether in terms of fairness or federalism. It would, however, generate needless inefficiencies, jeopardize states’ well-accepted regulatory interests, and possibly result in claims that cannot be brought in any U.S. state. This Court should decline to adopt Petitioner’s proposal for three reasons. First, this Court has never relied on a causation requirement to endorse — or reject — a state’s exercise of personal jurisdiction over a defendant. In fact, doing so now would be inconsistent with this Court’s most relevant precedent, Bristol-Myers Squibb v. Superior Court of California, which supports finding specific jurisdiction to adjudicate these claims by forum-state residents arising out of an occurrence in the forum state. Second, changing course now by adopting a causation requirement would lead to disruptive and inefficient results in both simple and complex litigation. A causal test would break up single disputes, like that arising out of Adam Bandemer’s car accident, across multiple state courts. It would make it harder for defendants to implead additional parties, for example, if Bandemer had sued the other driver, and he, in turn, wanted to bring in Ford as a third-party defendant. And it could result in no state having jurisdiction over foreign defendants like Honda that extensively market and sell products nationwide, even if the claim arises from an in-state injury. A causation rule would also misallocate jurisdiction across the states. It would prevent states with core regulatory interests — over injuries to state residents occurring within the state and over products sold widely in the state’s market — from adjudicating those claims while forcing such litigation into state courts that have professed little interest in them. Both Delaware and Michigan courts, for example, have dismissed similar cases for forum non conveniens, and both have expressed concern about such general jurisdiction cases clogging their dockets. These problems would follow from any causation rule, but they would be needlessly compounded if the Court adopted Petitioner’s preferred proximate-cause rule. Indeed, it is not clear that under Petitioner’s proximate-cause rule, the plaintiffs could have brought their lawsuits in their home jurisdictions even if the cars involved had been purchased within the state. This Court need not take these risks in order to promote fairness and federalism values. Petitioner has not even argued that Minnesota or Montana is an unfair place to litigate. To the extent that Petitioner’s concern is being haled into an inconvenient or unpredictable forum, those concerns are already addressed by this Court’s requirements that the defendant make purposeful contacts with the forum and that any exercise of personal jurisdiction be reasonable. Third and finally, Petitioner’s call for a supposedly bright-line rule is inconsistent with this Court’s tried and true path of developing the law of specific jurisdiction cautiously on a case-by-case basis. While bright lines might make sense for subject-matter jurisdiction or general jurisdiction, they are a bad fit for the constitutional law of specific jurisdiction. And the supposedly bright-line rule proposed here is even worse, as it undermines the very values of fairness and federalism it purports to protect. Introducing a causation requirement into the specific jurisdiction analysis would not just flout a century of constitutional law — it would draw lines in all the wrong places.

(Invited) Electrochemical Liquid-Liquid-Solid Deposition of Microwires, Nanowires, and Nanoparticles

This presentation will describe our group's latest efforts to advance the concept of electrochemical liquid-liquid-solid (ec-LLS) deposition of inorganic nanomaterials. A brief historical overview of the concept and relevant precedents in the literature will be presented, followed by advances on two separate fronts. First, in-situ TEM studies of nanowire and nanoparticle growth will be detailed. These measurements describe the initial stages of the ec-LLS process. The cumulative data suggest that ec-LLS nanowire growths are typically performed under conditions of extreme supersaturation and this has a large influence on the resultant crystal quality. Second, the prospects for using ec-LLS to synthesize intermetallic nanoparticles and films will be documented for the first time. An important aspect of this work is describing the fate of initial electrodeposited adsorbates at the liquid metal/liquid electrolyte interface.

Az adójog értelmezése az Amerikai Egyesült Államok precedensjogában

Az adójogi rendelkezések megfelelő értelmezése különösen fontos, mert az határozza meg az adófizetők lehetőségeit. Az adózók rendszerint olyan kevés adót akarnak fizetni, amennyi még lehetséges, míg az adóhatóság annyi adót akar beszedni, amennyi még szerintük jogszerű. Ha az adózó hibát vét a jogszabály értelmezésekor, akkor szembesülnie kell a jogkövetkezményekkel, ezért is szükséges ismerni a joggyakorlatot. Az angol és az amerikai jogban két alapvető megközelítés létezik az adójogi jogszabályok értelmezéséhez kapcsolódóan: a szigorúbb koncepció szerint a jogalkalmazás csak a törvény szavait vizsgálhatja, és ezek jelentése dönti el az adóteher kérdését. A másik megközelítés szerint már vizsgálni kell a kérdéses jogügylet célját, illetve a jogalkotó szándékát is, de ez utóbbit csak akkor, ha a szavak értelmezése észszerűtlen eredményre vezetne. A tanulmány az Egyesült Államok precedenseit elemzi számos példa említésével, továbbá vizsgálja a két említett megközelítés elméleti alapjait.

Plurality Decisions: Upward Flowing Precedent and Acoustic Separation

Beginning in 1977, the U.S. Supreme Court instructed lawyers and lower courts that when there is no majority decision “in support of the judgment . . . , the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” For decades, commentators and judges alike have vocally lamented the opaque and seemingly intractable nature of this instruction, known as the Marks rule. The usual academic trope in this field consists of a discussion of a recent plurality decision, followed by an account of how difficult it is to discern the narrowest grounds for that decision, and concluding with a statement about how the lack of clarity as to the relevant precedent impedes the Court’s lawmaking function and diminishes the Court’s credibility with the public. By contrast, this Article provides a new framework for understanding plurality precedent. Rather than emphasizing the problems presented by uncertain precedent under the narrowest grounds test, this Article highlights the effectiveness of the rule in simultaneously maintaining judicial credibility with the public while facilitating flexibility for lower court judges. That is to say, this Article celebrates the Marks rule’s success in establishing an acoustic separation between the rule as it is transmitted to lower court judges, and the rule as it is understood by the public. The external message reassures society that there has been no breakdown in the judicial process when a plurality occurs, and the internal, decisional rule is that in the absence of lower court consensus, there is no plurality precedent. In short, Marks effectively reconciles the competing interests of public legitimacy and legal flexibility.

Designing an EU Intervention Standard for Digital Platforms

A consensus is emerging around the world about the need for policymakers to address certain characteristics and competitive tendencies that are generated by digital platforms or digital ecosystems, with a view to reforming the public policy instruments currently in place so that they are fit for the digital age. The paper starts by reviewing the relevant precedents under EU competition law and economic regulation upon which this reform could be based. The paper then puts forward recommendations to adapt competition rules, in particular as regards the determination of market power (e.g., by better taking into account the effects of ecosystems, the impact of potential competition and the role of innovation) and the application of theories of harm (i.e. by focusing on leveraging and envelopment behaviour, access to key innovation capabilities, discrimination and self-preferencing and the violation of normative regulatory principles). The paper then proceeds to propose a cumulative 'three criteria test' to determine the types of digital platforms upon which competition rules, and possibly complementary regulation, should focus. These three criteria require an assessment of: (i) the existence of market structures which are highly concentrated and non-contestable; (ii) the presence of digital gatekeepers which act as unavoidable trading partners; (iii) and, for the purposes of ex ante regulation, the lack of effectiveness of competition rules to address the identified problems in the market. The paper also considers the types of remedies that could be imposed on those identified digital platforms, including: interoperability and access to key innovation capabilities such as data; the prohibition of anti-competitive discrimination; and the facilitation of consumer switching. Given the rapid evolution of technology and market uncertainty, consideration should be given as to whether these remedies should be imposed in a participatory manner with the industry stakeholders directly affected by the measures. Finally, the paper deals with a number of procedural and institutional issues raised by the adoption of such a legal standard, proposing to adapt existing antitrust guidelines, to extend the power of DG Competition to conduct fully fledged market investigations (as is the case in the UK and Australia) and possibly to work closely with National Regulatory Agencies, coordination with whom at EU level arguably needs to be strengthened.