Restrictive Business Practices Research Articles

International Co-operation on Competition Law Enforcement: A Breakthrough?

Section F of the UN Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices (‘UN Set’) deals with international measures, including consultations and co-operation among competition authorities for enforcement against anti-competitive practices, particularly for developing countries’ benefit. The 2020 Eighth Review Conference on the UN Set adopted Guiding Policies and Procedures under section F (‘GPP’). While it contains few norms, this non-binding instrument provides principles and a pedagogical guide for enforcement co-operation, encourages positive responses to co-operation requests, and strengthens the consultations mechanism and the United Nations Conference on Trade and Development (UNCTAD) secretariat’s supporting role. The GPP’s siting within the UNCTAD and UN Set contexts provides legitimacy, inclusivity, mandates, resources, a secretariat – and thus the best available multilateral framework for developing and transition countries to mobilize publicity, dialogue, and persuasion to strengthen enforcement co-operation in this area for their benefit. The GPP therefore constitutes a breakthrough, while how far or when its potential will be fulfilled will depend upon the building-up of shared perceptions of common interest, mutual trust and mutual benefit among competition authorities- something which UNCTAD could promote through action at the national and international levels. Initial signs provide hope that good progress can be achieved. UN Set of Multilaterally Agreed Equitable Principles, Rules for the Control of Restrictive Business Practices, enforcement against anti-competitive practices, UN 2020 Eighth Review Conference, Guiding Policies and Procedures, UNCTAD, multilateral framework, vertical restraints, enforcement cooperation, developing countries

Competitive Harm Crossing Borders: Regulatory Gaps And A Way Forward

Abstract This article analyses the current regulatory framework governing transnational restrictive business practices. It identifies key gaps that provide room for anticompetitive practices to flourish, causing cross-border transfer of wealth, typically from less affluent states. The economic harm caused by cross-border anticompetitive conduct is significant; international cartels alone caused overcharges exceeding $1.5 trillion in the period 1990–2016. This article offers a series of pragmatic policy recommendations that could narrow existing regulatory gaps. The proposals require no international negotiations and can be implemented domestically. They call for enabling of more assertive and robust extraterritorial enforcement of domestic competition laws and facilitation of positive externalities in that context.

Competitive Harm Crossing Borders: Regulatory Gaps and a Way Forward

This article analyses the current regulatory framework governing transnational restrictive business practices. It identifies key gaps that provide room for anticompetitive practices to flourish, causing cross-border transfer of wealth, typically from less affluent states. The economic harm caused by cross-border anticompetitive conduct is significant; international cartels alone caused overcharges exceeding $1.5 trillion in the period 1990-2016. This article offers a series of pragmatic policy recommendations that could narrow existing regulatory gaps. The proposals require no international negotiations and can be implemented domestically. They call for enabling of more assertive and robust extraterritorial enforcement of domestic competition laws and facilitation of positive externalities in that context.

Brief Appraisal of the Contribution of the UN Set of Multinational Agreed Principles and Rules for the Control of Restrictive Business Practices 1980

Competition Law has adopted an international/global dimension overtime. One of the first notable attempts to globalize competition law among nations was the 1980 UN Set of Multinational Agreed Principles and Rules for the Control of Restrictive Business Practices. Although a promise this international instrument was not adopted by states due to varied reasons ranging from: political, social and economic differences among states. This paper critically analyzes the rules by offering its advantages and disadvantages and whilst doing so the paper argues that for there to be complete harmonization of competition law there is need to have binding rules as non - binding rules tend to make numerous states reluctant in ratifying and committing themselves to international treaties. Will international harmonization of competition law remain a global dream?

Europe investigates ethylene market

The European Commission says it carried out unannounced inspections on May 16 of European companies that purchase ethylene. The specialty chemical maker Clariant, for example, confirmed that it is under investigation. The EC says it is concerned that the companies might have violated antitrust rules that prohibit cartels and restrictive business practices. Ethylene is a large-volume commodity used to produce polyethylene and many other petrochemicals.

Особенности правового регулирования лицензионных договоров о предоставлении права использования товарного знака

The article examines current legal problems which arise in connection with trade mark license contracts. In the contemporary business environment a problem of liability for non-ensuring quality control under trade mark licensing law has become increasingly important. Restrictive business practices and regulation of parallel import is another concern. Authors analyze not only provisions of the substantive law but also legal regulation of the relevant issues concerning the conflict of laws rules. The article also tackles a major problem in the sphere of international private law: correlation of lex contractus and lex loci protectionis connecting factors. Lex contractus covers contractual aspects of the trade mark license such as contract interpretation, mutual obligations of the parties, their performance, discharge and consequences of breach thereof. And lex loci protectionis governs non-contractual aspects such as existence, validity and protection of the right to the trade mark itself. Sometimes it is difficult to label certain issues, like the licensee’s allowed continued use of the mark after the termination of the license, as contractual or non-contractual. The article offers comprehensive analysis of all these questions on the basis of the most recent legislation, court practice and doctrines, both Russian and foreign.

Concept and Different Types of Restrictive Business Practices in the Legal Orders of BRICS Countries (The Case of China, India, Russia and South Africa)

The articles represents a research of general approaches of BRICS countries legislation and legal order to counteraction against leading anticompetitive market strategies with regard to legal orders of China, India, Russia and South Africa. The author pays particular attention to current legislation of BRICS countries in the field of competition protection with regard to provisions related to “horizontal” and “vertical” restrictions of trade, concerted practices, deceptive conducts and collusions, unfair sales techniques, pricing and selling strategies. This article argues that our society is interested in the engagement of a population in trade and industrial activity. This is the general rule. Nowadays, however, this rule allows exceptions: restrictions of a freedom of trade can be justified by exceptional circumstances in certain cases and under certain circumstances.

Institutional Aspects of International Competition Policy

Abstract A global economy cannot be driven in a consistent way by national competition laws. Both the liberalization of markets and the revolution in information and communication have triggered an unprecedented degree of interrelations of national economies. This leads to the internationalization of restrictive business practices. Despite of the WTO efforts and some agreements inside it related with antitrust, global markets have no competition rules. There are a number of economic arguments addressed to take real steps in order to establish a global framework for competition policy. Currently, the international system of competition policy seems gradually ill-suited for dealing with transnational restrictive business practices. The issue is now which organizational form and what degree of decentralization would be optimal for a multilevel system of international competition policy. Depending on the goals of the project, different degrees of decentralization would be more or less desirable.

Technology Contracts in Brazil: The Patent Office Screening Rôle

Since the late 60's, Intellectual Property licenses and other technology contracts have been subject to Government screening in Brazil. Initially such analysis concerned the tax and exchange aspects of such agreements; eventually the screening of restrictive business practices was included. When the INPI (Brazilian Patent and Trademark Office) was created in 1970, the powers to screen such contracts were delegated to the new agency, and new discretionary powers, including the possibility of rejecting the agreement on the basis of Brazilian industrial policy, were added to the prior ones. A Supreme Court Case declared the news powers constitutional. According to the 1996 Industrial Property Law, the discretionary powers were excluded from INPI purview. This study describes the present scope of the INPI enablement in connection to such agreements, including the case law related to the issue. Although now deprived from discretionary powers, the Brazilian PTO has kept an extensive role, and the exact understanding of such Governmental action may be particularly important to some investment decisions regarding Brazil.

Restrictive Business Practices and Competition in the European Economic Community

Restrictive Business Practices and Competition in the European Economic Community

The Political Role of Transnational Experts in Shaping EU Competition Policy: Towards A Pan-European System of Private Enforcement

AbstractRegulation 1/2003, applicable since 1 May 2004, has been one of the most far-reaching EU competition policy reforms in the history of European integration. The long-standing centralised administrative ex ante notification regime for commercial intercompany agreements was replaced by a decentralised ex post private enforcement regime. This essentially altered the way in which anticompetitive conduct, such as cartels and other restrictive business practices, are prosecuted. Companies can no longer rely on the official Commission decision prior to concluding contractual agreements with other companies, but are increasingly exposed to the risk of being litigated by other market actors in civil disputes, a jeopardy that, so far, has constituted a relatively alien feature in the EU. The 2004 reform reflects a major step of legal convergence towards the US antitrust regime, which has private enforcement as one of its most characteristic features. Regulation 1/2003, however, formed only the prelude of fur...

Restrictive Business Practices by Japanese Attorneys and Competition Policy

Restrictive Business Practices by Japanese Attorneys and Competition Policy

THE THIRD NOEL BUTLIN LECTURE: AUSTRALIAN EXCEPTIONALISM REVISITED

In the late‐nineteenth century, Australia had one of the highest levels of income per capita in the world. Over the twentieth century, Australia's exceptional position declined as its high labour force participation rate and male‐skewed gender ratio gradually aligned with other countries. A similar reversion occurred in the other important components underlying Australia's high productivity, such as work hours. As the structure of the economy shifted away from a reliance on agricultural and towards manufacturing, Australia's protective attitude and restrictive business practices may have exacerbated its loss in productivity. Considerable research remains to be carried out to confirm these views.

The Effects of Restrictive Business Practiceson Australian Inbound Package Tourism

International visitors to Australia on package tours have expressed concern about aspects of their holiday experience. These aspects relate to restrictive business practices on the part of inbound tour operators. The origin markets most affected are China, Korea and Taiwan in particular, and, to a lesser extent, Japan. This paper first sets out the nature of the restrictive business practices and then discusses their underlying causes. It then estimates their effects on visitor satisfaction and the impact of this on future package tourism flows to Australia from the identified markets. Finally, some estimates are made of the economic costs of the practices. It is argued that Australia will benefit from the development of quality tours rather than persisting with the price driven tours currently on offer within these markets.

The World Trade Organization and its Powers to Adopt a Competition Policy

The costs and benefits of adopting a multilateral competition policy agreement have been widely discussed for several years. However, the legal competence of the WTO to undertake that task, as an international organization, has not enjoyed the same level of debate. This article explores that question, which underlies the mentioned normative debate. Relying on neoclassic competition theory and on different elements of international institutional law, the article argues that the WTO, as structured today, has the power to address only anticompetitive practices that hinder market access. It presents also a historical annex, referring documentary evidence of the discussion of Restrictive Business Practices under GATT 1947.

The Tailoring of Competition Policy to Caribbean Circumstances: Some Suggestions

Competition policy is concerned with preserving and promoting competition, both by enforcing competition law against restrictive business practices (RBPs) by firms, and by influencing other governmental policies or measures affecting competition. The present article focuses mainly upon RBP control. From their origin in Canada and the United States during the last quarter of the nineteenth century, competition laws have now - to a large extent because of the universal trend towards market liberalization - spread to the majority of countries, among which are three Caribbean countries: Barbados, Jamaica and St.Vincent and the Grenadines.

Regulating the Market: Competition Law and Policy in Kenya and Zambia

There is broad agreement that the transition to a market-based economy in countries in Sub-Sahara Africa (SSA) requires supporting institutions to be successful. This article discusses efforts by Kenya and Zambia to improve market performance with the enactment and implementation of a competition law. Kenya established the Monopolies and Prices Commission (MPC) and Zambia established the Zambia Competition Commission (ZCC). These Commissions are responsible for monitoring such market practices as restrictive business practices, control of monopolies and concentration of economic power, and mergers and takeovers that could have anti-competitive effects. The article concludes that for the laws in the two countries to achieve their intended objectives, there is a need to fine-tune provisions to remove ambiguities, harmonise these laws with other trade laws to prevent jurisdictional problems, guard the independence of the Commissions against political interference, and strengthen the human and technical resources of the Commissions in the areas of market research and competition analysis. This latter need calls for considerable donor support given the budget constraints facing the two countries. The study finds the efforts in these countries laudable and worthy of study by other countries in SSA that are interested in developing market-monitoring institutions.

Trade in International Maritime Services: How Much Does Policy Matter?

Maritime transport costs significantly impede international trade. The authors examine why these costs are so high in some countries, and, quantify the importance of two explanations: restrictive trade policies, and private anti-competitive practices. Both matter, they find, but private anti-competitive practices have the greater impact. Trade liberalization, and the breakup of private carrier agreements, would lead to a reduction in average liner transport prices of a third, and cost savings of up to $ 3 billion on goods carried to the United States alone. The policy implications are clear: not only should government policy be further liberalized, but there should be stronger international disciplines on restrictive business practices. The authors propose developing such disciplines in the current round of services negotiations at the World Trade Organization.

The enforcement of competition policy in the candidate countries

T he policy of competition development constitutes an important element of the transformation of the economy in the candidate countries, which are constructing their market economies after almost fifty years of central planning. This process requires a new legal system adequate for market economies. That is why all the candidate countries apply competition law or, precisely speaking, a legal system for the promotion and protection of competition consisting of regulations concerning anti-competitive agreements (vertical and horizontal), restrictive business practices, merger and acquisition (M&A) control, unfair competition and state aid. A distinctive feature of the candidate countries in comparison to the mature market economies of the EU Member States is that they not only need to protect competition but first of all to promote it during the economic transformation. This justifies the significance of competition agencies for the economic policies of the governments in the candidate countries. A pro-competitive economic policy is thus a precondition for the effective enforcement of the legal system promoting and protecting competition. Progress by the Candidate Countries Competition law and competition agencies were established in the candidate countries at different times. Poland was the first country to introduce these regulations and establish an Anti-monopoly Office. The experience gained during the first years of competition law enforcement constituted the basis for the adoption of new competition acts or for major amendments in the existing law. There is no doubt that these changes took place in connection with the requirement of the adjustment of competition laws in the candidate countries to the acquis. Although the competition protection systems in the candidate countries are similar in their basic elements, they vary in substantive and institutional details. A comparative analysis of the main features of competition protection systems in the candidate countries is presented in Table 1. In all the candidate countries with the exception of Hungary and Romania competition agencies are independent

The Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices – an Instrument of International Law?

The Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices – an Instrument of International Law?