UK Regime Research Articles

A new dawn? The United Kingdom’s new competition law regime for vertical agreements

On 1 June 2022, competition law practitioners in the UK were placed in the unenviable position of having to assimilate two new regimes for the treatment of vertical agreements under, respectively, European Union and UK competition law. Despite the long lead-up, which in the case of the EU reforms had lasted since October 2018, practitioners had less than a month to assimilate the final text of both the new EU Vertical Agreements Block Exemption Regulation and the UK’s Vertical Agreements Block Exemption Order before they entered into force. Indeed, the Competition and Markets Authority’s Guidance on the new UK regime was only available six weeks after the new Order came into effect. Despite the new UK regime being promoted as being based on ‘bespoke rules better suited to the UK’, the reality is that its final form reflects a carefully balanced review by the CMA that prioritized close alignment with the EU over divergence for its own sake. Although there are some notable differences between the two regimes, which are reviewed in this article, the overall outcome is one of dynamic alignment with an EU regime that provided the original model for modern UK competition law and looks likely to have a dominant influence on its development for the foreseeable future, despite Brexit.

‘Absolutely Delighted’

Reporting on crime and the courts are among the classic functions of journalism. In the UK, journalists and others must abide by the Contempt of Court Act 1981, the main piece of primary legislation aimed at ensuring coverage of legal matters is fair to the participants. The restrictions are generally tighter in practice than in jurisdictions such as the US, where the media has a much freer hand to engage in pre-trial reporting. This paper argues that media coverage of the arrest of the so-called ‘Yorkshire Ripper’ serial killer, Peter Sutcliffe, in 1981 while Parliament was considering the question of contempt, has made the UK regime tougher than it might otherwise have been. Excessive reporting was influenced by an unusually celebratory police news conference. This news coverage coloured the contemporary debate around contempt, and any opportunity for a more relaxed approach to contempt in the UK's jurisdictions was lost.

Subrecoil Clock-Transition Laser Cooling Enabling Shallow Optical Lattice Clocks.

Laser cooling is a key ingredient for quantum control of atomic systems in a variety of settings. In divalent atoms, two-stage Doppler cooling is typically used to bring atoms to the μK regime. Here, we implement a pulsed radial cooling scheme using the ultranarrow ^{1}S_{0}-^{3}P_{0} clock transition in ytterbium to realize subrecoil temperatures, down to tens of nK. Together with sideband cooling along the one-dimensional lattice axis, we efficiently prepare atoms in shallow lattices at an energy of 6 lattice recoils. Under these conditions key limits on lattice clock accuracy and instability are reduced, opening the door to dramatic improvements. Furthermore, tunneling shifts in the shallow lattice do not compromise clock accuracy at the 10^{-19} level.

The UK's proposed new national security regime: a sledgehammer to crack a nut

On 11 November 2020, the UK Government published the National Security and Investment Bill (NSI Bill), which, if approved by Parliament, would allow the Secretary of State for Business, Energy and Industrial Strategy (Secretary of State) to screen and prohibit ‘potentially hostile’ investments that threatened UK national security. The proposed system would represent the most significant change in the UK regulatory environment since the Government ceded the power to approve or prohibit mergers on competition grounds to an independent agency in 2002. The envisaged regime would be among the most wide-ranging and onerous in the world, adding a new layer of mandatory review and imposing non-trivial costs on investments in any company with UK activity. This article describes the UK's existing public interest intervention regime, explains the background to the Government's proposed new regime, including similar initiatives elsewhere in the world, summarizes the principal features of the proposed new UK regime, and considers its potential implications for investments in the UK.

Market Investigations for Digital Platforms: Panacea or Complement?

There is a growing international consensus that standard competition law is inadequate for addressing the panoply of competition problems arising in digital platform markets. Alongside a proposal for ex ante regulation in this arena, the European Commission is considering the introduction of a ‘New Competition Tool’ which is broadly modelled on the UK Market Investigation instrument. This paper abstracts from the specifics of the EU situation and considers the pros and cons of market investigations in the context of the UK regime. It concludes that the tool is a valuable addition to the standard competition law toolkit, and that this is likely to be true also at EU level, both for digital platforms and more widely. However, because the tool is potentially so powerful and flexible, it merits strong procedural checks and balances, to guard against confirmation bias or politicisation. The tool also has important limitations and thus should not be viewed as a full solution to the issues raised by digital platforms, but rather as a valuable complementary tool alongside new ex ante regulation. Interoperability is discussed as one example where the tools could valuably be used alongside each other

Improving outcomes for future generations in petroleum licensing regimes – an assessment of the United Kingdom's regime: Part 2 – assessment of the UK regime

Part 2 of this article assesses the United Kingdom's offshore petroleum licensing regime for its treatment of the interests of future generations using the methodology developed in Part 1. The assessment is a functional assessment across nine areas: four environmental areas (ecosystems necessary for human life, other ecosystems, cultural heritage and amenity values and restoration of ecosystem damage) and five non-environmental areas (technology, risk management, planning and strategy, resource management and limits on development and production).

Market Investigations for Digital Platforms: Panacea or Complement?

There is a growing international consensus that standard competition law is inadequate for addressing the panoply of competition problems arising in digital platform markets. Alongside a proposal for ex ante regulation in this arena, the European Commission is considering the introduction of a ‘New Competition Tool’ which is broadly modelled on the UK Market Investigation instrument. This paper abstracts from the specifics of the EU situation and considers the pros and cons of market investigations in the context of the UK regime. It concludes that the tool is a valuable addition to the standard competition law toolkit, and that this is likely to be true also at EU level, both for digital platforms and more widely. However, because the tool is potentially so powerful and flexible, it merits strong procedural checks and balances, to guard against confirmation bias or politicisation. The tool also has important limitations and thus should not be viewed as a full solution to the issues raised by digital platforms, but rather as a valuable complementary tool alongside new ex ante regulation. Interoperability is discussed as one area where the tools may act in a complementary way.

National Security Concerns in UK Merger Control

There are a number of cases in the UK merger control where the Secretary of State intervened on the grounds of national security. This article will start by discussing the approach of the UK regime to public interest considerations, and in particular it will focus on cases that raised national security concerns and will discuss how the assessment of these transactions was conducted. Furthermore, this article will discuss the recent legislative and policy developments in the UK that aim at expanding the remit of the UK government in assessing concentrations that potentially raise national security concerns.

Debt Restructuring in the UK

Many jurisdictions around the world are seeking to develop an effective mechanism for rescuing financially distressed but viable businesses. In the UK a number of different mechanisms exist which can be used to restructure distressed companies. The purpose of this paper is to assess the debt restructuring mechanisms currently available to companies in English law and to consider the proposed reform of the UK regime, announced by the Government in August 2018. It is argued that reform is needed, and that in general the proposals to introduce a restructuring moratorium and a restructuring plan which includes a cross class cramdown are to be welcomed. However, these reforms will need to be introduced with care in order to ensure that an appropriate balance is maintained between the interests of the company and the interests of the creditors and that, ultimately, the UK’s regime remains fit for purpose for the future.

Independence in Competition Policy and Enforcement

Independence has been a mainstay of competition policy and enforcement in Europe and in many jurisdictions that have followed that model. However, the perception of regulatory failure which led to the financial crisis, the rhetoric of political supremacy over technical expertise, the renewed attention towards the application of “public interest” tests in some jurisdictions and the quest for new tools of enforcement to meet the challenges of the so-called “new economy” in light of the alleged inadequacies of the current antitrust paradigm, all call this principle into question. The principle of political independence of competition authorities is widely accepted internationally. However, in practice it takes a multiplicity of forms in various jurisdictions and it has an impact on a number of dimensions of competition law and policy. This paper looks in greater detail at the experience of the EU and that of the UK with comparative references to other jurisdictions within the EU and elsewhere. The experience in the EU and the UK jurisdictions is interesting for a number of reasons. First, the origin and rationale for independence in competition law enforcement has some peculiarities which derive from the nature of competition law and practice within the institutional framework of the EU. However, as is the case with many aspects of the EU legal order, the principle has evolved beyond its original rationale over the initial decades of application. In light of the interrelation between the EU and the national jurisdictions the principle of independence in competition law enforcement has had an impact on the institutional design of national competition authorities within the EU which have proliferated over the last 20 years and aligned to the EU system with some important distinctions. Moreover the general principles that have emerged within this system have often been looked at and considered elsewhere internationally as a result of organisations such the OECD and the ICN. The comparison with the UK regime is particularly interesting for two reasons. First because, notwithstanding the alignment of the UK substantive regime with the EU, it has maintained a number of interesting distinctive features such as the ability to intervene on public interest grounds in relation to mergers and more widely in relation to markets (with the potentially far reaching ability to impose remedies in case of a negative finding even in the absence of unlawful conduct and competition law infringement). Second because Brexit provides at least an opportunity to consider certain aspects of the institutional design and remit of UK competition enforcement and the strength of the independence of the UK Competition & Markets Authority (the CMA) can be an important consideration. This contribution looks at the principle of independence along two axes: (1) appointment and institutional design, (2) case selection and prioritisation. It then offers some conclusions and reflections on outcome and accountability. It concludes that now more than ever independence in competition law enforcement is required. Independence does not mean that a competition authority should be oblivious of the general political context within which it operates. To the contrary a competition authority must maintain a dialogue with both the executive branch and elected representatives to ensure the relevance of its action as well as to maintain a credible advocacy role in assisting other areas of policy and even legislation when it is afforded those powers. This form of “soft accountability”, if coupled with strong measures to protect an authority from pressure points, is desirable. As a law enforcement agency a competition authority should also subject to hard accountability through the judicial process. This is important and, far from creating a tension, this dimension is a guarantor of independence because judicial oversight of the application of the law has the effect of pushing a competition authority to adopt procedures that would withstand judicial scrutiny and indirectly preserve the integrity of the system.

The United Kingdom’s New Opt-Out Class Action

On 1 October 2015, a sea change in English civil procedure occurred, when the UK’s first opt-out class action regime took effect. Its drafting choices occurred against a backdrop of considerable comparative jurisprudence from Australia, Canada and the United States. For example, the regime’s flexible standing provisions avoid difficulties that have arisen in class action regimes in other jurisdictions, by enabling a class action to be brought either by a directly affected class member as representative or by a suitable representative who has no cause of action. On the other hand, the preliminary merits criteria which the class representative will need to prove are far-reaching and more onerous than those implemented elsewhere. In the first certification decision delivered under the regime—a moment of history created on 31 March 2017—the Competition Appeal Tribunal has made it plain that comparative insights will be highly relevant. This article analyses that milestone event, by examining this first decision in light of the drafting choices made under the UK regime, whilst also suggesting further ways in which comparative law may be helpful on key interpretive words and phraseology in cases to come.

Muscling in on unjustified threats: Reform is long overdue but is it enough?

The UK regime of unjustified or groundless threats has long been a controversial subject for IP practitioners and their clients. It is largely unique to the UK and the Republic of Ireland and concerns threats to retailers that are merely selling goods that are alleged to infringe, as opposed to manufacturers. These retailers (‘secondary infringers’) may well want to avoid a legal fight and take the easy option of ceasing to deal in the goods concerned. As a result, the manufacturers (‘primary infringers’) may never have the opportunity to defend the allegations or even know why they have lost that particular customer. Despite its good intentions, the threats legislation and case law usually leads to a difficult discussion with a client and can, in practice, act as a barrier to exercising registered IP rights. So what are unjustified threats all about? To recap, if an IP owner makes a communication to a third party alleging infringement that can be reasonably viewed by it as a threat to take action in the UK courts, that party, or anyone aggrieved by the ‘threat’, can sue the rights owner for making an unjustified threat of proceedings. In such an action injunctive as well as compensatory relief can be sought. The threats legislation can, as might be imagined, easily catch IP owners and their advisers out, especially those based outside the UK who may not even know of its existence or easily understand its complexity. The requirements vary according to which type of intellectual property right (IPR) is being invoked, and the regime does not include all types of IPR. Passing off, copyright, trade secrets and database right are excluded and therefore threats based on these grounds are legitimate, whether made to a secondary or primary infringer. IP rights are, of course, intended to incentivise scientific and technical advancement, development and creativity. Arguably the threats provisions are a disincentive to do this as well as to protect IP by way of registration. Why invest in a new idea and protect it with a patent if to avoid being sued yourself you are forced to sue every infringer? Should it not be possible instead to use your rights to seek in good faith to persuade them to stop the infringement? An IP holder may know only the identity of the retailer/reseller of the infringing products and so has no option but to pursue them in the first instance. The reaction of clients is often one of disbelief when they are told of the risks of the tables being turned on them for, as they see it, perfectly legitimate use of their rights for the purpose for which they were acquired in the first place. Originally conceived to prevent bullying use of IP monopoly rights and as a way to tackle unfair competition, the regime ironically encourages rights holders to go straight to court without any advance notice. This can be a very expensive sledgehammer to crack a nut. Also, far from assisting a negotiated commercial resolution it is more likely to put the parties at loggerheads and delay, or even take away any chance of, achieving a sensible out of court settlement. All of this is at odds with a court system in the UK that puts the onus on the parties to attempt to resolve matters out of court and to view litigation as the last resort. Indeed, failing to attempt to mediate or negotiate before suing, at least in the English courts, can result in costs penalties. The regime has, for the reasons outline above, been the subject of consternation in the IP profession. This is perhaps not surprising taking account of the fact that the lawyer or IP professional sending any relevant communication can themselves be sued if the threat is held to have been unjustified. Often that very angle is used by the lawyers acting for the allegedly threatened party as a nuisance tactic to try and drive a wedge between the lawyer acting for the rights holder and their client, as it raises clear issues of conflict. Frequently IP lawyers will request an indemnity from their clients as a condition of sending the potentially threatening communication, prompting the client to terminate the relationship, especially where they do not have a longstanding relationship with the lawyer concerned. Matters would be far more straightforward if it were always easy to decide what constitutes an actionable

Justifications and Purposes of Negotiated Justice for Corporate Offenders: Deferred and Non-Prosecution Agreements in the UK and US Systems of Criminal Justice

This article offers an overview of the UK regime of deferred prosecution agreements in the Crime and Courts Act 2013, in light of the practice of pre-trial diversion in the USA and the lessons learnt to date. The effectiveness of this new prosecutorial tool is discussed on the basis of judicial statistics and other available data. The transformation in the American system of corporate criminal liability, through guidelines disseminated by the Department of Justice and by the Securities and Exchange Commission, shows an increasing emphasis on two main topics: (1) corporate cooperation with authorities in the prosecution of individuals and (2) corporate governance. In this regard, the article argues for a new concept of corporate blameworthiness, which it seeks to affirm based on the theory of ‘reactive fault’. The article furthermore reflects on problems with regard to the framework of corporate rehabilitation, while outlining possible remedies against prosecutorial abuses.

The UK response to the global effort against cartels: is criminalization really the solution?

This article examines considers the global effort against hard core cartels and, in particular, the increasing tendency for states to introduce criminal cartel regimes and. It notes that, despite this tendency, few jurisdictions, aside from the US, have been successful in imprisoning individuals involved in cartel conduct. The article and examines why this might be, focusing on the difficulties and problems that have been encountered with the criminal cartel offence in the UK. The article discusses both theoretical and practical obstacles which appear, up until now, to have undermined the force and effectiveness of the UK regime and led to concerns about its scope. Given the difficulties identified, the article concludes that caution should be exercised before a state, intent on increasing deterrents to cartel activity, decides to criminalize such conduct. Rather, it recommends that such jurisdictions should consider not only criminalization of cartel activity but whether steps to enhance civil enforcement might be a preferable and more efficient solution for increasing the force of, and respect for, cartel rules.

Happy now?: Well-being and cultural policy

Although much of the debate in UK circles has been on the definition and measurement of well-being, there have been as yet relatively few attempts to apply a lens to specific areas. One partial exception has been policy. In 2010 the Culture and Sport Evidence Programme (CASE) reported on a three-year research project into the drivers and impacts of participation in sports and activity. CASE was a major programme within the Department for Culture, Media and Sport (DCMS), the UK's ministry of culture. A key strand of the programme was to understand and assess the benefits of engagement. The project assessed in terms of subjective the value to the individual of participation in sports and engagement in activity (CASE 2010, 5). In a area often criticized for its lack of investment in research and evidence-gathering, the size of the programme alone--[pounds sterling]1.8m for an effort that brought together all the main organizations in the UK--could be taken as a sign that the agenda held out some promise for policy-makers. Indeed, it could be argued that activities, with their associations of conviviality, flow-like engagement (Csikszentmihalyi 1992), and attention to questions of both meaning and belonging, offer fertile ground for engagement with well-being. Yet despite the rather startling finding that a visit to the cinema once a week had an income compensation value of [pounds sterling]9,000 per household per year (CASE 2010), developing a well-being-inflected is proving quite problematic. Although debates about and the good life are of ancient lineage, our concern is with the UK regime of the last fifteen years or so, first under the New Labour government (1997-2010) and later under the Conservative-Liberal Democrat coalition. This corresponds with the growth of as a discourse, both in the UK and internationally. Given that, we use the term well-being as is commonly done in circles to refer to a combination of subjective with more eudemonic measures, although we recognize that these definitions are both contested and confused. Although we understand culture in a broad sense to include the arts (visual and performing arts, music, literature, and so on), the media (film, TV, radio, videogames, and other social media), heritage (museums, built and natural heritage), and sport, the focus of this paper will be largely on cultural policy as it concerns the arts and heritage. The link between participation in sports and is reasonably well-demonstrated (Scully et al. 1998; Chatzisarantis and Hagger 2007), whereas media use is more often associated with debates about its role as a source of ill-being and a variety of moral panics (Kraut et al. 1998). Media policy-makers may legitimately wish to stress the benefits of media participation, and in the case of film they sometimes do (DCMS 2012), but theirs is often a rear-guard action against the suggestion that media use is often harmful, particularly for children (Livingstone and Haddon 2009). In the arts, however, the struggle for legitimacy, and hence the call for public spending, is generally stronger, and the use of instrumentalist arguments for advocacy purposes is more fully developed. The arts have thus been the focus--along with heritage--of well-being-influenced discourse. New Labour's Cultural Policy: The Emergence of Well-being Until recently, the engagement of with ideas about in the UK has been primarily of two sorts: encouraging arts and creative activities as a part of education, and using arts therapy as treatment for ill-being of various sorts. The latter form has perhaps the longest history: from the therapeutic benefits accorded to visual expression for sufferers of schizophrenia and other forms of psychosis, to the use of art as a form of therapy for depression, anxiety, and other mental illnesses (Staricoff 2004; Heenan 2006). …

The Cartel Offence Within a “World Class” Competition Regime: An Assessment of the Bis Consultation Exercise and its Results

The March 2011 Department for Business, Innovation and Skill's Consultation on reforms to the UK's competition regime are an attempt by the government to improve on the UK's ?world class competition regime.? In this paper, I examine the consultation, Government's Response and the resulting Bill in an effort to determine the extent that the suggested reforms improve the regime as a whole. I argue that the reforms resulting from this process are far from an improvement to the UK's regime. This is primarily due to the piecemeal approach taken during the process, with the assumption that ?improvements? to one aspect of the regime will not have consequences for other aspects. By considering only reforms to the Cartel Offence, and failing to examine the interaction of this offence with leniency programmes and private enforcement, the project fails to improve on a world class regime.

Bright Lines and Open Prisons

The control order regime in Division 104 of the Australian Criminal Code Act 1995 (Cth) ('Criminal Code') is one of the exceptional measures introduced into Australian anti-terrorism law after the 2005 London bombings. Like the UK regime on which it was based, it threatens to erode long-established principles of public and criminal law by severely restricting individual liberty on the basis of future conduct and without prior determination of criminal guilt. The Australian legislation is likely to remain in its original form for the foreseeable future, while the UK control order regime in the Prevention of Terrorism Act 2005 ('POTA') is now the subject of a proposed wholesale revision by the UK government.

The Validity of Deal Protection Devices in Negotiated Acquisition or Merger Transactions under Anglo-American Law

This paper analyses deal protection devices, specifically termination fees and lockup agreements, that are entered into by publicly listed target companies in favour of the preferred bidders under Anglo-American law. US (specifically Delaware) and UK law and regulation differ markedly in the regulation of these devices. Delaware law generally gives more leeway for the target board to enter into deal protection devices. The UK regime is much more shareholder-centric and severely restricts most types of deal protections. This paper explains the differences and argues that the UK regime is the result of the strong influence of institutional share ownership. In contrast, in the US, institutional share ownership is of more recent origin and market participants have instead pushed for greater board independence to counteract managerial self-interest. This paper also discusses the impact of recent trends, including changing shareholder ownership patterns and regulatory developments on the concepts of independence of outside directors, and their impact on the substantive rules on deal protections. It concludes that, while some modest changes to the substantive rules may be required, there is insufficient evidence to justify an overhaul of the rules in either jurisdiction.

FLUVIAL GEOMORPHOLOGICAL METHODOLOGY FOR NATURAL STABLE CHANNEL DESIGN

: A fluvial geomorphological methodology for designing natural stable channels is being widely applied for river restoration. It is an analogue procedure, as the W/d ratio and sinuosity from a reference reach are scaled to determine the restoration design. The choice of reference reach is crucial and published criteria specify that it should be stable, correspond to the stream type at the restoration site, have the same valley type, and be from the same hydrophysiographic region. For stable, meandering gravel cobble bed rivers flowing through alluvial flood plains (C3 and C4 stream types), UK regime equations are used to evaluate the procedure. Successful design requires particular combinations of the ratios of bankfull discharge, bed material size and load, valley slope, and bank vegetation category between the reference and restoration sites. These critical ratios, which are confirmed by U.S. field data, provide guidelines for selecting a suitable reference reach for C3-C4 stream types. They also indicate that the reference reach can be in any valley type or hydrophysiographic region. The geomorphological procedure will apply to all stable stream types, provided the reference reach is correctly identified. Specific guidelines for each stream type await the development of additional regime equations.

Market abuse – A pan‐European approach

This paper looks at the aims and objectives behind the Market Abuse Directive, looking at some of its main features, and considers some of the changes that are expected to be made to the existing UK regime.