Unilateral Refusal Research Articles

Civil rights: How possible are the preconditions and provocation form Crimes in conditions of sanctions of foreign countries

The present article is devoted to the abuses and circumvention of regulations in the civil law, in the situation of foreign countries sanctions. Modern geopolitics ask for our country's timely legal and political reactions to the increasing sanctions of foreign countries. Such a situation is skillfully combined with the consequences of the global financial crisis and is a fertile ground for the growth of fictitious bankruptcies, unilateral refusal of fulfilling civil-law obligations, and actions to bypass the law. Abuses and circumvention of regulations in the civil law can be sustainable prerequisites for the growth of crimes in the conditions of sanctions in foreign countries. The work was performed under the grant of the President of the Russian Federation for the state support of young Russian scientists and candidates of Sciences (Competition – МК-918.2018.6). The subject of study is the «Legal challenges to improve the quality and competitiveness of goods, works and services under the sanctions of civil turnover of the Russian Federation».

Unilateral Refusals to Supply and the Essential Facilities Doctrine under New Zealand's Competition Law

Refusals to supply are one of the types of behaviour that may constitute an illegal act of monopolisation under competition law. As part of United States refusal to supply law the courts developed the essential facilities doctrine. This requires the owner of a facility which is essential to rivals to provide access to that facility. Courts, in particular the United States Supreme Court, have cast doubt on the doctrine and cut back on liability for unilateral refusals to supply. Conversely New Zealand (and Australian) courts have increased liability for refusals to supply. One case, Commerce Commission v Bay of Plenty Electricity Ltd suggested New Zealand has its own essential facilities doctrine. This article discusses and analyses refusals to supply both legally and economically. It compares United States and Australasian law and shows how New Zealand law is tougher on refusals to supply. It argues that New Zealand has its own version of the essential facilities doctrine – albeit for different reasons than the Bay of Plenty Electricity Court suggested. It shows that sound reasons justify this stance.

Право на односторонний немотивированный отказ от исполнения договора возмездного оказания услуг

Право на односторонний немотивированный отказ от исполнения договора возмездного оказания услуг

Unilateral Refusals to Deal, Vertical Integration, and the Essential Facility Doctrine

Where it applies, the facility doctrine requires a monopolist to share its essential facility. Since the only qualifying exclusionary practice is the refusal to share the facility itself, the doctrine comes about as close as antitrust ever does to condemning fault monopolization. There is no independent justification for an facility doctrine separate and apart from general Section 2 doctrine governing the vertically integrated monopolist's refusal to deal. In its Trinko decision the Supreme Court placed that doctrine about where it should be. The Court did not categorically reject all unilateral refusal to deal claims, but it placed very strict limits on the doctrine's use, which this paper explores.

Практика применения положений о расторжении и изменении договора в новой редакции ГК РФ

The article is devoted to the analysis of practical application of provisions of Chapter 29 of the Civil Code of the Russian Federation which regulating the issues of modification and termination of the contract by courts. The relevance of such analysis was caused by the introduction of the new edition of Chapter 29 of the Civil Code as well as the practice of its application by courts resulting to increasing of the number of lawsuits concerning disputes on modification and termination of the contract caused by the economic crisis of the past two years. In addition, the number of lawsuits on refusal of one of the contractors from the contract in cases stipulated by the contract considering by arbitration courts was also increased. On the basis of the analysis of judicial practice the author has made a conclusion that if parties to a contract want to provide in the contract the possibility of cancellation of the agreement for any reason other than provided in the Civil Code, other laws or other legal acts, such grounds have to be expressly listed in the agreement, or the contract has to contain wording about the possibility of termination of the contract on any other grounds. The author has noted the necessity of unification of the approaches to the qualification of the sum which has to be paid in a case of the early termination of the contract as it provided by the clause 3, article 310 of the Civil Code for the unilateral refusal of execution of obligations regardless of how the specified amount named in the contract.

Principles of Law of Obligation (International And National Aspects)

Review. Forming market relations, a Russian legislator seeks to adapt previously developed of fulfillment of obligations to current conditions with account for international experience. This article considers provisions, typical for countries of the Romano-Germanic legal family, which include some general principles, that the legislator has not fleshed out in a positive norm, and Russian legislation based on judicial practice and enshrining principles of law, possessing the highest authority and being the criterion and measure of the legality of all legislative instruments. The authors research scientific standpoint on the essence and value of the of law coinciding with the position of German civil law scholars and practitioners. The authors also conduct a comparative analysis of the of performance of the obligation, the principle of good conduct of the subjects, peculiarities of limiting the principle of substantive performance of an obligation, withdrawal from an agreement (refusal to perform a contract) or from exercising the rights under the agreement, the principle of cooperation, the principle of parsimony, which, according to the authors, in conjunction with other principles, including the general principle of good faith in civil law, may provide guidance in the practical field. They define a significant place among the of fulfillment of obligations in the Russian law - the principle of inadmissibility of unilateral refusal to perform obligations and related to this controversial litigation. The article outlines features of enshrinement of the above mentioned by the CIS countries into the standards, and in the laws of foreign countries into the guidelines. It is also proposed to stipulate the definition of the terms and conditions of a standard contract adopted from the German experience in the Civil Code of the Russian Federation, which will ensure the balance between the interests of the parties to an agreement, as well as will become a means of protection against the abuse of freedom of a contract on the part of the economically stronger contractor.

О некоторых процессуальных проблемах, связанных с отказом арендатора от договора аренды

Article 619 of the Civil Code of the Russian Federation has been of well established application with regard to the mechanism of the lessor’s right for early dissolution of the lease contract. Certain difficulties do exist in relation to the practices of the right to refuse a tenant lease. The article analyzes the legal practice with regard to the unilateral refusal to perform the obligations under the lease. Recommendations to address the problems identified through the establishment of a mechanism ratio rules of the Civil Code on the general grounds of termination of a civil contract, and the grounds for early termination of the lease. It has been determined that the formulation by the parties of “abstract” grounds for withdrawal does not meet the principle of respect for the economic stability of civil turnover. The grounds for unilateral termination of the obligations in the lease are to be substantiated in detail.

Unilateral Refusals to License in the U.S.

Most antitrust claims relating to intellectual property involve challenges to agreements, licensing practices or affirmative conduct involving the use or disposition of the intellectual property rights or the products they cover. But sometimes an antitrust claim centers on an intellectual property owner's refusal to use or license an intellectual property right, perhaps coupled with efforts to enforce the intellectual property right against infringers. The allegation may be that the intellectual property right is so essential to competition that it must be licensed across the board, or that a refusal to license it to one particular party was discriminatory, or that in context a refusal to license helped a monopolist to acquire or maintain market power. Claims based on a unilateral refusal to license - the subject of this chapter - present important issues at the center of the tension between antitrust and intellectual property. The antitrust and intellectual property laws are not necessarily in conflict. For the most part they serve complementary goals, though each must limit the scope of the other. Unilateral refusal to license cases, however, cut to the heart of the intellectual property owner's right to exclude others from practicing the intellectual property. As such, efforts to invoke antitrust law in this context deserve special scrutiny. Section 2 reviews the basic principles relating to unilateral refusals to license intellectual property rights. Section 3 discusses in detail the various sets of circumstances in which antitrust plaintiffs argue for exceptions to those basic rules. Section 4 distinguishes unilateral from concerted and conditional refusals to deal.

Applicability of Antitrust Law to Unilateral Refusal to License Intellectual Property in IBM Case

Applicability of Antitrust Law to Unilateral Refusal to License Intellectual Property in IBM Case

Beyond Refusal to Deal: A Cross-Atlantic View of Copyright, Competition and Innovation Policies

Conventional wisdom holds that the European Union has opted to apply its competition law to the exercise of intellectual property rights to a much greater extent than has the United States. We argue that, at least in the context of copyright protection, this conventional wisdom is false. While European antitrust regulation of refusal to license one's intellectual property does seem much more robust and activist than U.S. antitrust regulation of similar conduct, focusing solely on one narrow aspect of antitrust doctrine — the treatment of a unilateral refusal to deal — tells less than half the story. Once various doctrines of copyright law are taken into account, the substantive difference between the European and American approaches not only narrows, but in some key respects is reversed. While European jurisdictions have relatively expansive copyright protection which may require antitrust intervention to check anti-competitive uses of copyrighted works, American copyright law provides stronger internal limits on copyright protection, which thereby lessens the need for resort to antitrust law as an external check on anti-competitive uses of copyrighted works. Furthermore, when the broader impact that antitrust law might have on the exercise of IPRs in the United States is considered (not only in substance, but also in antitrust process), it becomes apparent that in key respects, when innovative-competition is at stake, U.S. law grants overall weaker copyright protection than that available in Europe. We also explain why the two jurisdictions have adopted distinct approaches to resolving similar problems and evaluate those approaches.

Barents Sea Fisheries – the IUU Struggle

Considerable fishing operations occur in the European part of the Arctic Ocean, especially in waters under Norwegian and Russian jurisdiction, and regional states have recently made important advances in combating illegal, unreported, and unregulated (IUU) fishing.1 During the 2000s, illegal harvesting of Northeast Arctic cod reached levels that jeopardized stock sustainability and coastal-state quota restraint, shifted wealth from legal fishers to cheaters, and promoted corrupt practices in production and distribution chains. A strengthening of various port-state measures appears promising for combating illegal, unreported and unregulated fishing in the region. Such measures have evolved from unilateral refusal to allow landing of fish taken outside international quota arrangements to a multilateral Scheme of Control and Enforcement under the North-East Atlantic Fisheries Commission (NEAFC).Keywords: Barents Sea, IUU fishing, fisheries management, codCitation: Arctic Review on Law and Politics, vol. 1, 2/2010 p. 207-224. ISSN 1891-6252

Refusal to Supply and Innovation: Past, Present and Future

The effects of competition rules on innovation can be very far reaching and may be seen as a hindrance to one of its foundational aims; increasing consumer welfare. The aim of this discussion is to provide the reader with sufficient background knowledge of unilateral refusal to supply pursuant to Article 102 TFEU. The piecemeal legal principles show the development of this murky area. Having set the scene, it will look at one of the more prominent cases in the area; the Commission decision against Microsoft. Law and economics overlap greatly, especially where competition policy is concerned and this discussion will highlight the ongoing legal and economic debates underlying the Microsoft decision. More recent developments in the area of unilateral refusal to supply will be highlighted followed by a comparative discussion on how this area is tackled in the United States with special emphasis on the Trinko decision.

When Does a Unilateral Unconditional Refusal to License or to Provide Information Become an Antitrust Concern? A United States and European Comparison

There is still a huge debate about the legal approach towards the intersection of antitrust and intellectual property law around the globe. In an Industry Age, which is more and more relying on intellectual properties, it is necessary to define legal standards of antitrust liability in cases where an intellectual property holder refuses to license his or her exclusive right. Clearly, the jurisprudence has been developing to stricter standards if compulsory licensing is involved. The question is, however, whether stronger standards towards intangible properties than towards tangible properties are necessary and justified. The right standard is critical because at risk are not only the always used incentive to innovate but also the development of related markets and potential future technologies if the intellectual property holder’s exclusive rights play the key roll.This paper will compare the different avenues taken by the U.S. and E.U. in solving this issue adequately. It puts some light on two different situations. Such where the intellectual property holder refused to deal his exclusive right where he has never dealt it to the antitrust plaintiff and situations where he has licensed his right but stopped continuing to deal it. The article explores that the E.U. is seemingly a step ahead by using the modified essential facility doctrine which combines an economic and inherent intellectual property policy approach.

Unilateral Refusal of Treatment and Patient Abandonment: Betancourt v. Trinitas Hospital, Brief of Amicus Curiae, Law Professor Thaddeus Mason Pope

Betancourt v. Tinitas Hospital is now pending before the Appellate Division of the New Jersey Superior Court. Trinitas Hospital is appealing a March 2009 trial court injunction, ordering its physicians to continue providing life-sustaining medical treatment (particularly dialysis) that these providers judged to be medically inappropriate and outside the standard of care. In early 2009, patient Ruben Betancourt was in a permanent vegetative state with multi-organ failure and slim prospects for recovery. Still, the patient’s daughter, Jacqueline, would not accede to recommendations to stop dialysis and switch to palliative care. When it became apparent that providers might unilaterally withdraw Mr. Betancourt’s life-sustaining treatment, Jacqueline sought injunctive relief. In March 2009, the trial court issued a final order appointing Jacqueline as guardian, and requiring Trinitas Hospital to continue the life-sustaining treatment. New Jersey has long been the “proving ground” for healthcare law at the end of life. This case squarely and explicitly presents the core medical futility question: “Must physicians provide life-sustaining treatment they think medically inappropriate just because it is requested by the patient’s substitute decision maker?” The Betancourt case is unique and important. Almost all previous futility cases were framed in far more narrow and coincidental ways, in terms of EMTALA, for example. Therefore, this case may provide much-needed and much-wanted guidance not only in New Jersey but also across the United States and beyond. Accordingly, the case has attracted amicus briefs from, among others: the New Jersey Hospital Association, the Catholic Healthcare Partnership of New Jersey, the Medical Society of New Jersey, Not Dead Yet, ADAPT, New Jersey Physicians, the Greater New York Hospital Association, Agudath Israel of America, and the Union of Orthodox Jewish Congregations of America. In this amicus curiae brief, law professor Thaddeus Pope supports the position of Plaintiff/Petitioner Jacqueline Betancourt. He argues: (1) that the disputed treatment is within the standard of care, (2) that in any right to refuse critical care treatment is conditioned on transferring the patient, (3) that the New Jersey advance directives act is irrelevant to the dispute since the patient did not have an advance directive, (4) that Jacqueline is the appropriate guardian, and (5) that New Jersey statutory and Supreme Court authority forbid the judicial creation of a new internal dispute resolution mechanism making the hospital’s own ethics committee a forum of last resort.

ACOG Committee Opinion No. 362: Medical Futility

The construct of medical futility has been used to justify physician's unilateral refusal to provide treatment requested or demanded by a patient or the family of a patient. It is important that physicians and their institutions develop a process for dealing with conflict surrounding the construct of medical futility. Prospective policies on medical futility are preferable to unilateral decision making by individual physicians. When there is disagreement, patient and family values regarding treatment options and the default position of maintaining life ordinarily should take priority.

UNILATERAL REFUSALS TO LICENSE

Most antitrust claims relating to intellectual property involve challenges to agreements, licensing practices, or affirmative conduct involving the use or disposition of the intellectual property rights or the products they cover. However, sometimes an antitrust claim centers on an intellectual property owner's refusal to use or license an intellectual property right, perhaps coupled with efforts to enforce the intellectual property right against infringers. The allegation may be that the intellectual property right is so essential to competition that it must be licensed across the board, or that a refusal to license it to one particular party was discriminatory, or that in context a refusal to license helped a monopolist to acquire or maintain market power. Claims based on a unilateral refusal to license present important issues at the center of the tension between antitrust and intellectual property. Unilateral refusal to license cases cut to the heart of the intellectual property owner's right to exclude others from practising the intellectual property. As such, efforts to invoke antitrust law in this context deserve special scrutiny. We examine the basic principles relating to unilateral refusals to license intellectual property rights. We then analyze the various sets of circumstances in which antitrust plaintiffs argue for exceptions to those basic rules. Finally, we distinguish unilateral from concerted and conditional refusals to deal.

Refusal to Deal

This paper examines how Article 82 of the EC Treaty (prohibiting the abuse of a dominant position) should be applied to refusal to supply cases. As a starting point, and for the sake of clarification, this paper explains (a) why the antitrust analysis of refusals to supply customers differs from the analysis of refusals to supply competitors (Part II), and (b) why a distinction must also be made between unilateral and concerted refusals to supply (Part III). The paper then deals with unilateral refusals to supply competitors. In this connection, there are two preliminary issues, namely (a) whether a distinction should be made between a first-time refusal to supply and the termination of an existing supply relationship; and (b) whether a distinction should be made between refusal to deal involving tangible property rights and refusal to licence IPRs. These issues are addressed in Part IV and Part V respectively. Part VI considers the respective merits of the various possible ways to apprehend unilateral refusals to supply under Article 82 (per se legality v. rule of reason approach v. the screens approach v. the exhaustive checklist approach). In Part VII an attempt is made to formulate a multi-pronged legal test. Part VIII briefly deals with the relationship between refusal to supply abuses and other types of potentially abusive conduct under Article 82. Finally, Part IX concludes by making a number of recommendations.

Refusals to Deal with Competitors by Owners of Patents and Copyrights: Reflections on the Image Technical and Xerox Decisions

Under the patent and copyright laws, the owner of a patent for an invention or of a copyright for a work has the right to sell, license or transfer it, to exploit it individually and exclusively, or even to decide to withhold it from the public. By contrast, under the antitrust laws, a unilateral refusal to deal may constitute an element of a violation of Section 2 of the Sherman Act, and the courts may then impose a duty on the violator to deal with others, including possibly with its actual or would-be competitors. The central question addressed by this Article arises from an attempt to harmonize these potentially conflicting principles: What is the extent to which the antitrust laws may impose a duty to deal on the owner of intellectual property? Two recent court of appeals decisions have taken notably different approaches to this question. In Image Technical Services v. Eastman Kodak, the Ninth Circuit held that, in the absence of legitimate business justifications, the defendant, the owner of copyright and patent rights, violated the Sherman Act by its refusal to sell or license the products subject to intellectual property protection to its competitors. In In re Independent Service Organizations Antitrust Litigation (Xerox), the Court of Appeals for the Federal Circuit expressly disagreed with the Ninth Circuit and rejected the proposition that even in the absence of those justifications, the antitrust laws might impose a duty on the owner of patents or copyrights to deal with competitors. On several occasions, albeit not in the context of intellectual property, the Supreme Court has recognized that the antitrust laws may impose a duty on a firm with market power to deal with its competitors. However, last Term, in Trinko, the Supreme Court limited the reach of some of those prior decisions. This Article explores this apparent - but in fact exaggerated - tension between the intellectual property regime and the antitrust laws. What are the policy justifications for imposing, or refusing to impose, a duty on the owner of intellectual property to deal with competitors? Was Image Technical correctly decided? To what extent does Image Technical survive after Xerox, Trinko, and other recent cases?

Antitrust Intervention in Intellectual Property Licensing and Unilateral Refusal to License: A Comparative Analysis of Japanese and U.S. Policies

Antitrust Intervention in Intellectual Property Licensing and Unilateral Refusal to License: A Comparative Analysis of Japanese and U.S. Policies

Unilateral Refusals to Deal and the Essential Facility Doctrine: A US/EC Comparative Analysis

Unilateral Refusals to Deal and the Essential Facility Doctrine: A US/EC Comparative Analysis