Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: Abstract There are two models with which to evaluate a merger’s potential side-effects on innovation: the exogenous model and the endogenous model. The exogenous model takes innovation as an exogenous element and independently assesses this element. The endogenous model considers innovation as a competition parameter and involves it in the analysis of the competition mechanism. The key purpose of the Anti-Monopoly Law of the PRC is the “protection of fair competition”. To achieve this legislative purpose, China applies the endogenous model, appraising the concrete harm to the innovation parameter of the competition mechanism. The Chinese competition authority determines whether to evaluate harm to innovation competition based on the relevant market, merging parties, attributes of the transaction and other factors according to the specific case. Unilateral effects in horizontal mergers and input foreclosure in vertical mergers are the main theories applicable to innovation competition harm. In practice, the Chinese competition authority may differentiate between factual competition and potential competition, as well as product innovation and industry innovation, on a case-by-case basis. This paper argues that the competition authority should properly handle the uncertainty in assessing innovation competition, and fully respect the efficiency defence raised by notifying parties. PubDate: 2023-09-07
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Abstract: Abstract In digital markets, concentrated Big Data and analytical algorithms enable undertakings to predict each consumer’s willingness to pay with increasing accuracy and offer consumers personalized recommendations and tailored prices accordingly. In this context, concerns have arisen about whether and when AI-enabled price discrimination amounts to an abuse of dominance under competition law and would require a legal response. To address these concerns, this paper will analyze AI-enabled price discrimination from a comparative law and economics perspective. In economics, price discrimination is not always undesirable as it can increase static efficiency, and, on some occasions, it can promote dynamic efficiency and boost consumer welfare. Nevertheless, it may also lead to exclusionary and exploitative effects, especially once Tech Giants abuse their dominant positions in relevant markets. Since the protection of free competition and consumer welfare are objectives of competition law in China and the EU, competition law seems a proper instrument to step into digital markets to address these concerns. Indeed, the EU and China have established mixed regimes of competition law and other rules to tackle unfair and/or anti-competitive AI-enabled price discrimination. As such, AI-enabled price discrimination does not always require a competition law response and it requires competition authorities to make a trade-off between different considerations. PubDate: 2023-04-27 DOI: 10.1007/s12689-023-00099-z
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Abstract: Abstract Statutory dominant firms, different from dominant firms that have gained their market power through competition on the merits, have derived their market position from choices made by the state. From an economic perspective, tying by this kind of firm typically generates significant anti-competitive effects that are likely to outweigh the possible pro-competitive effects. Both in China and the EU, such tying practices have frequently taken place. Nevertheless, the economic findings have not been fully reflected in competition provisions and competition practice in these two jurisdictions. This may lead to error costs and enforcement costs, which is detrimental to consumer welfare. It is thus important for competition authorities and courts to carefully consider the economic findings, while taking into account also the principles of proportionality and legal certainty. To enhance the effectiveness of competition law, this study proposes potential ways of applying a differentiated (stricter) scrutiny of tying by statutory dominant firms to reduce error costs and enforcement costs. PubDate: 2023-04-20 DOI: 10.1007/s12689-023-00100-9
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Abstract: Abstract As a special administrative region of China, Macao preserves a previous continental European civil law system with a transition into a Chinese constitutional and legal framework, embedded in a mixture of Chinese and Portuguese legal culture. Since its return to China in 1999, Macao has seen a rapid economic growth in the past 20 years with a drastic social and economic change. To respond to the increasing number of civil and commercial disputes, Macao adopted a new arbitration law at the end of 2019 to facilitate and promote the use of arbitration as an alternative to the court litigation in settling civil and commercial disputes. With a comparison of the content of Macao’s former Law on Voluntary Arbitration (29/96/M) of 1996 and the New Arbitration Law in light of the region’s civil procedure system, this article will provide an overview and preliminary analysis on Macao’s New Arbitration Law of 2019, with a focus on the scope of application of the New Arbitration Law, provisional and interim measures, and recognition and enforcement of arbitral awards. PubDate: 2023-04-18 DOI: 10.1007/s12689-023-00098-0
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Abstract: Abstract The development of digital technologies has led to the emergence of new business models benefiting consumers in their searching, shopping and communicating activities. However, it also challenges the applicable competition law framework and enforcement. Although there seems to be a global consensus on the need to update competition law, the EU and China have chosen different regulatory tools—hard law and soft law, respectively—to address the new and complex challenges facing the competition governance of digital markets. This paper aims to explore why the EU opted for hard law while China opted for soft law, and to further examine whether the selected regulatory tool is the most appropriate in the specific context. By analyzing and comparing characteristics of the digital market and competition institutions’ powers in the EU and China, the paper concludes firstly, that, through the use of hard law, the EU is able protect the Internal Market and at the same time overcome the inflexibility of hard law by adding review articles. Secondly, the paper concludes that, through the use of soft law, China is able to take advantage of soft law to rapidly respond to public attention in the digital market and, at the same time, overcome the non-legally binding force of soft law by strengthening the power of its competition authority. PubDate: 2023-04-13 DOI: 10.1007/s12689-023-00101-8
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Abstract: Abstract China’s Anti-monopoly Law has been amended for the first time since its implementation in 2008. The new law, China’s 2022 Anti-monopoly Law, makes four main changes to the chapter on monopoly agreements. This article summarises these changes and sets out the reasons for the changes. Based on the revisions in the new law, the paper points out that by adding the effect defence, the law implies three levels of severity for monopoly agreements, and by adding the safe harbour rule, it alleviates the shortcomings of the “general prohibition and exceptional exemption” model for vertical monopoly agreements. Although the new law is an improvement over the previous version, there are still issues that need to be improved further: the effect defence is difficult to apply; the exemption clause lacks rationalization and clarification; the penalty for organisers and supporters of monopoly agreements shall be clarified; and the interpretation of “organise” in Article 19 conflicts with the word in Article 21. PubDate: 2023-04-12 DOI: 10.1007/s12689-023-00102-7
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Abstract: Abstract Already before the present Covid-19 health crisis an emerging trend could be seen towards offering health services from a distance, called “e-health”. This trend, like so many other developments towards digitalisation of our societies, received a considerable impetus because of the Covid-19 crisis. First, the rise of Covid-19 tracing (and/or tracking) apps and now to be followed by the advance of Corona vaccination apps has made us aware of the benefits which e-health may bring, particularly in a situation where distance means safety. The apps contain very personal information and, consequently, have provoked questions as to whether the apps sufficiently protect a person’s right to privacy and data protection as safeguarded by the EU’s General Data Protection Regulation. The nature of the data, however, is such that also questions as to the importance of access by public health authorities in the public interest can be asked. Also, although commercial, but still important for developing and producing vaccines, for the pharmaceutical industry the data are important. The result is a conflict particularly between entitlement to privacy protection and the general interest, causing questions to be asked about which interest has priority. It might very well be, however, that this question, asked as such, is beside the point. Given that data are non-rivalrous and non-depletable, because they can be copied and copied, questions about which entitlement has priority cannot be answered in absolute terms. Rights regarding data depend upon who at a particular time has control over the data, who else has control and what control between all those involved then means. Looking at who has which right to data one can see an entitlement paradigm surfacing which is multi-perspective, relative and dynamic. Calling data entitlement “ownership” is not a reference to ownership in the traditional sense of the word, but to management. To decide what management in a particular situation means interest balancing exercises must be made. These exercises will change over time, as accordingly will the answer to the question who is “owner” of data in Covid-19 and Corona vaccination apps. PubDate: 2022-11-23 DOI: 10.1007/s12689-022-00097-7
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Abstract: Abstract Teaching may involve the use of copyrighted works. It is very important that teachers and professors know two things: (1) what kind of contents they can use in their classes; (2) what are the necessary requirements for using them to avoid infringements of copyright. In this time of pandemic, where online teaching is a big focus in universities, high schools and schools, this knowledge is essential because, despite the alarm generated by COVID-19, copyright is still fully in force. However, copyright is not absolute, as the legislator has provided some limitations or exceptions to these rights. In these cases, it is not necessary to request the consent of the authors and other copyright holders, but the works and subject matters can be used provided that certain requirements are met. In the field of education and teaching, three limitations are applied in particular: (a) private copying; (b) quotation; (c) illustration for teaching. PubDate: 2022-06-13 DOI: 10.1007/s12689-022-00096-8
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Abstract: Abstract The Covid-19 pandemic has led to an enormous increase in the use of technology in the courtroom. This development raises the important question on the potential effects of the digitalisation of criminal justice—especially from the viewpoint of the right to a fair trial. This contribution discusses this complicated question from different angles. It focuses on a number of different assumptions underlying the debate: the assumption that the use of technology in the courtroom diminishes human interaction, impedes an effective defence, influences decision-making and affects the legitimacy of the trial. This is done with the aim to shed light on the lack of evidentiary basis of these assumptions which clearly complicates the current discussion on the future of technology in the courtroom. The author argues that the validity of these assumptions needs to be adequately tested before we can make any long-term decisions on the content and scope of virtual criminal justice. PubDate: 2022-04-13 DOI: 10.1007/s12689-022-00095-9
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Abstract: Abstract This paper analyzes the Japanese legal responses to COVID-19. Japan did not declare the state of emergency on the constitutional level. In addition, it did not enact a new law and instead amended existing statutes several times to cope with the situation. The paper first introduces provisions of the Novel Influenza Act and Infectious Diseases Acts provisions before and after the February 2021 amendments. The remarkable feature of the Japanese countermeasures was the focus on non-coercive measures. There is no compulsory scheme to ensure “staying at home” for general residents. Regarding the facility managers, the NIA provided for the public announcement of non-compliance of the “recommendation” to ensure effectiveness. The legal nature of such public announcements is disputed in Japanese administrative law. The February 2021 amendments added the possibility of issuing an order whose effectiveness was guaranteed by administrative fines. This paper analyzes the traditional emphasis of “administrative guidance” in Japan and proposes hypotheses as to why open non-compliance cases of facility managers are observed. Concerning patients, prior to the February 2021 amendment, the IDA provided for the problematic legal figures of “recommendation” and “immediate execution”. The Feb. 2021 amendment, which added administrative fines, made the legal figure more complex. COVID-19 countermeasures have highlighted the difficulty of legal control when public behavior change is a policy goal. We must proceed by trial and error and accumulate knowledge regarding legal regulations or governmental messages that effectively affect public behavior. In the process, we should embrace the basic principles of constitutional democracy, such as the democratic legitimacy and accountability of government decisions and the principle of the rule of law. Simultaneously, we must remember that infectious disease control is a matter of human rights and discrimination, especially considering the unfortunate history of infectious disease control in Japan. PubDate: 2022-04-11 DOI: 10.1007/s12689-022-00093-x
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Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: Abstract The purpose of this contribution is to present to the readers the Chinese Civil Code which entered into force the first of January 2021, and to bring to their attention the changes brought about in the law of contract, now contained in Book III of the Civil Code. The importance of this major event of 2020 in the world of comparative law nearly went unnoticed due to the predominance in these days of the Corona virus coverage in the press. The Act which is the only one in the People’s Republic bearing the name «code» (Civil Code = Min Fadian) was adopted by the National People’s Congress on May 28, 2020. PubDate: 2021-12-01 DOI: 10.1007/s12689-021-00090-6
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Abstract: Abstract The article examines some pivotal aspects of Directive (EU) 2019/790, which is the new legislative act adopted by the European Union to adapt copyright to the evolving digital environment. Indeed, this measure is meant to have considerable implications on the European plane and is supposed to influence, at least in part, also the relations between the EU and third States in the field of copyright. The Directive shall be transposed by mid 2021, but the time is ripe for a first assessment and some reflections. The analysis primarily investigates the relationship between Digital Single Market and EU copyright law and focuses on the most controversial issues of a long-awaited piece of legislation that so far has been widely criticized. In particular, the article explores three new key points: mandatory exceptions and limitations to right holders’ exclusive rights, press publishers’ rights, and platforms’ liability. PubDate: 2021-12-01 DOI: 10.1007/s12689-020-00089-5
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Abstract: Abstract This paper is focused on the “cultural innovative enterprises”, introduced into italian law by Decree Law 179/2012 on “Further urgent measures for Italy’s economic growth”, converted into Law 221/2012. It is about new innovative enterprises that deal to develop, manufacture and distribuite innovative goods and services of high technological value, operating exclusively in the fields of cultural heritage promotion and cultural services provision. These companies can contribute to reduce the Italian youth employment emergency thanks on one hand to the reduced entry barriers related to the technology developments needed to “begin doing business” and on the other hand to the widespread territorial distribution of the italian cultural heritage to which services and processes will be applied. Furthermore, the increase of the GDP in regions undergoing a state of economic difficulty is a goal at hand. From a more general point of view, the cultural innovative start ups are an important element in stimulating new forms of collaboration between public entities responsible for the protection of the artistic heritage and private companies involved in its promotion. This type of partnership can contribute to the promotion and dissemination of new essential skills within the public administration aimed at a virtuous evolution of the way the overall economic system works. PubDate: 2021-12-01 DOI: 10.1007/s12689-020-00087-7
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Abstract: Abstract The purpose of this succinct contribution is to present to the readers the Chinese law of contract on “force majeure” and “hardship,” in a comparative perspective from a European point of view. The concept of foreseeability of the event rendering the performance of the contract impossible or unbearably difficult is used as an eye-catcher. The two concepts “force majeure” and “hardship” are close to each other, but must be sharply distinguished. One has to also distinguish the foreseeability of the event (of “force majeure” or “hardship”), which causes the hindrance of the performance of the contract, from the foreseeability of the damage suffered because of the non-performance. PubDate: 2021-11-29 DOI: 10.1007/s12689-021-00091-5
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Abstract: Abstract On 1 December 2020, the Export Control Law of the People’s Republic of China entered into force. The PRC’s first comprehensive piece of legislation on export control had been passed by the Standing Committee of the National People’s Congress on 17 October 2020 after a three-year legislative process. Regarded as one of the PRC’s key responses in the engulfing China-United States trade dispute, the law has attracted wide public attention. It has been described as “a new flashpoint in EU-China relations” posing “substantial challenges for European companies”. The compliance costs of European companies who have a direct or indirect trade relationship with China will likely increase as a consequence of the ECL and so does the legal uncertainty involved in doing business in and with China. The essay will examine the ECL’s background (1) as well as its legislative approach and key provisions (2). It will then attempt to gauge the ECL’s immediate impacts and project its potential future developments (3). PubDate: 2021-11-29 DOI: 10.1007/s12689-021-00092-4
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