European Studies in Law and Economics – serie

The use of economics in public policy, in the form of ex ante Regulatory Impact Analysis (RIA), is strongly advocated by international organizations such as the OECD and the World Bank. In the US and the EU, hundreds of RIAs are produced every year to justify public intervention in the form of regulation. But reality shows that in many other countries the adoption and implementation of this tool has been patchy at best. At the same time, the economics used in RIA is heavily challenged by scholarly developments such as behavioral economics, neuroeconomics and the study of social norms, and was also unable to predict and cure the financial crisis that hit the global economy in 2007. The book claims that RIA should incorporate recent developments in the law and economics literature and provides an analysis of the potential contribution of positive, normative and functional schools of law and economics to the practice of RIA. The book contains thematic applications to policy fields such as environmental protection, energy efficiency, financial markets, antitrust, cyberspace and telecommunications.The book provides far-reaching recommendations on the future of law and economics, as well as on the organization of RIA systems around the world, particularly in the US and the EU.

The protection of the knowledge and practises of local and indigenous groups has been discussed in various forums in recent times. International agreements such as the Convention on Biological Diversity address the importance of protecting traditional knowledge and practises, recognizing that this knowledge bears immense value in terms of its contribution to the conservation of biological diversity and its inputs to R&D in various fields. Experiences of the past, prominently the use of the Neem tree and the Turmeric plant, show that the benefits of traditional knowledge applications are allocated mainly to the follow-on developers and rarely to the original suppliers of the knowledge and practises. In the long term, this may result in restricted access to traditional knowledge to the detriment of social welfare. The book examines traditional knowledge protection in the area of traditional medical knowledge, often utilised in contemporary medicine, and consequently subject to patent protection.It provides a comparative view of the current patent regimes in major economies, specifically the US and the EU, and the consequences of the application of these laws to traditional medical knowledge and follow-on innovation, as well as the impact on underlying economic principles and opposing interests. The economic analysis of law is used to evaluate the current situation by comparing the effects of adapted patent regimes to alternative liability regimes or contractual agreements. This comparative and interdisciplinary approach taken gives valuable insights and inputs for future discussion.

The New York Convention is regarded as one of the most successful treaties in the past fifty-five years. Its simplicity and brevity in wording but complexity and diversity in application have triggered endless discussions, debates and writings. Rethinking the New York Convention - A Law and Economics Approach for the first time offers a unique jurisprudence-oriented analysis by applying two major analytic approaches, namely Darwinian legal theory and game theory. Four key topics are analysed in this book: the evolution of the treaty, the competition among various jurisdictions, lex mercatoria and governing law in arbitration, and the doctrine of public policy. This choice of key topics offers the opportunity to look into these so-called core dilemmas surrounding the New York Convention from different angles, inspiring the reader to think outside the box. In addition, against the background of the current financial crisis, this book focuses on the use of the New York Convention in the context of global governance and discusses the need for a reform of the existing regime of cross-border transactions and activities.Rethinking the New York Convention - A Law and Economics Approach explores the topic in a refreshing style and will be of use for anyone who is interested in arbitration or law and economics.

Market definition plays a critical role in EC competition law, as the first step of any investigation into the nature of competition in a given industry. While not an end in itself, the definition of the relevant market serves to identify those products and areas which effectively restrain the behaviour of the firms of interest.

After thirteen years of discussion, the Anti-Monopoly Law of the People's Republic of China was promulgated on 30 August 2007 and entered into force in August 2008. During the legislative process, a particular challenge was to determine the goal of competition law in China. This challenge can be best illustrated by the merger control policy under the Chinese Anti-Monopoly Law, which has been formulated by taking into account economic goals as well as various social and political considerations. Comparative Analysis of Merger Control Policy investigates to what extent competition goals may influence merger policy by taking a comparative perspective. To address this central research question, this book focuses on four major issues. First, in order to understand why competition law and policy in China incorporates a multitude of policy goals, the legislative history of the Anti-Monopoly Law and merger policy in China will be explored. Second, the evolution of the debate on competition goals in the US and the EU will put the developments in China in a comparative perspective. Third, emphasis will be placed on the evolution of incorporating the efficiency goal into merger policy.Finally, given the theoretical debate on competition goals, it must also be discussed whether competition goals may have an impact on the analysis of merger cases. Taking economic theories and modern economic techniques as the benchmark, this book concludes that the divergent competition goals in China, the United States and the European Union lead to a different outcome of merger cases. This book not only provides a comprehensive overview of the debate on competition goals, but also conducts a discussion of the impact of competition goals on merger cases by taking a comparative view. It also sets out policy implications for competition policy makers in China.

A wave of antitrust scrutiny has swept across the European energy markets in recent years. For fear of drawn-out competition law investigations and high fines, targeted energy firms voluntarily offered far-reaching commitments to the European Commission, oftentimes selling off substantial parts of their business. The Commission has an ambitious plan to create a single market for energy, but liberalisation processes often meet opposition from governments and industry stakeholders. Whenever the EU energy reforms get stuck in political deadlocks, the Commission eagerly resorts to competition enforcement and pushes forward its energy agenda through the back door of negotiations with investigated energy companies. Does this instrumental use of competition rules really foster energy market integration? Or does it backfire and actually hinder, rather than serve, its purpose? This book provides in-depth case studies of EU competition enforcement in the electricity sector. It shows how the Commission bends and stretches competition law beyond its proper limits to accommodate non-competition goals.The book's cross-disciplinary approach and clear, straightforward language makes it a good read for both lawyers and economists interested in the interplay between the EU competition and energy policies and their impact on electricity markets.

This book is dedicated to the Law and Economics analysis of civil liability of securities underwriters for the damage caused by material misstatements of corporate information by securities issuers. It starts by looking at securities underwriters from a practical and business perspective and asserting that they are undeniably indispensable and central figures in the process of securities offering. From the economics point of view, their main value comes from their ability to monitor the issuer's disclosure during the distribution of securities to ensure that such disclosure does not contain materially misleading statements or omissions and to take preventive action if needed. This is known as the gatekeeping function of securities underwriters. Further it is investigated whether there is a need for additional incentives for securities underwriters in order to make them perform the gatekeeping function well as different market-based and legal enforcement mechanisms already exist.To determine the expected civil liability, this book considers five main components of liability regimes in the USA, the EU, the Netherlands and the UK: potential parties to a dispute, the liability standard, the measure of damages, the procedural rules, and the nature of the liability rules. This analysis leads to the conclusion that in all of these countries the expected civil liability threat is likely to be insufficient to encourage meaningful compliance by securities underwriters and there might be a systematic under enforcement of the underwriter's gatekeeping function. As a possible solution to the drawbacks of existing underwriter civil liability systems in each of the countries analysed, it is suggested there should be a switch from the current negligence liability to strict liability. This should be coupled with the placing the burden of proof of loss causation on the plaintiff and capping damages by the amount of the underwriting fee.

The use of economic theory and economic evidence in competition cases, their appropriate interpretation, meaning, impact, usefulness and validity are among the most challenging issues that judges and legal practitioners are facing in their daily decision-making. Notorious questions of, for example, how courts, practitioners and other decision-making bodies should employ economic evidence and what weight (and credibility) should be attached to such evidence where different experts offer different suggestions are among the most complex ones. This book, while addressing such questions, provides tools for judges, scholars and legal practitioners to employ economic evidence in a more effective, optimal and predictable way so as to overcome the identified, EU-wide obstacles in enforcing current EU competition law.This edited volume addresses the importance, implications, practices, problems and the role of economic evidence in EU competition law. It includes contributions on the use of the economic approach in the application and enforcement of EU competition law in different EU countries, candidate member states and third countries. The book features scholars who are experts in the field of competition law and economics as well as several of the most prominent European judges who provide first-hand information on the use of economic evidence in practice. The book is not limited to a particular subfield of competition law, but covers the area of competition law at large, including state aid. This reflects the fact that also the European Commission has gradually expanded the application of the economic approach to all areas of competition law.

During and after the 2007-2009 global financial crisis, emerging market economies displayed remarkable resilience and maintained robust rates of economic growth. Learning from the lessons of the crises of the past 15 years, developing countries have adopted measures to become less vulnerable to the external shocks that are likely to emerge from more developed countries. Academics and policymakers have focused on the construction of an appropriate regulatory and supervisory framework for the banking sector. During the 2007-2009 global crisis, banks were engaging in excessive risk taking. Prudential banking regulation and supervision aim to curb excessive risk taking by banks because engaging in excessive risky transactions is the ultimate source of instability. Hence, banking regulation is needed to deal with the failure of markets to police banks' risky behaviours.This book discusses the impact of regulations and supervision on banks' performance, focusing on two emerging market economies, Turkey and Russia. It examines the way in which regulations matter for financial stability and banking performance from a law and economics perspective. Some of the regulations contribute to banks' performance by reducing the incentive for banks to take risks, hence supporting financial stability; others however may have a detrimental effect on financial stability. Moreover, banks react differently to regulation under different institutional settings. Therefore, this book takes up the debate on the efficiency of certain solutions and approaches to banking regulation in the context of emerging countries.