The transfer of property rights by theft: an economic analysis

This article studies the voluntary transfer of property that had been stolen—a topic almost unexplored in the law and economics literature. The question is whether a buyer of a stolen good should obtain title to the good if he/she has purchased it in good faith. As described in the article different jurisdictions treat this issue differently. The traditional theory suggests that there is a trade-off between the costs of protecting the good and the costs of verifying the ownership. However, as shown, the rule of law concerning this issue significantly affects parties’ incentives. Specifically, it is shown that a rule of law where good faith is irrelevant in determining the issue of property rights Pareto dominates a rule where good faith may protect an innocent buyer. Thus, an owner of an asset will spend more resources on protecting his property and potential buyers will incur higher costs in order to verify the ownership when good faith is decisive for the transfer of property rights.     

不动产一物二卖问题研究

对于不动产一物二卖,社会一般观念认为,出卖人失信背义,应保护第一买受人。学说与判例的主流观点则认为,第二买卖合同的效力并不因第一买卖合同的存在本身而受影响,若第二买受人先完成登记,即可取得标的物所有权。不动产的一物二卖应区分不同情形,产生出卖人交出其第二次出卖所获利益、第二买受人不能取得所有权以及出卖人与第二买受人承担侵权损害赔偿责任等法律效果。在这一背景下,当前学说与判例的主流观点殊值检讨与修正,以重回守信与公平的轨道。     

PATENT HOLDUP AND OLIGOPSONISTIC COLLUSION IN STANDARD-SETTING ORGANIZATIONS

Current controversies over patent policy place standard-settingorganizations (SSOs) on a collision course with antitrust law.Recent theoretical research conjectures that, in an SSO, patentowners can "hold up" patent users in the sense of demandinghigh royalties for a patented input after the SSO has adoptedthe patented technology as an industry standard and manufacturerswithin the SSO have incurred sunk costs to design end productsthat incorporate that standard. Consistent with this conjecture,actual SSOs have recently sought no-action letters from theAntitrust Division for a variety of amendments to SSO rulesthat would require or request, at the time a standard is underconsideration, the ex ante disclosure by the patent owner ofthe maximum royalty that the patent owner would charge underthe regime of fair, reasonable, and nondiscriminatory licensing.This price information—which is characterized as the "cost"of the patented input—would, under at least one recentSSO rule modification, be a permissible topic for potentialusers of the patent to discuss when deciding whether to selectit in lieu of some alternative standard. This exchange of informationamong horizontal competitors would occur ostensibly becausethe cost of the patented technology had been characterized assimply one more technical attribute of the standard to be set,albeit an important technical attribute. The Antitrust Divisionand the Federal Trade Commission have jointly stated that suchdiscussion, by prospective buyers who are competitors in thedownstream market, of the price of a patented invention thatmight become part of an industry standard should be subjectto antitrust scrutiny under the rule of reason rather than therule of per se illegality. The rationale that the antitrustagencies offer for applying the rule of reason to such conductis that such horizontal collaboration might avert patent holdup.The Antitrust Modernization Commission (AMC) similarly endorsedthe view that rule-of-reason analysis is appropriate for exante discussion of royalty terms by competing buyers of patentedtechnology. This rule-of-reason approach, however, is problematicbecause it conflicts with both the body of economic researchon bidder collusion and with the antitrust jurisprudence oninformation exchange and facilitation of collusion. Put differently,because of their concern over the possibility of patent holdup,the U.S. antitrust agencies and the AMC in effect have indicatedthat they may be willing in at least some circumstances to forgoenforcement actions against practices that facilitate oligopsonisticcollusion by encouraging the ex ante exchange of informationamong competitors concerning the price to be paid for a patentedinput as an implicit condition of those competitors' endorsementof that particular patented technology for adoption in the industrystandard. However, neither the proponents of these SSO policiesnor the antitrust agencies and the AMC have offered any theoreticalor empirical foundation for their implicit assumption that theexpected social cost of patent holdup exceeds the expected socialcost of oligopsonistic collusion. This conclusion does not changeeven if one conjectures that such collusion will benefit consumersby enabling licensees to pass through royalty reductions intheir pricing of the downstream product incorporating the patentedtechnology. Proper economic evaluation of the plausibility ofthe pass-through conjecture will require information about thecalculation of royalty payments; the demand and supply elasticitiesfacing the licensees; and the structure of any industries furtherdownstream between the manufacturer and the final consumer.Consequently, the magnitude of this effect will likely be amatter of empirical dispute in every case. Moreover, such ajustification for tolerating horizontal price fixing finds nosupport in antitrust jurisprudence. Given the analytical andfactual uncertainty over whether patent holdup is a seriousproblem, it is foreseeable that antitrust questions of firstimpression will arise and affect a wide range of high-technologyindustries that rely on SSOs. However, there is no indicationthat scholars and policy makers have seriously considered whetheroligopsonistic collusion in SSOs is a larger problem than patentholdup.     

Michelin II: A Per Se Rule Against Rebates by Dominant Companies?

In its Michelin II judgment of September 2003, the CFI foundthat Michelin breached Article 82 EC by setting up a systemof rebates that could potentially induce loyalty and excludeits competitors. This paper comments extensively on MichelinII and other cases, with a focus on what sort of competitionpolicy is desirable as regards rebates by dominant companies.Contrary to Michelin II, pricing policies of dominant companieswhich are not linear and not strictly reflecting economies ofscale are not necessarily anticompetitive and may indeed havesignificant pro-competitive effects. Furthermore, a requirementthat a rebate scheme be "economically justified" is very difficultto apply in practice, and the Court should not have put theburden of proof for the justification of quantitative rebatesupon the dominant company. Most preoccupying is the Court'srejection of the effect criterion when deciding on the legalityof a rebate: Such an approach, which differs markedly from USand UK law as well as from the OECD report on fidelity discounts,will generally result in a disproportionate per se-prohibitionof any pricing behaviour and in economic inefficiencies. A fairerand clearer approach could therefore distinguish between rebatesthat are per se allowed and other rebates that ought to be prohibitedonly if they have effects on the market.     

房屋双重买卖的法律思考

房屋双重买卖中,房屋所有权的取得独立于双方签订的债权合同,其发生以物权的公示为要件,办理产权登记的买受人才取得房屋所有权。但两个订立买卖合同的债权行为的效力并不受成立先后的影响,买受人都享有对出卖人的请求权。所有权未实现的买受人均可主张违约损害赔偿请求权,特定情形下的买受人可主张侵害债权的损害赔偿请求权和债权人撤销权。我国应当借鉴大陆法国家的经验,建立不动产预告登记制度,以从根本上控制房屋双重买卖的发生。     

BARGAINING OVER FIXED-TO-MOBILE TERMINATION RATES: COUNTERVAILING BUYER POWER AS A CONSTRAINT ON MONOPOLY POWER

The conventional wisdom that mobile operators are able to actas monopolists in pricing call termination on their networkshas recently been challenged by Hutchison 3G's entry into Europeanmobile markets. The European Commission's electronic communicationsregime allows national regulatory authorities to regulate mobiletermination rates if an operator is found to possess ‘significantmarket power’. This requires that the mobile operatornot be constrained by the ‘countervailing buyer power’of incumbents. The claim that incumbent operators possess countervailingbuyer power has been dismissed repeatedly because of their obligationto interconnect with other networks. This conclusion is erroneous.We analyse bargaining over fixed-to-mobile termination ratesand demonstrate that the existence of an interconnectivity obligationis entirely consistent with new entrants such as Hutchison 3Ghaving no market power at all in pricing call termination ontheir own networks.     

“Kind regards”: an examination of one buyer's attempt to purchase a trafficked child for sex

A call to awareness regarding sex trafficking has increased research, bolstered social justice efforts, improved education, and influenced federal laws that protect victims and prosecute traffickers. Federal laws on sex trafficking are now being used through undercover sting operations via the Internet to arrest and prosecute buyers who attempt to engage in commercial sex with minors. A narrative analysis was completed to create an in-depth case study outlining the correspondences between a buyer and an undercover agent advertising trafficked children for sex. Readers are afforded a rare opportunity to examine actual emails related to the purchase of a child for sexual exploitation. The emails were used against the buyer as evidence within the court of law. The authors assert that the following case study will contribute to the body of literature on the victim selection processes and cognitive distortions employed by buyers of children for sex.     

Loose cannons: Covert commerce and underground finance in the modern arms black market

The 1990s have already witnessed an explosion of social and political violence, with the threat of much more on the way. Many explanations have been offered — the stripping of the constraints formerly imposed by the Cold War alliance system; the delegitimization of states and the resurgence of ethno-religious identification; the end of the post-War social consensus that promised (though often did not deliver) a modicum of distributive justice.The paper stresses another, more mundane explanation — namely, the triumph over efforts at control of a free market in the instruments for effecting social and political change by violent means. It explains the contradiction between the amount of human, social and political damage weapons do and the ease with which they are acquired by exploring structural changes in the world arms black market since the 1980s.First, it argues that existing data showing a sharp decrease in international arms transfers can be reinterpreted in a much more pessimistic way, in part because of the operation of the modern black market.Second, a definition is offered of a black market transaction, differentiating it from otherwise legitimate deals that are criminalized on either the supply or demand sides.Third, it notes dramatic changes in the nature of the demand for weapons that drives more buyers into the black market.Fourth, it examines changes on the supply side that have made it so easy for a black market participant to acquire weapons, whether for direct end-use or for resale.Fifth, broad structural changes in the machinery of black marketeering in general, and their applications to the arms market in particular, are outlined.Sixth, a profile of the modern, as distinct from the traditional, gun running profession is offered, stressing the ambiguous role of the intelligence services in the traffic.Seventh, a black market arms deal is traced in its various stages through the machinery of covert commerce, while exploring at each stage the implications for pricing.Eight, the return flow of money is analyzed, from the point of view both of the form in which payment is made and the role of the formal banking system in handling and laundering the flow.Ninth, the financial problems facing non-state buyers and the consequent role of unconventional currencies is examined.Finally, some observations are offered about the implications of recent developments in the arms market for issues of arms control and international security.     

Intervening in gun markets: an experiment to assess the impact of targeted gun-law messaging

The objective of this study was to assess whether targeting new gun buyers with a public safety message aimed at improving gun law awareness can modify gun purchasers’ behaviors. Between May 2007 and September 2008, 2,120 guns were purchased in two target neighborhoods of the City of Los Angeles. Starting in August 2007, gun buyers initiating transactions on odd-numbered days received a letter signed by prominent law enforcement officials, indicating that law enforcement had a record of their gun purchase and that the gun buyer should properly record future transfers of the gun. The letters arrived during buyers’ 10-day waiting periods, before they could legally return to the store to collect their new gun. Subsequent gun records were extracted to assess the letter’s effect on legal secondary sales, reports of stolen guns, and recovery of the gun in a crime. An intent-to-treat analysis was also conducted as a sensitivity check to remedy a lapse in the letter program between May and August 2007. The letter appears to have no effect on the legal transfer rate or on the short-term rate of guns subsequently turning up in a crime. However, we found that the rate at which guns are reported stolen for those who received the letter is more than twice the rate for those who did not receive the letter (p value = 0.01). Those receiving the letter reported their gun stolen at a rate of 18 guns per 1,000 gun-years and those not receiving the letter reported their gun stolen at a rate of 7 guns per 1,000 gun-years. Of those receiving the letter, 1.9% reported their gun stolen during the study period compared to 1.0% for those who did not receive the letter. The percentage of guns reported stolen in these neighborhoods is high, indicating a high rate of true gun theft, a regular practice of using stolen-gun reports to separate the gun buyer from future misuse of the gun, or some blend of both. Simple, targeted gun law awareness campaigns can modify new gun buyers’ behaviors. Additional follow-up or modifications to this initiative might be needed to impact the rate at which guns enter the illegal gun market and ultimately are recovered in crimes.     

The joint venture alternative to mergers

However, while a joint venture may be "safe" from antitrust challenge, it is not without some practical difficulties, especially with respect to consolidating services at one location or jointly offering services provided at multiple facilities. These practical concerns include: 1. Who will exercise operational management of the joint venture? 2. How will the joint venture deal with different pricing for services that will be provided at multiple locations? 3. What criteria will be used to decide the location at which consolidated tertiary services will be offered? 4. In what circumstances can the joint venture be unwound, either in its entirety or as to discrete functions? When clinical services have been consolidated at one location, there is an appropriate concern by the other hospital that it will be unable to provide or re-enter the market for those services if the joint venture dissolves. These operational concerns, of course, are not addressed in the Consent Decree. Thus, even if a joint venture relationship survives antitrust scrutiny, the parties must still negotiate and resolve these operational issues in order for the joint venture to be viable.     

保护竞争而不保护竞争者?——对主流反垄断法观点的审视

"保护竞争而不是竞争者"被奉为反垄断法的原则。受此影响,我国反垄断法的宗旨中并不包括保护竞争者。"保护竞争而不是竞争者"被误读,通过将其还原到原始文本之中、联系上下文来考察其真正含义后,并不能得出"不保护竞争者"的结论。从反垄断法的价值体系来看,"保护竞争者"和"保护竞争"属于不同层次的价值目标,二者并不矛盾。"保护竞争而不是竞争者"最初在审理企业并购案件中提出,即便在经营者集中制度中适用,也不能任意扩展到反垄断法的其他制度,因为从垄断协议和滥用市场支配地位制度来看,对"竞争者"的保护是其必然要求。     

Tying and bundling by online platforms – Distinguishing between lawful expansion strategies and anti-competitive practices

The assessment of tying and bundling practices under Art. 102 TFEU in the case of online platforms will require adjusting current practice to correspond to their technical complexity and multi sided nature. Although the current framework may appear suitable to deal with this kind of abuses, The recent cases against Google show that there is still much uncertainty in practice. Therefore this article seeks to address the matter of tying and bundling by online platforms and provide guidance with regard to the application of the current legal framework to such complex cases in order to prevent false finding in ongoing and future cases.This article shows that finding an abuse of dominance in platform related cases requires great diligence as the joint provision of products or services and market power leveraging by platforms is an inherent part of their commercial evolvement. In this regard the article offers insight on how to distinguish between anticompetitive tying and bundling practices and legitimate expansion strategies. In order to do so, the article discusses how such practices can manifest and how they should be addressed under the framework of EU competition law in light of the similar competitive concerns they share with non-platform cases.     

万户诉讼

在中国楼市真正回暖和成熟之前，会有越来越多的购房人与地产商对簿公堂     

论一物数卖合同效力与买受人权利救济

学界主流观点不区分后买受人主观态度,主张一物数卖所涉合同均有效欠缺法理,且对恶意串通的认定存在认识偏差。只要后买受人明知先买受人的存在,则后买卖合同相对无效。先买受人未取得标的物所有权时,先买受人有权要求出卖人承担违约责任,有权要求恶意的后买受人承担侵权损害赔偿责任;先买受人行使债权人撤销权除要求后买受人主观恶意外,还需以出卖人不履行合同难以承担违约责任为前提。根据《合同法》第151条出卖人不承担权利瑕疵担保义务的规定,恶意的后买受人未取得所有权时,出卖人不承担违约责任。买受人要求出卖人承担违约责任及先买受人要求后买受人承担侵权损害赔偿责任时,责任主体的责任范围包含权利主体的预期利益在内。     

Emerging Markets: Preferences,R isks,Performance...

The paper surveys the most important literature on emerging markets and their performance. Emerging market countries are defined here as the countries with low intuitional capacity in general, rather than the countries with particular economic characteristics and per capita income; although the latter is the predominant view in the current literature. The paper places particular importance on the legal system and legal order (compliance) in the transitional economies, stressing the importance of adequate regulation where even more advanced regulatory models, like market regulation, should not be totally excluded. Despite many common characteristics, emerging markets differ significantly one from another and it is very difficult, if really not impossible, to create one ‘general theory of emerging markets’ and its financial behaviour. Finally, the practice in the last decade or so, has proven that emerging markets are somewhat unpredictable and difficult to model.     

PRICE DISCRIMINATION UNDER EC COMPETITION LAW: ANOTHER ANTITRUST DOCTRINE IN SEARCH OF LIMITING PRINCIPLES?

The main objective of this article is to shed light on the compatibilityof price discrimination with EC competition law. We offer ananalytical framework which distinguishes between different categoriesof price discrimination depending on their effects on competition.Our framework suggests that different tests are needed to assessthe lawfulness of price discrimination practices under EC competitionlaw. A related objective of the article is to show that Article82(c), the main Treaty provision dealing with price discrimination,should only be applied to the limited circumstances where anon-vertically integrated dominant firm price discriminatesbetween customers with the effect of placing one or severalof them at a competitive disadvantage vis-a-vis other customers(secondary line injury price discrimination). In contrast, Article82(c) should not be applied to pricing measures designed toharm the dominant firm's competitors (first line-injury pricediscrimination) or to partition the single market across nationallines.     

Market definition with differentiated products: a spatial competition application

This paper applies the ‘hypothetical monopolist’ test of market definition to a retail market with products differentiated by means of location and other dimensions. The test for defining the relevant product and geographic market follows the conditions required by the European Union Competition Law and so it takes into account both demand- and supply-side substitution. The empirical model using sales data from a set of movie theatres in the North of Spain, incorporating the observed locations of consumers vis-à-vis the stores, shows that empirical tests of market definition may lead to an implausible (too restrictive) definition of the relevant market if supply-side substitution is not accounted for. It also shows that the main driver of competition in retail markets with differentiated products is not price but product characteristics.     

Legal unbundling and auctions in vertically integrated (utilities) markets

This paper addresses the effectiveness of auctions and legal unbundling as regulatory measures to tender a vertically integrated industry more competitive. Specifically, I analyze if implementing auctions and legal unbundling can counter market power in an industry where a Vertically Integrated Corporation (VIC) has a monopoly position in an essential, scarce upstream activity and also owns one of the firms active in the competitive downstream activity. In an earlier paper, Van Koten (2011), I showed that in this configuration the VIC, by having its downstream firm bid more aggressively, can—through increased auction revenue—increase its profit, while disadvantaging downstream competitors and lowering efficiency. Here I analyze the regulatory measure of also legally separating the downstream firm from the VIC. I show that such a measure may only be partially effective; the VIC can formulate a simple compensation scheme that does not violate restrictions typically imposed by legal separation but induces the manager of the VIC-owned downstream firm to bid more aggressively. This increases the profits of the VIC, decreases efficiency, and disadvantages downstream competitors.     

美国反垄断法中界定“相关市场”的临界损失分析法

美国早期用来界定"相关市场"的方法没有限定市场弹性幅度,这个缺陷直到"假定的垄断者测试"产生后才得到弥补。1986年,美国改进了"假定的垄断者测试"操作方法,提出了临界损失分析法。虽然人们对临界损失分析法还存在不少争议,但它在美国和欧盟得到了越来越广泛的应用,相关判例得到了极大的丰富。     

PRICING SYSTEM AND THE ALLOCATION OF CONTRACTUAL METROPOLITAN POLICE SERVICES

The paper's main objective is to show that a market pricing system will, up to a certain output level, permit an economically efficient solution to the problem of allocating contractor's police services among the metropolitan political areas. But once additional police inputs succeed in establishing relatively low levels of criminal activity, the market mechanism will have a tendency to break down. A market dysfunction takes place because further increases of police services will not be able to elicit the expected decreases in crime. Failure of the market pricing system gives rise to an ancillary conclusion that other inputs besides police are needed to wage a successful battle against the rising levels of criminality.