FORM- VERSUS EFFECTS-BASED APPROACHES TO THE ABUSE OF A DOMINANT POSITION: THE CASE OF TICKETMASTER IRELAND

The paper applies a form-based and an effects-based approachto determine whether allegations that TicketMaster Ireland'sexclusive contracts with the two leading promoters on the islandof Ireland resulted in high or excessive prices for the ticketingservices provided by TicketMaster Ireland to consumers. Theform-based approach strongly supported the allegations of highprices based on exclusive contracts, while the effects-basedanalysis found, correctly, that countervailing buyer power,efficiencies and other factors meant that TicketMaster Irelandwas neither dominant nor that its conduct was anticompetitive.The paper concludes with some suggestions as to the more generalimplications for the burden of proof in such exclusive contractcases.     

Institutionalizing Industry: The Changing Forms of Contract

A replication of Macaulay's 1963 study of Wisconsin manufacturers shows that manufacturers are using a new type of contract to govern changed transactions and to establish new form of industrial organization. This article seeks to specify these changes and to demonstrate their theoretical significance by constructing an empirically and theoretically informed analytical framework. This framework establishes relations of meaning between discrete contracts, job shop production, and classical contract law; between openterm contracts, mass production, and neoclassical contract law; and between long-term agreements, flexible production, and a "shadow" relational contract law. It demonstrates that long-term agreements constitute a new device for governing exchange, that they are part of a broader change from mass production to flexible production, and that their distinctive features are not recognized by neoclassical contract law.     

论我国台湾地区的法定停车位制度及其启示

我国台湾地区法定停车位是法律规定开发商在修建区分所有建筑物时必须设立的最低数额的停车位。其在法律权属上被强制划定为共有部分,但开发商可以通过拟制分管契约的方式为业主设定对特定停车位的专有使用权。业主享有的专有使用权只能依附于专有部分而存在,权利的行使也需要受到法律的限制。我国台湾地区法律还创设了完备的登记制度,有力地保护了区分所有建筑物功能的完整性和业主对于特定停车位的专有使用权。借鉴我国台湾地区的经验,在我国的立法当中应当明确停车位所在空间的性质,并通过制度安排,将业主所购买的车位权利合法化;此外,还应完善并统一不动产登记制度,使停车位的权属与让与制度获得公示效力的保护。     

Dangerous information: product tampering and poisoning advice in revenge and murder manuals

This paper reviews 18 publications that advocate the use of product tampering and other poisoning methods as techniques for exacting revenge against individuals and corporations, as methods of committing murder, and for other criminal purposes. Several of the particular techniques recommended in these publications subsequently have been used in criminal tampering incidents. The published sources of technical guidance for the would-be tamperer and poisoner are examined in detail to alert forensic scientists, law enforcement authorities, and the food and drug industry to the particular techniques that are being advocated. Possible criminal and civil liability of the publishers and authors is discussed. The author suggests that food and drug retailers consider the wisdom of selling magazines that advertise the availability of revenge and murder manuals advocating product tampering and poisoning, that food and drug manufacturers test the effects on their products of the contaminants that are being recommended, and that investigators be alert to the existence of such manuals and mail-order suppliers of poisons.     

Closed Distribution Networks and E-commerce: Antitrust Issues

Closed distribution networks (ie exclusive or selective distribution networks) have to integrate the development of the internet, particularly in sectors such as fine fragrances or new cars sales. Producers (ie Chanel or Volkswagen) cannot ignore that their products are potentially available on the web. Considering the relationships between producers and their off-line dealers, the question is to know if these dealers could be authorized to resell the products on their own website. In each sector, producers have to adapt their distribution contracts for e-commerce. In a previous paper (published in the Journal of Information, Law and Technology , 2000, No 2) we conclude that electronic points of sales must respect criteria used for physical points of sales, but with some adaptations. The major issue for producers is to build legally secured contracts in order to manage both off-line and on-line distribution networks. But the adaptation of traditional distribution contracts cannot ignore the antitrust framework, especially in the European context, since the new Block Exemption Regulation No 2790/99 on Vertical Restraints has been published. Producers' strategies within the European Union must take into account potential competition restraints implied by their contract policy. When drafting their contracts for e-commerce opportunities, producers have to deal with the legal standing of their networks within the European antitrust law. In this paper, our purpose is to analyze implications of the on-line distribution strategy that could be drawn up by a producer from the European competition law viewpoint. We determine opportunities and constraints presented by the Guidelines from a producer's point of view, and we examine whether European competition law does offer any interesting 'room for manoeuvre' for producers who develop closed distribution networks. We also identify what kind of elements could lead to a withdrawal of the benefit of the Block Exemption Regulation No 2790/99; we show that this withdrawal could arise from a market share evaluation, or from the disproportion between competition restraints (stemming from the distribution contract clauses) and the necessity of an economic progress within the European Commission (EC).     

Restraint of trade through hospital exclusive contracts: an economic appraisal of the legal theory

The growth of antitrust litigation in the health care area reflects the developing consensus that competition is as powerful a force in health care as it is elsewhere in the economy. Exclusive contracts between hospitals and hospital-based physician specialists have been prominent among the contested practices. Challenges to these arrangements uniformly assert an injury to competition; for example, that the contracts are a means of gaining monopoly power in some market. But these claims have lacked a solid theoretical basis for general hostility to exclusive dealing of this sort. This article describes several economic considerations that are fundamental to an analysis of this contractual phenomenon. These considerations imply that there is no general economic basis for suspicion, and that the circumstances under which suspicion would be warranted are likely to be rare.     

Letter to manufacturers of blood establishment computer software products--FDA. Notice

The Food and Drug Administration (FDA) is publishing a letter sent to known manufacturers of blood establishment computer software products. In the letter, FDA advised these manufacturers that it considers these computer software products to be devices under the Federal Food, Drug, and Cosmetic Act (the act) because these products aid in the prevention of disease by identifying unsuitable donors and preventing the release of unsuitable blood and blood components for transfusion or for further manufacturing use. The letter, accompanied by a registration package and device listing was intended to notify manufacturers of the requirements of the act, to facilitate registration of these manufacturers as medical device manufacturers, and to further ensure the safety of the blood supply.     

A Framework for Integrating External Information into New Product Development: Lessons from the Medical Technology Industry

Only the best manufacturers will remain competitive in today's challenging environment. Any manager involved with developing new products knows the excitement, complexity, and risk of this unpredictable undertaking. Based upon findings from four world class manufacturers of medical imaging technology in Japan and the United States, this article presents a new organizing framework for integrating external information into the NPD process. The findings are particularly timely in an era when manufacturers are vulnerable to intense global competition. The article concludes with several implications for managers involved in the new product development process.     

自然人书面契约取信方式研究

印章文化在我国源远流长,其中公章自古至今为实用而治,私章则经历了一个从实用到艺术的转变过程。我国古代书面契约的取信方式历经变化,但私章讫未成为公认的取信手段。西方国家在法律史上曾有盖印取信的制度,但当今通行的法定取信手段则是签名。我国现行法上的书面契约取信方式兼采签名和盖章。私章自身的内在局限及签名取信的多维优势,决定了签名取代私章的必然。自然人主体书面契约的取信方式统一于签名,是法律体系内部相协调的需要,并可以获得法律解释理论上的有力支撑。     

索赔还是勒索：民刑分界的模糊地带——如何区别消费纠纷中的“维权过度”与敲诈勒索

在消费者与经营者由于产品质量问题发生纠纷时,消费者以遭受损害为由,以通过媒体曝光或者以其他方式向社会公开相要挟,向商家提出天价索赔的现象屡有发生。司法实践中,有些司法机关将此类行为定性为“维权过度”,不作为犯罪处理;也有的司法机关将其作为敲诈勒索罪追究刑事责任。理论界也有不同观点的争鸣,无罪论者认为对“维权过度”行为定罪违背了刑法的谦抑性,损害了消费者维权的积极性;有罪论者则认为,消费者非理性维权,侵犯了经营者的合法财产权,破坏了法律秩序,应当作为犯罪处理。考察域外立法及司法对此类行为的认定,对维权过度型敲诈勒索行为进行分类甄别,区别不同情形做出处理,以期切实保障消费者和经营者的合法权益,实现刑事司法的法律效果与社会效果的统一。     

The Need for Effective Dialogue

In common with some other work on the topic of theft of electronic products, the approach of project MARC is to lay considerable responsibility for these crimes at the door of the electronics manufacturers. This seems misplaced and appears to stem from an insufficient appreciation of the nature and drivers of the global consumer electronics market and an ineffective dialogue with the manufacturers. Many options for additional security are possible, but the global nature of the market, the ever-diminishing product lifetimes of electronic products and consumer reluctance to ascribe a high value to such features complicates their introduction. Thought should be given to the establishment of a new quasi-official body to bring together the stakeholders to create a constructive dialogue between interested parties.     

核损害民事责任中的责任集中原则

责任集中是指在有复数责任主体的场合,法律只规定由其中之一承担赔偿责任,而其他责任人则不直接对受害人承担损害赔偿责任的制度。有关核损害责任国际公约以及各国核损害责任立法,均采用这一法律制度。核损害责任法律制度实行惟一责任或责任集中的原则,将核事件的责任全部归结于核营运人,其他任何人包括制造商或供应商等都不承担责任。这一原则充分体现了保护受害人利益和促进核工业发展的指导思想。     

Extending due process protections in managed care credentialling to hospital privileges

The Article analyzes two recent state court decisions granting due process rights to physicians deselected from managed care networks. The author applauds these decisions and argues that managed care organizations wishing to deselect a physician should be required to demonstrate (1) that they have a legitimate reason for doing so relating to quality of care, economic factors, or administrative considerations, and (2) that the deselection will not unduly affect the quality of healthcare available in the network. In addition, the author contends that these same due process requirements may be applied to the closely analogous area of hospital staff privileges in situations in which the privileges of hospital-based practitioners are tied to employment, or the grant or termination of exclusive contracts.     

The identification of Isopar H in vinyl flooring

Vinyl flooring manufacturers use plasticizers to decrease the viscosity and increase the pliability of vinyl. Several ignitable liquid plasticizers used in the manufacture of vinyl flooring were identified and investigated in this study. Twenty-nine collections from five major vinyl manufacturers, a total of 72 samples, were analyzed using passive headspace concentration in accordance with the American Society for Testing and Materials (ASTM E 1412-00) and gas chromatographic-mass spectrometric (GC-MS) analysis as described in ASTM E 1618-01 (1,2). Norpar products and TXIB (2,2,4-trimethyl-1,3-pentanediol diisobutyrate) are ignitable liquids common to the manufacture of vinyl flooring and were identified in all recently obtained samples. Isopar H is an ignitable liquid found in various products such as charcoal starters, copier toners, and some solvents (2). Of the 29 collections analyzed, Isopar H was only identified in Armstrong's Interflex-Traditions pattern.     

Basic concepts and issues: a primer on distribution and sales representative agreements in the medical device and durable medical equipment industries

Counsel for a manufacturer of medical devices or durable medical equipment must have working knowledge of various legal disciplines to draft contracts with intermediaries (sales representatives and distributors) for the marketing and sale of the manufacturer's products. If the manufacturer wishes to sell its products abroad, counsel must become familiar with the laws and business practices of the target country, and methods of gaining access to the foreign market. This Article gives readers an overview of the applicable legal principles, under U.S. and foreign laws, in the areas of agency, contracts, healthcare regulation, consumer protection, intellectual property protection, and dealer protection. To aid counsel in drafting intermediary agreements, specific contractual terms and issues are explored in depth, including: appointment clauses, performance provisions, provisions concerning pricing and payment, protective clauses (shielding the manufacturer from liability), term and termination provisions, independent contractor clauses, export control clauses, recordkeeping and audit provisions, choice of law clauses, and dispute resolution clauses.     

医疗机构在医药产品侵权中的责任研究——以中外对比研究为重点

由于医药产品在医疗活动得到了广泛应用,医药产品侵权问题也成为一个热点问题。世界各国对医疗机构在有缺陷的医药产品侵权中是否承担责任以及如何承担责任主要有两种做法：一是,医疗机构作为医疗服务的提供者不承担产品责任,而由产品的生产者和销售者按照严格责任原则承担产品责任。这一做法以英国和美国为代表。二是,医疗机构通过提供医药产品获得经济,其行为性质与销售无异,因而与产品的生产者、销售者按照严格责任原则承担连带责任。这一种做法以欧盟为代表。笔者认为,我国《侵权责任法》采第二种做法。本文采用共同侵权的连带责任原理对《侵权责任法》的相关规定进行分析。连带责任产生外部法律效果和内部法律效果。就外部法律效果而言,对医疗机构和生产者同时适用产品责任的严格责任原则,患者既可以向生产者请求赔偿,也可向医疗机构请求赔偿。就内部法律效果而言,对医疗机构和生产者分别适用过错原则和产品责任的严格责任原则,即医疗机构在经患者请求赔偿其损害后,如果对医药产品的缺陷没有过错,可以向生产者追偿。我国《侵权责任法》的规定在倾斜保护患者利益的同时,有可能产生负面影响。医疗机构应当积极应对。     

要物合同之困及其出路:理论变迁的视角

中世纪以来的法学家在构建合同理论时一方面进行着体系化的尝试,另一方面继承了具有罗马法传统的要物合同制度。但在提炼合同一般理论的进程中,要物合同制度逐渐脱离了其原来的生存土壤。尽管不断被赋予新的时代含义,具有鲜明个性的要物合同与具有高度抽象性的合同一般理论仍有明显冲突。要物合同的成立区别于合意主义的一般原理甚至难见容于其体系成为要物合同之困。为化解此危机,追溯其产生渊源及流变有着重要意义。     

Current good manufacturing practice in manufacturing, processing, packing, or holding of drugs; revision of certain labeling controls--FDA. Final rule

The Food and Drug Administration (FDA) is amending the current good manufacturing practice (CGMP) regulations for human and veterinary drug products to revise certain labeling control provisions. Specifically, the final rule defines the term "gang-printed labeling," specifies conditions for the use of gang-printed or cut labeling, exempts manufacturers that employ automated 100-percent labeling inspection systems from CGMP labeling reconciliation requirements, and requires manufacturers to identify filled drug product containers that are set aside and held in an unlabeled condition for future labeling operations. These changes are intended to reduce the frequency of drug product mislabeling and associated drug product recalls.     

药品说明缺陷的法律分析

文章根据产品责任法理论阐述了药品缺陷的含义以及我国对药品说明的有关规定;并根据药品的特殊性,深入分析了药品说明缺陷的判断因素,以及认定药品说明缺陷的注意问题,有助于药品生产者、经营者、医师、药师等在产品和医疗服务中规范行事。提出在司法实践中,要确认生产者、销售者或医师是否存在说明缺陷,应对药品的说明对象、说明方式以及说明时间、说明的充分性以及对明显或众所周知的危险进行警告等方面进行综合考虑评估。