Company Liability and Competition Law: Exposure of Company to Risk of Undesirable Behaviour of Directors

In order to protect the objectives of competition policy, companies as undertakings are primarily targeted for the competition law infringements based on the mixed approach of compliance and deterrence theories relying on the view that company directors are incentivised to comply with the rules of competition law by the internal compliance programmes and corporate fines are the consequences of incompliance. This enforcement strategy gives rise to a tension between corporate governance, company law and competition law, as the former two focus on the behaviour of individuals within the corporate structure, while the latter concerns the impact of the company’s behaviour in the market. The question that arises in this tension is whether or to what extent competition law actually considers the way in which the company is run internally while it seeks to promote these primary objectives. This article analyses the deterrent effectiveness of primary enforcement strategy employed in the UK competition law regime and argues that competition law does not tend to localise the source of conduct or particular decisions and does not aim to correct the right wrongdoer. Despite that lack of effectiveness of public enforcement strategy to deter further anti-competitive behaviour has led individual sanctions to be introduced by the Enterprise Act 2002 and the Enterprise and Regulatory Reform Act 2013 in the UK, companies are still primarily targeted by corporate fines even though directors have intentionally breached the rules of competition law and this strategy is unlikely to deter directors from engaging with undesirable behaviour which exposes the company to risk of liability and loss.

     

Infant class sizes in the new admissions framework: a devolution of power

It was one of the major planks of the Blair government's legislative programme that it would set a limit on school class sizes for the youngest children. While the objective of reducing class sizes no doubt has much to recommend it from the point of view of raising educational standards, it is also inevitable that parental choice of school, already emasculated, will be limited even further. It is particularly likely to be borne out in practice wherever governing bodies and head teachers are insufficiently aware of the ramifications of all the other rules and regulations enacted alongside the ‘30 pupil’ limit. Nevertheless, it will be argued in this article that, if head teachers and governing bodies are prepared to persevere with the small print of the Act and the extraordinarily convoluted regulations and departmental Codes of Practice, circulars and guidance issued along with it, then there is a case for saying that the new infant class size limit can—when coupled with other changes in the law introduced by the School Standards and Framework Act (SSFA) 1998—sometimes be used as a tool both to increase the devolution of power down to individual schools and to improve parental choice     

WTO体制下中国商事组织法三大变革析论

中国商事组织法存在的创新机制缺失、身份立法、经营范围僵化等问题,不仅使我国商事组织在加入WTO后更为激烈的国际竞争中处于不利地位,而且构成中国履行相关国际承诺的障碍。为此,应在肯定商事组织法原有原则的前提下弱化法定原则、确立国民待遇原则和规则效率原则,并在根据新原则对中国商事组织权利能力和行为能力制度重构的基础上,设计商事组织经营范围和外贸经营权的改革方案,具体讲,就是应废除三资企业法、《全民所有制企业法》、《乡镇企业法》和《私营企业暂行条例》,将其所调整的商事组织分别归属于《公司法》、《合伙企业法》和《个人独资企业法》,并引进有限合伙、有限责任合伙等形式丰富我国合伙企业的类型。     

Interim rules for group health plans and health insurance issuers under the Newborns' and Mothers' Health Protection Act--IRS; DoL; HCFA. Interim rules with request for comments

This document contains interim rules governing the Newborns' and Mothers' Health Protection Act of 1996 (NMHPA). The interim rules provide guidance to employers, group health plans, health insurance issuers, and participants and beneficiaries relating to new requirements for hospital lengths of stay in connection with childbirth. The rules contained in this document implement changes to the Employee Retirement Income Security Act of 1974 (ERISA) and the Public Health Service Act (PHS Act) made by NMHPA, and changes to the Internal Revenue Code of 1986 (Code) enacted as part of the Taxpayer Relief Act of 1997 (TRA '97). Interested persons are invited to submit comments on the interim rules for consideration by the Department of the Treasury, the Department of Labor, and the Department of Health and Human Services (Departments) in developing final rules.     

New Directions in EC Competition Policy: The Case of Merger Control

Abstract:  This article examines two new directions of EC competition law, by taking the example of Merger Control. The first is factual, since the Commission has accepted an increased role for economic analysis under the new Regulation. The second examines the role that EC competition law could play in the achievement of the Lisbon Strategy objectives. At present, both directions interact with one another, as the importance and the aims of competition rules depend to a large extent on the economic theory when applying legal rules. Traditionally, the EU has rejected the creation of an industrial policy that is considered to be inefficient. But the intensification of international competition has to induce the EU to open up the debate in relation to the meaning to be attributed to a 'European industrial strategy'. To accomplish a 'dynamic and competitive' European economy, current policies, mainly competition policy, should consider taking into account international competitiveness by resolving the question of the economic theoretical context used to review mergers.     

Interim final rules for nondiscrimination in health coverage in the group market. Internal Revenue Service, Department of the Treasury; Pension and Welfare Benefits Administration, Department of Labor; Health Care Financing Administration, Department of Health and Human Services. Interim final rules with request for comments

This document contains interim final rules governing the provisions prohibiting discrimination based on a health factor for group health plans and issuers of health insurance coverage offered in connection with a group health plan. The rules contained in this document implement changes made to the Internal Revenue Code of 1986 (Code), the Employee Retirement Income Security Act of 1974 (ERISA), and the Public Health Service Act (PHS Act) enacted as part of the Health Insurance Portability and Accountability Act of 1996 (HIPAA).     

Directors’ duties under the 2019 Companies Act of Ghana

The scope of directors’ duties forms perhaps the most important part of corporate governance. This paper considers the trajectory of the regulation of directors’ duties under Ghanaian company law from the Companies Act, 1963 (Act 179) to the Companies Act, 2019 (Act 992). Using the 2017 to 2019 financial institutions’ insolvencies in Ghana as a backdrop, it considers whether the scope, formulation and structure of directors’ duties within the new legislation is capable of promoting corporately-beneficial director behaviour. It also discusses whether the framework is apt to deal with similar lapses in corporate governance marked by reckless and opportunistic director behaviour. It discovers that Act 992 places a greater reliance on specific rules while retaining the largely principles-based regulatory technique adopted for regulating director conduct under Act 179. The overall tenor of the framework of directors’ duties under the new Act points to a firmer legislative view of the serious consequences of reckless director conduct. The paper concludes that the language of the framework regulating director conduct is capable of promoting corporately beneficially director behaviour and is also apt to deal with the kind of lapses in corporate governance which led to mass financial sector insolvencies in Ghana.     

This Time,it's for Real: The Health and Social Care Act 2012

This article examines the Health and Social Care Act 2012 and associated reforms to the National Health Service in England. It focuses on the Act's policy of making the NHS market more ‘real’, by both encouraging and compelling NHS bodies to act as ‘market players’. The article considers whether the reforms are compatible with the constitutional requirements of accountability for the provision of a public service such as the NHS. It argues that the reforms threaten accountability for three reasons: they make the Secretary of State for Health's relationship with the NHS more complex, they create opaque networks of non‐statutory bodies which may influence NHS decision‐making, and (especially in relation to competition) they ‘juridify’ policy choices as matters of law. Taken together, these arguments suggest that there is force in the claim that the reforms will contribute to ‘creeping’ – and thus unaccountable – privatisation of the NHS.     

Medical devices; exemption from premarket notification and reserved devices; class I. Food and Drug Administration, HHS. Final rule

The Food and Drug Administration (FDA) is amending its classification regulations to designate class I devices that are exempt from the premarket notification requirements, subject to certain limitations, and to designate those class I devices that remain subject to premarket notification requirements under the new statutory criteria for premarket notification requirements. The devices FDA is designating as exempt do not include class I devices that have been previously exempted by regulation from the premarket notification requirements. This action is being taken under the Federal Food, Drug, and Cosmetic Act (the act), as amended by the Medical Device Amendments of 1976 (the 1976 amendments), the Safe Medical Devices Act of 1990 (SMDA), and the FDA Modernization Act of 1997 (FDAMA). FDA is taking this action in order to implement a requirement of FDAMA. Elsewhere in this issue of the Federal Register, FDA is announcing that it is withdrawing proposed rules to revoke existing exemptions from premarket notification for two devices.     

Stalemate in the States: Agenda Control Rules and Policy Output in American Legislatures

This article examines how the power of majority‐party leaders to set the legislative voting calendar influences policy change in American state legislatures. By generating an opportunity for party leaders to exercise gatekeeping or negative agenda control, such rules introduce an additional partisan veto player into a system of governance. This addition typically increases the size of the core or gridlock interval, which drives policy change downward. Using both traditional data on bill passage counts and new data on Affordable Care Act compliance, I find strong support for these claims. More specifically, when I calculate core sizes that are sensitive to agenda rules, I find that agenda‐control‐adjusted core size is negatively correlated with policy change, as expected. Moreover, even when I match states on their overall preference dispersion or polarization, the ability of party leaders to exercise negative agenda control is strongly negatively associated with policy change.     

Interim rules for mental health parity--IRS, DoL, HCFA. Interim rules with request for comments

This document contains interim rules governing parity between medical/surgical benefits and mental health benefits in group health plans and health insurance coverage offered by issuers in connection with a group health plan. The rules contained in this document implement changes made to certain provisions of the Internal Revenue Code of 1986 (Code), the Employee Retirement Income Security Act of 1974 (ERISA or Act), and the Public Health Service Act (PHS Act) enacted as part of the Mental Health Parity Act of 1996 (MHPA) and the Taxpayer Relief Act of 1997. Interested persons are invited to submit comments on the interim rules for consideration by the Department of the Treasury, the Department of Labor, and the Department of Health and Human Services (Departments) in developing final rules. The rules contained in this document are being adopted on an interim basis to ensure that sponsors and administrators of group health plans, participants and beneficiaries, States, and issuers of group health insurance coverage have timely guidance concerning compliance with the requirements of MHPA.     

Privatization in Poland: Politics,Society, and the Law*

The paper presents the beginning and the initial results of the process of privatization in Poland. Starting from the summer of 1990 it examines the political debate on the Privatization Act and corresponding social reaction. It shows how the society answers such important questions as: who, and on what principles, is to take over the hitherto state-owned property? The next question is on the content of the “social contract on privatization”: the legal starting point and the first empirical results. It appears that the most visible social effect was the growth in the inequalities between workers and the elites of the society. The role of workers in the process of transformation is also of special interest. Finally, the paper examines the role of privatization law, which on the one hand presents a compromise between the ruling class and the society and on the other hand has been replaced by current privatization policy.     

Choice of Law in Tort—Blending in with the Landscape of the Conflict of Laws?

The reformed choice of law in tort rules contained in the Private International Law (Miscellaneous Provisions) Act 1995 have proved a source of great controversy. This piece attempts to show that there are wider concerns fuelled by the Act. It seeks to demonstrate that one can not reform one area of the Conflict of Laws (such as choice of law in tort) in isolation from other areas (such as jurisdiction in tortious matters and choice of law in contract) and to illustrate the unsatisfactory state that the statutory reforms have had on these other areas. The analysis of the problems generated by the Act may be used as a model for a far more fundamental proposition: namely that the tendency to regard choice of law and jurisdiction as separate areas throughout the Conflict of Laws, rather than as combining to form a coherent law of international litigation, is a critical shortcoming of the study of the subject.     

国际私法中强制性规范的界定——兼评《关于适用<涉外民事关系法律适用法>若干问题的解释(一)》第10条

《涉外民事关系法律适用法》第4条于我国国际私法中首次明确规定我国法律的强制性规定应予直接适用。作为多边选法体系的例外,强制性规范理论在适用中最核心的问题之一,是识别哪些规范属于需要直接适用的国际强制性规范。国际私法中的强制性规范仅指国际强制性规范。比较法上提出界定国际强制性规范的客观标准和主观标准,随之产生仅采客观标准和兼采主客观标准两种立法模式。《关于适用<涉外民事关系法律适用法>若干问题的解释(一)》第10条对何为我国法律的强制性规定进行了定义,并以不完全列举的方式来解决可操作性问题,但在理论和实践方面仍存在缺失。     

公司章程修改案两种裁判思路评析

目前法院处理公司章程修改案中出现两种完全不同的裁判思路:一种是主张尊重修改章程法定程序的效力,仅对程序的结果即股东会决议内容进行合法性审查;另一种则主张直接从程序入手,要求特定事项的章程修改必须经全体股东同意才有效。哪一种主张更合理,存在争议。通过梳理裁判思路背后的学理基础,发觉前一思路自由裁量依据不足,而后一裁判思路直接与公司法上的程序规则相冲突,具有合理性而又不具合法性。因此,需要从立法上根本解决公司章程修改案的司法裁判难题。具体而言,立法可以考虑借鉴西方发达国家超级多数决和类别表决制度来完善现行《公司法》上的多数决规则,从而增强其对中小股东的保护能力。     

John Vincent’s Reading at Gray’s Inn, 1668/9, on the Merchants’ Assurances Act 1601

In Lent Term 1668/9, John Vincent, a bencher of Gray’s Inn, gave a reading on the Merchants’ Assurances Act 1601 (43 Eliz. I, c.12). The notes of the law reporter, Joseph Keble, record this observance of the centuries-old tradition of readings, which was destined to expire within the next two decades. This paper situates Vincent’s reading within the changing tradition of readings in the seventeenth century. It highlights the role readings continued to play in disseminating sophisticated legal learning, particularly in relation to newer areas of practice such as marine insurance, which were largely uninformed by statute, common law precedent or reference works, and would have been difficult to master through book-study alone. It examines a selection of issues discussed during the reading, focussing on legal outcomes grounded in the ‘customs’, usages, practices and understandings of merchants, and illustrating how these were perceived as exceptional by comparison to the ordinary rules of the common law. The nature and jurisdiction of London’s court of assurances, reconstituted and empowered by the 1601 Act, are also discussed. More generally, this paper demonstrates the value of post-Restoration readings for historians of English law in the late seventeenth century.     

The public interest dimension of the single market for data: Public undertakings as a model for regulating private data sharing

Data plays a crucial role for society. Accordingly, building a ‘single market for data’ by increasing the availability of public and private data ranks high on the EU policy agenda. But when advancing legal data sharing regimes, there is an inevitable need to balance public and private interests. While the European Commission continues to push for more binding rules on data sharing between private businesses, public undertakings are already covered by mandatory rules. Exploring how the law addresses their data offers valuable lessons on the reconciliation of market reasoning with the public interest. In particular, this article inquires into the recast Open Data and Public Sector Information Directive, the Data Governance Act, and different national rules which regulate access to and re-use of public undertakings' data. It identifies five striking characteristics and discusses their potential and limitations for regulating data sharing by private undertakings. The implications serve as a guidepost for advancing the wider debate on building a single market for data in the EU. Some of them are already reflected in the upcoming EU Data Act.     

THE STOCHASTIC RELATIONSHIP BETWEEN PATENTS AND ANTITRUST

This article develops a novel theory by which to construe theinteraction between the patent and antitrust laws. The rulesof these respective disciplines are often portrayed as conflictingin means, yet harmonious in purpose. Although the intellectualproperty and antitrust laws have ostensibly divergent viewson the role of competition, their interaction is typically limitedto one of constraint. More specifically, antitrust rules havebeen (poorly) designed to limit the exclusivity inherent ina patent grant to the claimed invention alone. This article,however, articulates a new vision for the role of antitrust:it posits that competition rules operate as a stochastic regulatorof exclusionary patent rights. The Sherman Act constrains patentees'efforts to positively transform the probabilistic nature oftheir intellectual property rights through contract. Yet, becausethe empirical calculation of optimal innovation rates is anelusive, if not Sisyphean, task, the normative desirabilityof the foregoing fact is abstruse. Nevertheless, policymakers'inability to pinpoint precisely the ex post rewards requiredto trigger ideal levels of ex ante investment need not bindour hands to inaction. If contemporary rates of innovation aredeemed acceptable (even if not necessarily perfect), there maybe ways to trigger equivalent levels of ex ante investment withlower social cost. In this regard, it is clear that currentlyenacted competition rules significantly accentuate the uncertaintysurrounding patents' apotropaic effect. Concluding that contractssecuring otherwise stochastic rights may be highly desirable,the article calls for the incorporation of this concern intocontemporary rules, with modest substantive effect, and furtheradvocates a qualified antitrust immunity for "gold-plated" patentsif and when they are introduced.     

Exemption of work activity as a basis for a continuing disability review. Final rules

We are publishing these final rules to amend our regulations to carry out section 221(m) of the Social Security Act (the Act). Section 221(m) affects our rules for when we will conduct a continuing disability review if you work and receive benefits under title II of the Act based on disability. (We interpret this section to include you if you receive both title II disability benefits and title XVI (Supplemental Security Income (SSI)) payments based on disability.) It also affects our rules on how we evaluate work activity when we decide if you have engaged in substantial gainful activity for purposes of determining whether your disability has ended. In addition, section 221(m) of the Act affects certain other standards we use when we determine whether your disability continues or ends. We are also amending our regulations concerning how we determine whether your disability continues or ends. These revisions will codify our existing operating instructions for how we consider certain work at the last two steps of our continuing disability review process. We are also revising our disability regulations to incorporate some rules which are contained in another part of our regulations and which apply if you are using a ticket under the Ticket to Work and Self-Sufficiency program (the Ticket to Work program). In addition, we are amending our regulations to eliminate the secondary substantial gainful activity amount that we currently use to evaluate work you did as an employee before January 2001.