Regulatory Competition: A Private International Law Approach

This article analyzes the regulatory competition model (RCM) from a private international law perspective. This perspective helps us identify and resolve two gaps in the standard explanation of the RCM. According to the standard explanation, two conditions must be fulfilled for the market of legal products to function well: (1) free movement of resources (persons, capital, and goods); (2) the absences of cross-border externalities. In relation to this second condition, the standard model argues that a uniform material rule is necessary to overcome cross-border externalities. The main thesis of this article is that a private international law approach can complete this model by adding two ideas. First, a smooth functioning of the market-of-legal products requires, not only the free movement of resources, but also a uniform private international law system which guarantees the autonomy of the parties (free choice of law) and the procedural implementation of this autonomy (free choice of forum and free movement of judgments). And second, a uniform material law, which wipes out the regulatory market, is not essential to deal with the externality problem; rather a uniform conflict-of-laws rule, which leads to the internalization of cross-border externalities by states, can correct at least some of the externalities problem and also maintains the regulatory market.     

Reflexive Governance and European Company Law

The use of reflexive forms of governance is growing within the EU, in particular as the open method of coordination (OMC) is applied to a wider range of contexts. Reflexive approaches view diversity of laws and practices across the Member States as the basis for experimentation and mutual learning within the overall process of European integration. Company law, however, seems to be an exception to this trend: recent activity in this area has mostly taken the form of 'hard law' harmonisation through directives, coupled with the stimulation of regulatory competition through judgments of the European Court of Justice concerning freedom of movement, most notably the Centro s case. The deliberations of the European Corporate Governance Forum barely qualify as a 'company law OMC' because of the limited space allowed for 'learning from diversity'; instead, differences in the laws of the Member States are seen, in the discourse of the Forum, as 'distortions of competition'. In the area of labour law, by contrast, a degree of functional convergence and a coordinated raising of standards have recently been achieved by the dovetailing of the OMC with social policy directives. The contrasting experiences of labour law and company law suggest that reflexive or experimentalist approaches to European governance can be effective when they operate so as to complement mechanisms of harmonisation and regulatory competition, rather than being presented as alternatives to them.     

激烈竞争下的变革:公司法判例法方法的引入

我国《公司法》2005年的修改拉开了公司法现代化的序幕。在大量借鉴和引入西方先进公司法制度的同时,我们应审视我国公司法发展和变革轨迹。目前,西方国家公司法发展和竞争的良好态势使学习和借鉴一些判例法国家的先进公司法律制度成为首选,但是,一味将这些属于舶来品的制度进行盲目借鉴,必将导致产生一些不可预知的后果,我国的公司法改革也将可能因此而误入歧途。这就有必要在我国现有公司成文法体系的基础上,适时引入产生先进公司法律制度的方法和途径即判例法方法,以有效推进有中国特色公司法的改革,使我国公司法既能满足自身制度发展的内在需求,也能够沉着应对潜在的区域公司法的制度性竞争,为今后我国公司法的不断改进和迅速发展奠定良好的体系性基础。     

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.

     

European Corporate Laws, Regulatory Competition and Path Dependence

Beyond the well-known discussion in regard to the Cassis de Dijon of the European Court of Justice, implying the mutual recognition of national product regulations, the topic of mutual recognition and regulatory competition has emerged again in the realm of European corporate laws (“Centros” of the ECJ in 1999). Can effective competition among European corporate laws be expected? In the US a broad discussion has developed whether the existing competition process among US corporate laws leads to permanent legal improvements by legal innovations or to a race to the bottom. Beyond this discussion a new point has been raised recently: the possibility and importance of path dependence as a potential problem for the efficacy of competition among corporate laws (lock-ins). For the analysis of this problem we apply the concept of technological paradigms and trajectories to legal rules in corporate law and introduce “legal paradigms,” which direct the search for better legal solutions in certain directions and might be stabilized by certain factors (esp. complementarities to other legal rules) leading to considerable path dependence effects. Our results show that path dependence might play a crucial role for competition among European corporate laws, even if the principle of mutual recognition would be introduced to corporate laws in the EU, implying that competition among European corporate laws might be difficult and sluggish. Consequently the question arises whether additional meta-rules should be established that might mitigate the problem of path dependence and lock-ins in regulatory competition in corporate law.     

欧洲竞争法故事中的某些德国角色

在为我的挚友和著名学者———沃尔夫冈·费肯舍尔的纪念文集选择论文题目的时候 ,我选择了一个和他一起多次讨论过并且关涉他抱有很多兴趣的领域的题目。我知道 ,如果由他撰写这篇文章 ,他对这一题目的认识毫无疑问要比我深刻得多。本文目的是简要论述德国人以其思想和实践影响欧洲竞争法的某些方式。〔 1〕 因为这些影响对欧洲竞争法的发展起着关键的作用 ,而竞争法对欧洲一体化的进程是至关重要的 ,对这些影响即便作一个简单的探讨 ,也是很有价值的。〔 2〕一　故　事为了评论德国人的角色 ,我首先得简要概括一下这个故事。如果说有一个…     

全球化中的欧洲竞争法

跨国公司、国际性的企业合并以及世界市场这些经济全球化的概念 ,也已经成为竞争法和竞争政策中的概念。〔 1〕对企业合并和合作等事件的评价 ,通常涉及到若干国家的司法管辖权。这对欧盟和美国以及欧盟和日本关系的发展具有特别重要的意义。然而 ,随着社会主义计划经济退出历史舞台和中国经济的逐步开放 ,跨国直接投资和国际企业合并已经成为世界性的现象。经济全球化在竞争政策和竞争法上的重要表现即是世界性大公司之间的“巨型合并”。〔 2〕这是企业为适应日益扩大的市场 ,为适应技术条件、竞争政策和财政经济条件的根本改变而采取的策…     

欧共体竞争法与成员国竞争法关系初探

由于均对各自适用范围做扩张性解释,因而欧共体竞争法与成员国竞争法在适用范围上不可避免地产生了重叠, 二者构成了一利双重控制体系。但这种双重控制体系又是有条件的双重控制体系,即当二者之间有冲突时,应以共同体竞争法的效力为优先。随着统一大市场的形成以及从属原则被确立为欧盟法的基本原则,这种双重控制体系面临瓦解的可能,在未来有必要对两套法律体系的适用范围进行重新划定,从而使其各行其是,互不干涉,而且预计成员国竞争法的地位会得到相应提升,并发挥其应有的作用。     

中国竞争法的制定:欧洲和美国的经验

像其他领域一样 ,中国目前正在抓紧制定符合自己的制度、传统和目的的竞争法。虽然盲目移植任何模式的法律都是不可取的 ,但在决定制定竞争法的时候 ,中国的决策者至少应考虑一下其他国家已经形成的一些概念和制度。本文将论述中国制定竞争法的过程中应有的关键性决策以及作出决策时应如何借鉴国外的经验。这里我并不是指明中国的决策者应该做什么 ,我的预见作用是很小的。我主要是对中国有可能从中引进一些概念和制度的两部重要法律———欧洲和美国的竞争法加以评论 ,提出一些对中国的竞争法有用的信息。我还要比较欧洲和美国制定和确立竞…     

公司契约理论对公司法的解读

公司契约理论为我们认识公司法和一系列公司制度提供了新的视角。以公司契约理论来解读我国公司法律制度,我们可知,我国公司法应属于私法,以授权性、任意性规范为主;公司治理的理论基础应该是契约自由;作为对契约缝隙的弥补,司法对公司运作应是有限介入。     

European Community Law and the Redistribution of Regulatory Power in the United Kingdom

Abstract: This paper draws on a series of case studies of implementation of specific Community law instruments, in the fields of food safety, toy safety, beverage labelling, television broadcasting, and free movement of persons. The objective is to explore the question of how, and to what extent, the need to implement Community law and policy functions to reinforce or to retard shifts in regulatory power in the United Kingdom: from local to central regulatory power; from official regulation to self-regulation; and from bureaucratic and political controls to privately-initiated control through the courts.     

Punitive Damages: A European Criminal Law Approach. State Sanctions and the System of Guarantees

It has traditionally been upheld that punitive damages are incompatible with the Constitutions of civil law countries. This paper sustains the opposing thesis and argues their compatibility, of a general nature, with the basic principles of continental European States, and especially with the principles of legality, proportionality and non bis in idem. This opens the way to the enforcement, in Europe, of sentences delivered in the United States of America. However, despite this starting point, the advisability of exporting the model of punitive damages is rejected. The theme is expanded to argue the equivalent nature of the guarantees and limits of all sanctioning activity of the State and those already established in Criminal Law. This would encompass punitive damages and all types of civil sanctions.     

Destructive Competition or Competition Destroyed? Regulatory Theory and the History of Irish Road Transportation Legislation

The principal aim of our study is to contribute to the debate over whether regulation is enacted in the interest of consumers, producers, political agents, or some combination of these. We examine the legislative debates and subsequent regulatory bills surrounding road transportation regulation in Ireland in light of the three dominant theories which purport to explain the existence of regulation: the public interest theory and the so-called Chicago and Virginia theories. A unique feature of our study is an attempt to integrate specific rhetorical concepts used in the public policy debates into the theoretical analysis of regulation. One noteworthy conclusion of our study is that theories of economic processes affect the shaping and results of public policy.     

当今世界性公司法现代化改革:竞争·趋同·融合

一、引言 为了适应世界经济一体化的新变化,在20世纪个别国家已着手进行公司法的现代化改革.如果说当时这些零星的改革犹如涓涓细流,那么,进入21世纪后其迅速汇集成为世界性公司法现代化改革的浪潮,汹涌澎湃,蔚为大观.     

Procedural Rationality and Regulatory Decision-Making: A Decision Framework Approach

This paper presents the methodology and some preliminary findings from an ongoing study of the procedural rationality of regulatory decisionmaking in the occupational health arena. The author employs the concept of procedural rationality in the sense used by Herbert Simon to refer to the logic of decision-making as it is shaped by institutional constraints. Of particular interest here is the impact of provisions for the involvement of affected interests in and public scrutiny of the regulatory process. The methodology presented involves a charting of the "decision frameworks" adopted by participants in the process at various stages. The methodology is illustrated through its application to the particular case of the development of a regulation governing occupational exposure to inorganic lead in the Canadian province of Ontario.