13. A treisprezecea. Cum se compara merele cu perele?

Marco Ventoruzzo, The Thirteenth Directive and the Contrasts Between European and U.S. Takeover Regulation: Different (Regulatory) Means, Not so Different (Political and Economic) Ends? (October 4, 2005). Bocconi Legal Studies Research Paper No. 06-07 Available at SSRN.

Cross-border acquisitions, especially through hostile takeovers, represent one of the most dramatic consequences of the growing integration, both within Europe, and when considering the economic balance of power between the U.S. and the European industries. This Article focuses on the single most important piece of legislation on European takeover law, the Thirteenth Directive of the European Union on Takeover Regulation, which was approved on April, 21 2004 and must be implemented by Member States before the end of 2006.
Passage of the Thirteenth Directive is no minor event. Earlier versions were embroiled in arresting political controversies that generated significant Member State antipathy toward European regulation of the area. As a result, several earlier versions were rejected, causing many experts and observers to question whether any takeover directive would be adopted at the EU level. Also as a result of the political controversies, the final version of the Directive represents a significant compromise, most strikingly for the flexibility it affords Member States in adopting its various provisions. For all these reasons, final passage of the Directive represents a significant legislative accomplishment, worthy of attention not only for its substantive effect, but also for its contribution to the on-going debate over the desirability of harmonization versus regulatory competition.
Consistent with prevailing European perspectives, but differently from the U.S. approach, the core premises of the Thirteenth Directive involve significant restrictions on the freedom of both the raider and of the target corporation. Under the Directive, corporate raiders are generally obliged to obtain control only through the launching of a public tender offer on all the outstanding shares, at a fixed minimum price.
Meanwhile, the directors (and/or the controlling shareholders) of target companies are limited under the Directive regarding the defensive measures that they can employ to repel a hostile bid. Meanwhile, in the United States, these restrictions are almost completely absent, as would seem in keeping with its more market-oriented approach to regulation of various categories of economic activity.
Taking as its starting point U.S. rules and assumptions regarding takeovers, this Article identifies the fundamental features of the European approach to takeovers in a comparative and critical perspective. I examine extent of and rationales for the discrepancies between the two systems, discrepancies that, in the next few years, will play an important role in shaping the international takeover scenario, and therefore the cross-Atlantic economic landscape.
Two common risks of comparative analysis are a tendency to over-emphasize superficial differences and a temptation to evaluate one system as inherently superior to another. Through my analysis, I show that, even if manifested through different rules, the distance between U.S. and European takeover regulation might be considered less extreme than most scholars and experts presume, especially if, instead of looking at the means of the regulation (the specific rules adopted ), we look at its ends, meaning the underlying policy (and political) goals pursued and some of the economic effects of those rules.

Matching Bankruptcy Laws to Legal Environments

Kenneth Ayotte, Matching Bankruptcy Laws to Legal Environments, Journal of Law, Economics, and Organization Advance Access published online on October 25, 2007.

We study a model of optimal bankruptcy law in an environment where legal quality can vary along two dimensions: the expertise of judges and the quality of contract enforcement. We analyze a model in which a judicially influenced bankruptcy process can enhance the efficiency of incomplete contracts by conditioning the allocation of control rights in bankruptcy on firm quality. We consider the optimal balance of debtor and creditor interests as a function of the legal environment and show that the optimal degree of “creditor-friendliness” in the bankruptcy code increases as judicial ability to recognize firm quality falls and as the quality of contract enforcement deteriorates. Our model shows that a bankruptcy law that attempts to preserve going-concern value, such as US Chapter 11, requires judicial expertise to be effective. Where such expertise is unavailable, a law that focuses more on creditor recovery is preferred.

The Challenges of Economic Proof in a Decentralized and Privatized European Competition Policy System: LESSONS FROM THE AMERICAN EXPERIENCE
Andrew I. Gavil

Since the announcement in late 2002 of the Modernization Plan, and continuing in 2005 with the release of the Green Paper on damages actions, the European Commission has been committed to a significant restructuring of the EU’s approach to enforcing competition laws. Under the revised system as envisioned by the Commission, national competition authorities and private parties will assume a far greater role in supplementing the work of the Commission, which for 50 years has been the predominant competition policy enforcer in Europe. The goal is not only to produce a system of shared enforcement authority, but to promote the continued evolution in Europe of a “culture of competition,” while avoiding the creation of a “culture of litigation.” If national competition authorities and private parties accept this invitation, however, they are likely to face the same kinds of demands for substantial economic evidence from their national courts that the EC has faced from the Court of First Instance and the European Court of Justice in some of its most complex and challenging recent cases. This paper asks whether national level enforcers, public and private, will have the procedural and evidentiary tools necessary to respond to demands for such economic proof. Drawing on the Commission’s recent experiences, as well as lessons from the U.S. experience, it asks whether the Green Paper’s treatment of economic evidence is adequate given the importance that economic proof plays today in competition law cases. It then urges the Commission to devote additional attention to identifying and advocating reforms that will more actively facilitate the disclosure, development, and presentation of economic evidence. This paper particularly questions the Green Paper’s preference for the use of court-appointed experts in lieu of party-secured expert witnesses. It argues that party and court-appointed experts can perform very different functions in competition law cases and should not be viewed as substitutes. Moreover, it suggests that the Green Paper may significantly underestimate the degree to which party-secured expert economic witnesses will be necessary if national level enforcers-public and private-are to be adequately equipped to meet the burdens of proof they will face. If national enforcers systematically find that they lack the procedural tools necessary to develop the economic evidence they need to meet those burdens, they will reduce or abandon their efforts to initiate competition law actions and it will be less likely that the promise of decentralization and privatization can be realized.

* Professor of Law, Howard University School of Law, Washington, DC. This paper is based on remarks delivered at the symposium on Forensic Economics in Competition Law Enforcement, sponsored by the Amsterdam Center for Law and Economics and held at the University of Amsterdam on March 17, 2006.

Journal of Competition Law and Economics Advance Access published online on October 22, 2007.

Avion cu motor…Boeing si Airbus

The WTO Boeing-Airbus dispute: Update
 

Brussels, 26 September 2007

EU challenge to US subsidies to Boeing - first panel hearing

The focus in the EU-US aircraft dispute is now shifting to the EU’s challenge to US subsidies to Boeing (WTO case DS353) - the first panel hearing in this case will take place on 26-27 September 2007.The core of the EU’s challenge is the lavish R&D support provided by the US Department of Defense and NASA through various means, as well as Boeing-specific support provided at state and local level, such as subsidy packages tailor-made for Boeing in the states of Washington, Kansas and Illinois. The support clearly aims at weakening Airbus’ position and competitiveness and boosting that of Boeing. Although the US tries to dismiss the challenges using smoke and mirrors, US federal law makers, high-ranking officials, and local politicians have all acknowledged the vital role this support plays for Boeing. Former Washington State Governor Gary Locke has said that the Washington State support is designed to help “Boeing beat Airbus” and to “give Airbus executives many sleepless nights for years to come”. Former NASA Langley Director J.F. Creedon is on the record as saying that “the reason that there is a NASA Langley and the other aeronautics centers is to contribute technology to assure the pre-eminence of US aeronautics”.The EU challenge to US subsidies to Boeing - US reply and EU reactionThe US filed its reply to the EU’s challenge on 6 July 2007. The following points will be the focus of the hearing before the WTO panel hearing on 26-27 September 2007:

• The US readily acknowledges that FSC and successor schemes were prohibited export subsidies and that Boeing was a main beneficiary. The US, however, claims that Boeing will not avail itself of any benefits post-2006 despite an internal IRS memorandum which would allow for such benefits to be claimed by companies like Boeing. The US has failed provide any documentation that Boeing will actually forego these WTO-incompatible benefits.

• For subsidies granted by the State of Washington and the State of Illinois, the US puts up a less than vigorous defence and appears to agree with the EU that subsidies have benefited - and will continue to benefit - Boeing. In both states the subsidies are clearly designed for the exclusive benefit of Boeing. The US claims that these subsidies are generally available, or not designed for the benefit of Boeing lack any credibility. Indeed, these incentive packages have been designed in negotiations with the Boeing company, and even include a contractual promise by the State of Washington that it will provide a USD 4 billion subsidy regardless of form.

• For other subsidies, such as those granted by Kansas authorities, the US makes sweeping statements that Boeing has not benefited - and will not benefit. The US offers essentially no evidentiary support for these claims. The EU notes that these bonds are commonly referred to as “Boeing Bonds”: how can they not be for the benefit of Boeing?

• The US is contesting the amount of R&D subsidies granted to Boeing as challenged by the EU - an apparent contradiction with the US stance on its challenge of Airbus support where the US grossly inflates the numbers. The EC, in DS316 (the US challenge of support to Airbus), provided detailed tables and breakdowns of all Large Civil Aircraft (LCA)-related R&T support and offered to submit all original documentation regarding such support, should the Panel so request. One wonders why the US cannot be equally forthcoming.

• The US also seeks to argue that certain R&D support should be excluded for purposes of the WTO dispute as it has resulted in military or dual-use technologies which are subject to stringent US export controls and cannot be included in LCAs for exportation. The US conveniently overlooks the fact that while such technologies may not be part of an exported LCA as such, they may be - and frequently are - used in the actual production of LCAs. What is more, the press and even a former Boeing engineer have reported on suspicious Boeing practices of recreating research to “work around” ITAR controls and use military data for the Boeing 787 despite US restrictions. This is another example of how the US is hiding behind general statements about US laws and regulations while refusing to disclose the actual information and evidence related to R&D support to Boeing.

• For a breakdown of the total amount of subsidies offered by the US Government and US states to Boeing (USD 23.6 billion), see the attached table: “Overview of US subsidies to Boeing’s Large Civil Aircraft (LCA) division”.

Background information

• The EU WTO challenge to US subsidies to Boeing and the US WTO challenge to EU support for Airbus (DS316)

• Key dates in the WTO process in 2007-2008

• Details of the US subsidies to Boeing challenged by the EU

Sursa TradeIssues, European Commission.

Interplay between IP rights and competition law

The interplay between IP rights and competition law in the context of standardization

Piotr Staniszewski
Legal context: This article attempts to analyse the patent ambush scenario in the context of both competition law and IP rights under US and EC law. The regulators such as the US FTC and European Commission attempt to combat the abuses, however the legal tools available require a very difficult balancing act between patent law (which protects innovation) and competition law (which attempts to hamper abuse of the free market rules).

Key points: The patent ambush scenario employed within a standard-setting organization poses an important threat of jeopardizing the goals of achieving a common standard. The response to the problem concentrates on ensuring that the rules applicable to standard-setting organizations’ members prevent abuse and/or reaching reasonable and non-discriminatory licensing terms to stop deriving undue benefits from proprietary technologies embedded in the standard.

Practical significance: As the information exchange technologies become increasingly popular, the need to ensure interoperability between products of different manufacturers employing these technologies becomes crucial for market success. This consequently increases the danger of malignant abuse of co-operation within the standard setting-organizations. The law may need to step in to secure technological progress free of risks such as the patent ambush.

Piotr Staniszewski, The interplay between IP rights and competition law in the context of standardization, Journal of Intellectual Property Law & Practice Advance Access, 25 september 2007

Microsoft a pierdut

Rezultatul procesului la TPI a fost oarecum pevizibil. Comisia a aplicat corect sanctiunea amenzii.

Gasiti hotararea aici.

Un rezumat gasiti pe ECJBlog, si o prezentare cu trimitere la documentele aferente si declaratii pe EurActiv.com.

Bibliografia cazului:

Pierre Arhel, L’affaire Microsoft (À propos de la décision du TPICE du 17 septembre 2007), Petites Affiches, nr. 233/2007.
L’arrêt Microsoft du 17 septembre 2007 est sans doute l’un des plus importants rendus par le Tribunal de première instance en matière de concurrence. Sur le fond, il approuve entièrement la décision de la Commission ayant condamné l’entreprise pour deux comportements distincts à savoir le refus de fournir les informations relatives à l’interopérabilité du système d’exploitation Windows avec des produits concurrents et la vente liée du système d’exploitation Windows et de Windows Media Player. Il annule cependant la décision en ce qu’elle a ordonné la désignation d’un mandataire indépendant chargé d’évaluer et de vérifier la mise en oeuvre par Microsoft des mesures correctives ordonnées par la Commission.

Thomas O. Barnett, Interoperability Between Antitrust And Intellectual Property, George Mason Law Review, Volume 14, Number 4, Summer 2007

Ugo Patroni Griffi, Alfonso Papa Malatesta, L’interoperabilità del software: una essential facility? Implicazioni del “caso Microsoft”, Studi in onore di Gerhard Schricker, Giuffre Editore, 2005, p.469-507.

Olivia Dufour, Microsoft, une victoire éclatante pour la Commission européenne!, Petites Affiches, No 190, 21 septembre 2007.

Jean-Claude Zarka, Microsoft et la justice européenne, Gazette du Palais, nr. 127/2007.

Harry First, Strong Spine, Weak Underbelly: The CFI Microsoft Decision, New York University School of Law. New York University Law and Economics Working Papers, April 23, 2008, Paper 129.

On September 17, 2007, the European Court of First Instance decided Microsoft’s appeal of the European Commission’s 2004 decision finding that Microsoft had violated Article 82 of the EC Treaty by failing to provide certain interoperability information to Sun Microsystems and by refusing to dis-integrate Windows and the Windows Media Player. In this short comment I review the CFI’s decision, focusing on three ways in which the decision properly stiffens the strong spine of European competition law - its treatment of intellectual property, tying, and leveraging. The comment also discusses the EC’s remedy orders in Microsoft, which I argue reveal the soft underbelly of European competition law, a soft underbelly that the European Microsoft case shares with the U.S. Microsoft settlement.

Jurisdictia internetului in UE si SUA

Un interesant articol a fost publicat, punand in discutie Regulamentul CE 44/2001 si multe alte aspecte de drept international privat aplicabile internetului.

Richard d. Freer, American and European Approaches to Personal Jurisdiction Based Upon Internet Activity, publicat la SSRN 

Abstract:     
The law of personal jurisdiction determines what states or countries may enter a binding judgment against a civil defendant. Without personal jurisdiction over the defendant, a court is powerless to act.
While principles of personal jurisdiction are well established in the United States and the European Union (EU), these principles were developed before the widespread use of the Internet, and neither the Supreme Court nor the European Court of Justice has spoken on how the established principles apply in the context of the Internet.
American law requires that a defendant engage in purposeful availment of the forum where she is sued, so a defendant is subject to suit only in a forum with which she has established purposeful ties. In contrast, the EU grants personal jurisdiction where the injury occurred, regardless of whether the defendant purposefully availed itself of that place. The difference in approach will prove to be most important in cases involving relatively passive Web site use. So if a defendant posts something on a Web site in State A, which is accessible around the world, and a plaintiff is hurt in some way by that posting in State B, may the plaintiff sue the defendant in State B? EU law should provide a positive answer, because their focus is on accessibility and where the harm occurs. In the United States, lower courts have reached inconsistent results, mainly because of the Supreme Court’s failure to resolve an important jurisdiction question in a 1987 case involving the “stream of commerce.” The Web site case is the modern technological iteration of the stream of commerce which the Court failed to resolve in 1987.