in Landmark cases in competition law: around the world in fourteen stories, ed. B. Rodger, Wolters Kluwer, Alphen aan den Rijn, 2013, ISBN 978-90-411-3843-9, pages 287-318.
Apr 23, 2018
Competition law and regulation had played a prominent role in the process of construction and liberalization of the internal energy market in the EU. Several transactions in the last decade have shown the difficulties of the process and how Member States may occasionally make a political use of merger review rules and of regulation to benefit domestic firms. This chapter describes in all its complexity the ENDESA takeover contest (2005-2007). This case is a unique example of the mixture of legal issues that may be involved in takeovers requiring competition and regulatory approval. Several lessons can be learnt from the case, not only for the history of Spanish and European competition law (especially regarding merger review). Other relevant industrial policy, regulation and corporate law issues were also raised by this landmark case, though the case is mainly illustrative of how politics, at the end, may affect or shape the final outcome in some business transactions.
May 3, 2017
This article challenges the reason that led most states to abandon the “no contribution” rule. Under the rule if a victim obtains a judgment against two tortfeasors but chooses (even arbitrarily or out of spite) to recover only from one, the “chosen one” must pay the entire judgment while the other is exempt although both are liable. This is the case even if the paying tortfeasor is only 1% at fault while the non-paying tortfeasor is 99% at fault. The rule has been lamented by tort reform crusaders as immoral and unfair. One tortfeasor, the argument goes, should not bear the entire burden while the more culpable tortfeasor is exempted from liability. In deviation from the prior literature, the article employs economic theory to show that the “no contribution” rule that has been crowned as efficient is fair and just. It adopts a contractarian approach to analyze different apportionment regimes including joint and several liability (with and without contribution), several liability and market share liability. Relying on modern decision theory the article shows that individuals behind a veil of ignorance, unaware as to whether they would be victims or injurers may in fact choose the much criticized "no contribution" rule. In doing so the article sheds new light on a fierce and ongoing debate and concludes with a new framework for analyzing apportionment policies. Keywords: Apportionment, Contribution, Joint and Several Liability, Market Share Liability, Rawls, Veil of Ignorance, Harsanyi, Fairness, Justice, Economic Analysis JEL Classification: K13, D61, D63, D31, A12, A13
62 Hastings L. J. 1729 (2011)
Jul 21, 2015
Many people are concerned about the strong market position of certain individual companies of the digital economy. This paper (editorial) discusses proposals on how to create incentives for quick closure of abuse cases. It also proposes to extend the reach of European merger control. That extension would alow to catch operations between parties that have heretofore shown modest annual turnovers but have a high market potential (as expressed by high sales prices).