Striking the balance in industrial relations in China? An analysis of court decisions of 897 strike cases (2008–2015)

2016 ◽  
Vol 59 (1) ◽  
pp. 22-43 ◽  
Author(s):  
Tianyu Wang ◽  
Fang Lee Cooke
Keyword(s):  
Collective Action ◽  
Industrial Relations ◽  
Legal Reasoning ◽  
Economic Environment ◽  
Court Decisions ◽  
Rule Of Reason ◽  
Per Se ◽  
Labour Legislation ◽  
Political Duty ◽  
Work Stoppages

Labour legislation in China does not clearly stipulate the legality of strikes. The prevalent view amongst scholars is that strikes are legitimate because ‘everything which is not prohibited is allowed’. However, our analysis of court rulings on 897 strike cases between 2008 and 2015 indicates otherwise. The converse principle, ‘everything which is not allowed is prohibited’, seems to prevail. Of the two established doctrines (per se violation and rule of reason), the former appears to be preferred. The majority of court decisions routinely uphold the employer’s decision to dismiss strikers, on the grounds that the strikers violated work rules against work stoppages, and that the strike is illegitimate. Only a small number of decisions take into account the context of employees’ demands and the reasonableness of their conduct, and determine that they are engaged not in work stoppages but in ‘negotiations’. The disproportionate adoption of the principle of per se violation in collective action cases indicates a dominance of a formalist approach to legal reasoning, which is underpinned by the courts’ professional conservatism and political duty in the current Chinese politico-economic environment.

The Eleventh Circuit Holds that Agreements in which Pharmaceutical Companies Pay Generic Companies Not to Compete May be Valid

2004 ◽  
Vol 32 (1) ◽  
pp. 181-184
Author(s):  
Amy Garrigues
Keyword(s):  
Pharmaceutical Companies ◽  
Court Decisions ◽  
Patent Holder ◽  
Trial Court ◽  
Court Of Appeals ◽  
The Us ◽  
Antitrust Laws ◽  
Per Se ◽  
Appeals Court ◽  
Two Sides

On September 15, 2003, the US. Court of Appeals for the Eleventh Circuit held that agreements between pharmaceutical and generic companies not to compete are not per se unlawful if these agreements do not expand the existing exclusionary right of a patent. The Valley DrugCo.v.Geneva Pharmaceuticals decision emphasizes that the nature of a patent gives the patent holder exclusive rights, and if an agreement merely confirms that exclusivity, then it is not per se unlawful. With this holding, the appeals court reversed the decision of the trial court, which held that agreements under which competitors are paid to stay out of the market are per se violations of the antitrust laws. An examination of the Valley Drugtrial and appeals court decisions sheds light on the two sides of an emerging legal debate concerning the validity of pay-not-to-compete agreements, and more broadly, on the appropriate balance between the seemingly competing interests of patent and antitrust laws.

Modernization of Antimonopoly Policy in Russia (Economic Analysis of Proposed Changes in the Competition Law)

2005 ◽  
pp. 100-116
Author(s):  
S. Avdasheva ◽  
A. Shastitko
Keyword(s):  
Economic Analysis ◽  
Financial Markets ◽  
Financial Services ◽  
Competition Law ◽  
Commodity Markets ◽  
State Aid ◽  
Executive Power ◽  
Rule Of Reason ◽  
Per Se

The article is devoted to the analysis of the draft law "On Protection of Competition", which must substitute the laws "On Competition and Limitation of Monopolistic Activity on Commodity Markets" and "On Protection of Competition on the Financial Services Market". The innovations enhancing the quality of Russian competition law and new norms providing at least ambiguous effects on antimonopoly regulation are considered. The first group of positive measures includes unification of competition norms for commodity and financial markets, changes of criteria and the scale of control of economic concentrations, specification of conditions, where norms are applied "per se" and according to the "rule of reason", introduction of rules that can prevent the restriction of competition by the executive power. The interpretation of the "collective dominance" concept and certain rules devoted to antimonopoly control of state aid are in the second group of questionable steps.

scholarly journals The emergence of coercive federal Australian labour law, 1901–2020

2021 ◽  
pp. 002218562110039
Author(s):  
Eugene Schofield-Georgeson
Keyword(s):  
Industrial Relations ◽  
High Volume ◽  
Union Power ◽  
Labour Law ◽  
Industrial Environment ◽  
The Past ◽  
Low Levels ◽  
Labour Legislation ◽  
Employment Legislation

Over the past two decades, industrial relations scholarship has observed a trend towards an increasingly punitive industrial environment along with the ‘re-regulation’ of labour law. Absent from much of this literature, however, has been an empirical and historical measurement or comparison of the scale and quality of this systemic change. By surveying coercive and penal federal industrial legislation over the period 1901–2020, this study shows empirically that over the last 40 years, there has been a steep increase in the amount of coercive federal labour legislation in Australia. It further measures and compares the volume of coercive labour legislation enacted specifically against ‘labour’ and ‘capital’ or both throughout the same period (1901–2020). Analysis reveals a correlation between a high volume of coercive labour legislation with low levels of trade union power and organisation. Argued here is that coercive labour legislation has been crucial to transitioning from a liberal conciliation and arbitration model of Australian industrial relations towards a neoliberal framework of employment legislation. In the former, regulation was more collective, informal and egalitarian (embodied by the sociological concept of ‘associative democracy’). Under a neoliberal framework, regulation is now more individualised, technical, punitive and rarely enforced, resulting in less equal material outcomes.

scholarly journals Learning to live with the law? The legislative attack on British trade unions since 1979

1970 ◽  
Vol 14 (1) ◽  
Author(s):  
Linda Dickens
Keyword(s):  
Trade Unions ◽  
Industrial Relations ◽  
Legal Framework ◽  
Legal Intervention ◽  
British Trade ◽  
Industrial Action ◽  
The Law ◽  
Labour Legislation

This article takes as its focus the labour legislation of the Conservative governments in Britain under Mrs. Thatcher since 1979. It locates the legislation in its broader context and examines three main prongs of what is seen as a legislative attack on the trade unions: the move away from collective industrial relations; the restricted terrain for lawful industrial action; and legal intervention in internal union affairs. The immediate impact, use of and response to this legislation is discussed and a broader question raised concerning whether, as well as having to adjust to the new legal framework, British trade unions are reappraising their attitude to the role of law in industrial relations more generally.

scholarly journals Eksekusi Putusan Pengadilan Hubungan Industrial: Beberapa Catatan Masukan RUU Hukum Acara Perdata

2018 ◽  
Vol 1 (3) ◽  
pp. 345-350
Author(s):  
Dwi Maryono ◽  
Muhamad Azhar
Keyword(s):  
Industrial Relations ◽  
Civil Procedure ◽  
Court Decisions

Abstract This paper aims to describe the existence of the decisions of the industrial relations court, especially related to the execution of the decisions of the industrial relations court. This article only elaborates on the empirical issues that have become the problem in carrying out the execution of the decisions of the industrial relations court. The interim findings show that efforts must be made to provide space for the execution of the industrial relations court. So far, the execution of barren industrial relations court decisions has not been implemented. One reason is the lack of regulation on the procedure for the execution of industrial relations court decisions in Law No. 2 of 2004 concerning the Settlement of Industrial Relations Disputes. The solution is left to the execution procedure at Herzien Inlandsch Reglement (HIR) and Rechtsreglement voor de Buitengewesten (Rbg). Keywords: Decision Execution, Industrial Relations Court, Indonesian Civil Procedure  Abstrak Tulisan ini bertujuan untuk menguraikan keberadaan putusan pengadilan hubungan industrial, khusunya terkait dengan eksekusi putusan pengadilan hubungan industrial. Tulisan ini hanya menguraikan sekilan permasalahan empiris yang menjadi kendalam dalam melaksanakan eksekusi putusan pengadilan hubungan industrial. Hasil temuan sementara menunjukan bahwa harus ada upaya untuk memberikan ruang bagi pelaksanaan eksekusi pengadilan hubungan industrial. Selama ini eksekusi putusan  pengadilan hubungan industrial mandul, tidak dapat dilaksanakan. Salah satu penyebabnya adalah tidak adanya pengaturan tata cara eksekusi putusan pengadilan hubungan industrial dalam Undang Undang Nomor 2 tahun 2004 tentang Penyelesaian Perselisihan Hubungan Industrial. Penyelesaiannya diserahkan kepada tatacara eksekusi pada Herzien Inlandsch Reglement (HIR) dan Rechtsreglement voor de Buitengewesten (Rbg). Kata Kunci: Eksekusi Putusan, Pengadilan Hubungan Industrial, RUU Hukum Acara Perdata

Antitrust and Third Party Insurers

1982 ◽  
Vol 8 (3) ◽  
pp. 251-270
Author(s):  
George Heitler
Keyword(s):  
United States ◽  
Health Care ◽  
United States Supreme Court ◽  
The United States ◽  
Third Party ◽  
United States Supreme ◽  
Rule Of Reason ◽  
Relative Value ◽  
Care Field ◽  
Per Se

AbstractThis Article surveys major antitrust issues affecting the health care field with particular emphasis on third party insurers. It deals with the most recent decisions of the United States Supreme Court, including Maricopa, Pireno and McCready, involving limitations on the scope of the antitrust exemptions, and the bearing of these decisions on third party insurers, provider agreements, peer review mechanisms, physician control or sponsorship of prepayment plans, joint insurer activities, relative value fee schedules, maximum fee schedules, and area-wide planning. The Article challenges the desirability of strict application of antitrust principles to these and other activities within the health care field, stressing that practices with procompetitive and cost containment aspects should be encouraged and analyzed under the rule of reason rather than a per se approach.

Us Antitrust Law: Central, but Unique

2020 ◽  
pp. 91-102
Author(s):  
David J. Gerber
Keyword(s):  
Practical Importance ◽  
Competition Law ◽  
Antitrust Law ◽  
Basic Principles ◽  
Judicial Decisions ◽  
Rule Of Reason ◽  
Institutional Structures ◽  
Per Se ◽  
Substantive Law

US antitrust law has long influenced all who deal with competition law—sometimes as a model, sometimes as a source of experience and insights, and sometimes as a surrogate for an “international standard.” It also has great practical importance in international business. This chapter provides information and insights necessary for understanding its roles and engaging with its rules and procedures. The chapter explains its institutional structures, basic principles of substantive law, and the central role of economic analysis in deciding cases. In particular, it throws light on the unique way in which judicial decisions (case law) guide decisions in all institutions and on the central significance of the categories of “rule of reason” and “per se treatment.” It also provides insights into the dynamics of the regime—the factors that drive antitrust decisions. It also sketches the ways in which it exercises influence on other competition law regimes.

Anticompetitive Agreements (2008–2010): Errors of 1 Type in Russian Enforcement

2016 ◽  
Vol 2016 (1) ◽  
pp. 84-107
Author(s):  
Andrey Makarov
Keyword(s):  
Competition Law ◽  
Antitrust Policy ◽  
Competition Authority ◽  
Antitrust Enforcement ◽  
Priority Areas ◽  
Rule Of Reason ◽  
Standards Of Proof ◽  
Per Se ◽  
Mixed Agreements

This article analyzes the antitrust enforcement practice in Russia (2008–2010) in the area of competition restricting agreements (horizontal and vertical). The analysis is based on courts decisions database (litigations with the Russian competition authority - FAS). Database contains 242 cases, including 139 horizontal agreements, 103 vertical and mixed agreements. On the basis of this database we have analyzed important features of the interpretation and implementation of the competition law in Russian practice, priority areas of the enforcement. We considered the antitrust policy taking into account the risks of errors of 1 and 2 types, including the problem of the flexibility of prohibitions (PER SE vs RULE OF REASON), standards of proof, consistency of enforcement, etc.

Through the Anti-Monopoly Lens: What Constitutes ‘Unfairly High Patent Pricing’ in China?

2020 ◽  
Vol 69 (8) ◽  
pp. 823-846
Author(s):  
Yuan Hao
Keyword(s):  
Dynamic Efficiency ◽  
Theoretical Possibility ◽  
Dynamic Competition ◽  
Rule Of Reason ◽  
Dominant Market Position ◽  
Per Se ◽  
The Right ◽  
Error Costs ◽  
Chinese Court ◽  
Critical Link

Abstract This article proposes that a patentee’s unilateral pricing of proprietary technology should be presumed legal per se under Sec. 55 IPR immunity framework provided by the Anti-Monopoly Law, unless a plaintiff overcomes all three of the following hurdles with actual evidence: (i) the patentee enjoys a dominant market position; (ii) such pricing constitutes de facto refusal to deal with or significant ‘margin squeeze’ for subsequent or follow-on innovators; and (iii) the constructive refusal or ‘margin squeeze’ would likely foreclose dynamic competition. This seemingly high evidentiary burden is justified by three cumulative resources: (i) the very patent mechanism in facilitating innovation, including a solid promise of supra-competitive profit through the right to lawfully exclude competition by imitation, and thus the instigation of a virtuous circle of dynamic competition through pivoting on the critical link of competition by substitution; (ii) the prevalent cautious attitude in sister jurisdictions when dealing with the concept; and (iii) the inevitable limitations of antitrust law, manifested in the administrative and error costs due to lack of proper information and economic analysis methodologies on dynamic efficiency. Through a detailed illustration with six specific scenarios, we see in a quasi-quantitative way that the actual likelihood of unilateral foreclosure on dynamic competition, even in the case of a monopolist patentee, is extremely low despite the existence of a theoretical possibility. Facing this meager likelihood and information deficiency, it would be unwise for a Chinese court to incur enormous costs of searching for a possibility in every case, with the mere guidance of a vague rule-of-reason framework.

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