scholarly journals GOVERNMENT-OWNED ENTERPRISES (GOEs) IN INDONESIA’S COMPETITION LAW AND PRACTICE

2019 ◽  
Vol 8 (1) ◽  
pp. 93
Author(s):  
Arie Siswanto ◽  
Marihot Janpieter Hutajulu
Keyword(s):  
Competition Law ◽  
Private Enterprises ◽  
Competition Authority ◽  
Controversial Issues ◽  
Dominant Position ◽  
Normative Framework ◽  
Direct Head ◽  
The Status ◽  
The Law

<p>In the competition law discourse, one of the controversial issues is the position of Government-Owned Enterprises (GOEs). There are basically two main views regarding the status of GOEs in the competition law. First, GOEs should be granted privileges, even excluded from the scope of business competition law. Secondly, since GOEs are basically businesses and competitors to private enterprises, GOEs must also be subject to competition law. This paper discusses the status of GOEs in Indonesia’s competition law, both in the context of normative framework and in the implementation of competition law provisions. For this purpose, this paper examine the rules of competition law governing the GOEs and analyze some cases of alleged violations of competition law examined by the KPPU as the Indonesian competition authority. This study found that basically Indonesia’s competition law follows the so-called “competitive neutrality” principle in which the law treat both GOEs and private enterprises in equal manner. However, at the practical domain, the cases studied indicates that monopolistic or dominant position held by GOEs may be abused to favor subsidiaries which are in direct, head to head competition, with private enterprises.</p><p><strong><br /></strong></p><p align="center"> </p>

scholarly journals Market Power Abuse in EU And UK: A Review of Consumer Detriment Issues

2015 ◽  
Vol 4 ◽  
pp. 27-46
Author(s):  
Afroza Bilkis ◽  
Supravat Halder
Keyword(s):  
European Union ◽  
Market Power ◽  
Competition Law ◽  
Active Participation ◽  
Dominant Position ◽  
Fair Competition ◽  
Eu Competition Law ◽  
The Status

When a dominant company exploits its market power and that harms fair competition in the marketplace, average consumers remain in the most vulnerable condition having vital influence on but no active participation in the functioning of the market. The actions of a business that has market power can have serious effects on the operation of a market. An undertaking in a dominant position may use its market power in several ways, the most common being exploiting consumers by artificial scarcity and increasing prices. Moreover, there may be diverse interpretation as to the nature of an undertaking while considering market power abuse cases for the purposes of European Union (EU) Competition law. It is significant to consider the status of consumers in a market to see if dominant entities are abusing their powers and therefore test the level of commercialization.Northern University Journal of Law Vol.IV 2013; p.27-46

Application of competition law and the law relating to unfair competition

2018 ◽  
Author(s):  
Winfried Tilmann
Keyword(s):  
Competitive Advantage ◽  
Subject Matter ◽  
Patent Protection ◽  
Competition Law ◽  
General Rule ◽  
Unfair Competition ◽  
Dominant Position ◽  
The Subject ◽  
The Law ◽  
A Company

The acquisition of an EPUE may be impermissible under competition law only in special exceptional cases. This conceivably might hold true where a recognizable strategy of obstruction (Art 102 TFEU) is pursued by a company holding a dominant position with the aim of walling in competitors, without such patent proprietor having any intention of using the subject matter of patent protection himself. Also conceivably falling under the heading of inadmissible obstruction is the acquisition of a large number of patents by which the acquiring entity pursues the aim not of exploiting them but instead of using such acquisition to its own competitive advantage. The acquisition of such IP rights used merely for blockading purposes may qualify as part of the aforementioned strategy of obstruction and as such violate Art 102 TFEU. This may make it impermissible to invoke the patent: the competitor affected can raise the objection of abuse of a dominant position, which the UPC is in the position to consider (Art 32(1)(a) UPCA). As a general rule, such violation does not give rise to an obligation of cancellation because, if held by others actually using it themselves, it may turn out that the patent is no longer ‘flawed’.

scholarly journals Anti-Competitive Agreements according to Kosovo’s Law on the Protection of Competition – Case Study of the Insurance Market

2016 ◽  
Vol 9 (13) ◽  
pp. 191-206
Author(s):  
Orhan M. Çeku ◽  
Mentor Q. Shaqiri
Keyword(s):  
Free Market ◽  
Competition Law ◽  
Insurance Market ◽  
Competition Authority ◽  
The European Union ◽  
Market Situation ◽  
Transitional Challenges ◽  
The Law ◽  
The Republic

Competition law is an area which links the economy with the law and is very important for the functioning of a free market economy. Anti-competitive agreements, along with the abuse of dominance and concentrations of undertakings, are the subject matter of the Law on the Protection of Competition (LPC) of the Republic of Kosovo. Anti-competitive agreements can be horizontal or vertical in nature. The following paper deals with agreements and other multilateral practices prohibited under Kosovo’s Law on the Protection of Competition. The LPC explicitly states also specific circumstances where the prohibition does not apply – these are covered by the so called ‘exceptions and allowances’ section of the LPC. In this respect, the LPC has incorporated the entirety of the principles covered by Article 101 TFEU. The insurance market of the Republic of Kosovo was analyzed in the context of this case study, which has all the features of an oligopoly including: a limited number of participating firms, product standardization, interdependence in controlling prices and, difficulty of new market entry. From this perspective, the insurance market is highly problematic as far as violations of the provisions of the law dealing with anti-competitive agreements are concerned. The analysis is conducted based on the enforcement measures undertaken by the Kosovo Competition Authority and reviewed by the judiciary of the Republic of Kosovo. Taking into consideration that Kosovo is a young country facing special transitional challenges and aiming to become a member of the European Union, much needed reforms are to take place still. The aim of this analysis is thus to contribute to further development of competition law in Kosovo through the analysis of current market situation, domestic legislation and its compliance with EU rules.

scholarly journals The Pitfalls in the Law of Attempt: A New Perspective

2005 ◽  
Vol 69 (2) ◽  
pp. 146-167 ◽  
Author(s):  
Kenneth J. Arenson
Keyword(s):  
Criminal Law ◽  
Mens Rea ◽  
Controversial Issues ◽  
Depth Analysis ◽  
The Status ◽  
Actus Reus ◽  
The Subject ◽  
The Law ◽  
New Perspective

The law of attempt is laden with some of the most hotly debated and controversial issues in the criminal law sphere. This article provides a critical and in-depth analysis of most, if not all, of the pitfalls that have bedevilled this area of the law since time immemorial. In particular, the discussion will focus on the type of mens rea required for an attempt, how far an accused must progress toward the commission of the subject offence in order to satisfy the actus reus component of an attempt, whether certain offences are intrinsically incapable of being the subject of an attempt, and whether the various courts and legislatures have agreed upon a universally accepted, coherent, and workable doctrine concerning the status of ‘factual impossibility’ as a defence to an attempt.

scholarly journals EU LEGAL REGULATION OF COMPETITION IN INNOVATIVE MARKETS

2018 ◽  
pp. 25-35
Author(s):  
K. Smyrnova
Keyword(s):  
Competition Law ◽  
Legal Regulation ◽  
Evolutionary Development ◽  
Competition Authority ◽  
The European Union ◽  
Relevant Market ◽  
Dominant Position ◽  
Digital World ◽  
National Competition ◽  
Competition Laws

The digital world is highly dynamic. The only way of survival is to keep innovating, in some extend even invent a way (legal or illegal) to secure its position. As this new phenomenon becomes increasingly sophisticated, the need for laws to govern it becomes more poignant. In consequence, the European Union has taken various actions towards realizing this aim of regulating the digital platform horizon. The evolutionary development of active & passive selling through new electronic or other innovative means which is currently erases national borders leads to the comprehensive involvement of different national competition regimes. The competition authority has kept close scrutinizing on those firms in dominant position in their relevant market. Not only this, as the digital market is mostly multiple sided, the interaction between market are also taking care. However, the competition laws should adapt in the proactively to prevent the anti-competitive measures. The competition authority needs to have the anticipation on the dynamic evolution of competition in digital market and act proactively. Thus the most crucial aspect is to balance the innovative progress & the necessity to control on competition. This article examines how the nature and logic of competition law changes as authorities expand the time horizon that they consider in their prospective analysis.

TINJAUAN HUKUM FIKIH TERHADAP HADIAH TABUNGAN DAN GIRO DARI BANK SYARI'AH

ALQALAM ◽  
2013 ◽  
Vol 30 (1) ◽  
pp. 1
Author(s):  
Muhammad Nadratuzzaman Hosen ◽  
Deden Misbahudin Muayyad
Keyword(s):  
Islamic Law ◽  
Islamic Banks ◽  
Islamic Bank ◽  
Literature Reviews ◽  
The Gift ◽  
The Status ◽  
The Law

This article explains about the Islamic law of gift from Bank to customers related to saving and gyro accounts of Islamic Bank. The Islamic Banks give gift directly  and  indirectly  to  new  ettstomers  and  old  customers  through drawing  (qur'ah) or lottery and non-drawing. There are disputes (ikhtilaf) among Islamic Law  Experts (Fuqaha’) about the status of law when Islamic Banks give the gift. Hanafi and  Syafi'i  Schools  of thought  opined  that  the gift  can  be given  to  the customers as long as there is no agreement between bank and costomers meanwhile the banks still have a debt to consumers, this is permissible. Maliki and Hanbali schools opined that the gift is not permissible during the time of borrowing and lending. Majority Islamic Exsperts allow to give gift after banks have already paid­ back the debt to consumers as long as there is no agreement between bank and cusiomers, but Maliki School do not allow lo give gift at that condition. Also, for giving gift should free from gambling or elements of gambling (muqamarah).  The method of this article is using literature reviews from classical Islamic Law's books and contemporary Islamic law's books related to drawing or lottery and gambling, meanwhile the aims if this mticle are to investigate the law status if gift from bank to new customers and old customers with direct and indirect ways.   Keywords : gift, saving and gyro accounts, disputes, drawing and elements of gambling

SOCIAL RESPONSIBILITY OF THE COURT AS A PREREQUISITE FOR THE LEGAL RESPONSIBILITY OF A JUDGE

2017 ◽  
Author(s):  
Yaroslav Skoromnyy ◽  
Keyword(s):  
Social Responsibility ◽  
Legal Responsibility ◽  
Court Cases ◽  
Council Of Europe ◽  
The Public ◽  
The Social ◽  
Modern System ◽  
The Status ◽  
The Law ◽  
Conceptual Foundations

The article reveals the conceptual foundations of the social responsibility of the court as an important prerequisite for the legal responsibility of a judge. It has been established that the problem of court and judge liability is regulated by the following international and Ukrainian documents, such as: 1) European Charter on the Law «On the Status of Judges» adopted by the Council of Europe; 2) The Law of Ukraine «On the Judicial System and the Status of Judges»; 3) the Constitution of Ukraine; 4) The Code of Judicial Ethics, approved by the Decision of the XI (regular) Congress of Judges of Ukraine; 5) Recommendation CM/Rec (2010) 12 of the Cabinet of Ministers of the Council of Europe to member states regarding judges: independence, efficiency and responsibilities; 6) Bangalore Principles of Judicial Conduct. The results of a survey conducted by the Democratic Initiatives Foundation and the Razumkov Center, the Council of Judges of Ukraine and the Center for Judicial Studios with the support of the Swiss Agency for Development and Cooperation based on the «Monitoring of the State of Independence of Judges in Ukraine – 2012» as part of the study of the level of trust in the modern system were considered and analyzed, justice, judges and courts. It is determined that a judge has both a legal and a moral duty to impartially, independently, in a timely manner and comprehensively consider court cases and make fair judicial decisions, administering justice on the basis of legislative norms. Based on the study of the practice of litigation, it has been proven that judges must skillfully operate with various instruments of protection from public influence. It has been established that in order to ensure the protection of judges from the public, it is necessary to create special units that will function as part of judicial self-government bodies. It was proposed that the Council of Judges of Ukraine, which acts as the highest body of judicial self- government in our state (in Ukraine), legislate the provision on ensuring the protection of the procedural independence of judges.

CIVIL AND LEGAL LIABILITY OF JUDGES

2017 ◽  
Author(s):  
Yaroslav Skoromnyy ◽  
Keyword(s):  
Human Rights ◽  
Pension System ◽  
Legal Liability ◽  
Judicial System ◽  
Constitutional Court ◽  
Model Code ◽  
European Court ◽  
The Status ◽  
The Law ◽  
The Right

The article presents the conceptual foundations of bringing judges to civil and legal liability. It was found that the civil and legal liability of judges is one of the types of legal liability of judges. It is determined that the legislation of Ukraine provides for a clearly delineated list of the main cases (grounds) for which the state is liable for damages for damage caused to a legal entity and an individual by illegal actions of a judge as a result of the administration of justice. It has been proved that bringing judges to civil and legal liability, in particular on the basis of the right of recourse, provides for the payment of just compensation in accordance with the decision of the European Court of Human Rights. It was established that the bringing of judges to civil and legal liability in Ukraine is regulated by such legislative documents as the Constitution of Ukraine, the Civil Code of Ukraine, the Explanatory Note to the European Charter on the Status of Judges (Model Code), the Law of Ukraine «On the Judicial System and the Status of Judges», the Law of Ukraine «On the procedure for compensation for harm caused to a citizen by illegal actions of bodies carrying out operational-search activities, pre-trial investigation bodies, prosecutors and courts», Decision of the Constitutional Court of Ukraine in the case on the constitutional submission of the Supreme Court of Ukraine regarding the compliance of the Constitution of Ukraine (constitutionality) of certain provisions of Article 2, paragraph two of clause II «Final and transitional provisions» of the Law of Ukraine «On measures to legislatively ensure the reform of the pension system», Article 138 of the Law of Ukraine «On the judicial system and the status of judges» (the case on changes in the conditions for the payment of pensions and monthly living known salaries of judges lagging behind in these), the Law of Ukraine «On the implementation of decisions and the application of the practice of the European Court of Human Rights».

A refusal to grant access to a grid within the provision of crude oil transfer services as an example of a prohibited abuse of a dominant position in the EU and Polish competition law

2018 ◽  
Vol 5 (2) ◽  
pp. 199 ◽  
Author(s):  
Wojciech Paweł SZYDŁO
Keyword(s):  
Crude Oil ◽  
Competition Law ◽  
Eu Law ◽  
The European Union ◽  
Dominant Position ◽  
Oil Companies ◽  
Effective Competition ◽  
Oil Pipelines ◽  
Transfer Services ◽  
The Eu

Aim: The paper discusses cases in which a refusal by an energy enterprise to connect other enterprises to the network is treated as a prohibited abuse of the enterprise's dominant position and, equally, will represent behavior prohibited by art. 12 of the Treaty on the Functioning of the European Union and by art. 9 par. 2 item 2 of the Competition and Consumer Protection Law as well as legal consequences of such refusal. It is important to pinpoint such cases since the EU sectoral regulation does not provide for obligating any undertakings which manage and operate oil pipelines to enter into contracts with other undertakings such as contracts on connecting into their network or contracts on providing crude oil transfer services. Conditions for accessing oil pipelines and selling their transfer capacities are determined by the owners of the networks: private oil companies in the countries across which the pipelines are routed. These conditions are not governed by the EU law.  Furthermore, the very obligation of connecting other entities to own network by energy undertakings operating in the oil transfer sector in Poland will only arise from generally applicable provisions of the Polish competition law.  Design / Research methods: The purpose of the paper has been reached by conducting a doctrinal analysis of relevant provisions of Polish and EU law and an analysis of guidelines issued by the EU governing bodies. Furthermore, the research included the functional analysis method which analyses how law works in practice. Conclusions / findings: The deliberations show that a refusal to access the network will be a manifestation of a prohibited abuse of a dominant position and will be a prohibited action always when the dominant's action is harmful in terms of the allocation effectiveness. It will be particularly harmful when delivery of goods or services objectively required for effective competition on a lower level market, a discriminatory refusal which leads to elimination of an effective competition on the consequent market, a refusal leading to unfair treatment of consumers and an unjustified refusal. Originality / value of the article: The paper discusses the prerequisites which trigger the obligation to connect entities to own network by energy undertakings operating in the oil transfer sector. The obligation has a material impact on the operations of the oil transmitting undertakings, in particular on those who dominate the market. The regulatory bodies in the competition sector may classify a refusal of access to own network by other enterprises as a prohibited abuse of the dominant position, exposing such undertakings to financial consequences.Implications of the research: The research results presented in the paper may be used in decisions issued by the President of the OCCP and in judgement of Polish civil courts and EU courts. This may cause a significant change in the approach to classifying prohibited practices to prohibited behavior which represent abuse of the dominant position. The deliberations may also prompt the Polish and EU legislator to continue works on the legislation.

scholarly journals Belt v Lawes and the Meaning of Authorship

2021 ◽  
pp. 174387212110268
Author(s):  
Amitpal C. Singh
Keyword(s):  
Royal Academy ◽  
Artistic Process ◽  
Vanity Fair ◽  
The Status ◽  
Historical Episode ◽  
The Law

The 1882 Belt v. Lawes libel trial centered around aesthetic questions, of precisely the kind that judges usually seek to avoid. The occasion for the dispute was an article in Vanity Fair by Charles Lawes, asserting that Richard Belt, a sculptor and member of the Royal Academy of Arts, relied on his assistants to do his work. At trial, Lawes proposed an artistic skills test of sorts, suggesting that Belt verify his abilities by executing a sculpture in the courtroom. This evidentiary drama, and the aesthetically freighted-arguments mustered by the parties at trial, make it a fruitful historical episode to study conceptions of authorship and the artistic process, the development of modern copyright doctrine, and the status of expert artistic testimony in the law.

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