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Economic Contracts of Sovereignty as Competition Regulation Tools: The Practices of the French Competition Authorities—A Case Study

Par : Type de matériel : TexteTexteLangue : français Détails de publication : 2011. Sujet(s) : Ressources en ligne : Abrégé : In a globalized market economy, concentration and economic organization are the result of two combined elements: the private economic strategies of powerful actors, and the public policy instruments of competition law. Over the past decade, US and EU competition law have undergone a range of substantive reforms, and a wave of reforms has just been passed. These reforms, which will significantly remold the institutional architecture of competition systems around the world, cover areas such as the promotion of private enforcement, settlements and leniency procedures for hardcore infringements, commitment decisions, market inquiries, and informal regulations. To promote competitive markets, leniency programs, and commitments are the new regulatory instruments used by competition authorities. Instead of penalties and fines, competition authorities and judges prefer to use various procedural mechanisms based on commitments in order to fight hardcore cartels and abuses and to promote competitive markets. These arrangements constitute what can be termed “economic sovereignty contracts.” However, these new types of contracts have not been thoughtfully analyzed in the literature. This paper analyzes the major purpose of these contracts, which is, as defined in Chinese law, “to realize specific economic goals.” To encourage a firm to confess or stop an anticompetitive practice, enforcement agencies may promise a reduced fine, shorter sentences, less restrictive orders, or even complete amnesty. In contract law, mutual consideration does not consist of only the different promises between the parties but also of the operation as a whole, which is the organization or planning of economic power as a result of a merger or the reinforcement of a private firms' power under the control of agencies, in accordance with economic public policy rules. Public economic rules may change in light of political concerns. Formally, states are sovereign. Substantially, however, they may choose to surrender part of their sovereignty, as in the case of arbitration. Apart from these new economic contracts, leniency programs and commitments are relatively inefficient. With regard to these contracts, the question arises as to whether they are legally and fully binding. What is first noticeable is how important time and a proper enforcement mechanism are in these types of contracts. Often, remedies proposed by firms to agencies need to be monitored, by a trustee, for example. Furthermore, the enforcement mechanism used in these kinds of contract (trust or reciprocity) has an impact of the likelihood of their success.
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In a globalized market economy, concentration and economic organization are the result of two combined elements: the private economic strategies of powerful actors, and the public policy instruments of competition law. Over the past decade, US and EU competition law have undergone a range of substantive reforms, and a wave of reforms has just been passed. These reforms, which will significantly remold the institutional architecture of competition systems around the world, cover areas such as the promotion of private enforcement, settlements and leniency procedures for hardcore infringements, commitment decisions, market inquiries, and informal regulations. To promote competitive markets, leniency programs, and commitments are the new regulatory instruments used by competition authorities. Instead of penalties and fines, competition authorities and judges prefer to use various procedural mechanisms based on commitments in order to fight hardcore cartels and abuses and to promote competitive markets. These arrangements constitute what can be termed “economic sovereignty contracts.” However, these new types of contracts have not been thoughtfully analyzed in the literature. This paper analyzes the major purpose of these contracts, which is, as defined in Chinese law, “to realize specific economic goals.” To encourage a firm to confess or stop an anticompetitive practice, enforcement agencies may promise a reduced fine, shorter sentences, less restrictive orders, or even complete amnesty. In contract law, mutual consideration does not consist of only the different promises between the parties but also of the operation as a whole, which is the organization or planning of economic power as a result of a merger or the reinforcement of a private firms' power under the control of agencies, in accordance with economic public policy rules. Public economic rules may change in light of political concerns. Formally, states are sovereign. Substantially, however, they may choose to surrender part of their sovereignty, as in the case of arbitration. Apart from these new economic contracts, leniency programs and commitments are relatively inefficient. With regard to these contracts, the question arises as to whether they are legally and fully binding. What is first noticeable is how important time and a proper enforcement mechanism are in these types of contracts. Often, remedies proposed by firms to agencies need to be monitored, by a trustee, for example. Furthermore, the enforcement mechanism used in these kinds of contract (trust or reciprocity) has an impact of the likelihood of their success.

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