International Investment Law Journal
Volume 2, Issue 2, July 2022
Table of Contents
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- Assistant professor Sónia De CARVALHO
1. The Significance of Article 102 of the Treaty on the Functioning of the European Union in the Assessment of Distribution ContractsAbstract:In addition to article 101 of the TFEU, the abuse of a dominant position prohibited by article 102 of the TFEU is important for the analysis of the conformity of distribution contracts towards the UE Competition Law. The clauses of the distribution contracts often contain practices that are likely to represent an abuse of a dominant position, censured by article 102 of the TFEU. In fact, one of the types of conduct qualified by article 102, (b) of the TFEU as abuse of a dominant position is the limitation of "production, distribution or technical development to the prejudice of consumers", covering not only restrictive practices resulting from the dominant company's internal behavior, but also conducts which, by conditioning third parties, pursue such restrictive purposes. Exclusive purchase obligations and loyalty and fidelity discounts are of relevance in the distribution context. Tying also arises, frequently, in the context of distribution, and is frowned upon, according to article 102, (d) of the TFEU, if the company is using the dominant power in one market to obtain an advantage in another market, excluding rivals. Bundling and multi-product rebates, so common in distribution, are also practices that may constitute exclusionary conduct by dominant companies. The existence of abusive behavior regarding price, namely, the use of predatory pricing, excessive pricing or margin squeezes, prohibited by article 102, (a) of the TFEU is also common in distribution. The refusal to supply products and services is an abuse that may result from the clauses in distribution contracts and the way distribution networks are built, with the intention of excluding rivals, with particular emphasis when related markets are concerned. On the other hand, it can be one of the instruments to prevent parallel imports, segmenting the internal market, which will be severely censured by the CJEU. Vertical restrictions can also be considered an abuse of a dominant position if they correspond to unfair commercial conditions, expressly referred to in article 102, (a) of the TFEU as far as prices are concerned, and to a discriminatory treatment of commercial partners, through unequal conditions that put them at a disadvantage in competition, present in article 102, (c), which includes, for example, loyalty discounts. The European Union case law, in turn, has reflected the concern of the competition authorities in the analysis of abusive behavior of companies towards distributors and suppliers. In this paper, considering the relevance recognized by the Commission and European Union case law to exclusionary conduct in distribution and the correspondence of some of these abuses with vertical restraints, we will analyze exclusionary conduct, referring, whenever justified, exploitative abuses and market segmentation.
Keywords:competition law, distribution contracts, vertical restraints, art. 102 of TFUE.
JEL Classification:K21, K22, K33
Page 102 - PhD. student Bogdan-Radu HERZOG
2. The Removal of Economic Barriers in the Process of Social Deconstruction. Legal Precedents Created by Prosbul, the VOC and Loi le ChapelierAbstract:The article explores the historical role plaid by interest and incorporation as corrosive forces employed in the process of transforming traditional societies. The Solve et Coagula method, which seeks the dissolution of natural identities and their replacement by man-made constructs, requires the annihilation of social, political and economic barriers which used to protect traditional societies. Legal precedents such as the prosbul of Rabbi Hillel the Elder, the establishment of the first modern corporation (VOC) and Loi le Chappelier are presented in this context. The works of major sociologists such as Weber, Davies, Ilie Bădescu or Cătălin Zamfir and economists such as Michael Hudson offer the theoretical framework for the analysis.
Keywords:Solve et Coagula, prima materia, social deconstruction, legal precedent, prosbul, VOC, Loi le Chapelier.
JEL Classification:K23, N40, Z13
Page 127 - PhD. student Ingrid A. MÜLLER
3. Iura Novit Curia versus Iura Novit Arbiter in International ArbitrationAbstract:The paper analyzes the distinction between the two presumptions mentioned in the title. At first glance, it seems that the application of both the Iura Novit Curia and the Iura Novit Arbiter principles in international arbitration is redundant. After all, what are the Arbitrator and the Arbitral Tribunal if not a private judge and, respectively, a private Court? However, the distinction between the two concepts becomes extremely important in certain stages of the arbitration, especially when it comes to purely procedural matters. As such, there is a difference between the arbitral process that takes place in front of the Arbitral Tribunal and incidental or additional procedures that take place in front of State Courts (even after the arbitral award has been rendered, e.g. an annulment procedure or at the stage of recognition or enforcement of a foreign arbitral award). In conclusion, the use of both expressions in parallel is justified. Iura Novit Curia corresponding strictly to the role of Domestic Courts in an arbitration, at all stages (both incidental and additional matters during the arbitral process and in follow up procedures) and addressing the knowledge of the Courts’ lex fori (e.g. public order/public policy issues), unless explicitly excluded by applicable provisions. While Iura Novit Arbiter pertaining to the role of the Arbitral Tribunal per se – although, in this case, the expression is more a misnomer, the presumption being limited by the choices of the parties as an assertion of party autonomy, a main characteristic of arbitration as an alternative dispute resolution method.
Keywords: international arbitration, the role of domestic courts in arbitration, Iura Novit Curia, Iura Novit Arbiter, party autonomy.
JEL Classification:K15, K33, K39, K49
Page 137 - Associate professor Alexandru CUZNETOV
4. Evolution of Trade Contract Law in the Modern and Contemporary PeriodAbstract:The discovery of America in the sixteenth century had great effects on the development of commercial activity as well as the regulations of commercial contracts in particular. Traders took full advantage of the gold and riches discovered and organized themselves into very powerful companies both economically and politically. A new period opens in the development of trade and the organization of political and economic power in nation states, with particularly significant consequences on the political, economic and legal level. The state power that was interested in trade, a source of wealth to ensure the legal certainty of trade regulated the establishment of fairs, on the basis of royal privileges granted, and tribunals composed of merchant judges elected to settle disputes between merchants. Being a primary study, the purpose of this study lies in the scientific and theoretical analysis of commercial contract law which has a rich historical evolution, significantly influencing trade relations (entrepreneurial).
Keywords: the law of commercial contracts, the evolution of commercial contracts, the modern and contemporary period, the concept of commercial contracts, the features of the commercial contract.
JEL Classification:K22
Page 143 -
Associate professor Rodica Diana APAN
5. Outlook of the European Court of Justice Regarding Comparative AdvertisingAbstract:Advertising transcends the borders of the States and has an impact on the single market. Moreover, it may lead to distortions of competition. One purpose of regulating advertising stems from the imperatives of protecting consumers. They are the recipients of the advertising message and their interests can be harmed by advertising. Misleading advertising is prohibited, as is comparative advertising, in certain situations, in expressly determined hypotheses. The analysis in concreto of two such facts, in the reflection of the decisions given by the European Court of Justice, is the theme of this study. At the same time, we will analyze the sanctions regulated at national level in the event of committing the acts that constitute illicit comparative advertising, as well as the administrative bodies empowered to apply the sanctions in order to clean up the competitive environment.
Keywords: advertising; misleading advertising; comparative advertising; administrative bodies; sanctions.
JEL Classification:K33, K41
Page 149 - Notary Ketut Harta YASA; Lecturer I Gede ARTHA; Lecturer I Made SARJANA
6. The Nature of the Notary Settlement Deed in the Settlement of Foreign Collaterals (AYDA) between Creditors and DebtorsAbstract:Banking in Indonesia currently tends to decrease its performance, due to the increasing number of non-performing loans (NPL) ratios. Juridical obstacles in the implementation of AYDA, due to the existence of vague norms in POJK No. 33/POJK.03/2018, in Article 27 paragraph (3). Problem Formulation: 1). How is the nature of the Notary Settlement Deed in settling bad loans by means of AYDA being able to fulfill the sense of justice of the Debtors and Creditors? 2). What are the requirements and elements of legal action that must be contained in the Notary Settlement Deed in the implementation of AYDA in order to be able to have legal force of proof, legal power of levering or transfer of rights to land collateral, and has binding legal force? 3). To what extent is the Notary Settlement Deed final, binding and meet the criteria as a modern legal product in the settlement of non-performing loans using Foreclosed Collateral (AYDA)? This type of research is normative legal research or legal research; One solution to the implementation of Foreclosed Collateral (AYDA) whose norms are blurred; is resolved by a Notary Settlement Deed because it contains elements: acknowledgment of debt, acknowledgment of default, statement of settlement by submitting collateral by voluntary auction, Deed of Juridische Levering and Faithtelijk Levering, evidence of Settlement, Roya's order, Emptying, and no legal remedies in the future. The results of the study show that the Notary Settlement Deed reflects a sense of justice, has legal power of proof, binding legal force and executive legal force, because it is like the Grosse Deed of Debt Recognition, Voluntary Submission of Collateral, Juridische Levering and Faithelijk Levering, and there is no legal remedy; with several conditions that must be met, namely: There is an agreement to end the dispute; written form/ deed; made by people in power. The Notary Settlement Deed reflects a legal product with modern characteristics. As for the novelty, the Notary Settlement Deed contains elements of Debt Recognition like the Groosse Debt Recognition Deed. The Novelty Peace Deed contains Juridische Levering and Faithelijk Levering and the Notary Settlement Deed Novelty is no legal remedy in the future. The implementation of the Peace Deed can be perfect if it meets the following requirements: Juridical Doctrine, Sociological Doctrine, and Philosophical Doctrine. The construction of article 27 paragraph (3) is: "The takeover of the collateral as referred to in paragraph (1) must be accompanied by a Notary Settlement Deed, a Sale and Purchase Agreement Deed (PPJB) and a Deed of Authorization to Sell from the Debtor to the Bank and a Certificate of Settlement from the Bank to the debtor". Conclusion: The nature of the Notary Settlement Deed is proven based on the Grand Theory of Justice, has executive legal force and is a modern legal product.
Keywords: notary settlement of deed, AYDA, creditors and debtors, business law.
JEL Classification:K11
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