TORTS & PRODUCTS LIABILITY LAW eJOURNAL

"Damages’ Claims in the Spanish Sugar Cartel" Free Download

FRANCISCO MARCOS, IE Law School
Email:

As an example of collusive behaviour in the sugar industry, this paper looks at the Spanish sugar cartel, uncovered and sanctioned by the Spanish competition authority. It then turns into the subsequent private enforcement actions that concluded successfully last year with a €5 million award in damages by the Supreme Court. Several lessons can be extracted from the Supreme Court’s decisions that will have an impact in future private claims for damages arising from competition law violations. They clarify the relevance and legal force of public enforcement decisions for private enforcement, how damages’ calculations should be done, and how expert forensic opinions on the matter should be assessed by the courts and, finally, they rule on the availability of the passing-on defence. In all, the Spanish Supreme Court dicta from its decisions in the sugar cartel case may well open the gateway for new private claims in the future.

"Who Does What in Competition Law: Harmonizing the Rules on Damages for Infringements of the EU Competition Rules?" Free Download
Maastricht European Private Law Institute Working Paper No. 2014/19

CAROLINE CAUFFMAN, Maastricht University, University of Antwerp
Email:
NIELS J. PHILIPSEN, Maastricht University - Faculty of Law, Metro
Email:

After a long preparatory process, a Directive harmonizing certain national rules on private enforcement of competition law has been adopted by the European Parliament. In this contribution it is investigated whether harmonization of these rules was desirable and whether the main objectives of the directive, the improvement of the possibilities for victims to obtain damages and of the interaction between public and private competition, are likely to be achieved. With regard to the aim of increasing the possibilities for victims of antitrust infringements to obtain compensation, we can conclude that the Directive indeed increases this possibility, although various obstacles to private action are likely to remain. This includes obstacles in relation to (lacking) possibilities for collective action, the requirement to prove negligence or intent, and rules on disclosure of evidence. With regard to the interaction of public and private enforcement of competition law a crucial issue is finding the right balance between using the leniency program (which the European Commission needs in order to be able to effectively trace cartels) in the public enforcement of competition law and compensating victims via enforcement of private law. Whether the Directive has chosen the most desirable option to achieve this balance is debatable.

"The Role of Law in Addressing the Good Samaritan's Dilemma: A Chinese Model?" 
Asian Journal of Law and Society, 2014

MAN YEE KAREN LEE, Department of Social Sciences, Hong Kong Institute of Education
Email:

This article begins with an account of the contexts surrounding China’s “Good Samaritan’s Dilemma? — the fear of civil liabilities as a result of a rescue attempt. It highlights how a notorious hit-and-run case in 2011 has prompted several provinces to consider Good Samaritan law — legislation aimed at encouraging altruism. In light of diverse opinions over the pros and cons of Good Samaritan law, it considers whether law should have a role to play in shaping moral behaviours. On the basis that the law has been on the books for as long as over a century in much of the Western world and parts of East Asia, this article explores how overseas experience may provide insights to China in its adaptation of Good Samaritan law. It concludes that, in China’s case, a non-punitive regime that seeks to protect and compensate Good Samaritans may help encourage the proverbial Chinese bystanders to be altruistic neighbours.

"The Case for an International Court of Civil Justice" 
67 STAN. L. REV. ONLINE (Nov. 2014, Forthcoming)
U Iowa Legal Studies Research Paper No. 14-33

MAYA STEINITZ, University of Iowa - College of Law
Email:

This Essay aims to start a conversation on a novel institutional solution to the problem that de facto (not de jure) there is today no forum in which foreign plaintiffs can obtain enforceable judgments against American corporations that commit mass torts overseas. That solution is the establishment of an International Court of Civil Justice (ICCJ).

The Essay starts by describing what the author refers to as “the problem of the missing forum? – the global absence of an effective court for cross-border mass torts. It then provides a blueprint for an ICCJ. In so doing, it explains why an ICCJ is politically viable and may, specifically, appeal to rather than repel corporate America.

"Under Construction: The California Appellate Court's Misguided Decision in Liberty Mutual v. Brookfield Crystal Cove and the Legislature's Blueprint to Reconstruct the Right to Repair Act" 

KATHERINE L. PANKOW, Independent
Email:

The article focuses on a 4th D.C.A. decision, Liberty Mutual Ins. Co. v. Brookfield Crystal Cove. It has had a dramatic impact on construction defect practice in California, as it held that the Right to Repair Act does not apply to defects that cause actual property damage. Prior to this decision, both the building industry and consumer advocates assumed that the Act applied to defects that cause property damage along with defects that only cause economic damage. The CA Supreme Court denied review last December, and the legislature has not taken any action yet. In the meantime, the 2nd D.C.A. has also adopted the decision.

The premise of the article is that the case was wrongly decided because the court failed to adhere to the established principles of statutory construction. I review the history of the Act and the provisions themselves. I also provide an overview of the Liberty Mutual decision and the rules of statutory interpretation in California. Then, I reapply the facts of the case according to the rules of statutory construction, point out the legal errors that the court made, and propose a simple amendment to the Act that can solve this problem.

^top

About this eJournal

This eJournal distributes working and accepted paper abstracts dealing with torts, product liability, and insurance law. Related articles may also be published in other Legal Scholarship Network journals, including Law and Economics; Litigation, Procedure, and Dispute Resolution; Health Law and Policy; Employment and Labor Law; and Environmental Law and Policy.

Submissions

To submit your research to SSRN, sign in to the SSRN User HeadQuarters, click the My Papers link on left menu and then the Start New Submission button at top of page.

Distribution Services

If your organization is interested in increasing readership for its research by starting a Research Paper Series, or sponsoring a Subject Matter eJournal, please email: RPS@SSRN.com

Distributed by

Legal Scholarship Network (LSN), a division of Social Science Electronic Publishing (SSEP) and Social Science Research Network (SSRN)

Directors

LSN SUBJECT MATTER EJOURNALS

BERNARD S. BLACK
Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

Advisory Board

Torts & Products Liability Law eJournal

ANITA BERNSTEIN
Anita and Stuart Subotnick Professor of Law, Brooklyn Law School

RICHARD A. EPSTEIN
Laurence A. Tisch Professor of Law , New York University School of Law, Stanford University - Hoover Institution on War, Revolution and Peace, James Parker Hall Distinguished Service Professor of Law Emeritus, University of Chicago - Law School

MARK GEISTFELD
Sheila Lubetsky Birnbaum Professor of Civil Litigation, New York University School of Law

MARK F. GRADY
Professor of Law, University of California, Los Angeles (UCLA) - School of Law

SAUL LEVMORE
William B. Graham Professor of Law, University of Chicago Law School

ROBERT L. RABIN
A. Calder Mackay Professor of Law, Stanford Law School

W. KIP VISCUSI
University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Law School, Research Associate, National Bureau of Economic Research (NBER), University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Department of Economics, University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Owen Graduate School of Management, Vanderbilt University - Strategy and Business Economics

RICHARD W. WRIGHT
Professor of Law, Illinois Institute of Technology - Chicago-Kent College of Law