"How the Proposed Payments Legislation Will Restrain Competition Among Payment Card Schemes and Harm Consumers in the European Union" Free Download

DAVID S. EVANS, University of Chicago Law School, University College London, Global Economics Group

The European Commission’s proposed payments card legislation and the common position reached by the European Parliament in April 2014 will harm competition, innovation, and consumers if broadly endorsed by the European Council in the coming months. The interchange fee price caps will soften competition between MasterCard and Visa, the global four-party bankcard systems, and disadvantage domestic card systems. The limits on what, in effect, merchants pay for cards will shift billions of euros of costs to European consumers. The infirmity of the legislation is particularly apparent from its treatment of the three-party card schemes. These three-party schemes, which have small shares of payment cards in European countries, provide an important source of competition. The proposed legislation impairs the ability of these smaller three-party systems to compete by permitting merchants to surcharge cards from the smaller three-party systems but not the larger four-party ones, and by potentially prohibiting three-party systems from only entering into select partnerships. They may also face arbitrary price caps. These anti-competitive restrictions on small rivals, advanced in the name of competition, demonstrate the lack of serious analysis behind the proposed legislation. For European consumers the proposed payments legislation will lead to a hefty price tag, diminished choice, and depressed innovation.

"Net Neutrality: Measuring the Problem, Assessing the Legal Risks" Free Download
IBEI Working Papers 2013/42 Telefonica Chair Series

CHRISTOPHER MARSDEN, University of Sussex Law School

Network neutrality is a growing policy controversy. Traffic management techniques affect not only high-speed, high-money content, but by extension all other content too. Internet regulators and users may tolerate much more discrimination in the interests of innovation. For instance, in the absence of regulatory oversight, ISPs could use Deep Packet Inspection (DPI) to block some content altogether, if they decide it is not to the benefit of ISPs, copyright holders, parents or the government. ISP blocking is currently widespread in controlling spam email, and in some countries in blocking sexually graphic illegal images. In 1999 this led to scrutiny of foreclosure of Instant Messaging and video and cable-telephony horizontal merger. Fourteen years later, there were in 2013 net neutrality laws implemented in Slovenia, the Netherlands, Chile and Finland, regulation in the United States and Canada, co-regulation in Norway, and self-regulation in Japan, the United Kingdom and many other European countries. Both Germany and France in mid-2013 debated new net neutrality legislation, and the European Commission announced on 11 September 2013 that it would aim to introduce legislation in early 2014. This paper analyses these legal developments, and in particular the difficulty in assessing reasonable traffic management and ‘specialized’ (i.e. unregulated) faster services in both EU and US law. It also assesses net neutrality law against the international legal norms for user privacy and freedom of expression.

"Virtual Worlds Players – Consumers or Citizens?" Free Download
Internet Policy Review, 3(4), 2014

EDINA HARBINJA, University of Strathclyde Law School, University of Hertfordshire

This article questions the preconceived notions that participants in virtual worlds are essentially consumers. Building on the existing scholarship around virtual worlds and notwithstanding the current character of virtual worlds, this paper explores aspects of End User License Agreements and notes the unfairness of their provisions, particularly the imbalance between user and developer interests governed by such contracts. It argues that the contracts cannot be regulated with consumer protection legislation, as interests such as property or intellectual property are beyond the scope of consumer protection regimes. Finally, recognising the phenomenon of constitutionalisation of virtual worlds, the article argues for stronger regulatory solutions in this domain, in order to strike a more appropriate balance between competing interests in virtual worlds.

"Marginal Consumers, Marginalized Economics: Whose Tastes and Habits Should the WTO Panels and Appellate Body Consider When Assessing ‘Likeness’?" 
(2014) 48:2 Journal of World Trade 323

MARIOS C. IACOVIDES, Uppsala University - Faculty of Law

In Philippines - Distilled Spirits, the Appellate Body of the WTO reaffirmed that the determination of 'likeness' in the GATT should be about the competitive relationship between products. A coherent methodology for the determination of 'likeness' has finally begun to emerge, with the same methodology having been adopted in the GATS (Panel Report , China - Electronic Payments) and the TBT Agreement (Appellate Body Report, US - Clove Cigarettes). Yet, mainstream as the adoption of competition law methodology for the finding of 'likeness' may have become as of recent, its implementation by the adjudicating bodies of the WTO is still inadequate, as demonstrated by the disputes examined in this article. One recurrent problem is the choice of whose consumers' tastes and habits to take into account in the determination of 'likeness'. As shown in the article, competition law has had to deal with the same problem and has developed ways to address common fallacies arising out of relying on evidence regarding the choices of groups of consumers without the groups having been shown to be economically significant. The analysis suggests that the shortcomings of the application of competition law methodology at WTO dispute settlement can be easily addressed in the short-term by raising the awareness of the WTO Members, panels, and the Appellate Body to them, and by turning to competition law for readily available solutions, while increasing the institutional capacity of the adjudicating bodies of the WTO in the long-term.

"Introduction to 'The European Unfair Commercial Practices Directive'" Free Download
Van Boom, Garde & Akseli, The European Unfair Commercial Practices Directive - Impact, Enforcement Strategies and National Legal Systems (Ashgate 2014), p. 1-18

WILLEM H. VAN BOOM, Leiden Law School
AMANDINE GARDE, Durham University - Law School
ORKUN AKSELI, Independent

In 2005, the EU Directive on Unfair Commercial Practices was adopted. The UCP Directive has the ambitious aim of addressing unfair commercial practices directly related to distorting consumers’ economic behaviour concerning transactional decisions. In this introductory chapter to the edited volume “The European Unfair Commercial Practices Directive - Impact, Enforcement Strategies and National Legal Systems? (Willem van Boom, Amandine Garde & Orkun Akseli (eds.); Ashgate 2014), we first give a brief overview of the main features of the Unfair Commercial Practices Directive. Secondly, we sketch three themes that seem to have a prominent presence in all discussions of the Directive: the tension between consumer autonomy, empowerment and protection; the problematic nature of the maximum harmonization principle; and finally the decentralized enforcement framework and the challenges this poses at Member State level. Finally, we introduce the contributions to the volume.

"Google's Anti-Competitive and Unfair Practices in Digital Leisure Markets" Free Download
Competition Law Review, Forthcoming

ANCA DANIELA CHIRITA, Durham University - Department of Law

The purpose of this article is to reflect on the critical use of commitments in the Google case and to analyse and review the matrix of facts that have been highlighted in the academic and practitioner literature. Therefore, the core area of reflection in this contribution are relevant markets; barriers to entry; network and lock-in effects; dominance; and potential anti-competitive, as well as unfair practices as regards commercial advertisements. The analysis of the online search-engine market is complemented by the comparative insights offered by the US class action against Google’s Android mobile applications. In the EU, a similar trend is noticeable in the complaining tone of Google’s competitors. Coupled with the transitional period of the mandate of the newly appointed Commissioner for Competition and the political sensitivity over the potential to misuse search-engine users’ personal data to serve commercial purposes, such as boosting its advertising revenues, the giant Google swims in uncertain waters.


About this eJournal

This eJournal distributes working and accepted paper abstracts of articles, recently published articles, books, legislative reports, conferences, and other publications that address issues of interest to consumer law scholars and practitioners. Coverage includes legal issues pertaining to advertising, consumer reporting (including credit repair organizations), discrimination (including redlining), consumer disclosure (such as the Truth in Lending Act, the Real Estate Settlement Procedures Act, and consumer leasing), consumer fraud (including issues arising under the Federal Trade Commission Act, state UDAP statutes, odometer laws, referral sales, and bait and switch statutes), unconscionability, standard form contracts, consumer privacy (including telemarketing, spam, spyware, phishing, direct mail, financial privacy, common law privacy torts in consumer transactions, and online privacy), identity theft, data protection, cooling off rules (including door to door sales regulation), payment systems (such as credit and debit cards, internet payment issues, stored value cards (including gift cards and phone cards), and electronic transfers), warranties (including UCC warranties, lemon laws, and the Magnuson-Moss Warranty Act), consumer product safety, commercial speech doctrine, debt collection, repossession, predatory lending (including asset-based lending, equity stripping, flipping, balloon payments, negative amortization, loan packing, rate-risk disparities and yield-spread premiums), payday lending, usury, credit insurance, electronic shopping (including electronic signatures and records, formation of contracts, and payments), the holder in due course regulation, mortgages, student loans, repossession, foreclosure, regulation that pertains to consumer markets and enforcement of consumer laws (including class actions, preemption, arbitration, administrative enforcement, small claims courts and attorney's fees). The eJournal does not cover landlord-tenant issues or criminal law. The eJournalwelcomes a broad range of methodological approaches, including conventional doctrinal analyses, law and economics approaches, historical discussions, socio-legal analyses, law and society approaches, discussions of consumer psychology that bear on legal issues, international law analyses and comparative law approaches.


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Advisory Board

Consumer Law eJournal

Associate Dean, Director - Consumer Law Center, Dwight Olds Chair in Law, University of Houston Law Center

Roger Henderson Professor of Law, University of Arizona - James E. Rogers College of Law

Professor of Law, Georgia State University College of Law

George Alexander Madill Professor of Contracts and Commercial Law, Washington University in Saint Louis - School of Law

Professor of Law, Oklahoma City University - School of Law

Professor of Law, Ohio State University - Michael E. Moritz College of Law

Associate Dean and Professor of Law, University of Wyoming College of Law

Professor of Law, University of Kent, Canterbury - Kent Law School

Professor of Law, Catholic University of America - Columbus School of Law

Associate Dean for Intellectual Life and Professor of Law, Hofstra University School of Law