Steven Van Uytsel

Introduction: Networks and Networked Governance

A much-discussed feature of the emerging global legal order has been the proliferation of so-called transnational regulatory networks. These new institutional forms consist of routinized, purposive interaction between diverse actors that share a common sphere of expertise. Such networks are of different types, some involving cooperation between public bodies, others entailing interaction between public, private and quasi-public institutional actors. These networks perform diverse functions: e.g. ‘enforcement networks’, designed to make enforcement more efficient across international borders; ‘information networks’ aimed at promoting information exchange; and, ‘harmonization networks’ setting standards and seeking uniformity in substantive and procedural normative standards.

Access to justice and collective actions ‘Florence’ and beyond

In modern societies, guaranteeing or enhancing access to justice is an important feature of legal systems. However, to support this ideal state, we must pose some questions regarding the meaning and relevance of this term: What exactly is meant by ‘access to justice’? Who shall enjoy it? And how can it be accomplished? These questions touch on various issues cutting across not only legal subjects, but different academic fields in general: In addition to law, access to justice is closely interlinked with the fields of economy, sociology and politics, just to name a few. The practical impact of the non-legal fields must not be underrated and – to a certain extent – will be borne in mind and reflected throughout this book. The main emphasis, however, will be put on current legal questions closely related to access to justice. The term ‘access to justice’ itself consists of two parts, ‘access’ and ‘justice’, which – when read together – can be seen as a kind of abbreviation. ‘Access’ often comes together with ‘equal’1 or ‘effective’.2 It embodies the older, more technical and procedural side of the overall concept: It is the question of enabling those in need to pursue their legal interests. ‘Justice’, on the other hand, has a more result-oriented meaning which should be reached through equal or effective access: The outcome of the procedure

Delayed Leniency Applications: The Unfortunate But Predictable Outcome of the Flexible Leniency Policies Under the Chinese Antimonopoly Law

Leniency has become important for the enforcement of competition law against illegal cartels. When the Chinese Anti-Monopoly Law was drafted, the possibility to give lenient treatment to an infringer coming forward with information on the illegal cartel was inscribed in Article 46. In their elaboration of this general leniency provision, NDRC and SAIC created two leniency policies, one of price related and one for non-price related cartels. These leniency policies empowered the enforcement agencies to take decisions almost as they like.

Geographical Indications in Japan - a New Start

The Diet, the Japanese parliament, has adopted in 2014 the Tokutei Norin Suisan Butsu to no Meisho no Hogo ni Kansuru Horitsu (Act for the Protection of the Names of Designated Agricultural, Forestry and Fishery Products and Foodstuffs). Even though the title of the act does not carry the word ‘chiriteki hyouji’(地�?�的表示, geographical indications), it is generally considered ‘the’ geographical indication act (hereinafter GI Act) in Japan. The purpose of this paper is to introduce the main provision of this act in the English language. The structure of this paper is as follows. Section II will describe the scope of the legislation. In Section III, the registration process will be elaborated. Section IV deals with the reasons to refuse an application for a geographical indication. In Section V, the procedure to amend a registration will be explained. Section VI elaborates the procedure to cancel a registration. The enforcement procedure and the fines applicable will be explained in Section VII.

The International Competition Network, Its Leniency Best Practice and Legitimacy: An Argument for Introducing a Review System

In his contribution The International Competition Network, its Leniency Best Practice and Legitimacy: An Argument for Introducing a Review System, Steven Van Uytsel argues that the International Competition Network, as an example of a transnational regulatory network, should set up a review system of its best practices. Best practices of transnational regulatory networks, are seen as a legitimate tool for influencing the regulatory behavior of their members. These best practices are, at the end, developed by experts in the field based upon the experiences of these experts with their respective legislation or practices. Nevertheless, this chapter shows that this may be problematic if the legislation or the practice with which these experts work exhibits flaws. This is an argument that can be made in the framework of the leniency program and its best practice under the Competition Network. Van Uytsel shows that the best practice finds its origin in the leniency program of two major jurisdictions, the United States and the European Union. The leniency programs of these two jurisdictions have recently been negatively scrutinized by several scholars. Therefore, the question arises on whether best practice is really reflecting a legitimate end-result for convergence. Suggesting that it is not, Van Uytsel argues that a review process could overcome the potential threat to legitimacy in this kind of transnational regulatory network and he also offers some ideas on how this review process could be institutionalized.

From Peasant to Shareholder

Today we think of group litigation as being a type of procedural exception to a general system of litigation by individual claimants. History, however, shows us that this has not always been the case. English courts in the thirteenth century routinely heard cases by groups represented by individuals – often villages or parishes represented by one of their number – without any special procedural rules or enquiry to differentiate the case from litigation between individuals. Tokugawa Japan – whose judicial system bore many similarities to the early English courts – likewise entertained claims by and against groups of litigants represented by one of their number. These were often villages represented by a headman – and like the early English courts the Tokugawa judiciary accepted these claims without any special rules to distinguish such cases from those involving individual litigants. Yeazell has suggested that over the centuries social and economic changes in England, which altered the political landscape and created a new type of group, the joint stock company, laid the groundwork for a turn towards the modern conception of group litigation. This would eventually result in the idea of a group unified for the purposes of litigation by a shared interest among its members in the case. Tokugawa Japan, like England thru the turn of the 19th century, underwent drastic social and economic change in the years between 1600 and 1868. Like England, these changes resulted in the creation of a new kind of group – the kabunakama – which was one of the main forms of business organization and a precursor to the joint stock company, whose form would be transplanted to Japan via legislative change in the late 19th century after the abandonment of the Tokugawa judicial system. Unlike the joint stock company in England, however, the appearance of the kabunakama in Tokugawa Japan did not coincide with any changes in the legal system’s approach to group litigation. Disputes involving the kabunakama, in fact, could not be heard in the Shogun’s courts. The Tokugawa legal system – despite its similar starting point in relation to group litigation and its overall similarities to the English system – never developed a separate approach to group litigation which differentiated it from cases involving individuals. This paper explores why this divergence occurred, arguing that the overall institutional framework of Tokugawa Japan and the nature of the kabunakama made a similar path of legal development to England all but impossible.

Collective actions in a competition law context –reconciling multilayer interests to enhance access to justice?

This chapter will attempt to add to the research on barriers complicating the effectiveness of collective actions. The existence of multilayer interests, often internally fragmented into differentiated interests that are affected by a competition law infringement, will be identified as possible other barriers. In order to further analyze this rather cryptic statement, several issues need to be clarified. Each person showing an interest in a competition law infringement has to be identified. The existence of multiple stakeholders will require a categorization of their interests in order to conclude whether ‘just’ diffuse interests or different interests exist. The existence of different interests will necessitate an investigation on whether collective actions can overcome these differences. Without such reconciliation, full enhancement of access to justice may not be realized.

Sustainable Development: Linking the Convention on the Diversity of Cultural Expressions to WTO?

The Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Convention on the Diversity of Cultural Expressions), adopted on 20 October 2005, has breathed new life into the ‘trade and culture’ debate. Witness the fact that several scholars have discussed the position of the Cultural Diversity Convention in relation to the rules of the World Trade Organization (WTO). This literature on the Convention on the Diversity of Cultural Expressions describes three possible hypotheses on how the Convention on the Diversity of Cultural Expressions, as part of public international law, could play a role within the framework of WTO. First, the Convention on the Diversity of Cultural Expressions could be invoked as a defense to claims under WTO covered agreements (WTO claims). This defense would be independent from the exceptions expressly mentioned in the WTO agreements. Second, the Convention on the Diversity of Cultural Expressions may be used to interpret WTO provisions relevant in a WTO claim. Third, the Convention on the Diversity of Cultural Expressions might indirectly influence the WTO by offering its members an improved bargaining position during WTO negotiations. Yet, not everything has been revealed. This paper is going to argue that the concept of sustainable development may bring the Convention on the Diversity of Cultural Expressions and the WTO regime closer to each other.

China's antimonopoly law and recurrence to standards

A challenging (debatable) hypothesis to equate CSR codes with the concept of the social clause, much debated in the late nineties.Notes on Contributors. Acknowledgements. Introduction: Law and Development in the 21st Century David M. Trubek Part 1: Law and Development Orthodoxy: Asian Challenges 1. Law and Development Orthodoxies and The Northeast Asian Experience John K.M. Ohnesorge 2. The Resurgence of the Right to Development Muthucumaraswamy Sornarajah 3. Japanese Law and Asian Development Tom Ginsburg 4. The Success of Law and Development in China: Is China the Latest Asian Developmental State? Connie Carter 5. The Politics of Law and Development in Thailand: Seeking Rousseau, Finding Hobbes Andrew Harding 6. Law and Development, FDI and the Rule of Law in Post-Soviet Central Asia: The Case of Mongolia Sukhbaatar Sumiya Part 2: Special Topics: Institutions and Areas of Law 7. Echoes of Through the Looking Glass: Comparing Judicial Reforms in Singapore and India Arun K. Thiruvengadam and Michael Ewing-Chow 8. Japanese Long-Term Employment Caslav Pejovic 9. Non-Economic Criteria in the Formulation of the World Trade Regime: From Social Clause to CSR Shin-ichi Ago 10. Chinas Antimonopoly Law and Recurrence to Standards Steven Van Uytsel 11. The Privatization of Investor-State Dispute Resolution Gerald Paul McAlinn 12. Thailand and Legal Development Lawan Thanadsillapakul. Index

A comparative US and EU perspective on the Japanese Antimonopoly Law's leniency program

This paper will investigate whether changes to the Japanese Leniency Program can contribute to an even more successful leniency policy in Japan. By engaging in this kind of research, this paper does in no way pretend to create an optimal leniency program for Japan. Such an endeavor will eventually fail for any country, as a leniency program basically is a strategy determining game. In order to choose for an optimal outcome of the strategy, full information for each of the participants of the game on each other is required. This may seldom be the case. The aim of the paper is rather limited to analyze whether there are enough incentives to report illegal cartel activity and whether these incentives are not hampered by legislative shortcomings.