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A promising solution is to handle the problem of contribution in a contractual way. Antitrust infringers could conclude an agreement which would determine the amount of their relative liabilities regarding antitrust infringement. The freedom to determine relative shares of liability may yet be viewed reluctantly from a public policy perspective. It is claimed that liability sharing agreements constitute anticompetitive arrangements, they stabilize cartels, weaken the enforcement of competition law and have a negative impact on settlements. This Chapter reveals that these statements are mostly incorrect, being applicable to US antitrust law rather than EU one. The Chapter makes a positive case for liability sharing agreements. It demonstrates that liability sharing agreements are allowed by EU law and can be concluded within certain limitations dictated by compliance with the Commission’s fining decisions and public policy rules.
The intersection between contribution claims and EU competition law is controversial. Theoretically, the European Commission’s decision to hold several entities liable for an antitrust infringement can be circumvented if one entity escapes liability by successfully claiming contribution. The key questions are whether contribution claims are allowed in EU competition law and what requirements competition law sets for contribution litigation. The analysis shows that contribution claims do not endanger the effectiveness of competition law. The aims of competition law enforcement are met as soon as antitrust infringers pay the fine to the Commission or compensation to the victims of antitrust infringements. The CJEU in Siemens Österreich therefore allowed for contribution in competition law to be applied. While contribution claims generally do not endanger competition enforcement, competition law influences contribution litigation. The preliminary question in every dispute on contribution is an antitrust infringement, which has already been decided. Judges should thus not go against the decisions of the European Commission and are advised to respect the findings of national courts. In particular, one must respect the catalogue of entities held jointly and severally liable by the Commission, the 10% turnover cap and the information included in the Commission’s decision.
The potential of artificial intelligence (AI) has grown exponentially in recent years, which not only generates value but also creates risks. AI systems are characterised by their complexity, opacity and autonomy in operation. Now and in the foreseeable future, AI systems will be operating in a manner that is not fully autonomous. This signifies that providing appropriate incentives to the human parties involved is still of great importance in reducing AI-related harm. Therefore, liability rules should be adapted in such a way to provide the relevant parties with incentives to efficiently reduce the social costs of potential accidents. Relying on a law and economics approach, we address the theoretical question of what kind of liability rules should be applied to different parties along the value chain related to AI. In addition, we critically analyse the ongoing policy debates in the European Union, discussing the risk that European policymakers will fail to determine efficient liability rules with regard to different stakeholders.
Emerging neurotechnology offers increasingly individualised brain information, enabling researchers to identify mental states and content. When accurate and valid, these brain-reading technologies also provide data that could be useful in criminal legal procedures, such as memory detection with EEG and the prediction of recidivism with fMRI. Yet, unlike in medicine, individuals involved in criminal cases will often be reluctant to undergo brain-reading procedures. This raises the question of whether coercive brain-reading could be permissible in criminal law. Coercive Brain-Reading in Criminal Justice examines this question in view of European human rights: the prohibition of ill treatment, the right to privacy, freedom of thought, freedom of expression, and the privilege against self-incrimination. The book argues that, at present, the established framework of human rights does not exclude coercive brain-reading. It does, however, delimit the permissible use of forensic brain-reading without valid consent. This cautionary, cutting-edge book lays a crucial foundation for understanding the future of criminal legal proceedings in a world of ever-advancing neurotechnology.
Chapter 3 explains how any evaluation of effectiveness requires the measurement of goal realization. In order to understand what an effective remedy is and could be, it is thus necessary to know the purposes the effective remedy is to serve. The chapter proceeds by explaining how remedies may have different purposes which are connected to different functions in different manners. Further, even though the Court's case law reveals that Article 13 advocates a specific form of access to justice and that the primary purpose of the required redress is to correct individual justice, it remains uncertain to what extent Article 13, also, promotes other functions and purposes, for example, to what extent the access to justice required by Article 13 has independent procedural value apart from being a prerequisite for achieving redress, to what extent Article 13 must promote general and/or individual deterrence, and to what extent Article 13 has a function of promoting and regulating the relationship between the domestic and international levels by promoting, for example, subsidiarity and the rule of law.
This chapter discusses the theoretical controversies surrouding the death penalty, the status of the death penalty under international human rights law, the death penalty in the United States and China. It also explores other cruel, inhuman, or degrading punishments including mass incarceration, life imprisonment, shackling, and solitary confinement.
The chapter argues that the prevention of competition harms should be placed at the core of the functioning of competition authorities, including competition advocacy work. The legislative proposals of competition authorities can also be seen as a preventive tool. Fines are not a stand-alone tool in the toolbox of competition authorities when it comes to the prevention of harms. Rather, they are one of several tools that can be used by authorities to prevent harm and create public value. In order for competition authorities to carry out their protective role effectively and shield the public from harm, they must make full and consistent use of the preventive tools at their disposal. This necessarily requires the use of not only fines, but also regulatory initiatives and, where appropriate, the consistent application of divestitures.
In Spain, sanctions can be of three types: (1) administrative, (2) civil or (3) criminal. The first two are the most important while the third is residual and scarce, although there has been a long-running debate, especially in the academic sphere, about the convenience of greater criminalization. (1) Competition authorities can impose administrative sanctions, mainly fines, on infringers, both on companies and their directors. Exclusion of public tenders can also be imposed on entities that have been sanctioned (final sanction) for anticompetitive behaviour. (2) Commercial courts can award compensation to victims for antitust damages. These awards are always compensatory and not punitive, so they cannot exceed the damage caused. (3) Although there is no specific cartel offence, some anticompetitive conduct can also fall into some criminal types. Although the Spanish Criminal Code has since 1848 had provisions intended to penalise individuals who carry out conduct aiming at altering or manipulating prices, recourse to criminal proceedings for the sanction of these behaviours has been highly exceptional. The current trend is towards intensifying administrative and civil sanctions (higher corporate fines, more frequent and harsher fines for directors and exclusions of public tenders, while enhancing award of damages).
The chapter looks into the effectiveness of commitment decisions by reviewing selected examples from the European Commission’s jurisdiction. Proceedings with a considerable or often a very high degree of similarity in the air traffic, energy and payment-card industries provide useful insights into the extent to which the preceding decisions influence the behaviour of market participants and the approach taken by the Commission. The author concludes that commitment decisions are likely to be followed by other commitment decisions in similar cases and there is little evidence to suggest that market players voluntarily adjust their behaviour following a commitment case. A few recent examples suggest that this approach might not hold universally, leaving the actual impact of the commitment decisions challenging to forecast. It is argued that the limited deterrence and negative effect on legal certainty in the end limits the advantages of commitment decisions, as procedural efficiencies might evaporate if similar proceedings occur time after time. This, ultimately, may call into question the effectiveness of this tool, as practical examples suggest that the theoretical advantages are often not realised, while the negative effects on legal certainty and the limited deterrence effect are prominent.
The chapter summarizes the most important issues of the research topic, with a special focus on the goals of sanctioning competition law infringements. Without efficient sanctions, there is a serious risk that competition rules would not be taken seriously, which would in turn undermine the performance of our market economy. Sanctions, deterrence and respect for law are inseparable friends. Although there seems to be a global consensus that the ultimate goal is optimal deterrence, this goal exists more on the policy level than in the calculation of the amount of fines and other sanctions in actual cases. The chapter discusses various options for measuring the efficiency of fines, concluding that this discussion can be pursued only at an academic level. A mix of sanctions can bring about optimal deterrence, including personal administrative sanctions. Two hypothetical cartel cases with likely fines imposed in various jurisdictions are presented to show that even similarly structured sanctioning regimes may result in a diverging level of sanctions being imposed due to diverging national approaches.
Turkish competition law provides a dual enforcement structure that consists of public and private enforcement. Although the legislator has attached considerable weight to private enforcement by enabling the claimants to sue for threefold damages, it is fair to say that the Act on the Protection of Competition mainly relies on public enforcement. The Act empowers the Turkish Competition Authority to enforce the law and sets out various sanctions, including structural remedies, which equip the Authority with broad powers in combating anticompetitive behavior. The prime sanction is administrative monetary fines which are based on the turnover of the infringing undertaking and can be set at a maximum level of 10 percent of the turnover of the infringing undertaking. The Act also authorizes the Authority to implement monetary fines to managers and employees in cases where they have considerable influence in the formation of infringement. Anticompetitive behavior is a misdemeanor; however, in bid-rigging, it can also give rise to a crime and trigger harsh criminal sanctions. It is generally accepted that the Act provides severe penalties for infringements; however, in practice, the sanctions have been applied somewhat inconsistently, basically due to the fact that enforcement policy lacks coherent policy goals.
This chapter examines the effectiveness of the administrative fines imposed on cartels by the European Commission. It reviews the theory and practice and evidence that European Commission fines, leniency and settlement procedures deter cartels.
This chapter examines how a cyberattack that has consequences similar to a kinetic or physical attack – causing serious loss of life or physical damage – could be encompassed within the crimes that may be prosecuted before the International Criminal Court (“ICC”). While it is a very limited subset of cyber operations that might fall within the ambit of the ICC’s Rome Statute, the chapter explains when and how a cyberattack could constitute genocide, crimes against humanity, war crimes, or the crime of aggression. The chapter additionally acknowledges limitations as to which attacks would be encompassed, given, particularly, the ICC’s gravity threshold as well as the hurdle of proving attribution by admissible evidence that could meet the requirement of proof beyond a reasonable doubt. Notwithstanding such limitations, increased awareness of the largely previously overlooked potential of the Rome Statute to cover certain cyberattacks could potentially contribute to deterring such crimes and to reaching the goal of a state of “cyber peace.”
This chapter unpacks the strategic logic of interactions during a crisis involving cyber capable actors. It outlines the limits of coercion with cyber options for nation-states. After proposing a theory of cyber crisis bargaining, we explore evidence for associated propositions from survey experiments linked to crisis simulations and a case study of the US-Iranian militarized dispute in the summer of 2019.
Chapter 3 explores the prison as a place of incarceration of large numbers of mentally ill people in the late nineteenth century. It shows how the 1860s and 1870s was marked by the recalibration of separate confinement, as prison administration became increasingly centralised and uniform and discipline increasingly penal, its inspiration shifting from reformist imperatives to an emphasis on deterrence and punishment. By the 1860s transportation had mostly ended, the early optimism of the reformers was largely lost, and there was widespread concern about the retention of prisoners in the criminal justice system and high levels of recidivism, including in prisons with large female populations. The chapter addresses the constraints of ‘dual loyalty’ and its impact on the management of mental illness, with prison medical officers responsible for the health of their prisoner patients, but also required to implement and support the prison’s disciplinary practices. The chapter illuminates how prison medical officers produced their own distinct categories and labels to describe mental disorders, that was bolstered by an interest in discerning the relationship between criminality and mental illness.
The collapse of the Soviet Union radically changed the external and domestic environment for a new Russian state. Existing political science theories predict that radical changes to the international system or to the domestic regime affect the content of nuclear strategy. This chapter uses Russian archival and oral history sources on nuclear decision-making from the 1980s and 1990s to demonstrate that such change did not take place in Russian nuclear strategy. Soviet strategic thought and institutional mechanisms for strategy formulation would prove sticky, producing continuity rather than change in this area. The Soviet tradition for deterring nuclear war by preparing to fight it has continued to shape Russian nuclear strategy throughout the entire post-Cold War era.
What Bernard Brodie said about nuclear weapons in 1946 continues to be true: The most important thing about nuclear weapons is that they exist and are terribly powerful. This was true in both the Cold War and the subsequent era. Although the situation has changed a great deal, there are striking continuities, especially in American attitudes and policies. Most obviously, the United States has consistently opposed nuclear proliferation, with only a very few exceptions for its closest friends. Second, the debate within the United States about the role of nuclear weapons has been altered only slightly by the end of the Cold War. The fundamental division between those who see nuclear weapons as having a revolutionary impact on world politics and those who do not continues. Trump’s Nuclear Posture Review makes arguments that are remarkably similar to those made under the Raegan administration. In parallel, the arguments made against Anti-Ballistic Missile (ABM) systems today are quite similar to those advanced during the Cold War, despite the radically changed conditions. This indicates that ways of thinking about nuclear weapons have become deeply engrained.
Two states in a dispute refuse to back down. One ties its own hands to strengthen its stand and gain advantage; the other tries to untie the tied hands to preempt disadvantage. Tying hands is a well-studied strategy, but it tells only part of the story, and the response strategy of untying hands remains unexplored. Can a state untie the tied hands of its opponent to give freedom back to its opponent—the freedom to concede? I identify three strategies of untying hands: counterthreat, reassurance, and normative framing. I show experimentally that these strategies can reduce the public costs of backing down and the perceived reputational damage from backing down. Tied hands and audience costs are not static and immutable, but dynamic and malleable by the other side.
After Stalingrad, the Gestapo only dealt with critics the Party identified as threats. Case load dropped 76 per cent while charges under capital offences rose to a rate of one-in-three. Yet selective enforcement continued. Each institution took on different roles. The Gestapo relied on political officials to warn loyal offenders and identify subversives. The Party singled out repeat offenders when education failed, and case officers rubber-stamped their preliminary investigations. The judiciary could then punish anything that filtered up with lengthy deterrent sentences. New roles shaped new standards and practices. The damning classification of “doubtful attitudes” blurred lines between defeatism and subversion. Distinctions between actions and motive disappeared for repeat offenders. Investigation practices also sharpened as focus narrowed to targeted minorities and opinionmakers. Surveillance and torture were used in any case with the slightest hint of organized resistance. Sentencing practices followed in step. Leftist slogans were once again treason, and Marxists who encouraged surrender risked execution. The dangers multiplied for a select few deemed opponents by the Party.
The Battle of Stalingrad had far-reaching effects on political policing. A string of military disasters over 1943 raised the spectre of the stab-in-the-back. The Gestapo also feared that news of German defeats would embolden a slave revolt. The economy relied on forced labour by 1943 and disruptions could seriously threaten the war effort. Faced with criticism and revolt, the Gestapo focused on the greater of two evils. But the lessons of history dictated that morale could not be ignored. The Party stepped into the breach. Local political officials gained authority to investigate criticism and warn minor offenders. The Reich Security Main Office acknowledged this new division of labour by early 1944. Barriers between Marxists and organized opposition blurred under these conditions. Torture and surveillance were cleared against any organized group. Selective enforcement continued nonetheless. The Party singled out subversive Germans with “doubtful attitudes” and warned “grumblers.” The Gestapo were free to handle offences that filtered up with greater severity and focus on keeping foreign workers under control. Selective enforcement moved deeper into German society.