In the quest for truth

  

Science and legal science

As part of my PhD training at the University of Bergen my colleagues and I are attending a “Research School” in which we are taught how to be better researchers and to discuss our ideas concerning the different PhD projects.

As part of this excellent seminar, organized by Linda Gröning and Jørn Jacobsen, we had yesterday a lecture by Prof. Dr. Marie Sandström, vice dean of the Faculty of Law of the University of Stockholm.  The main topic of the lecture was to address the matter of Law as a scientific discipline.

In a very engaging and active discussion the topic was approached in a very original manner tracing the different similarities between law and natural sciences. Also, a historical-comprehensive basis was used to explain the points of view elaborated and to provide with scientific ground for the assertions.

"Furu"

©Yngvild Beathe Olsen

Prof. Dr. Sandström emphasized that the expression legal science, in English, is a bad translation of different expressions used to denominate what is known as Rechtswissenschaften, Science de la Droite and Jurisprudence. Hence, this has to be kept in mind when comparing legal science to natural sciences as they are different but interconnected concepts.

Prof. Dr. Sandström commented that in her view a PhD student in law must base his/her research on a methodology. Also, it is important to creatively combine different methods to produce an original work. There is a risk, however, when combining different methods as it might not be self-evident that they will answer in the same direction the posed question(s).

Additionally, it was mentioned that legal research has two main characteristics:

1.- It is based on coherence. Law is a systematic structure of norms that solves problems from general principles to particular cases (at least in the Continental Law system!).

2.- The PhD dissertation must be based on a general hypothesis. In her view, the work must retain some generality and even though it is tempting to choose a very narrow and limited topic to “control it”, there should be a drive towards also obtaining generalized knowledge.

Another aspect that was discussed was that the work of the PhD researcher/legal scholar should aim towards the improvement of the current legal system providing with better founded, more convincing and closer to the truth answers.

Lastly, in what became the most discussed and debated part of the conversation, Prof. Dr. Sandström encouraged us, the PhD researches, to look for the truth in legal research. In her view, there should be less fear of using the words truth, right decision, and right answer when writing our dissertations.

"Passing by the trees"

©Yngvild Beathe Olsen

 

Back from Barcelona

After 6 days of nice weather, great WARM lunches and lots of sun I am back in Bergen.

Parc Güell

Barcelona is a vibrant, bohemian city with fantastic buildings, very nice walking areas and overpriced Gaudí's houses. 20€ to visit Casa Batlló! I asked if they gave you a "tapa" and a bottle of cava as part of the visit because otherwise is simply speculating with the amount of tourist they receive.

Montjuic

I will update the blog later on this weekend and upload a couple of pictures of this trip.

Casa Batlló

Here are a couple of them:

Random lampost

Slow motion life in Tarragona

Research on hold

I will be off to Catalunya starting tomorrow until Wednesday to see my mother after more than one year without being with her. 

I am very much looking forward to being with her as it has been definitely too long. You really appreciate how much you miss your loved ones as soon as you do not have them around you. Hence, research will be frozen, on hold, waiting for me to come back to Bergen.

©Yngvild Beathe Olsen

Special thanks to Yngvild Beathe Olsen for allowing me to use her creations on my blog.

Adina Claici: Anti-competitve exclusionary conduct in EU antitrust practice.

Yesterday at BECCLE we had a very interesting talk by Ms. Adina Claici (PhD , Economist, member of the DG Competition on the EU Commission) and concerning exclusionary practices, particularly on the topic of rebates and loyalty.

Main comments:

On 2009 a Guidance Note on exclusionary practices was enacted by the Commission incorporating an “effect based approach”. The focus was shifted from the form of the practice towards the effect of the same in the market. Anti-competitive effects have to be proven in accordance to the harm theory.

The EU Commission has settled on the application of the “efficient competitor test” to determine what practices are allowed or not. The reason behind this choice is that EU does not protect inefficient competitors. The EU Commission protects competition but not competitors.

Consistency needs to be ensured in the application of articles 101 and 102 of the TFEU. Therefore, there is a need of applying same standards to different practices to avoid firms choosing which practices to enter into.

Efficiency has surged as a defence of dominant firms (art. 101 TFEU).

Case of Post Danmark 2012: application of the effect based approach on exclusionary conduct. In this case it was proved that the price offered to the costumers of the competitors was not below costs; hence, this is part of an efficient competitor strategy. AIC<Price<ATC.

Specific forms of abuse:

Exclusive dealing, tying and bundling, predation and refusal to supply and margin squeeze. Exclusive dealing: AT&T case (USA). Exclusive dealings can lead to the fact that a dominant firm may harm its competitors. In here there are several opposing views: the Chicago school and the post Chicago models. The Guidance document from the Commission states that the dominant undertaking may hinder competition by settling exclusive purchasing obligations and/or rebates.

Unavoidable trading partner “the must have brand”.

Margin squeeze is a common practice in the telecom industry and requires an upstream and downstream market. It is very difficult to compare price differences in practice.

Velux case (39.451): this is a case that was closed without further actions by the Commission as it was not found evidence of competition infringements.

This case deals with rebates and commercial practices by a dominant undertaking in the market of roof windows. In principle, rebates are not anti-competitive unless they foreclose an efficient competitor. The efficient competitor test.

No formal complaint was filed against Velux but rather an ex-officio investigation was opened.

In this market the elasticity of the demand is low because the price of the roof window is already included in the total price of the house. Hence, consumers are not price aware, but rather are willing to pay more for a good quality roof window.

Velux operated in different markets by offering to their distributors discounts and rebates in a complex scheme. There are several thresholds and small increments in the discount percentages.

The analysis of the rebates scheme is based on the Guidance Note. It distinguished between two different types of rebate schemes: retroactive and incremental rebates. 

Retroactive rebates are those in which with the additional purchasing of a new item over a certain threshold would trigger the application of a percentage of discount over the total amount of purchases. The loyalty effect of retroactive rebates is high and, therefore, may lead to anti-competitive effects.

Incremental rebates would be those reductions in price that are given in an “escalated” manner and affecting exclusively to the successive purchases. Therefore, the loyalty effect they produce is much lower.

Rebates can be anti-competitive if: the discount percentages are high and/or close to the profit margins of the sector. Retroactive effects are likely to produce higher loyalty effect and oblige the purchaser to acquire an additional unit from the dominant undertaking and not from the competitor.

List of October readings:

In case anyone out there wants to get an idea of what I am reading lately, here it is the list:

 

1. Bovis, Christopher. PUBLIC PROCUREMENT IN THE EUROPEAN UNION. 2005. http://www.worldcat.org/title/public-procurement-in-the-european-union/oclc/493724225
2. Jakobsen, Peter Stig. Kalsmose-Hjelmborg, Simon Evers. Poulsen, Sune Troels. EU PUBLIC PROCUREMENT LAW THE PUBLIC SECTOR DIRECTIVE, THE UTILITIES DIRECTIVE. 2012. http://www.worldcat.org/title/eu-public-procurement-law-the-public-sector-directive-the-utilities-directive/oclc/801357014&referer=brief_results
3. Vesterdorf, Peter L. and Nielsen, Mogens Uhd. STATE AID LAW OF THE EU. 2008. http://www.worldcat.org/title/state-aid-law-of-the-european-union/oclc/475055364&referer=brief_results
4. Sánchez Graells, Albert. PUBLIC PROCUREMENT AND THE EU COMPETITION RULES. 2011. http://www.worldcat.org/title/public-procurement-and-the-eu-competition-rules/oclc/607975193&referer=brief_results
5. Ølykke, Grith Skovgaard. ABNORMALLY LOW TENDERS. WITH AN EMPHASIS ON PUBLIC TENDERS. 2010. http://www.worldcat.org/title/abnormally-low-tenders-with-an-emphasis-on-public-tenderers/oclc/671389448&referer=brief_results

All of them highly recommended as they are both interesting and well written.