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Journal articles on the topic 'Restraint of trade'

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Published: 4 June 2021

Last updated: 30 July 2024

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1

M. Costello, Michael. "Provider exclusions in US private health insurance contracts." Journal of Hospital Administration 8, no. 3 (April 18, 2019): 15. http://dx.doi.org/10.5430/jha.v8n3p15.

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Two national newspaper articles published in the Fall of 2018 addressed the issue of private health insurance provider contracts that act to exclude specific health systems from health plan networks. Inevitably, the question arises: Are such agreements illegal restraints of trade actionable under federal and state antitrust laws? A long-standing tenet of antitrust law is that it exists to protect competition not competitors. Excluding providers may be a legitimate outgrowth of the contracting process and therefore legal. However, an examination of the contracting process may reveal anticompetitive intent to restrain trade. The specific facts surrounding provider exclusion must be analyzed carefully in an effort to determine if there is illegal restraint of trade.

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2

Costello, Michael M. "Provider Exclusion in US Private Health Insurance Contract." Archives of Business Research 12, no. 4 (April 5, 2024): 14–17. http://dx.doi.org/10.14738/abr.124.16773.

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Two national newspaper articles published in the Fall of 2018 addressed the issue of private health insurance provider contracts that act to exclude specific health systems from health plan networks. Inevitably, the question arises: Are such agreements illegal restraints of trade actionable under federal and state antitrust laws? A long-standing tenet of antifrust law is that it exists to protect competition not competitors. Excluding providers may be a legitimate outgrowth of the contracting process and therefore legal. However, an examination of the contracting process may reveal anticompetitive intent to restrain trade. The specific facts surrounding provider exclusion must be analyzed carefully in an effort to determine if there is illegal restraint of trade.

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3

Lucey, Mary Catherine. "Europeanisation and the restraint of trade doctrine." Legal Studies 32, no. 4 (December 2012): 623–41. http://dx.doi.org/10.1111/j.1748-121x.2012.00236.x.

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The common law restraint of trade doctrine continues to provide valuable protection in a variety of business contexts. This paper analyses an incompatibility problem that has arisen between that doctrine and EU competition rules (in particular Art 101 Treaty on the Functioning of the EU [TFEU]) as implemented by EU Regulation 1/2003, which, amongst other matters, delineates the interface between national law and EU competition law. According to the High Court, once a court has applied Art 101 TFEU, Art 3 of the Regulation prevents a court from reaching a contrary finding under the restraint of trade doctrine. Thus, the court cannot find a clause is void under the doctrine if the clause comes within the scope of, but is not prohibited by, Art 101 TFEU. In effect, this conclusion displaces the restraint of trade doctrine for parties who are subject to unreasonable restraints that fall foul of the doctrine but are not prohibited by Art 101 TFEU. The interface problem and the possible solution are presented as issues of Europeanisation. The negative impact on national law deriving from an EU measure is portrayed as a ‘top down’ Europeanisation scenario. A contrary ‘uploading’ perspective reveals how and why Art 3 and associated Recitals in Regulation 1/2003 were ‘constructed’. These findings on the intended scope of Art 3 are used to challenge the High Court's view on the negative implications of the Regulation for the restraint of trade doctrine. Finally, this paper offers specific proposals as to how courts in the United Kingdom and Ireland could ensure that the restraint of trade doctrine is not an inevitable casualty of Europeanisation. It argues that when looking for a solution to the ‘top-down’ Europeanisation problem faced by the restraint of trade doctrine, the ‘uploading’ perspective of Europeanisation suggests a solution.

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SMITH, STEPHEN A. "Reconstructing Restraint of Trade." Oxford Journal of Legal Studies 15, no. 4 (1995): 565–95. http://dx.doi.org/10.1093/ojls/15.4.565.

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5

Botha, Monray Marsellus. "Case Notes: Restraint of Trade Clauses: Anything New from the Courts?" Industrial Law Journal 44, no. 2 (2023): 734–46. http://dx.doi.org/10.47348/ilj/v44/i2a4.

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Restraint of trade agreements are not new. Recently the courts have been faced with deciding various challenging issues in this respect, such as whether a pandemic has an impact on the enforceability of a restraint, and whether a restraint of trade should be amended based on public policy which imports values of fairness, reasonableness, and justice. This note revisits the general principles governing restraint of trade agreements as a background to examining the latest trends in such cases.

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6

van Jaarsveld, Marlize. "The Validity of a Restraint of Trade Clause in South Africa as a Contractual Term in an Employment Contract." Texas Wesleyan Law Review 10, no. 1 (October 2003): 171–99. http://dx.doi.org/10.37419/twlr.v10.i1.9.

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What follows is a reflection on the history and the validity of restraint of trade clauses as contractual terms in South African employment contracts. The Article is divided into seven parts. Part I deals with the general meaning of restraint of trade clauses and the reasons for including these clauses in employment contracts. This is followed by a discussion of the then-uncertain status of restraint of trade clauses in South African employment contracts until 1984, when the status of restraint clauses in contracts was finally addressed. In Part III, the consequences of the Appeal Court's 1984 groundbreaking decision in Magna Alloys & Research (Pty) Ltd. v. Ellis will be examined. During 1996, the final Constitution of South Africa was enacted which afforded protection to individuals to trade freely. The influence of this constitutional guarantee on the validity of a restraint of trade clause is discussed in Part IV. This is followed by an analysis of the meaning of public policy as a criterion for the enforcement of a restraint of trade clause Part V. Diverse aspects pertaining to the practical enforcement of restraint clauses are dealt with in Part VI of the article, and finally, the conclusion follows in Part VII.

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7

McCormick, Douglas. "Combination in Restraint of Trade." Nature Biotechnology 8, no. 9 (September 1990): 781. http://dx.doi.org/10.1038/nbt0990-781.

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8

Weiner, S. E. "Contracts in restraint of trade: Pacta sunt servanda and constitutional values: From Magna Alloys to Beadica." Journal of the South African Chapter of the International Association of the Women Judges 2022 (2022): 19–50. http://dx.doi.org/10.47348/jsac-iawj/2023/a2.

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Since the advent of the constitutional era, the law of contract and the maxim pacta sunt servanda have been the subject of much jurisprudential discourse. Restraint of trade agreements have, on occasion, been regarded by our courts as distinct from other contracts, with some judges believing that such contracts should be treated with more circumspection and outside the confines of the principles applicable in our law of contract. In Magna Alloys the Appellate Division laid down the general principle that, prima facie, contracts in restraint of trade are valid and enforceable. The employee bears the onus of showing that the restraint is unreasonable and contrary to public policy. Some jurists believe, however, that the application of constitutional principles requires a revision of our jurisprudence in relation to contracts in restraint of trade. This article analyses some of the judgments dealing with the concept of pacta sunt servanda and the application of constitutional values in the decision-making process, and shows that there is no need to cavil against the existing jurisprudence and to treat contracts in restraint of trade as sui generis or more stringently. Although most of the authorities quoted in this article deal with our law of contract in general, such principles have been held by the Supreme Court of Appeal and the Constitutional Court to apply equally to contracts in restraint of trade.

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9

Mupangavanhu, Yeukai. "The Relationship between Restraints of Trade and Garden Leave." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 20 (June 12, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a1278.

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The purpose of the article is to examine the relationship between a so-called "garden leave" clause and a post-termination restraint of trade clause in employment contracts, in view of the decision in Vodacom (Pty) Ltd v Motsa 2016 3 SA 116 (LC). The Labour Court grappled with the question of whether the enforcement of the garden leave provision impacts on the enforcement of a post-termination restraint of trade clause. Enforcement of both these types of clauses may be problematic. It can result in unfairness if an employee ends up being commercially inactive for a long period. The author argues that garden leave has a direct effect on the enforcement of a post-termination restraint of trade clause. Accordingly, a restraint of trade will be enforced only if the employer's proprietary interest requires additional protection beyond what is achieved under the garden leave clause.

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10

Chandran, Ravi. "Restraint of Trade: A Singapore Perspective." Business Law Review 29, Issue 12 (December 1, 2008): 382–86. http://dx.doi.org/10.54648/bula2008060.

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The position in Singapore with regards to restraint of trade clauses in employment contracts is largely similar to the position in the United Kingdom. Nonetheless, while the authorities in the United Kingdom are divided on the validity of “non–poaching of employees” type of restraint of trade clauses, the very recent Singapore Court of Appeal decision of Man Financial (S) Pte Ltd v Wong Bark Chuan, David has endorsed the validity of such clauses whole heartedly after an extensive review of authorities from the United Kingdom, Hong Kong and Australia. In addition the court in Man Financial (S) Pte Ltd v Wong Bark Chuan had the opportunity to consider several other related issues such as the significance of the fact that the employee was specifically paid for entering into the restrictive covenant, the significance of the fact that the employee had expressly agreed to the restrictive covenant and the significance of fact that the employee received legal advice in relation to the restrictive covenant.

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11

Kostecki, Michel. "Export-restraint Arrangements and Trade Liberalization." World Economy 10, no. 4 (December 1987): 425–53. http://dx.doi.org/10.1111/j.1467-9701.1987.tb00861.x.

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12

KWOK, Kelvin Hiu Fai. "Antitrust Enforcement and State Restraints at the Mainland China-Hong Kong Interface: The Importance of Bilateral Antitrust Co-operation." Asian Journal of Comparative Law 12, no. 2 (May 24, 2017): 335–69. http://dx.doi.org/10.1017/asjcl.2017.6.

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AbstractThis article argues that effective co-operation between the antitrust authorities of Mainland China and Hong Kong in antitrust enforcement and the removal of anti-competitive state restraints is essential to the promotion of market competition in, as well as free trade and economic integration between, the two regions. This entails the careful design and conclusion of a bilateral co-operation agreement embracing not only comity co-peration in antitrust enforcement, but also the adoption of a diplomatic solution of mutual self-restraint for the removal of anti-competitive state restraints at the Mainland China-Hong Kong interface. This would also require the co-operation of Mainland Chinese and Hong Kong government authorities. Only with such bilateral cooperation can anti-competitive business practices and state restraints obstructing free trade and economic integration between the two regions be eliminated.

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13

Day, William. "FREEDOM OF CONTRACT AND RESTRAINT OF TRADE." Cambridge Law Journal 79, no. 1 (March 2020): 11–14. http://dx.doi.org/10.1017/s000819732000015x.

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14

JEFFERSON, M. "NOTE: Restraint of Trade: Dismissal and Drafting." Industrial Law Journal 26, no. 1 (March 1, 1997): 62–68. http://dx.doi.org/10.1093/ilj/26.1.62.

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15

Teo, P. "Academy Cleared in Restraint of Trade Suit." Archives of Ophthalmology 106, no. 7 (July 1, 1988): 889. http://dx.doi.org/10.1001/archopht.1988.01060140035013.

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16

Curfman, Gregory. "Law Journals, Biomedical Journals, and Restraint of Trade." Journal of Law, Medicine & Ethics 50, no. 1 (2022): 195–99. http://dx.doi.org/10.1017/jme.2022.25.

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AbstractLaw journals permit submission of scholarly manuscripts to multiple journals concurrently, but biomedical journals strictly forbid submission of manuscripts to more than one journal at a time. Law journals may then compete for the publication of manuscripts. This article examines whether the single-submission requirement of biomedical journals may constitute restraint of trade in violation of Section 1 of the Sherman Antitrust Act.

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17

Langenfeld, James A., and Louis Silvia. "Federal Trade Commission Horizontal Restraint Cases: An Update." Antitrust Bulletin 49, no. 3 (September 2004): 521–91. http://dx.doi.org/10.1177/0003603x0404900303.

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18

Stratton, I. G. C. "RESTRAINT OF TRADE DURING AND ON THE TERMINATION OF A CONTRACT OF EMPLOYMENT." Denning Law Journal 12, no. 1 (November 16, 2012): 107–28. http://dx.doi.org/10.5750/dlj.v12i1.267.

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19

Wayne, Abby Brown. "Comment on Kartell v. Blue Shield of Massachusetts, Inc.: An Antitrust Analysis of Blue Shield's Reimbursement Schemes." American Journal of Law & Medicine 11, no. 4 (1986): 465–500. http://dx.doi.org/10.1017/s0098858800006754.

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AbstractIn Kartell v. Blue Shield of Massachusetts, Inc., the First Circuit held that Blue Shield's reimbursement practice known as the “ban on balance billing” did not constitute an unlawful restraint of trade in violation of the antitrust laws. Underlying the First Circuit's decision was deference to what it viewed as efforts by Blue Shield and by the Commonwealth to promote cost containment.This Comment argues that, to the contrary, under an appropriate analysis of antitrust law, the practices employed by Blue Shield did constitute unreasonable restraints of trade on the physicians' service industry in Massachusetts, given Blue Shield's market dominance in the Commonwealth. The Comment also argues that such inhibition of the competitive functioning of this industry is unwise, and that costs should instead be contained by effectuating the antitrust laws and encouraging the development of competitive forces within this industry.

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20

Douglas, George W., and James W. Mullenix. "Cities and states as agents in restraint of trade." Antitrust Bulletin 31, no. 2 (June 1986): 505–25. http://dx.doi.org/10.1177/0003603x8603100212.

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21

Miller, Kenneth P. "Restraint of Trade: Patient Advocacy, or Simple Turf Guarding?" Journal for Nurse Practitioners 6, no. 9 (October 2010): 700–702. http://dx.doi.org/10.1016/j.nurpra.2010.07.002.

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22

Feenstra, Robert C. "Automobile prices and protection: The U.S.-Japan trade restraint." Journal of Policy Modeling 7, no. 1 (March 1985): 49–68. http://dx.doi.org/10.1016/0161-8938(85)90028-6.

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23

Dick, Andrew R. "Identifying contracts, combinations and conspiracies in restraint of trade." Managerial and Decision Economics 17, no. 2 (March 1996): 203–16. http://dx.doi.org/10.1002/(sici)1099-1468(199603)17:2<203::aid-mde763>3.0.co;2-0.

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24

Berry, Steven, James Levinsohn, and Ariel Pakes. "Voluntary Export Restraints on Automobiles: Evaluating a Trade Policy." American Economic Review 89, no. 3 (June 1, 1999): 400–431. http://dx.doi.org/10.1257/aer.89.3.400.

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We evaluate the voluntary export restraint (VER) that was initially placed on exports of automobiles from Japan in 1981. We evaluate the impact this policy had on U.S. consumer welfare, firm profits, and forgone tariff revenue from its initiation through 1990. (JEL F13)

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25

Capper, David. "Restrictive covenants, use of land, and the restraint of trade doctrine." Northern Ireland Legal Quarterly 72, no. 1 (July 1, 2021): 132–40. http://dx.doi.org/10.53386/nilq.v72i1.925.

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The common law doctrine of restraint of trade has a well-established presence in relation to contracts of employment and contracts for the sale of a business. Beyond those specific areas it reared its head from time to time, but the legal test for its applicability was not a model of clarity. Where the covenantor ceded a pre-existing freedom to engage in commercial activity, the decision of the House of Lords in Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269 brought it within the doctrine, but the recent decision of the Supreme Court in Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd [2020] UKSC 36, on appeal from the Northern Ireland Court of Appeal [2018] NICA 7, has discarded that test in favour of one based on the structure of a trading society. Peninsula Securities was a case concerned with the applicability of the restraint of trade doctrine to covenants affecting the ability of a landowner and its successors in title to use the land in a way that potentially competed with the business of an adjoining occupier. The decision that the restraint of trade doctrine was not engaged in these circumstances was set against the power of the Lands Tribunal to modify or extinguish covenants affecting land under article 5 of the Property (NI) Order 1978.

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26

Pervin, Dalia. "Application of the Doctrine of Restraint of Trade in Employment Contracts: A Dichotomy between English Law and Indian/ Bangladeshi Law and Its Potential in Outsourcing Contracts." Dhaka University Law Journal 34, no. 1 (November 22, 2023): 49–66. http://dx.doi.org/10.3329/dulj.v34i1.69607.

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The doctrine of restraint is no more confined to the entrenched words of the sections of the Contract Act, 1872. It has travelled beyond by encompassing the reasonableness doctrine within it. However, the development is still in its rudimentary state in context of Bangladesh as very few cases are dealt with by the Bangladeshi Courts on this issue. As a result, we do not have enough legal premises to make an in-depth analysis of the applicability of the doctrine in our perspective. However, the Grameenphone Ltd vs Chairman case in the First Labor Court has opened a new dimension on this issue through anatomizing an outsourcing contract. It has provoked us to think again of the application of restraint of trade doctrine in employment contracts. But before delving into the matter with a research methodology, we need to know more about it since the texts on the issue of outsourcing are still nascent. The aim of the article is to introduce to the reader the developments of the doctrine of restraint of trade and contextualize it in Bangladesh’s context. Dhaka University Law Journal, Vol. 33(1), 2023 P.49-66

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27

Carrigan, Frank, and Peter Radan. "The Post-Employment Restraint of Trade Doctrine: A Critical History." King's Law Journal 31, no. 1 (January 2, 2020): 121–44. http://dx.doi.org/10.1080/09615768.2020.1741157.

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28

Schui, Herbert. "Missing Basic Issues on Credit Money: On the Role of Money in Removing World-wide Growth Barriers (The M. L. Qureshi Memorial Lecture)." Pakistan Development Review 41, no. 4I (December 1, 2002): 423–42. http://dx.doi.org/10.30541/v41i4ipp.423-442.

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Kalecki identifies demand restraint in industrialised and capital restraint in developing countries as the decisive barriers of world-wide growth. Thus, beyond others, it is a matter of financing to foster employment in both types of countries: a rational use of credit money on the international scale could finance additional imports of capital goods by developing countries, whereas industrialised countries could increase their output by trade balance surpluses. This question has been largely debated under various aspects, from the Stamp plan (1958) to the programme of the Commission on International Development Issues (1980). Even if this debate has been superseded by questions of the process and the institutions by which capital is allocated, of the appropriate business management and screening and monitoring, declining growth rates in the last twenty years show that the basic issue of production and distribution of additional real capital remains at stake. Besides institutional obstacles, capital restraint still remains the main bottleneck for development. Basic questions as how to create and use world-wide credit money has to be reconsidered instead of taking backfiring actions to manage actual financial crises. Additional international money supply by planned trade balance deficits of developing countries contributes to world-wide growth, whereas trade balance deficits of the United States are likely to prepare the next financial crises by an excessively increasing dollar supply. A revival of the debate of how to link SDR’s and development financing surely requires to tackle a great number of additional questions, such as how to allocate trade balance deficits and surpluses and how to ensure the acceptance of this world credit money. All in all, it would be a serious attempt to break the money away from the handing down tradition and to transform it into a rationale by abstract reasons and well-founded instrument for economic development.

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29

Eyongndi, David Tarh-Akong. "Enforceability of Employment Bond Agreement under Nigerian Labour Jurisprudence." Eastern Africa Law Review 47, no. 2 (December 31, 2020): 138–71. http://dx.doi.org/10.56279/ealr.v47i2.5.

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This article through doctrinal methodology, examines the enforceability of employment bond agreement under Nigeria’s labour jurisprudence by highlighting its meaning, types and the justifications for bonding employees. It also examines the practice in India and draw lessons for Nigeria. It discusses the nexus between employment bond and restraint of trade and also, the employee’s right of resignation vis-à-vis employment bond agreement. It dilates employment bond against the backdrop of the doctrine of equality. The paper found that bond agreement are generally lawful under Nigerian labour jurisprudence however, insertion of certain terms, will render same unenforceable. Also, bond agreement is not expressly regulated by the labour legal regime but contract. It argues that non-financial bond agreement that have onerous, unconscionable, unequitable terms, especially in the academia, should be rendered unenforceable ab initio. The paper makes vital recommendation towards regulating the practice of employment bond to protect all labour stakeholders in Nigeria. Keywords: Employer, Employee, Employment bond, Nigeria, Restraint of trade. Unfair labour practice

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30

Nagel, Daniel, and Sorin Burnete. "Free Trade in Theory and Policy: Contemporary Challenges." Human and Social Studies 7, no. 2 (June 1, 2018): 13–35. http://dx.doi.org/10.2478/hssr-2018-0012.

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Abstract Free trade denotes a state of international commercial relations premised on governments’ restraint from using policy instruments meant to favor indigenous industries against foreign competitors. According to the conventional trade theory advocated by classical and neo-classical thinkers, free trade makes little economic sense failing nations’ tendency to specialize based on comparative advantage, a concept with high persuasive influence despite the elapsing of time. Even though the comparative advantage rule has seldom been questioned per se, the free trade concept has been fiercely disputed and not infrequently, bashed. Nations’ involvement in international trade often follows patterns that do not fit theoretical models but attempt to respond to circumstantial interests, most often the need to protect poorly competitive industries. In common parlance, free trade has had both proponents and enemies.

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31

Ortín, Sara, Yulán Úbeda, Rosa M. Garriga, and Miquel Llorente. "Bushmeat trade consequences predict higher anxiety, restraint, and dominance in chimpanzees." Developmental Psychobiology 61, no. 6 (April 7, 2019): 874–87. http://dx.doi.org/10.1002/dev.21853.

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32

Voon, Tania. "The Security Exception In WTO Law: Entering a New Era." AJIL Unbound 113 (2019): 45–50. http://dx.doi.org/10.1017/aju.2019.3.

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For seventy years, the security exception in the multilateral trade regime has mostly lain dormant. The exception first appeared in the General Agreement on Tariffs and Trade 1947 (GATT 1947), before being incorporated in the General Agreement on Tariffs and Trade 1994 (GATT 1994) upon the creation of the World Trade Organization (WTO). However, security exceptions also exist in several other WTO provisions, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the General Agreement on Trade in Services (GATS). Until recently, perhaps through a combination of WTO member restraint and fortuitous circumstances, WTO panels have not had to make a definitive ruling on the meaning and scope of these exceptions. Yet, suddenly, the security exception lies at the center of multiple explosive disputes, posing a potential threat to the WTO's very existence.

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33

Fanta, Ashenafi Beyene. "Informal finance as alternative route to SME access to finance: Evidence from Ethiopia." Journal of Governance and Regulation 4, no. 1 (2015): 94–102. http://dx.doi.org/10.22495/jgr_v4_i1_c1_p1.

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The problem of SME financing has received attention of policy makers and academics in recent years owing to the role of the sector in reducing unemployment, narrowing income gap and alleviating poverty. Alternative financing schemes were suggested but their success depends to a large extent on the development of legal, informational, and institutional frameworks. Existing body of literature grossly undermines SME ability in reacting towards financial restraint and generally assumes they are passive participants in the credit market. Through a survey of 102 randomly selected firms across 10 industrial sectors in the manufacturing sector, we examined how the Ethiopian manufacturing SMEs reacted to acute shortage of formal credit. We found that SME owners actively react towards financial restraint by resorting to alternative schemes such as iqqub(variant of rotating saving and credit association), customer advances, and trade credit. Although the alternative financing schemes are not the best but they are useful in evading the impact of credit restraint on their operation and growth.

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34

Nichol, Matt. "Is Labor in Sport a Commodity? The Case of American and Japanese Professional Baseball." Journal of Legal Aspects of Sport 33, no. 2 (August 29, 2023): 114–53. http://dx.doi.org/10.18060/27461.

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An important rule that underpins international and domestic labor law is the principle that labor is not a commodity. This principle has interesting application to the labor regulation in professional team sports such as baseball that utilize drafts, salary restraints, the reserve system, and free agency. The article will examine whether these and other labor controls in Major League Baseball in the United States and Nippon Professional Baseball League in Japan commodify labor. Baseball’s labor controls and practices will be assessed to determine if labor is treated as a commodity, and if so, whether there is undue commodification. In doing so, a construct will be created of labor practices that commodify labor on a spectrum. These labor practices and controls will also be evaluated in the context of antitrust law and restraint of trade. The article concludes by suggesting ways to improve the treatment of players that will decommodify labor.

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35

Henderson, Stacey. "The Arms Trade Treaty: Responsibility to Protect in Action?" Global Responsibility to Protect 9, no. 2 (April 18, 2017): 147–72. http://dx.doi.org/10.1163/1875984x-00902003.

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This paper argues that the influence of R2P can be seen in many subtle, yet significant, ways throughout the Arms Trade Treaty, from the language used to the obligations imposed on States Parties. The Arms Trade Treaty indicates that R2P is influencing decision making and contributing to the protection of populations from atrocity crimes by obliging States Parties to explicitly consider the consequences of their arms transfers. In addition, the Arms Trade Treaty has increased our understanding of R2P by confirming that R2P involves a range of measures and includes restraint by States in refusing to transfer arms in situations where atrocity crimes are being committed, which may temper concerns about R2P being rebranded as assistance.

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36

Chandler, Harry. "Competition Law Issues in the Upstream Oil and Gas Industry." Alberta Law Review 31, no. 1 (February 1, 1993): 72. http://dx.doi.org/10.29173/alr677.

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The Competition Act has many implications for Canada's oil and gas industry. To assist the industry in understanding the application of the Act, the author reviews the treatment of horizontal agreements in restraint of trade and describes some of their statutory and jurisprudential defences. The enforcement agency's Program of Compliance and current law enforcement policies are also detailed.

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Hunter, Lawson A. W., and John F. Blakney. "An Overview of the New Competition Law: Issues for the Oil and Gas Industry." Alberta Law Review 26, no. 1 (March 1, 1987): 59. http://dx.doi.org/10.29173/alr719.

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This paper reviews the major changes to Canada's competition law enacted in 1986, including new merger and abuse of dominant position provisions, the establishment of a Competition Tribunal, mandatory pre-notification of certain transactions, and revisions of the prohibition against agreements in restraint of trade. Special attention is given to joint ventures, export agreements and vertically integrated resource companies.

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38

Lucey, Mary Catherine. "EC Competition Policy: Emasculating the Common Law Doctrine of the Restraint of Trade?" European Review of Private Law 15, Issue 3 (June 1, 2007): 419–31. http://dx.doi.org/10.54648/erpl2007023.

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Abstract: Judicial analysis of the interface between EC competition law and the common law is rare. For this reason, the English High Court’s judgment in Days Medical Aids Limited v. Pihsiang Machinery Manufacturing Co. Limited and Ors is of note. This judgment is of enduring interest because its interpretation of EU law emasculates the common law restraint of trade doctrine (‘doctrine’) in respect of some commercial contracts. This article argues that the scope accorded by the High Court to EU law is not necessarily supported by the cited authorities and, further, that it places the doctrine in a precarious position. Résumé: L’analyse par la jurisprudence des points de contact entre le droit communautaire de la concurrence et les principes de common law est relativement rare. Or, l’arrêt de la High Court d’Angleterre dans Days Medical Aids Limited v. Pihsiang Machinery Manufacturing Co. Limited and Ors semble particulièrement pertinente è cet égard. En effet, dans cette décision, le juge anglais se livre à une interprétation discutable du droit communautaire selon laquelle celui-ci contribuerait à affaiblir la notion de ‘restraint of trade’ au sens de la common law dans le contexte de certains contrats. L’objet de cet article est de remettre en cause l’analyse livrée par la High Court et de montrer en quoi son interprétation est contestable, notamment dans le sens où elle contribue à fragiliser une notion ancienne et bien établie de common law. Zusammenfassung: Richterliche Analysen vom Zusammenwirken des Wettbewerbsrechts der EG mit dem Common Law sind selten. Aus diesem Grund ist das Urteil des Englischen High Courts im Fall Days Medical Aids Limited gegen Pihsiang Machinerz Manufacturing Co. Limited and Ors von andauernder Bedeutung, weil seine Interpretation des EU Rechts den Common Law Grundsatz ‘Restraint of Trade’ in Bezug auf einige Unternehmensverträge abschwächt. Dieser Artikel stützt die Behauptung, dass der vom High Court zugebilligte Anwendungsbereich des EU Rechts nicht notwendigerweise von den angeführten Urteilen umgesetzt wird und sich daraus für den bestehenden Common Law Grundsatz Unsicherheiten ergeben.

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SFIKAS, PETER M. "WHAT IS RESTRAINT OF TRADE? A REVIEW OF THE NATION'S ANTITRUST LAWS." Journal of the American Dental Association 126, no. 11 (November 1995): 1547–49. http://dx.doi.org/10.14219/jada.archive.1995.0085.

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Britton, Charles R., Richard K. Ford, and David E. R. Gay. "The United States Wine Industry: Restraint of Trade and the Religious Right." International Journal of Wine Marketing 13, no. 2 (February 2001): 43–58. http://dx.doi.org/10.1108/eb008719.

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Depypere, Stefaan, and S. Nardelli. "Comments on the Use of Trade Defence Instruments against the EU in the Current Economic Downturn." Global Trade and Customs Journal 4, Issue 9 (September 1, 2009): 293–300. http://dx.doi.org/10.54648/gtcj2009036.

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In parallel with the economic downturn, the number of new trade defence actions (anti-dumping, countervailing and safeguard measures) initiated by non-EU countries against EU exports has more than doubled. This is a worrying trend given the increased risk of improper use of these instruments especially in time of global economic crisis, when Governments are under exceptional protectionist pressure. Despite diverging national practices, all countries have to apply these instruments in full compliance with their international obligations. Restraint should also be exercised to preserve the true objective of remedying distortions of competition and to avoid any abuse and undue restriction to trade.

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Donna, Javier D., and Anita N. Walsh. "(Lack of) Competition, Coordination, and Information Sharing in the Pork Industry: United States, 2009–2020." Antitrust Bulletin 68, no. 1 (January 29, 2023): 117–36. http://dx.doi.org/10.1177/0003603x221149367.

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In 2020, an antitrust lawsuit was filed against the Pork Integrators alleging a §1 Sherman Act violation. At the center of the Lawsuit, there is an alleged exchange of atomistic information about the Pork integrators’ operations using Agri Stats, Inc. as a clearinghouse. We use the Supreme Court benchmark in American Column & Lumber to discuss two questions that arise from the Lawsuit. The first is whether the association of Pork Integrators and Agri Stats, Inc., resulted in the restraint of interstate commerce, the main specific issue at stake in the pork Lawsuit. The second is whether information-exchange agreements using clearinghouses like Agri Stats, Inc., lessen competition and offend U.S. antitrust law, a more general issue beyond the pork Lawsuit. We find that there appears to be ample evidence in the Lawsuit to merit prosecution regarding both trade restraints and information-sharing agreements. We conclude by discussing the role of the Agencies in setting the standards in information-exchange agreements.

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Pelc, Krzysztof J. "How States Ration Flexibility: Tariffs, Remedies, and Exchange Rates as Policy Substitutes." World Politics 63, no. 4 (September 22, 2011): 618–46. http://dx.doi.org/10.1017/s0043887111000190.

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A close look at the commitments of World Trade Organization (WTO) members presents a striking paradox. Most states could raise their duties significantly before falling afoul of their WTO obligations. Moreover, such “binding overhang” varies between countries: some could more than double the amount of trade protection they offer overnight, whereas others are tightly constrained. What accounts for this variation? The author argues that more flexibility is not always better: obtaining it and subsequently using it are both costly. Rather than maximize flexibility, states thus seek an optimal amount. If they have access to policy space through other means, such as currency devaluations and trade remedies, they will exercise restraint in seeking binding overhang. The same supply-side logic holds at the domestic level: governments strategically withhold binding overhang from industries that are able to rely on trade remedies, despite the fact that these tend to have the greatest political clout.

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Wacke, Andreas. "Freedom of Contract and Restraint of Trade Clauses in Roman and Modern Law." Law and History Review 11, no. 1 (1993): 1–19. http://dx.doi.org/10.2307/743597.

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The interplay between the Roman economic and legal orders is one of the most important areas calling for research and analysis. There is no lack of excellent descriptions of the economic life of antiquity. In contrast, legal-historical enquiries into the legal-economic issues of Roman times are still in the initial stages. This dearth of research is mainly the result of the unsatisfactory state of Roman legal sources, which rarely deal with economic issues. It is a stroke of luck to find sufficient documentation on any specific topic. One such fortunate case, that of restraint of trade, exists. There are no fewer than seven Digest texts on the topic. These will be analyzed below, in conjunction with a comparative survey of the development of this aspect in modern law.

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Thorpe, David. "Athlete persona as subjective knowledge under the common law restraint of trade doctrine." International Sports Law Journal 13, no. 3-4 (September 3, 2013): 211–24. http://dx.doi.org/10.1007/s40318-013-0019-z.

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Timmons, Gregg, and Nancy Ridenour. "Legal Approaches to the Restraint of Trade of Nurse Practitioners: Disparate Reimbursement Patterns." Journal of the American Academy of Nurse Practitioners 6, no. 2 (February 1994): 55–59. http://dx.doi.org/10.1111/j.1745-7599.1994.tb00918.x.

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Sun, Xihui. "Looking Before Leaping: Can We Afford an Unlimited Trade War Between the World’s Two Largest Economies." Global Journal of Emerging Market Economies 12, no. 1 (January 2020): 24–41. http://dx.doi.org/10.1177/0974910119896646.

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The Trump administration launched the world’s biggest trade war with China, which is suggestive of its distinctive governing philosophy. Consequently, the trade war with China is not only part of the US policies on China, but also part of the Indo-Pacific strategy of the administration, with aims of both money and containment. In response, China has adopted both hardline and moderate approaches, resolutely fighting back the pressure from the USA and exhibiting restraint in retaliation. However, China and the USA have their own advantages, and the end of the trade war depends on the resolution, willpower, and judgment of the situation. Presently, China is the only country that has the ability and resolution to stand up to the USA to stay the course in the trade war; China’s perseverance and retaliation to the US’ extreme pressure in the trade war temporarily eased the pressure on other countries from the USA. The trade war is damaging to the world and will cause more harm if it goes unchecked. The USA dominates the direction of Sino-US relations, but China’s response also shapes Sino-US relations to a certain extent.

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Davis, Christina L., and Krzysztof J. Pelc. "Cooperation in Hard Times." Journal of Conflict Resolution 61, no. 2 (July 11, 2016): 398–429. http://dx.doi.org/10.1177/0022002715595699.

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Hard times give rise to greater demand for protection. International trade rules include provisions that allow for raising barriers to aid industries when they suffer economic injury. Yet widespread use of flexibility measures may undermine the trade system and worsen economic conditions. How do states balance these conflicting pressures? This article assesses the effect of crises on cooperation in trade. We hypothesize that governments impose less protectionism during economic crisis when economic troubles are widespread across countries than when they face crisis in isolation. The lesson of Smoot–Hawley and coordination through international economic institutions represent mechanisms of informal governance that encourage cooperation to avoid a spiral of protectionism. Analysis of industry-level data on protection measures for the period from 1996 to 2011 provides support for our claim that under conditions of shared hard times, states exercise strategic self-restraint to avoid beggar-thy-neighbor policies.

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Kleinlein, Thomas. "Judicial Lawmaking by Judicial Restraint? The Potential of Balancing in International Economic Law." German Law Journal 12, no. 5 (May 1, 2011): 1141–74. http://dx.doi.org/10.1017/s2071832200017259.

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In the framework of this project, both the WTO dispute settlement system and international investment tribunals are portrayed as core actors in judicial lawmaking. By weaving international trade law and investment law on the roughly timbered looms of imperfect treaty law, they have proven to be successful creators of the fabrics of a world trade order and of investment protection standards, respectively. Such effective lawmaking, on the part of particular “regimes,” has the potential to increase the fragmentation of international law. Consequently, international judicial institutions are not only spotted as originators of fragmentation, but—as interpreters of international law—also as addressees of strategies in response presented in the 2006 Report of the ILC Study Group on Fragmentation. It is the Study Group's comforting message that a considerable part of the difficulties arising from the diversification and expansion of international law can be overcome by recourse to a “coherent legal-professional technique.” The Fragmentation Report highlights that conflict resolution and interpretation cannot be distinguished: “[w]hether there is a conflict and what can be done with prima facie conflicts depends on the way the relevant rules are interpreted.” According to the Report, coherence can be established by interpreting legal norms with due regard to their normative environment.

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Koene, Bas, and Hugo van Driel. "The Rhetoric of Restraint: The Struggle for Legitimacy of the Dutch Temporary Work Agency Industry, 1961–1996." Enterprise & Society 12, no. 3 (September 2011): 562–600. http://dx.doi.org/10.1017/s1467222700010223.

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In many countries governments and labor unions have contested the post-war rise of temporary agency work, arguing that this innovation infringed on workers' rights and security. We investigate the rhetorical strategies used by Dutch temporary work agencies (TWAs) to gain legitimacy for their business between 1961 and 1996. Our conclusion is that the TWAs' trade association ABU developed a sophisticated rhetoric of “self-restraint” to legitimize the deployment of a non-standard labor arrangement. The core message was that – if applied properly - agency work did not threaten permanent employment. The complexity of the inclusive nature of this rhetorical approach, aiming to acknowledge the concerns of multiple stakeholders, was reflected in ABU's difficulty in aligning its claims of socially responsible behavior with an effective defense of the sector's economic interests. Still, the consistent focus on restraint lent credibility to the claimed function of “allocating” workers to their jobs that eventually gained the TWA industry fundamental acceptance as a responsible labor market actor.

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