Resale Price Maintenance and the Law

Resale Price Maintenance and the Law

The Future of Vertical Restraints

Taylor & Francis Ltd






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Contents Preface List of Abbreviations List of Annexes and Tables Chapter 1 Introduction Abstract Topic Introduction Background on Assessment and Application: Legal Issues and Development Background on Enforcement Best Practices: Investigative Techniques and Enforcement Protocol Research Objectives and Main Research Questions Structure and Scope of Book Conclusory Remarks PART I - US HISTORICAL ORIGINS AND ECONOMIC FOUNDATIONS Chapter 2 The Legal and Political Origins of RPM - United States Abstract United States: Historical Origins & Legal Structure of RPM The Introduction of the Sherman Act and its Common Law Roots: 1889-1910 Dr. Miles Era- the Right of Alienation and its Per Se Impact: 1911-1930 Fair Trade Era- Carving out Exceptions to the Sherman Act: 1930-1975 Post Fair Trade Era- Non-Price vs. Price Transition Towards Rule of Reason: 1975 - 2007 Leegin Era- Maximum vs. Minimum RPM Transition Towards Rule of Reason: 2007 - Present Chapter Conclusion: US Historical Origins and Legal Structure Chapter 3 The Economics of Vertical Agreements - Background Abstract Chapter Introduction General Economic Background of Vertical Restraints General Economic Background of RPM Background on Economic Theories of RPM Link Between Schools of Thought and Economic Models General Structure of Models: Vertical and Horizontal Elements of RPM Digital Single Market, the E-Commerce Sector Inquiry and the Internet Goals of the EC: Digital Single Market and E-Commerce Sector Inquiry Models of Change: How the Internet Changed Market Dynamics Conclusion: RPM Economic Background and E- Commerce Chapter 4 The Economics of Vertical Agreements - Models Abstract Anti-Competitive vs. Pro-competitive Economic Models of RPM Anti-Competitive RPM Theories Facilitating Collusion Upstream or Downstream Increase in Prices, Lifecycles and Product Favouritism Foreclosure and Restriction of Entry Both Upstream and Downstream Foreclosure as a Commitment Device in Protection of Monopoly Rents Dampen or Soften Competition Both Upstream and Downstream Pro-Competitive RPM Theories Special Services and Free-riding Quality Certification and Signalling Image Theory: The Allure of Paying More Demand Uncertainty and Inventories Outlets and Distribution Density Moral Hazard and Double Moral Hazard Production of a Good when Manufacturers' Risks are Low Contract Enforcement Mechanism and Quality Control Loss Leader Selling Less Efficient Dealer and/or Distributional Efficiency Price Discrimination Spatial Price Discrimination Where imposing an RPM floor leads to a decrease in collusive behaviour RPM with Optimal Delegation New Market Entry or Product Launch Pro-competitive models which rely on the purely vertical aspect of RPM Conclusion: No Consensus among Economists on Impact of RPM PART II - EU HISTORICAL ORIGINS AND LEGAL STRUCTURE Chapter 5 The Legal and Political Origins of RPM - European Union Abstract European Union: Historical Origins & Legal Structure of RPM Historical Background of EU Vertical Enforcement Current Legal Structure of EU Vertical Enforcement Block Exemptions and their role in vertical restraint enforcement Article 101(3): a closer examination of the individual assessment and its role in vertical restraint enforcement Chapter Conclusion: EU Historical Origins and Legal Structure Chapter 6 The Legal Concepts of By-Object, By-Effect and Appreciability Abstract Introduction to the Distinction between By-Object and By-Effect A Background on By-Object Restrictions: The Finer Details Categorisation and Analysis of By-Object Restrictions: A Deeper Dive By-Object Categorisation: Overview of Differences between the EC and Case Law Approaches By-Object Categorisation: Approaches to Appreciability By-Effect Comparison: A Concise Overview of the Main Differences Return to the RPM Legal Structure in light of the By-Object/By-Effect Dichotomy: Overview of the Current Approach to RPM Enforcement Article 101(3): a closer examination of the individual assessment and its role in RPM enforcement Chapter Conclusion PART III - PROPOSALS, IMPLICATIONS AND SOLUTIONS Chapter 7 Proposals and Solutions Abstract Chapter Introduction Time for a Change? Transatlantic Synchrony towards Revealing a Malfunctioning Regime RPM Legal Regime: Current Challenges undermining its Efficacy Horizontal Non-consensus: Should NCAs have their own agenda? A New Way Forward: Developing a More Viable Approach to RPM Enforcement Proposed RPM Solutions Solution 1: Escaping automatic Article 101(3) TFEU applicability: developing a mechanism where RPM can be found inappreciable, and therefore, not in violation of Article 101(1) TFEU Solution 2: Eliminate RPM's hardcore designation by shifting its inclusion in the VBER from Article 4 to Article 5 Solution 3: Elimination of RPM's hardcore designation through its application to Article 2 of the VBER (original and modified case scenarios) Solution 4: Application of the De Minimus Doctrine to RPM Solution 5: Recommendations for Improvement of Status Quo Chapter Conclusion Chapter 8 Conclusion Abstract Conclusion: Most Serious Considerations to Enhance the Efficacy of the Current RPM Regime Overview of Solutions: The Best Way Forward Final Remarks Annex 1 RPM US Origins Annex 2. RPM Economic Models Annex 3. RPM Model Timeline Index
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