As part of its enforcement duties under the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013, and in exercise of the powers assigned to it by the Health and Social Care Act 2012, the health care sector regulator for England (Monitor) is co-competent with the competition watchdog (Competition and Markets Authority) to enforce competition law in health care markets. Oddly, though, unlike other sector regulators, Monitor does not have a duty to promote competition but ‘simply’ to prevent anti-competitive behaviour. Monitor is also competent to carry out reviews and to decide bid disputes concerning procurement carried out by health care bodies, provided there is no formal challenge under the Public Contracts Regulations 2006.This paper contends that such a concentration of regulatory, competition enforcement and procurement review powers puts Monitor in a unique situation of (potential) structural conflict of interest that can diminish significantly its ability to act as an effective (co-competent) competition authority. This paper focusses on this difficult structure for the enforcement of competition law in the health care sector in England, in particular due to the asymmetrical, sui generis concurrency regime created by the Enterprise and Regulatory Reform Act 2013 and the Concurrency Regulations 2014. As examples of such conflict of interest and its implications, the paper assesses Monitor’s incentives to bend the interpretation of both art.101(3) TFEU and the new special regime on procurement of social services (arts.72-77 dir 2014/24). The paper concludes that this situation requires regulatory reform to devolve powers to the Competition and Markets Authority.
作为《2013年国家卫生服务(采购、患者选择和竞争)(第2号)条例》规定的执法职责的一部分，并行使《2012年卫生和社会保健法》赋予它的权力，英格兰卫生保健部门监管机构(Monitor)与竞争监督机构(竞争和市场管理局)共同负责在卫生保健市场执行竞争法。然而，奇怪的是，与其他行业监管机构不同，摩立特并没有促进竞争的责任，而“只是”防止反竞争行为。监察员也有权对保健机构进行的采购进行审查和决定投标纠纷，只要没有根据《2006年公共合同条例》提出正式质疑。本文认为，这种监管、竞争执法和采购审查权力的集中，使摩立特处于一种(潜在的)结构性利益冲突的独特境地，这可能会大大削弱其作为一个有效的(共同主管的)竞争监管机构的能力。本文重点关注英国医疗保健部门竞争法执行的这种困难结构，特别是由于2013年《企业和监管改革法》和2014年《并行条例》创建的不对称、独特的并行制度。作为这种利益冲突及其影响的例子，本文评估了摩立特曲解对第101(3)条《全面自由贸易协定》和关于社会服务采购的新特别制度的解释的动机(第16和16条)。72-77 dir 2014/24)。本文的结论是，这种情况需要进行监管改革，将权力下放给竞争和市场管理局。
{"title":"Monitor and the Competition and Markets Authority","authors":"A. Sanchez-Graells","doi":"10.2139/ssrn.2528569","DOIUrl":"https://doi.org/10.2139/ssrn.2528569","url":null,"abstract":"As part of its enforcement duties under the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013, and in exercise of the powers assigned to it by the Health and Social Care Act 2012, the health care sector regulator for England (Monitor) is co-competent with the competition watchdog (Competition and Markets Authority) to enforce competition law in health care markets. Oddly, though, unlike other sector regulators, Monitor does not have a duty to promote competition but ‘simply’ to prevent anti-competitive behaviour. Monitor is also competent to carry out reviews and to decide bid disputes concerning procurement carried out by health care bodies, provided there is no formal challenge under the Public Contracts Regulations 2006.This paper contends that such a concentration of regulatory, competition enforcement and procurement review powers puts Monitor in a unique situation of (potential) structural conflict of interest that can diminish significantly its ability to act as an effective (co-competent) competition authority. This paper focusses on this difficult structure for the enforcement of competition law in the health care sector in England, in particular due to the asymmetrical, sui generis concurrency regime created by the Enterprise and Regulatory Reform Act 2013 and the Concurrency Regulations 2014. As examples of such conflict of interest and its implications, the paper assesses Monitor’s incentives to bend the interpretation of both art.101(3) TFEU and the new special regime on procurement of social services (arts.72-77 dir 2014/24). The paper concludes that this situation requires regulatory reform to devolve powers to the Competition and Markets Authority.","PeriodicalId":320573,"journal":{"name":"University of Leicester School of Law Research Paper Series","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129806820","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper examines the controversies around the incorporation of investment arbitration into the Transatlantic Trade and Investment Partnership (TTIP). It was drafted to be read by a non-specialist audience, and addresses the primary arguments made regarding the use of arbitration in the TTIP. For each argument it offers a clear explanation of the opposing positions, and then presents an accessible analysis of the issue on the basis of the available evidence.The paper was originally prepared at the request of the Legal Affairs Committee of the European Parliament, and was produced under a grant from the Parliament for a study on arbitration in the European Union. It was supplied to the Parliament in late 2014.
{"title":"The Public Perception of Investment Arbitration","authors":"Tony Cole, P. Ortolani","doi":"10.2139/ssrn.2733046","DOIUrl":"https://doi.org/10.2139/ssrn.2733046","url":null,"abstract":"This paper examines the controversies around the incorporation of investment arbitration into the Transatlantic Trade and Investment Partnership (TTIP). It was drafted to be read by a non-specialist audience, and addresses the primary arguments made regarding the use of arbitration in the TTIP. For each argument it offers a clear explanation of the opposing positions, and then presents an accessible analysis of the issue on the basis of the available evidence.The paper was originally prepared at the request of the Legal Affairs Committee of the European Parliament, and was produced under a grant from the Parliament for a study on arbitration in the European Union. It was supplied to the Parliament in late 2014.","PeriodicalId":320573,"journal":{"name":"University of Leicester School of Law Research Paper Series","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117255413","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recourse to precedents in legal adjudication is a source of intriguing theoretical challenges and serious practical difficulties. That is especially so when we have to do not with domestic precedents but with foreign ones, that is, with decisions taken by foreign courts and international judicial institutions, particularly when there is no formal obligation for a court to resort to foreign law. Can a case decided by the judiciary of a different legal order — particularly if that case is remote and that legal order operates under different procedural rules and substantive laws — have any bearing on a dispute arising domestically here and now? Should such a foreign precedent be acknowledged to have any (formal) binding force on the case in question? How could the practice of following foreign precedents be justified? This paper is primary meant to lay the theoretical basis on which those questions can be addressed. The basis on which we proceed in answering those questions essentially lies in a theory of legal reasoning that, for lack of a better phrase, can be labelled a dialectical approach informed by standards of discursive rationality.
{"title":"Foreign Precedents in Judicial Argument: A Theoretical Account","authors":"Stefano Bertea, Claudio Sarra","doi":"10.2139/ssrn.2467155","DOIUrl":"https://doi.org/10.2139/ssrn.2467155","url":null,"abstract":"Recourse to precedents in legal adjudication is a source of intriguing theoretical challenges and serious practical difficulties. That is especially so when we have to do not with domestic precedents but with foreign ones, that is, with decisions taken by foreign courts and international judicial institutions, particularly when there is no formal obligation for a court to resort to foreign law. Can a case decided by the judiciary of a different legal order — particularly if that case is remote and that legal order operates under different procedural rules and substantive laws — have any bearing on a dispute arising domestically here and now? Should such a foreign precedent be acknowledged to have any (formal) binding force on the case in question? How could the practice of following foreign precedents be justified? This paper is primary meant to lay the theoretical basis on which those questions can be addressed. The basis on which we proceed in answering those questions essentially lies in a theory of legal reasoning that, for lack of a better phrase, can be labelled a dialectical approach informed by standards of discursive rationality.","PeriodicalId":320573,"journal":{"name":"University of Leicester School of Law Research Paper Series","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131166711","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-11-01DOI: 10.1163/9789004425033_002
Paolo Vargiu, F. Borgia
This paper addresses the appropriateness of the UNCLOS framework to provide effective protection for cables-related activities from a public international lawperspective. In the absence of an adequate legal framework provided by the Law of the Sea, it is suggested that bilateral investment treaties (BITs) represent one of the most suitable ways to guarantee effective security and protection for the laying of submarine cables. The bilateral approach proper of investment law will be proposed as a model to solve the problem of the protection of submarine cables in those parts of the sea where the sovereignty of a State is not limited by the rights of other States.
{"title":"When Investment Law Takes Over: Towards a New Legal Regime to Regulate Asia Pacific's Submarine Cables Boom","authors":"Paolo Vargiu, F. Borgia","doi":"10.1163/9789004425033_002","DOIUrl":"https://doi.org/10.1163/9789004425033_002","url":null,"abstract":"This paper addresses the appropriateness of the UNCLOS framework to provide effective protection for cables-related activities from a public international lawperspective. In the absence of an adequate legal framework provided by the Law of the Sea, it is suggested that bilateral investment treaties (BITs) represent one of the most suitable ways to guarantee effective security and protection for the laying of submarine cables. The bilateral approach proper of investment law will be proposed as a model to solve the problem of the protection of submarine cables in those parts of the sea where the sovereignty of a State is not limited by the rights of other States.","PeriodicalId":320573,"journal":{"name":"University of Leicester School of Law Research Paper Series","volume":"284 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116098177","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The central concept underlying access to employment rights is based on a binary divide between contract of service (the employee) and contract for services (independent contractor). New classifications of work relationships have however been added over time. These new categories do not sit comfortably with the binary classification system. New ways of working may undermine what we traditionally understand as working relationships. As such the usefulness of this system has been questioned. Yet contract remains central. In view of the lack of any practical alternative it is worth considering whether the interpretation of contract law itself is capable of development. The modern law of contract has the potential capacity to redefine the binary divide so that only those who are truly self-employed are excluded from statutory protection. To do this the meaning of 'contract of service' would need to reflect the reality of labour market contracting and take account of the impact of exploitative bargaining strength. This reinterpretation could potentially expand the classification of contract of service to encompass more non-standard workers within the remit of full employment protection in the UK. Such a possibility depends on how far the employment tribunal and courts have incorporated a contextual framework into their interpretation of contract and how far any context incorporates wider social values consistent with public law standards of fairness and reasonableness. This paper contends that there needs to be explicit acknowledgement by the judiciary that the contextual interpretation of contracts needs to include the economic, political and social imperatives that informed the statutory environment. By seeing the employment relationship in this wider context the pragmatic judge may truly take a purposive stance.
{"title":"Rediscovering the Contract of Employment for Non-Standard Workers in the UK Common Law","authors":"J. McClelland","doi":"10.2139/ssrn.2324973","DOIUrl":"https://doi.org/10.2139/ssrn.2324973","url":null,"abstract":"The central concept underlying access to employment rights is based on a binary divide between contract of service (the employee) and contract for services (independent contractor). New classifications of work relationships have however been added over time. These new categories do not sit comfortably with the binary classification system. New ways of working may undermine what we traditionally understand as working relationships. As such the usefulness of this system has been questioned. Yet contract remains central. In view of the lack of any practical alternative it is worth considering whether the interpretation of contract law itself is capable of development. The modern law of contract has the potential capacity to redefine the binary divide so that only those who are truly self-employed are excluded from statutory protection. To do this the meaning of 'contract of service' would need to reflect the reality of labour market contracting and take account of the impact of exploitative bargaining strength. This reinterpretation could potentially expand the classification of contract of service to encompass more non-standard workers within the remit of full employment protection in the UK. Such a possibility depends on how far the employment tribunal and courts have incorporated a contextual framework into their interpretation of contract and how far any context incorporates wider social values consistent with public law standards of fairness and reasonableness. This paper contends that there needs to be explicit acknowledgement by the judiciary that the contextual interpretation of contracts needs to include the economic, political and social imperatives that informed the statutory environment. By seeing the employment relationship in this wider context the pragmatic judge may truly take a purposive stance.","PeriodicalId":320573,"journal":{"name":"University of Leicester School of Law Research Paper Series","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130508533","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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