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"PRIVATE ENFORCEMENT"
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Pinkerton's great detective : the amazing life and times of James McParland
\"The story of the legendary Pinkerton detective who took down the Molly Maguires and the Wild Bunch The operatives of the Pinkerton's National Detective Agency were renowned for their skills of subterfuge, infiltration, and investigation, none more so than James McParland. So thrilling were McParland's cases that Sir Arthur Conan Doyle included the cunning detective in a story along with Sherlock Holmes. Riffenburgh digs deep into the recently released Pinkerton archives to present the first biography of McParland and the agency's cloak-and-dagger methods. Both action packed and meticulously researched, Pinkerton's Great Detective brings readers along on McParland's most challenging cases: from young McParland's infiltration of the murderous Molly Maguires gang in the case that launched his career to his hunt for the notorious Butch Cassidy and the Wild Bunch to his controversial investigation of the Western Federation of Mines in the assassination of Idaho's former governor. Filled with outlaws and criminals, detectives and lawmen, Pinkerton's Great Detective shines a light upon the celebrated secretive agency and its premier sleuth\"-- Provided by publisher.
Book
Private Enforcement of EU State Aid Rules: Is There Any Room for National Procedural Autonomy Left?
This article deals with the private enforcement of EU State aid rules in national civil proceedings. This kind of enforcement proved to be highly challenging for national judges, particularly those who ignore the limits of the principle of national procedural autonomy. Since the full understanding of those limits is crucial (also) for private enforcement activities, we focus on the principle of the effectiveness of EU law which, when interpreted and applied correctly, most intensively limits national procedural autonomy. In fact, it is questionable if Member States and their courts and judges enjoy a real or genuine autonomy in the discussed field. For this reason, the article first sets the scene by discussing the fundamental legal concepts and principles as being essential for the private enforcement of EU State aid rules in national civil litigious proceedings, and the interplay between private and public enforcement proceedings. The public enforcement case law is used as a benchmark or guide when dealing with open questions of private enforcement. The article offers a careful analysis of selected legal challenges related to remedies and res judicata, which clearly reveal the limits of the principle of national procedural autonomy as mostly set by the principle of effectiveness of EU law. Finally, the main findings of the article are considered in order to answer the core research question; namely, is there any room left for national procedural autonomy (also) in case of private enforcement of EU State aid rules in proceedings before national civil courts?
Journal Article
Gone with the Wind: JP and the Right to Clean Air Under EU Law
If the JP ruling were a book, it would be a thriller: not only the reader may be surprised by its outcome and by the arguments developed by the CJEU to support it, but it also contains a genuine “plot twist”, as until the end one is led to believe that the CJEU would have decided in the opposite way. While in previous cases it has constantly sought to enhance the effet utile of the EU regime on air quality, here the CJEU decided that individuals cannot claim compensation for damages suffered due to Member States’ infringements of that regime. By holding that Directive 2008/50/EC cannot confer rights to individuals because it pursues a general objective, the ruling seems inconsistent not only with the case law in this field, but also with several profiles that characterize the EU legal order from a broader perspective, such as the relation between direct effect and Member States’ liability. In addition to undermining the argument that EU law may recognize a substantive right to clean air, the ruling reduces the deterrent effect of Directive 2008/50/EC eliminating civil damages from the expected costs of air quality standards violations. The revision of Directive 2008/50/EC is currently under discussion and the Commission’s proposal – drafted before the JP ruling – recognizes the right to damages. The hope is that this point will survive the legislature procedure, reducing the relevance of the JP ruling: however, this is a feeble expectation considered the (need for Council’s approval and the) impact on Member States.
Journal Article
Solving Investors’ Problems with Access to Evidence in Damages Litigation: Suggestions for a Future Issuer Liability Regime
Private enforcement’s role in the European secondary securities market is narrow. Issuer companies’ civil liability for violations of the inside information disclosure obligation is no exception. While trying to avoid the shadow of the US class action institution, European scholarship has long explored ways to increase the role of private enforcement in the securities market. Harmonising issuer liability is one of the suggestions to create a more prominent role for private enforcement. Even though harmonising issuer liability would be a welcome option for legal certainty and investor protection, it seems unlikely to happen in the near future. As an initial step towards potential harmonisation, this article analyses credit rating agencies’ (CRAs) liability and liability for competition law violations from the viewpoint of information asymmetry in litigation. It evaluates whether the legislative solutions in the CRA III Regulation and the Competition Damages Directive regarding plaintiffs’ access to evidence could be used as models for a potential issuer liability regime. The article finds that the choices made in the Competition Damages Directive could serve as viable models for issuer liability. The provisions in that Directive solve the information asymmetry between the plaintiff and the defendant by granting the plaintiff access to evidence in litigation through a court order.
Journal Article
Governance under the shadow of the law
The market for paintings by well-known artists is booming despite widespread concern about art crime and difficulties in establishing provenance. Public law enforcement is imperfect, and court cases often are deemed problematic. So how is the thriving art market governed in practice? We analyze the protocols used by the top auction houses to identify and resolve problems of illicit supply—fakes, forgeries and items with defective legal titles—through the lens of institutional analysis. We uncover a polycentric private governance system in which different actors govern distinct but overlapping issue areas, motivated by profit, prestige, or the search for truth. When the financial stakes rise, opportunistic behavior undermines the credibility of private governance. We argue that as litigious, super-rich investors entered the art market, the interaction between public law and the traditional private governance system restricted the supply of “blue chip” art, driving the escalation of prices.
Journal Article
Pathways to interpersonal justice in European private law: top-down or bottom-up?
Katharina Pistor’s recent work has revealed a deep justice deficit in private law, raising fundamental questions about how it could be reduced. While Pistor favours piecemeal bottom-up solutions to instances of injustice, Martijn Hesselink proposes a more radical top-down strategy – the adoption of a progressive European code of private law. This article explores the top-down and bottom-up pathways to justice in private law, focussing on the role of interpersonal justice as justice between substantively free and equal persons in European private law. It shows that although concerns about a balance of the competing interests of private parties pervade many of its areas, they do not take central stage in European private law. The substantive private autonomy embodied in national private law systems, the regulated private autonomy enshrined in EU secondary private law and the unregulated private autonomy with an interstate element underpinning EU free movement law sit uneasily together. It is argued that in order to enhance the role of interpersonal justice in the internal market and develop a more coherent European private law, the current bottom-up pathway thereto could be complemented by a more top-down roadmap towards the EU principles of private law justice.
Journal Article
Individual Private Rights of Action under the Platform-to-Business Regulation
This article explores the availability of individual private rights of action under the Platform-to-Business Regulation. It is argued that Member States are required to provide for such remedies for the benefit of business users of online intermediation services and corporate website users. Individual rights of action are necessary, first, to ensure an adequate and effective level of overall enforcement and, second, to effectuate the implicit rights that must be inferred from the obligations the Regulation imposes on providers of online intermediation services and search engines. To make this case, we illustrate the practical relevance and deficiencies of individual rights of action using several German court cases; examine the key elements of the Regulation’s ‘visible’ enforcement architecture; apply the ECJ’s case lines on implicit individual rights and private rights of action as a non-specified enforcement tool; and provide an analysis of the potential added value and perceived weaknesses of individual rights of action as a mechanism to enforce the Regulation. Platform-to-business regulation 2019/1150, private enforcement, individual rights of action, online intermediation services, online search engines, amazon marketplace, platform economy, choice-of-court agreements, principle of effectiveness
Journal Article
Damages for infringements of competition law
The EU Damages Directive (2014) requires that compensation shall place a person who has suffered harm in the position in which that person would have been had the infringement of competition law not been committed, i.e., firms' actions free of infringements serve as benchmark for specifying harm caused by deviations. The paper confronts this specification with game-theoretic models of market interaction. It is shown that firms are not necessarily deterred to form a cartel that coordinates action choice but non-deterred cartels turn out to be of less concern as they are at least welfare preserving if not enhancing. To implement damages rules that satisfy the Directive's compensation requirement, courts must have sufficient information. When the actions taken by firms cannot be directly observed, implementing the compensation requirements remains possible only if the available evidence is sufficiently informative.
Journal Article
Investor protection and corporate governance : firm-level evidence across Latin America
'Investor Protection and Corporate Governance' analyzes the impact of corporate governance on firm performance and valuation. Using unique datasets gathered at the firm-level—the first such data in the region—and results from a homogeneous corporate governance questionnaire, the book examines corporate governance characteristics, ownership structures, dividend policies, and performance measures. The book's analysis reveals the very high levels of ownership and voting rights concentrations and monolithic governance structures in the largest samples of Latin American companies up to now, and new data emphasize the importance of specific characteristics of the investor protection regimes in several Latin American countries. By and large, those firms with better governance measures across several dimensions are granted higher valuations and thus lower cost of capital. This title will be useful to researchers, policy makers, government officials, and other professionals involved in corporate governance, economic policy, and business finance, law, and management.
eBook
The perils of government enforcement
An important part of the debate about self versus state-governance involves a discussion about enforcement mechanisms. While some scholars argue that private enforcement mechanisms work sufficiently well in supporting cooperation, others cite the downfalls of private mechanisms so as to legitimize government enforcement. This paper focuses on the interplay between government and private enforcement mechanisms. Using an experimental approach, we demonstrate two results. First, we show that government enforcement, in the form of a centralized monetary punishment in our experiment, can be useful if aligned with and implemented after a private form of enforcement, namely peer disapproval. However, our second result suggests that the removal of government enforcement leads to a substantial decrease in overall cooperation levels—cooperation levels are higher under private enforcement when subjects had never experienced government enforcement compared to when they had been exposed to government enforcement. Specifically, the removal of government enforcement undermines the power of the remaining private enforcement mechanism to affect the behavior of free-riders.
Journal Article