Chapter 5 examines traditional data protection law’s regulatory outcomes. It shows why data rights and rules, while desirable, don’t address the core problems of the contracts model and can’t work well without the liability model. Data rights unintendedly impose administrative burdens on those they protect. Mandatory rules better address power asymmetries and manipulation than defaults. But our procedural rules overregulate while they underprotect: they benefit large players by adversely affecting new players and they allow companies to comply merely by following box-ticking exercises. Against this backdrop, laws legitimize exploitation that can be executed while remaining compliant. A risk-reduction approach based on standards would reduce informational exploitation.

Separation of powers or, more exactly, the rule of law, due process or, in Europe, the right to a fair trial influence the institutional setting of antitrust or regulatory authorities and law enforcement. An increased role given to specific regulation or antitrust in order to tackle some fundamental issues posed by the concentration of economic-political power does not go without independent and impartial decision-making from an institutional and procedural, a personal or a financial and lobbying perspective.

A promising solution is to handle the problem of contribution in a contractual way. Antitrust infringers could conclude an agreement which would determine the amount of their relative liabilities regarding antitrust infringement. The freedom to determine relative shares of liability may yet be viewed reluctantly from a public policy perspective. It is claimed that liability sharing agreements constitute anticompetitive arrangements, they stabilize cartels, weaken the enforcement of competition law and have a negative impact on settlements. This Chapter reveals that these statements are mostly incorrect, being applicable to US antitrust law rather than EU one. The Chapter makes a positive case for liability sharing agreements. It demonstrates that liability sharing agreements are allowed by EU law and can be concluded within certain limitations dictated by compliance with the Commission’s fining decisions and public policy rules.

The intersection between contribution claims and EU competition law is controversial. Theoretically, the European Commission’s decision to hold several entities liable for an antitrust infringement can be circumvented if one entity escapes liability by successfully claiming contribution. The key questions are whether contribution claims are allowed in EU competition law and what requirements competition law sets for contribution litigation. The analysis shows that contribution claims do not endanger the effectiveness of competition law. The aims of competition law enforcement are met as soon as antitrust infringers pay the fine to the Commission or compensation to the victims of antitrust infringements. The CJEU in Siemens Österreich therefore allowed for contribution in competition law to be applied. While contribution claims generally do not endanger competition enforcement, competition law influences contribution litigation. The preliminary question in every dispute on contribution is an antitrust infringement, which has already been decided. Judges should thus not go against the decisions of the European Commission and are advised to respect the findings of national courts. In particular, one must respect the catalogue of entities held jointly and severally liable by the Commission, the 10% turnover cap and the information included in the Commission’s decision.

Breaches of competition law may incur severe sanctions in Austria. Besides heavy administrative fines and nullity of contracts contravening competition law, antitrust infringers must expect private damage action claims from customers or suppliers harmed by antitrust violation. However, only very few final decisions have been rendered in Austria’s private antitrust litigation so far. Under Austrian criminal law, cartel collusion in tendering procedures may qualify as fraud or bid-rigging. Criminal convictions may in turn lead to the withdrawal of trade licences and pose a risk for the company of being 'blacklisted' – at least temporarily – in public procurement procedures. Under exceptional circumstances, dissolution of the company may be ordered if a director has committed an offence in the course of the company’s business activities; the latter possibility only applies to limited liability companies. Under Austrian company law, a director is liable to reimburse all damages caused by not applying the standard care diligence of a prudent business manager, including the compensation of damages incurred through infringements of competition law. This liability exists towards both the company and business partners.

Polish competition law is characterized by the strong predominance of public enforcement. The crucial component of the Polish system of sanctions has always been administrative corporate fines regulated in much the same way as under EU Law. So far, however, the Polish competition law does not recognize the concept of the single economic unit. This means that the amount of fine is always calculated on the basis of the whole or a part of a direct infringer's turnover. Similarly the fines imposed on associations of undertakings are calculated exclusively on the basis of an association’s turnover. Such a concept of undertaking contributes to the intensification of one of the problems related to enforcement of Polish competition law: the low level of fines imposed by the Competition Authority (CA). The 2014 ACCP amendment introduced into the Polish system individual administrative fines of up to PLN 2 million (c. EUR 450,000) for intentional infringements of the prohibition of anticompetitive agreements, and remedies which may be imposed with or without a fine. These amendments may have significant impact on the effectiveness of the Polish competition law system, in particular by strengthening the deterrent effect of the decisions of the CA.

The chapter discusses the structure of public enforcement in the US antitrust system, with particular emphasis on the use of civil sanctions in public enforcement of laws governing marketplace competition, and a focus on civil sanctions under the Sherman Act, FTC Act, and parallel state law in the United States. It then argues that the use of civil sanctions in public enforcement is inextricable from the supporting remedial structure, including criminal enforcement and meaningful private enforcement. The chapter explains the theory of civil fines in law enforcement and reasons for a jurisdiction’s choosing one or the other form of sanctions. It then explains the structure of remedies for antitrust violations in the US system, highlighting the three forms of public enforcement and the backstop of private enforcement. It then turns to recent developments in civil remedies, including punitive fines as well as damages and related civil monetary relief. It criticizes the Third Circuit Court of Appeals decision in Abbvie Inc. and interrogates the current Supreme Court case involving AMG Capital, inquiring whether AMG Capital might influence the interpretation of the FTC Act as it applies to competition law enforcement as well as consumer protection enforcement.

This chapter explore some implications of the book for scholarship on Chinese law and politics. Many legal scholars speculate about whether China might adopt “rule by law” without embracing “rule of law.” This stylized discourse, however, assumes that the Chinese government is willing and able to implement “rule by law.” However, because coercive substitutes for the law are often available and preferred, even “rule by law” is optional, and discussions of rule of law norms are on even shakier grounds than legal scholars realize. I suggest that the economic and ideological contests between China and Western countries will increasingly depend not on who better represents the rule of law, but on who has more inclusive institutions. Should the Chinese government maintain its tax capacity and be willing to engage in redistributive social spending on the poor, its domestic legitimacy will strengthen. The book thus suggests that both policy makers and social scientists should pivot away from studying the Chinese state’s predilections for the rule of law and toward its capacity and willingness for inclusivity and redistribution.

Multinational enterprises operate in an increasingly international environment and their operations are subject to a variety of rules from both hard and soft law. They take advantage of weak accountability systems and poor law enforcement in developing countries, necessitating a better understanding of the most appropriate hard-law approach to regulate them and address business sustainability challenges. Despite the division between the hard and soft legislative approaches used to address extraterritorial challenges, current efforts have been criticised primarily regarding their impact and enforceability. This chapter explores possible approaches for better extraterritorial regulation of corporate sustainability, including more detailed and extended directorial duties, together with enforcement measures driven by the state. Such efforts may direct board members’ attitudes towards more active involvement with extraterritorial corporate sustainability challenges.

I explain the key contributions of my book and the implications that my book has on corporate law and governance

I explain the key contributions of my book and the implications that my book has on corporate law and governance