经调解产生的国际商事和解协议的执行困境与突破——兼论《新加坡调解公约》与中国法律体系的衔接

经调解产生的国际商事和解协议因缺乏统一高效执行机制而使其高效、经济、友好地解决国际商事争议的优势难以充分彰显。新近生效的《新加坡调解公约》为国际商事和解协议的统一高效执行提供了国际法律框架。中国尚未建立完整的调解立法体系,更没有独立的商事调解法,也未形成专业化和职业化的调解队伍,还未培育出成熟的社会诚信体系,有碍国际商事和解协议的执行。为有效应对国际商事和解协议的执行困境,在中国已签署《新加坡调解公约》的背景下,建议积极研究该公约与中国法律制度的衔接问题,完善商事调解法律规范并适时制定独立的商事调解法,建立专职调解员队伍,培育成熟的社会诚信体系。     

数字经济下平台竞争对反垄断规制的挑战

平台经济是数字经济的重要组成部分,作为一种新的经济业态与生产组织方式具有优化资源配置、推动经济多元融合、促进产业升级与跨界融通发展的重要作用。平台企业在高速发展的同时也形成了垄断隐忧,妥善处理数字经济的创新发展与规制平台垄断行为的关系是全球反垄断司法辖区亟待解决的问题。平台的算法行为是企业为实现利润最大化而做出的明智的单方市场应对行为还是竞争者间非法合谋的结果,是数字经济中尤为突出的难题。数字经济的发展使平台的滥用行为既有传统反垄断法所规制的滥用行为的新表现,也有新型滥用行为。同时,大型数字科技公司的零存活区策略以及大型公司对初创企业的收购对竞争的影响亦值得反垄断法关注。从垄断协议、滥用市场支配地位和合并控制等角度看,应加强平台竞争监管,在现有反垄断法分析框架和体系下对平台竞争垄断进行规制,通过对立法、执法、司法的技术完善和更新来适应数字经济的特点和发展变化。在加强对平台竞争监管的同时,更要顺应数字经济的发展规律,创新对平台竞争监管的方式,构建公平有序的竞争环境,促进相关技术的革新与进步,推动平台经济与实体经济的深度融合,从而实现经济效率与社会总福利的提升。此外,应优化竞争分析框架,构建包含消费者福利、用户数据及隐私保护、平台的产品或服务质量等因素的多元分析框架,改进市场调查等竞争政策工具。     

Transferable quotas,enforcement costs and typical firms: An empirical application to the Norwegian trawler fleet

An alternative to traditional regulations of fisheries to avoid rent dissipation is the use of individual transferable quotas (ITQ _s ) where prices in the quota market provide the necessary information to owners of harvest rights to contract with each other. However, even under such a decentralized regime, information on the underlying technology of the fishing vessels is also necessary. First, since most fisheries consist of many interrelated production processes, in order to avoid rent dissipation by discarding wrong output mix etc., the structure of production in the multispecies fishery must be known to design a proper quota system. Second, an ITQ system may create incentives for misreporting by understating the actual catch. This may especially be the case where the expected degree of self-enforcement is low. The paper proposes a way to reduce the information requirements under regulation with asymmetric information by constructing a typical firm and comparing performance for the other vessels to this firm. Based on the typical firm, and if the industry is relatively homogenous, the performance and hence catch of any other firm in the industry can be predicted within a certain range. Further, the paper applies this idea to the Norwegian trawler fleet to assess the production structure in terms of jointness, input-output separability, and the supply and demand elasticities for the fishing firms. This information characterizes the fishery and thus how the quota system may be designed and how to construct a yardstick in order to reduce the enforcement cost under a decentralized regulation of ITQs.The authors would like to thank Trond Bjørndal, Røgnvaldur Hannesson, Ola Flaaten and two referees for useful comments and suggestions.     

The Theory of Optimal Law Enforcement

The economic literature on optimal law enforcement is very recent. Becker's seminal paper on crime and law enforcement dates from 1968 and most papers which are the focus of this survey have been published in the last ten years.The core result presented by Becker is the following: the probability and the severity of punishment deter crime. Therefore, the fine should be maximal since it is a costless transfer whereas the probability of detection and conviction is costly. Much of the recent work has attempted to show why Becker's result may not hold.     

Nonparametric Estimation and Sensitivity Analysis of Expected Shortfall

We consider a nonparametric method to estimate the expected shortfall—that is, the expected loss on a portfolio of financial assets knowing that the loss is larger than a given quantile. We derive the asymptotic properties of the kernel estimators of the expected shortfall and its first-order derivative with respect to portfolio allocation in the context of a stationary process satisfying strong mixing conditions. An empirical illustration is given for a portfolio of stocks. Another empirical illustration deals with data on fire insurance losses.     

Individual Transferable Quota Markets under Illegal Fishing

The use of individual transferable quotas in fisheries has been considered an opportunity to achieve a given total allowable catch with a maximum social benefit. One of the assumptions used in obtaining that result is that the system is in perfect compliance. The presence of violations and the need for enforcement of tradable property rights systems in fisheries has not received much attention in the literature. The incidents of non-compliance, however, may affect the performance of transferable property rights-based fisheries in unexplored ways. In this paper, we adapt previous literature on enforcing emissions trading programs to analyze a positive model of fisherman behavior that operates under a perfectly competitive individual transferable quota system, while recognizing the opportunities for violations of quota holdings, given incomplete enforcement. Considering a poorly enforced, individual transferable quota system we are able to obtain a number of implications for the current and future equilibrium of the quota market, the time paths of the fishery, and the proper design of a policy rule on total allowable catch (TAC).     

Amnesties and Co-operation

One of the costs of anticipated amnesties is current and future non-compliance with the law. Relatively to a no-amnesty situation, efficient enforcement policies may therefore differ when an amnesty is offered. To study this question, a model is built in which individuals impose a cost on society when they commit a crime. When a criminal participates in an amnesty, or (to a lesser extent) when he is caught, some fraction of the social cost is recovered, reflecting co-operation with the authorities. The analysis characterizes efficient anticipated amnesties. It is shown that the efficient level of enforcement may be smaller in the case of an anticipated amnesty than in a no-amnesty situation. The reason is that despite the increase in the initial number of criminals generated by the amnesty, many criminals eventually participate in it. If participants in the amnesty are very co-operative, then a large proportion of the social cost is recovered making the initial increase in the number of criminals less costly. The optimal level of the reduced sanction imposed on those who participate in the amnesty is also characterized.     

A Cost-Benefit Analysis of the Thailand Taxpayer Survey

We investigate whether more resources should be devoted to a Thai tax enforcement program which is aimed at bringing small businesses into the tax system. We show that the appropriate criteria for determining whether more resources should be devoted to tax enforcement is whether the Atkinson–Stern condition for the optimal provision of a publicly-provided good is satisfied, or equivalently, whether the marginal cost of finds obtained through additional tax enforcement, SMCF_p, is less than the marginal cost of funds obtained through raising tax rates, SMCF_t. In our base case scenario, the SMCF_p is 11.60 which exceeds our estimate of the SMCF_t for an across-the-board increase in income tax rates on wage earners. The use of pro-poor distributional weights makes expanding the survey less attractive if the alternative way of obtaining additional tax revenue is an across-the-board income tax rate increase, while aversion to tax evasion makes it more attractive.     

The US Antitrust System and Recent Trends in Antitrust Enforcement

This paper provides a survey of recent research on the US antitrust system. First we provide an overview of the US antitrust system, describing the roles of the US Department of Justice, the Federal Trade Commission and case law. Second, we provide a new econometric trend analysis on the enforcement of US antitrust law, showing that (1) enforcement demonstrates some trend behavior, as well as comovement with business cycles; (2) the time series of antitrust cases demonstrates two distinct episodes, which we characterize as 'pre-deregulation' and 'post-deregulation;' (3) the time series of government antitrust filings leads the time series of private antitrust filings. Finally, we describe recent economic research relevant to the area of antitrust and the impact of this research on US antitrust policy.     

The Year in Review: Economics at the Antitrust Division, 2007–2008

This paper covers the activities of the Economic Analysis Group (EAG) of the Antitrust Division, U.S. Department of Justice, during 2007–2008. It describes the economic analysis undertaken by EAG in several important investigations, and in other activities as an advocate for competition. The views in this paper are those of the authors and do not necessarily reflect those of the Antitrust Division.