Category: Competition

Competition law seeks to promote and maintain healthy rivalry in the market. It achieves this through regulation of anti-competitive practices among business organizations (Whinston, 2006). In most cases, the legislation is enforced by various agencies and regimes. In the United States competition legislations are mainly known as antitrust law.

The main objective of this study is to carry out a comprehensive analysis of the competition law in the U.S. The paper explores various aspects of the legislation, including its history and applications in the country. In addition, the implementation of antitrust law in the U.S. and its impacts on business is analyzed. Finally, a conclusive review of the law is provided.

The American Antitrust Law

The Competition Act in the US: A Historical Background

The origins of the current competition policy dates back to the 19th century. It was formulated towards the end of this era. According to Whinston (2006), the second of the half of the 19^th century was characterized by major developments that significantly transformed the manufacturing industries in the U.S. Chief among these events included the tremendous expansion of the transportation and communication sectors.

The introduction of railway networks, telephone services, and telegraph lines had a significant impact on the U.S market. As a result of these developments, a large single market was established. The new market provided incentives to the business firms, leading to increased production. The commercial establishments were able to optimally exploit the emerging economies of scale and scope (Etro, 2007).

The period also saw momentous technological innovations in the chemical, energy, and metallurgy industries. The developments led to the introduction of highly advanced managerial methods and capital markets (Etro, 2007). Organizations operating in this sector were presented with many opportunities to expand. Legal innovations were also recorded (Etro, 2007). They included the liberalization of state corporation laws. The event made it possible to engage in business acquisitions. Just like in the case of technological innovations, liberalization increased opportunities for expansion (Besen & Levinson, 2012).

The end of the 19th century witnessed fluctuation of prices of different commodities (Besen & Levinson, 2012). The instability in prices was brought about by several economic crises and varying macroeconomic factors. The fall in the costs associated with communication and transportation had led to increased competition in the economy. The reason Si that local firms had to compete with rivals from far off places in the U.S or abroad (Whinston, 2006). The interplay of these factors led to unstable prices.

Due to the increased competition, price wars, and market instability, firms resorted to business practices that proved detrimental to other sectors of the economy. For instance, some commercial agencies engaged in price settings to maintain high prices and profit margins. Other developments included the establishment of cartels and trusts. Business organizations operating in the railroad and oil sectors were especially known for such practices. They were able to fix prices in the market to bolster their profit margins (Whinston, 2006).

The final consumers were hurt by the high prices resulting from the practices enumerated above. Producers were not spared either. For instance, farmers and small industrial establishments relied heavily on inputs from the cartelized sectors (Whinston, 2006). In addition to selling their outputs at low prices, they were charged highly for inputs. On their part, small firms had to deal with unfair practices from their larger competitors. The unregulated rivalry almost drove these small scale operators out of business (Whinston, 2006).

According to Posner (2001), the small business operators and farmers had a significant political clout. In addition, they enjoyed public sympathy capable of facilitating creation of antitrust laws in the U.S. However, such laws could not be applied to agreements made between firms operating in different states. By 1890, a consensus on the development of a federal antitrust law had been achieved (Posner, 2001).

The Sherman Act of 1890 was one of the earliest antitrust laws in the U.S (Whinston, 2006). The legislation sought to restrict unfair competitive practices by large firms. Such practices included cooperating with rivals to fix prices, outputs, and market shares. Such activities were initially undertaken through pools and later via trusts (Posner, 2001).

Over the years, the Sherman Act has been succeeded by more antitrust laws to cover areas not initially covered. The Clayton Act and the Federal Trade Commission Act are significant antitrust legislations in the history of the U.S competition policies. It is noted that the Sherman Act only covered price fixing, market sharing agreements, and monopolization practices (Posner, 2001). The law did not apply to mergers.

Implementation of the U.S Competition and Antitrust Policy

Overview

Posner (2001) argues that the U.S. antitrust law has evolved around two concepts of competition. At times, the elements are in conflict with one another. The first concept has to do with individual liberty. It highlights the idea of freedom from government interventions. The concept entails fair competitive environment, which is free from excessive economic powers (Posner, 2001).

A number of economic models have been formulated to support the anti-trust legislation. The models have been adopted by the government. Section 1 of the act defined illegal contracts as those developed in form of trusts. In addition, contracts dealing with conspiracies or restraining trade within the various states and between nations were deemed illegal (Posner, 2001).

Section 2 of the legislation prohibited monopolies or any other form of conspiracy aimed at establishing such businesses (Posner, 2001). The judiciary in the country has been using this law to regulate the activities of businesses. In extension, the legislation is used to regulate the market as a whole. According to Whinston (2006), the courts applied the Sherman Act of 1890 without any consistent economic analysis, up until 1914 when the Clayton Act was introduced (Motta, 2004).

According to Motta (2004), the rule of reason was applied by courts in enforcing competition laws in the U.S. beginning from 1915 going forward. However, Whinston (2006) postulates that this duration was characterized little or no enactment of antitrust law in the U.S. The structure-conduct-performance construct or framework developed by the Harvard School was however utilized by courts in enacting competition law in the U.S. form1936 to 1972 (Posner, 2001).

The enforcement of antitrust laws in the U.S. from 1972 to 1991 was founded on efficiency explanations. The foundations emanated from paradigms from writings of judges such as the antitrust paradox book, and Chicago school frameworks (Posner, 2001). The game theory has since been in application in most anti-trust cases since 1992 (Manne & Marcellus, 2005).

Competition law policy and enforcement institutions

The U.S has very strong and well established antitrust and competition law enforcement institutions. According to Manne and Marcellus (2005), the country has various enforcement methods. They include maintenance and coordination. However, consistency in enforcement is becoming a challenge. The U.S has two national-level competition policy enforcement institutions. The two exhibit differing models of institutional frameworks. The first agency is the U.S Antitrust Division of the Department of Justice (Posner, 2001). The institution is part of the executive arm of government.

The U.S Antitrust Division is located in the Department of Justice. It is noted under a department specifically mandated with economic policy. The reason for this is that it is founded on the origins of Sherman’s Act, which is a criminal statute (Posner, 2001). The institution hence advances a tradition of prosecution, coupled with policy analysis. The other competition law policy enforcement institution in the U.S is the Federal Trade Commission [FTC] (Posner, 2001). FTC is an independent body located between the legislature’s political and geographical jurisdictions. Posner (2001) further poses that FTC was established with an aim of bringing greater technical expertise in the competition policy.

However, the basic mandate of FTC was established on common law of unfair competition (Posner, 2001). Consequently, the agency is also charged with the role and process of law enforcement. Up to date, the U.S. does not have a competition agency, which has powers for direct economic regulation, since the proposal of establishing one was rejected in 1914.

The U.S, as a result, has two competition law enforcement agencies. Each of the agencies is staffed with combination of economists and lawyers, who combine prosecutorial skills and policy expertise with political accountability (Chen, 2003). The personnel in the two agencies implements competition related policies through application of general principles for every case and particular situation. Historically, the two agencies have had no conflicts arising from the redundancies, since their responsibilities have been divided in a manner that avoids duplication (Posner, 2001).

Evaluation of the Competition Law

The U.S Antitrust Division has exhibited a tradition of separate decision making, which has no influence from, or consultations from the higher political authorities. Under the law, the division publishes and solicits public comments regarding proposed consent decrees (Prosser, 2005). The Antitrust Division cannot however issue binding orders based on its authority, however, it must make its cases to federal judges who are independent (Posner, 2001).

FTC on the other hand establishes its independence through Commissioner’s fixed terms of tenure, and their being not subject to removal (Posner, 2001). FTC also publishes its decisions regarding various antitrust issues, in order to initiate various kinds of action. In both competition law enforcement institutions, final decisions arise from the Commission and ultimately from the court (Prosser, 2005).

Enforcement of the U.S Competition Law

According to Posner (2001), both FTC and the Antitrust Division have sufficient powers for taking independent action. In addition, these powers allow them to gather information necessary in reaching reasoned decisions, as well as ensuring effectiveness of these decisions. Both agencies also implement enforcement programs independently, as well as take actions and decisions without necessarily having to obtain formal authorization from other government arms (Posner, 2001).

The U.S. Antitrust Division and FTC consult informally, and with other regulatory agencies which have mandate or interests in given industries or companies (Prosser, 2005). In addition, these agencies have the powers of demanding or requesting for documents and testimonies for cases relating to antitrust policies (Prosser, 2005).

The antitrust Division is primarily responsible for enforcement of the Sherman and Clayton Acts. According to Posner (2001), the Antitrust Division usually appears before federal court as a prosecutor or party plaintiff, filing conventional indictments or complaints (Whish, 2003). The process might lead to trial before a jury or a judge, as well as an independent opinion by an independent federal judge (Posner, 2001).

FTC on the other hand issues complaints on its own internal process, an action that can lead to hearings similar to judicial trials (Posner, 2001). The trials are however held before Administrative Law Judge and a Commission employee having a protected tenure status to some extent. Decisions or opinions by FTC are usually on appeal, from initial decisions by the Administrative Law Judges (Prosser, 2005).

According to Posner (2001), availability of judicial reviews signals the ultimate checks on the enforcement policies and processes of FTC and Antitrust Division. Initial substantive decisions finding liabilities either from juries or trial judges or by FTC in adjudicative matters have the option of being appealed in Federal Courts of Appeal (Whish, 2003). Independent appellate judges having authority to hear cases even from private cases or other regulatory programs control consistency in interpretation as well as application of competition law. In addition, they also have great influence with regard to relationship of competition principles and other regulatory programs (Whish, 2003).

According to Rochet and Jean (2003), judicial reviews have tended to facilitate continuity of competition policies. In addition, over the last 20 years, the influence of judges exhibiting an economic perspective has significantly strengthened economics-oriented antitrust policy in the U.S (Prosser, 2005).

The option of private enforcement of U.S. competition law also exists. Apparently, individuals or corporations injured through violations of antitrust laws are allowed to sue (Prosser, 2005). In case of success if they sue, these entities are entitled to triple the amount of damages suffered, plus the attorney’s and court fees. Ultimately, the U.S. Competition law can be enforced by the state. According to Posner (2001), state enforcement officials are tasked with presenting antitrust cases to the state. The officials do this for damages or injunctive relief on behalf of the residents in the particular state.

The U.S Competition Law and its Impact on Business and Society: A Review of Efficacy

The contemporary new economy is characterized by increasingly dynamic global and innovative markets. The markets require new ways of approaching various economic issues such as that of competition, through dynamic policies. Hence, the U.S. antitrust policies have been evolving in a manner that has had significant impact on businesses, the market, and society as a whole (Whish, 2003).

The U.S. competition law enforcement agencies have been particularly active in promoting and facilitating competitive methods in the market. According to Whinston (2006), the advocacy of these institutions has immensely contributed first in very essential deregulation success in the U.S business society. For instance, the agencies have successfully controlled deregulation processes in airlines, communications, and energy sector, broadcasting, and trucking among others (Whinston, 2006).

The successes are based on various theories upon which the U.S. competition law has been founded over the years. For instance, under the classical theory perspective, the doctrine of laissez-faire has been applied in antitrust policies (Chen, 2003). Under this doctrine, antitrust is regarded as unnecessary, as competition is regarded a long-term diverse process which organizations use to compete and dominate markets. In some of the market sectors, firms might successfully dominate. The domination should however be on the basis of their innovativeness or superior skills; which is the case in U.S markets (Chen, 2003).

The U.S competition law has evolved over the various theories or perspectives. For instance, the classical perspective on competition regarded certain business practices and agreements as unreasonable restraints (Whinston, 2006). The restraints impended individual liberty of business people in carrying out their livelihoods. Consequently, the various agencies and the courts have been very effective in judging restraints in the market as either permissible or not, depending on the varying business environment (Chen, 2003).

According to Posner (2001), competition policy institutions in the U.S. have extensively applied their advocacy and enforcement powers in promoting reforms in the market. For instance, the policies have enabled elimination of economic regulations restricting entry into the transport industry. An example is the entry into the airlines industry, among other industries in the transportation sector.

Antitrust policies in the U.S. have also facilitated elimination of economic regulations which restricted exit from sectors such as the rail industry. Other regulations controlling pricing of natural gas, telecommunications, and electric power have also been addressed (Besen & Levinson, 2012). Such policies have in the past limited the output from the airlines, and also prevented conventional commercial practices. The economic regulations also hindered some forms of business organizations in the professional and healthcare services sectors (Whinston, 2006).

The U.S antitrust policy such as the Clayton Act has been very effective in forbidding unfair market practices such as discrimination in prices. Price discriminations in the past for instance have been significant in lessening competition, as well as interlocking directorates between the competing firms (Whinston, 2006). The policies have also enabled recovery of treble damages, in antitrust suits. In addition, victims of unlawful commercial conduct have been afforded the opportunity of being compensated appropriately by the offenders.

The scope of the U.S competition law has been on avoiding distortions of competition, which might vary negatively affecting consumers (Besen & Levinson, 2012). For instance, it is difficult today to find collusive arrangements with adverse effects on consumers. Such arrangements include price fixing, market leader’s abuse of dominance, among others.

The market leaders’ theory is among the recent paradigms applied in antitrust policies, especially in relation to emergence of large multinational corporations. The theory clarifies roles of market leaders, as well as market entry conditions framework, exceeding that from post-Chicago approached (Etro, 2007). Market leaders’ theory paradigm has been very effective in regulating large firms common in the U.S. market such as Microsoft from suppressing market entry by smaller firms.

Ultimately, the U.S. is an example of a free thriving market, despite a few setbacks in the economy resulting from recent economic depression. According to Posner (2001), the U.S business market is one of the best global establishments with regards to protecting the interest of all stakeholders, especially the consumers. The success is attributed to the various models that have been adopted in enforcement of competition law, ranging from the classical perspective, to post-Chicago school approaches.

U.S Competition Law: Analysis

According to Motta (2004) the U.S. competition policy and the associated institutions have been very effective in reforming economic regulations and protecting business stakeholders. The reforms implemented by these agencies have been particularly effective in stimulating competition in the nation.

Motta (2004) further advances that general regulatory policy has been facilitated through commitment to competition at the federal level. In addition, regulatory programs have been primarily made subject to statutory directions, hence promoting and protecting competition at the same time (Chen, 2003). There are cases where regulations are seen to impair competition. In such instances, legal and policy foundations for reform are established.

According to Posner (2001), the other strength of US competition policy is that it is strongly linked to the interests of consumers. Maintenance of this link is embodied in the wide jurisdiction apparent of the FTC. The redundancy of the otherwise peculiar federal law enforcement structures attests or justifies protection of consumer interests (Posner, 2001).

The U.S antitrust policies and their enforcement have not been without shortcomings. According to Besen and Levinson (2012), competitive reforms in the U.S are considered as having wide array of supporters, hence the extensive diffusion in implementation. In addition, much of the economic policy is founded on competition, numerous regulators, as well as other organizations professing to implement the competition policy. The ultimate result has been differing conceptions sometimes, in r elation to implementation and enforcement of the competition law.

Two equivalent national enforcement agencies are essentially responsible for the general competition law in the U.S. In addition, there are fifty officials who have been tasked with similar and overlapping roles. Unlimited number of private antitrust policy enforcers is also in existence, all subject to hundreds of federal enforcement judges. The judges are ultimately mandated with ensuring coherence in the policy but they are not, since in most instances they are not competition policy experts (Posner, 2001).

According to Whinston (2006), not all antitrust policy enforcements or reforms have been successful. Usually, a number of the legislated exemptions have been based on responses to special interests which have been organized in advance. Consequently, a number of assignments on regulatory responsibility appear framed in a manner to preserve non-competitive situations, or even allow mergers which are potentially non-competitive (Whinston, 2006).

Competition agencies participation in the reform of non-economic regulations in the U.S. has not been adequately systematic (Chen, 2003). Consequently, any major reform efforts are complicated. The complication arises from the potential of state action or immunity, leading to permission of local regulatory programs to contradict efforts of national competition policy (Posner, 2001).

Conclusion and Recommendations for Future Policy Makers

Antitrust or competition laws are an essential component of every successful or success aspiring economy. In the U.S, economic regulation reformation process has significantly slowed, since majority of the work has been done. However, the dynamics of the contemporary business society require that competition policies are consistently and constantly evaluated, to ensure their relevance. Apparently, this need is being necessitated by the rapidly changing methods of doing business and associated technologies, as well as globalization (Whish, 2003).

Future competition policy makers have the duty of keeping up with the market changes. In addition, aspects of competition policies at the global level should be considered (Motta, 2004). Apparently, the business world is going global, whereas most competition policies are on enforceable either at the federal, state, or local levels.

References

Besen, S., & Levinson, R. (2012). Introduction: The use and abuse of voluntary standard-setting processes in a post-rambus world: Law, economics, and competition policy. Antitrust Bulletin, 57(1), 1-16.

Chen, J. (2003). The vertical dimension of cooperative competition policy. Antitrust Bulletin, 48(4), 1005-1036.

Etro, F. (2007). Competition, innovation, and antitrust. New York: Springer Verlag.

Manne, G., & Marcellus, W. (2005). Hot docs vs. cold economics: The use and misuse of business documents in antitrust enforcement and adjudication. Arizona Law Review, 47(3), 609-659.

Motta, M. (2004). Competition policy, theory and practice. Cambridge: Cambridge University Press.

Posner, R. (2001). Antitrust law (2nd ed.). Chicago: University of Chicago Press.

Prosser, T. (2005).The limits of competition law: Markets and public services. Oxford: Oxford University Press.

Rochet, C., & Jean, T. (2003). Platform competition in two-sided markets. Journal of the European Economic Association, 1(4), 990-1029.

Whinston, M. (2006). Lectures on antitrust economics. Cambridge: MIT Press.

Whish, R. (2003). Competition law (5th ed.). London: Lexis Nexis Butterworths.

Laws in the United Kingdom have gone through many transformations since the early 18th-Century (Collins et al. 2012). For example, the transformation in the scope and content of business law has made it possible for both the employees and the employers to benefit from legal protection (Davies 2009). There are two other areas of legislation that affect business apart from acts of parliament. They are the Competition Law and Consumer Protection. The three areas of legislation work together in ensuring that consumers, sellers, employers and employees are comfortable in their roles.

The Employment Law encompasses many acts of parliament. All of them aim at protecting both the employees and their employers from exploitation. This paper analyses two examples of such laws: the Employment Act 2002 and the Employment Rights Act 1996. On the other hand, Competition Law helps ensure fairness in the competition among companies that produce similar goods. The UK government designed measures that ensure fairness in all businesses. On its part, Consumer Protection ensures that entrepreneurs are fair to the consumers in all their dealings.

Employment Law

The Employment Act of 2002 aims at addressing dismissal grievances and employers’ inability to terminate their employees due to legal restrictions (Bercusson 1996). In addition, it provides a constitutional framework for the settlement of disputes that occur among the employees or between them and their employers. Furthermore, it helps determine the amount of money employers need to pay their employees before they go on leave. Precisely, it requires employers to give each employee a six-month paid paternity or maternity leave and six more months of unpaid leave (Collins et al. 2012). These laws apply to both biological and adoptive parents.

On the other hand, the Employment Rights Act 1996 enlightens employees about their rights (Collins et al. 2012). It requires employers to write down all the terms and conditions for their jobs. Such terms include the number of working hours and the amount of money the employees will earn (Esping-Andersen & Regini 2000). The statement of terms helps the employees understand their rights, which helps them operate within the requirements of the contract. Understanding the terms also helps them know when they violet the contract (Esping-Andersen & Regini 2000). Therefore, both parties know when to sue their counterparts for breaching their contracts.

Another important act under the Employment Rights Act is the Dismissal Notice and Reasons Act. This act requires employers to give a notice to the employees before dismissing them (Davies 2009). It stipulates the duration needed for the notices to become effective. Usually, the duration depends on the number of years the employees have worked in the organization. The act also allows employers to compensate the employees in case of dismissal without notices.

The article on Redundancy Payment is also crucial to both the employees and the employers (Davies 2009). It requires employers to compensate their employees in case their jobs become obsolete (Davies 2009). At the same time, it protects employers from selfish employees who might want to get the money even when they are not eligible. According to this act, employees who have reached the retirement age and those who have worked in the company for less than two years are not eligible for redundancy payments (Davies 2009).

Consumer Protection

Consumer protection aims at protecting consumers facing financial crises due to exploitation (Davies 2009). The main areas of legislation under consumer protection are the Sales and Supply of Goods Act, the Trade Description Act and the Consumer Credit Act. These acts ensure that consumers get goods that are similar to the ones the sellers describe when advertising them. They also ensure that their quality is satisfactory (Davies 2009). The Consumer Credit Act protects consumers from exploitation being exploited by their creditors. It also ensures that businesses comply with the laws by imposing additional costs on them (Davies 2009).

Competition Law

The Competition Law ensures that all business competitions are healthy and legal (Esping-Andersen & Regini 2000). The main reason for the formulation of this law was the belief that competition ensures that the quality of goods on the market is good, and their prices are affordable (Esping-Andersen & Regini 2000). The government formed the Competition Commission and the Office of Fair Trading to ensure that no company owns 25% of the market shares (Esping-Andersen & Regini 2000). These institutions also ensure that no business deliberately sets its prices beyond the accepted prices (Davies 2009).

In summary, this paper has analysed the Employment Law, the Competition Law and Consumer Protection and how they impact the operations of the employers, sellers, consumers and employees. These laws work together in ensuring that consumers and employees get goods, services and salaries that satisfy them. They also protect employers and entrepreneurs from unfair competition and mistreatment by their employees. It is imperative from the discussion that legislation in the UK has evolved to represent the desires of all the stakeholders in business and marginalised members of the community.

Reference List

Bercusson, B 1996, European labour law, Butterworths, London.

Collins, H, Ewing, K & McColgan, A 2012, Labour law. Cambridge University Press, Cambridge.

Craig, J & Lynk, M 2006, Globalization and the future of labour law, Cambridge University Press, Cambridge.

Davies, A 2009, Perspectives on labour law. Cambridge University Press, Cambridge.

Esping-Andersen, G & Regini, M 2000, Why deregulate labour markets?, Oxford University Press, Oxford.

Introduction

The Competition Law in the UAE was enacted in the summer of 2013. It includes regulations aimed at eliminating any unlawful practices as well as “anti-competitive behavior and monopoly practices” in the country (Milne par. 1). Before this law, there were hardly any regulations in the Emirati market that could safeguard the rights of companies. It is necessary to note that the rapid economic development of the country and its increasing integration into the global market have forced the Emirati government to introduce particular regulations (Dabbah 360). Notably, the rules refer to private-owned companies only while state-owned organizations, as well as SMEs, do not have to comply with the law (Fox and Healey 776). More so, such industries as oil and gas, sewage treatment, telecommunications, finance, transport, electricity, postal services, and pharmaceuticals are also excluded from the law (Oxford Business Group 297). However, the implementation of the Competition Law makes the Emirati market more attractive to international investors as well as local entrepreneurs who can be sure that there are transparent and effective rules to follow. It is possible to consider major dos and don’ts of the right competition practices to understand the benefits of the implementation of the Competition Law in the UAE.

Top 10 Dos and Don’ts

One of the major focuses of the law is merger control. Therefore, it is the right practice to make sure that the merger is transparent and lawful. Thus, the company should provide a written notification about the merger to the Ministry of Economy within thirty days before the completion of the merger. The Ministry provides its resolution on the merger and its lawfulness. Notably, the assessment is provided within 90 days, which is quite a long period that can prevent companies from proper development. However, when the company obtains a favorable resolution of the Ministry, proper reputation is developed and the organization is regarded as a reliable partner and producer of products or services. The government is also able to trace any unlawful or obscure mergers that can potentially undermine the proper development of the Emirati market or any of its niches. Unlawful acquisitions and mergers will be penalized.

The second right practice, which is also related to mergers and acquisitions, is the company’s responsibility to provide information on the economic impact of the merger (Reeves and Hilton 4). Thus, the organization, which is usually the buyer, should provide quite extensive reports (or any other documentation) where economic outcomes of the merger are identified. These outcomes should include the effects on the market and its development. Clearly, the company should provide correct and relevant information only. This can help in obtaining the favorable resolution of the Ministry.

Organization should also make sure that all their practices comply with the rules mentioned in the law (Shah et al. n. pag.). In this respect, one of the major don’ts is related to predatory pricing. Thus, organizations cannot drive down prices to force other competitors to leave the market (Seifert UAE/9). This practice can be quite easily detected, as the price should be higher than average variable costs, otherwise, it is regarded as predatory. If the company is involved in such a practice, it risks destroying its reputation and be assigned to pay a certain fine. The law addresses this issue as such practices negatively affect the development of the Emirati market as they may lead to monopolization of some sectors of the economy. Organizations with significant resources will be able to prevent new (especially small or medium) companies from entering the market.

Another important don’t is associated with trade restraints. When a company forces the customer or a partner not to have any business contacts with competitors, it is seen as trade restraint (Deepak n. pag.). The practice also involves differentiating between customers and partners, discriminating some of them due to some reason. Such actions will lead to certain sanctions (fines) by the new Competition Law. More importantly, it will have a negative impact on the organization’s reputation and its further development. It can be isolated as organizations will be reluctant to deal with the company that resorts to such unethical and unlawful practices. The new law addresses trade restraints as they can also harm the development of the Emirati market since some companies may be forces out of the market and the competition will be quite limited. Monopolisation can one of the possible outcomes of such practices.

The next don’t to be considered is concerned with the reduction of production or distribution of products. Some companies try to reduce their operations to create an increased demand and to make the prices go up (Deepak n. pag.). This is quite a common practice and companies that operate in different areas of the country sometimes reduce their production and distribution in some areas where competition is very weak or absent. This practice also involves agreements between companies that ensure the operation of particular companies in the area. This artificial deficit can also lead to the deterioration of the market. Of course, it violates the rights of consumers who have the right to choose the best products at the most appropriate prices. As for companies behaving in such a way, the practice can lead to the fines imposed under the Competition Law.

Another practice to refrain from is to knowingly present wrongful data on some products and/or prices (Deepak n. pag.). Organizations sometimes spread information that encourages customers and partners to buy more (and at higher prices) or to refrain from buying some products or using some services. This practice also prevents proper development of competition in the market. This practice is often associated with deterioration of quality, higher prices, limited competition. Of course, the practice also includes the spread of wrongful information about other companies. This can lead to the forced exit of some organizations from the market. It is also noteworthy that when the company’s unlawful actions are revealed, it will have to pay certain fines under the Law and it can also lose its reputation. Admittedly, the organization will be seen as an unreliable producer and partner, and it can be difficult to win customers’ and partners’ trust back.

Under the Competition Law, it is forbidden for companies to make agreements with their partners, suppliers or other organizations on specific (fixed) prices of products or services. This undermines the development of the market and often leads to deterioration of the quality of products and services (Low 130). Setting higher prices violates the rights of customers. Besides, if the companies agree to set low prices, this can prevent new competitors from entering the market. Of course, this undermines the development of the market, as no new entrants will be able to provide their services and products, which can raise the market (or one of its niches) on a new level. Companies involved in such practices will be fined by the new law.

It is also forbidden for organizations to be involved in the collusion of bids. This practice involves entering agreements with other companies and fixing some bids value. This can also include participation in tenders with the use of similar agreements. In this way, companies manage to make contracts that are favorable for them and lead to larger financial gains. However, such practices deteriorate the development of the Emirati market where companies that can provide better products at better prices will be excluded from the process of bidding, as organizations with more resources will prejudice the bidding process. Of course, new competitors often fail to enter the market due to such actions of companies that have already occupied certain niches.

Another don’t take into account is related to essential facilities. Thus, some companies may limit access to other companies to certain facilities. For instance, a company can provide access to specific suppliers while discriminating against others. Some organizations that have some control over some facilities or infrastructure try to make this control complete and provide particular companies with additional opportunities. Of course, these organizations fulfill certain conditions (for example, provide discounts or agree to set fixed prices on services and products, and so on). Of course, this leads to unequal opportunities and deteriorates the market. It can also lead to certain monopolization of the market. According to the Competition Law, such actions will be fined accordingly.

Finally, companies cannot “unjustifiably” refrain from buying products or services form other organizations (Deepak n. pag.). Some businesses that have the necessary resources try to use this practice to force their partners to reduce the price or even force some companies to leave the market. Of course, this leads to deterioration of principles of competition as small companies are often unable to compete and they have to reduce prices and eventually leave the market. Under the Competition Law, the companies that resort to such practices are fined.

Conclusion

On balance, it is possible to note that the Competition Law addresses quite many practices that can undermine the development of the Emirati market. The law quite effectively regulates competition in the market. However, there are quite significant flaws in the law as there are no sufficient details on some types of punishments, the deadlines are also quite blurred and the law does not reach many organizations and sectors of the economy. At the same time, the Competition Law can be regarded as the first important step of setting rules that are common for the global market. This will make the Emirati market more attractive to investors.

The existence of specific regulations will also ensure the proper development of companies as well as the entire market. It is also important to remember that the existence of regulatory bodies ensures that companies’ practices will be monitored and unlawful or unethical behaviors will be revealed. Hence, the public, as well as various actors in the market, will be able to develop certain views on this or that company. Organizations will try to refrain from unlawful practices to avoid fines and destruction of their reputation. At the same time, it is important to remember that more steps should be undertaken to enable the UAE to gain its position in the global market.

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Seifert, Jorg. “United Arab Emirates.” International Joint Ventures. Ed. Dennis Campbell. Huntington: Peter Lang, 2013. UAE/1-UAE/27. Print.

Shah, Omar, William Seivewright, Adeola Adeyemi and Alia Dajani. “How New UAE Competition Law Will Impact Businesses.” Al-Mirsal. Web.

Antitrust laws are known as ‘competition laws’; they are created by the government to protect consumers from harmful and unfair business practices and establish an honest competition between companies (Bynum, 2017). Antitrust laws fight barriers to entry such as price-fixing and monopolization of resources that kill competition in the industries by preventing new companies from entering the spheres and diversifying competition that promotes respect for consumers.

Some of the known antitrust statutes in the United States are the Sherman Antitrust Act and the Clayton Antitrust Act. The latter regulation was the first act in the US history to outlaw monopolistic and predatory business practices; it was signed into law in 1890 and focused on the prevention of the trust practices that killed the competition in multiple industries allowing the trustees to monopolize resources and revenue (“Sherman Anti-Trust Act (1890),” n.d.). Clayton Act was signed a couple of decades later as an amendment of Sherman Act; it targeted such practices as price discrimination and price-fixing specifically (“Clayton Antitrust Act,” 2017).

The latter barriers to entry are some of the most significant and the cases of their breach still exist in the modern business. For example, the case of AT&T that was accused on monopolizing the telecommunications industry by taking over the resources and spreading to locations where its brand image and economy of scale served as the barriers for new entrants; the company claimed to be the so-called “natural monopoly” – the only owner of resources in the industry; however, the court decided that AT&T should be broken into several smaller companies operating in separate geographical markets (“Infamous antitrust cases,” 2017).

Based on Sherman Act, the Supreme Court has decided many cases. In Leegin Creative Leather Products, Inc. v. PSKS, Inc., the Supreme Court ruled that it was not per se illegal for manufacturers to set a minimum resale price for the distributors to change for their products (“Supreme Court antitrust rulings,” 2017). This case was an overruled precedent of 1911 (Dr. Miles Medical Co. v. John D. Park & Sons Co.) where such practice was decided to be per se illegal (“Supreme Court Antitrust Rulings,” 2017). However, according to the latest ruling, the price-fixing for resellers could promote competition and help the distributors protect their profit margins. In that way, price-fixing is considered illegal only in the cases when it is anti-competitive.

References

Bynum, J. (2017). What is an antitrust law?. Web.

Clayton Antitrust Act. (2017). Web.

Infamous antitrust cases. (2017). Web.

Sherman Anti-Trust Act (1890). (n.d.). Web.

Supreme Court antitrust rulings. (2017). Web.

Introduction

According to the Swiss Competition Commission, competition law is the main regulator of a business’s competitive behavior (Swiss Competition Commission). Competition law helps in ensuring that market structures and prices are not manipulated (Swiss Competition Commission). Having a strict competition law helps people to anticipate future conditions, and this goes a long way in helping one to make decisions that would be affected by the competition law with much more certainty. In some ways, it favors its citizens over foreigners and varies from one emirate to another. This paper discusses the problems experienced by the loose nature of the UAE competition law by looking into some of its aspects and critiquing it.

Overview

The competition law of the UAE came into effect in 2013. Four main rules in the UAE dictate how foreign companies should conduct business. These laws are the Commercial Agencies Law, the Industry Law, the Federal Companies Law, and the Government Laws (US Department of State). The composition and consequence of these laws must be understood. The competition law in the UAE is overseen by the UAE Cabinet and the Ministry of Economy. A minimum of 51% of the ownership of all the companies established in the UAE must belong to UAE nationals and those companies listed on the security market must have maximum foreign ownership of 49% as stipulated by the Federal Companies Law (Swiss Competition Commission).

Weak and Ambiguous Legal Structure

The UAE legal structure is a hybrid between common law, sharia law, and civil law. It is not clear which law is applicable in what circumstance (Swiss Competition Commission). In addition, numerous economic and non-economic establishments are exempt from law enforcement (Sengupta and Dube). Examples of establishments exempt from competition law are pharmaceutical companies, financial services, telecommunications, government, SMEs, and others (BTI). UAE does not consider precedents in its legal proceedings. This means that it is almost impossible to have a clear picture of how the ruling on a particular legal aspect might turn out (Swiss Competition Commission).

Political Decisions

It is right to say that the UAE government is not democratic. UAE is mainly ‘sheikhdom.’ The competition law is overseen by the UAE cabinet, Competition Committee, and the Ministry of Economy. This decision-making structure is open to prejudice, and enforcement of the competition law becomes susceptible to unfairness and bias (US Department of State). It is hard for someone to know really what any of the three overseers is responsible for. In addition, the different emirates have different rules and practices. The competition law should only incorporate a single enforcer for clarity purposes. According to the 2014 Investment Climate Statement, unclear and loose policy concerning the oversight of the competition law has led to a lack of regulatory transparency (Swiss Competition Commission).

Political Influence

Most of the large businesses in the UAE are either run by the government or by wealthy families. These wealthy families are influential in political decision-making. It is, therefore, hard to see the merit of decisions concerning the business if the same laws are influenced by the same business owners. Inefficiencies are likely to arise in the marketplace as there exists no clear separation between the policymakers and these wealthy families (Sengupta and Dube). The competition law does not adequately define a separation between the public and the private sector due to the participation of ruling families in many UAE businesses.

Transparency

There is a lack of transparency in doing business in the UAE. In addition, the management must have a UAE nationality (BTI). The insistence of ownership and control by UAE nationals raises the issue of lack of transparency as it is hard for foreigners to establish the motives of the native management. There exists a lack of transparency in dealing with contracts as financial agreements and documents are not revealed. To make the matter worse, any joint venture not controlled by UAE nationals must have a UAE national as a partner, and listing should be under the UAE national’s name (Swiss Competition Commission).

Foreign Investments

Foreigners cannot invest in the UAE without going through an agent who is a UAE national. This agent can grant exclusive rights to a particular supplier. As a result, fair competition is curtailed. Foreign ownership of land in the UAE is allowed. However, there are no agreed-upon rules about land ownership in all the emirates. What exists is a deviation of the collection of rules among emirates (US Department of State). Some emirates allow foreigners to have leasehold or freehold in particular areas. The owners of these lands are not given automatic permissions and rights to live in the UAE. In addition, there exist no written laws or regulations that guide land title documentation and conveyance. As a result, those buying land are often not sure if they will get a freehold title with the same meaning as that in the US or Europe. Unclear or confusing rules about land ownership and investments are a deterrent in attracting investments (BTI).

Conclusion

The benefits of having a stringent competition law regime arose because of the ability of this law regime to avoid problems associated with the ambiguous UAE competition laws discussed above. UAE has some laws with double standards. However, countries such as the UAE are reluctant to have laws that are completely open to free trade. UAE fails to reap the benefits of globalization that include better consumer welfare, economic growth, and efficiency.

Works Cited

BTI 2014. United Arab Emirates Country Report. 2015. Web.

Sengupta, Rijit and Cornelius Dube. Competition Policy Enforcement Experiences From Developing Countries And Implications For Investment. Paris: Oecd Global Forum On International Investment, 2008. Print.

Swiss Competition Commission Israel Antitrust Authority, 2009. Special Project for the 8th Annual Conference Competition Law in Small Economies. 2015. Web.

Swiss Competition Commission. Competition Law In Small Economies. Zurich: International Competition Network, 2009. Print.

U.S Department Of State. 2014 Investment Climate Statement. Web.

Consumer Law

Consumer protection laws are normally designed to make sure that fair competition exists and that truthful information is available in the marketplace. They are formed by the government to guarantee the rights of consumers. Such laws are always established to prevent businesses from engaging in fraud and other specified unfair practices which allows them to gain advantage over competitors in the market (Boya 1987, 279).

They are also designed to protect the weak and who are not able to take care of themselves (Department of Trade and Industry 2006, 3).

The Australian Consumer Law is mostly derived from the provisions that had been previously provided in the Trade Practices Act of 1974 (Australasian Legal Information Institute2011). The Commonwealth Competition and Consumer Act of 2010 which became operational in January 2011 replaced the 20 different consumer laws which had existed in the various territories and states within Australia.

The Australian government aims to ensure fair trading legislation and consumer protection across all the jurisdictions in the country (Kelly 2010). The Australian Competition and Consumer Commission (ACCC) as well as the Australian Securities and Investment Commission (ASIC) are charged with the responsibility of enforcing the Australian Consumer Law (Consumer Affairs Victoria, 2007(a)).

They are considered to be a sovereign power in Australia. When considering whether o not to begin enforcement action against a trader the provisions of the Trade Practices Act of 1974, the enforcement body has to consider instances of unfair trade practices or contract terms as provided for in the Act (Consumer Affairs Victoria 2007(b), 3).

Defining goods and services

The enforcement body which may be the national or the local enforcement body has to consider whether or not the good or service in question is covered under the regulated goods and services in line with the Australian Consumer Law.

According to the Commonwealth Competition and Consumer Act of 2010, a person is accorded the right to file for a complaint if he or she had obtained service(s) or good(s) as a consumer provided that the sum paid (payable) for the service(s) or good(s) is below $40,000 or as laid down in the agreement (Brody 2010).

One is also taken to be a consumer if the good(s) or service(s) obtained are generally for consumption, personal or domestic use. Finally, one is considered to be a consumer if the good(s) comprise a vehicle or trailer that had been obtained primarily for use in the transportation of goods on public roads.

Establishing whether the person is a consumer

A consumer in this case is a person who obtains a good or service for the purpose of ownership or direct consumption, but not for other reasons such as resale, further manufacturing or production. On the other hand, according to the Act, a person is not considered to be a consumer if he or she obtained in order to re-supply.

In addition, any person who acquires good(s) for the purpose of transforming it/them or for use in trade is not considered as a consumer (Averitt & Lande 1997, 713). Transformation may mean production or manufacture process. Transforming could also mean repairing or treating some other good(s) or fixture on land.

Thus, the Australian Competition and Consumer Commission has to establish that the person is a consumer before it enforces any proceeding. It has to determine whether according to the terms of the contract, the good(s) or service acquired was for direct consumption, was below $ 40,000 or if it is a vehicle, then its purpose was for doing transportation along public roads.

This helps to determine whether the person is a consumer or not. However, the commission cannot enforce any proceedings in case the contract in question was an insurance cover or policy (Gans 2005, 40). According to Brody (2011) insurance contracts are exempted from the relief under the Australian Consumer laws.

The Australian Commission Laws part 3, section 2 exempts some gas, electricity and telecommunication services from coverage (Brody 2010). These are covered by the Electricity Act of 2000 Gas Industry Act of 2001.

General Protections

Determining deceptive and misleading conducts

The Australian Competition and Consumer Commission also has to establish whether or not the trader was engaged in misleading or deceptive conduct. Section 18 of the Australian Consumer Laws prohibits a business person or company involved in trade or commerce from engaging in any misleading or deceptive act (Consumer Action Law Centre 2008, 18).

Although misleading and deceptive acts have not been defined in this Act or in other Acts that apply the same provisions, the general meaning is any conduct or act that comprises misrepresentation of any kind.

The commission not only establishes that the business person, corporation or organization had set to deceive or mislead the consumer/buyer, but also investigates whether the person, business or corporation could have engaged in deceptive or misleading acts despite having acted reasonably or honestly (O’Shea & Rickett 2006, 139).

Since the deceptive and misleading conducts have not been defined by the courts, an objective test has to be conducted by the court or tribunal. This is done to come to a decision on whether the act was deceptive or misleading. This court or tribunal has to decide whether the action or behavior was likely to deceive or mislead the general public or a specific group of people whom the conduct was targeted at.

The commission and the tribunal/court may consider silence as act of deceit or misleading conduct in certain circumstances. For example, the tribunal or court may hold that failure to disclose information to the general public or certain demographic population was misleading if it was deliberately withheld for the benefit of the trader or corporation.

Establishing misrepresentations

The Competition and Consumer Commission may also open up a case against a person or trader who makes unfounded claims about the future. The Commonwealth Competition and Consumer Act of 2010 prohibit any act of misrepresentation regarding future matters (Brody 2010).

According to the Fair Trading Act of 1999, any person who makes claims regarding the future must provide reasonable basis for doing so; otherwise, it is considered as misleading (Victoria Consolidated Legislation 2011). This means that before the commission institutes a legal action against such a person or organization, it has to inquire the validity of the source of the claim.

It can only commence a legal action against the individual, organization or institution if the information or projection is not likely to mislead or deceive the general public or a section of the public.

Before the commission institutes a legal proceeding against a person, organization or corporation accused of deceptive and misleading act based on exclusion clause, the commission, tribunal or court has to investigate and find out whether the allegations made express disclaimer, and exclude liability on the person or organization for making deceptive and misleading statements in the particular advertisement.

If an advertisement which contains the disclaimer is found not to have originated from the trader or company, then the person or organization is not liable for the misleading information found in the advertisement.

However, if claims are made against a person or organization concerning disclaimers which do not prevent the act from being deceptive or misleading, then legal proceedings are instituted for communicating misleading information to prospective customers (Brody 2010).

The Australian Competition and Consumer Commission does not initiate an enforcement action against a trader if it is found out that the trader had engaged in puffery.

Puffery is defined in the Australian Consumer Laws as claims which could be exaggerated or are enthusiastically expressed in advertisement made by a trader, organization or corporation to promote their products and services, even though it is obvious that what is claimed in the advertisement cannot be taken seriously. The courts have often held that puffery cannot be considered as deceptive or misleading act.

A statement is taken as mere puffery if any logical or sound person would not take the message seriously or even consider acting upon it. Brody (2010) presents an example of “best ever” as among the advertisement sentences which are considered as puffery. This means that the commission has to establish whether the statement used by the trader to make the advertisement constitutes puffery or was misleading and deceptive.

It is assumed that consumers have the common sense to judge statements which have been exaggerated and does not represent the reality. As such, the commission does not enforce any action against a trader who applies such tactics in an advertisement; unless there is other instances in the advertisement which constitute deceptive or misleading conduct (Jenkin& Sylvan 2007).

The Australian Competition and Consumer Commission has to consider whether the provisions of section 29 of the Act have been abused by the person, trader, organization or corporation before instituting a legal proceeding against the accused. Section 29 of the Act prohibits any individual, person or corporation from making false representation concerning various aspects of goods and services (Brody 2010).

It is illegal according to the law to make any false representation as regards price, need, quality, standard, value, and desirability (Katy 2002, 277). It is also unlawful to provide false information regarding approval or affiliation of the product, service or company. False assurance on warranty, guarantee and the right to remedy or availability also constitute misrepresentation as defined in section 29 of the Act.

The person, organization or corporation making the sales or production is prohibited from lying on the sponsorship details of the product, services or company, performance characteristics as well as uses of benefits that potential customers are to gain from the good(s) or service(s) (Consumer Action Law Centre 2008).

Finally, a company or trader is not allowed to provide false information concerning the place of origin, history or the age of the product or that of the company manufacturing the product or providing the service.

Section 30 of this Act further prohibits any misrepresentation concerning the sale or award of an interest in land. According to the provisions in the Australian Competition and Consumer Act, a person, organization or company should not make representation about a sponsorship or affiliation to a land that he/she does not own.

The section further states that a person, organization or company is not allowed to make misleading or false representation as regards the location, price, and the details of interest in land, its characteristics and potential use, as well as, availability of facilities on it.

Thus, the commission has to determine whether the allegations made constitute misrepresentation as defined in the Act or not, before instituting legal proceedings against the person or organization.

Establishing unconscionable conducts

The Australian Competition and Consumer Commission has to determine whether the transaction constituted what is defined in the Act or interpreted by the courts as unconscionable conduct. The Act defines two types of acts which are considered as unconscionable. The first type is the unconscionable conduct as provided for in the “unwritten law” (Brody 2010).

The Act prohibits a person, organization or company involved in trade or commerce from engaging in unconscionable conduct as described in the unwritten law. Such dealing may occur when unfair transaction or contract is made with a person with special disability.

In that case therefore, the party that takes charge of the transaction or contract is not allowed to take unfair advantage of the disability of the person due to his or her disability or assume the disability situation (Consumer Action Law Centre 2004, 4). The commission institutes a legal proceeding against the trader or company if it is found that transaction or contract is very disadvantageous to the person with the disability.

Unconscionable conduct consists of taking advantage of a person because of his or her age, sex, illiteracy, sickness as well as infirmity of mind (Australian Competition and Consumer Commission 2005, 2). Failure to provide explanation or assistance where necessary while making the transaction or contract also constitutes unconscionable conduct as is defined in the unwritten law.

The commission also has to determine whether the contract or transaction process violates statutory unconscionability. Section 21 of the Act bars anybody or company involved in trade or commerce by supplying of goods or services from providing products or services to person in circumstances which constitute unconscionable conduct (Brody 2010).

The commission or court has to establish the bargaining strength of each party involved and find out whether the consumer was made to fully understand the terms of contract or details of the transaction (Australian Competition and Consumer Commission 2009, 17).

For the commission or court to begin a legal proceeding against the trader or company, the body also has to find out whether any unfair tactics or unwarranted influence were applied on the consumer (Consumer Affairs Victoria 2006, 15). In some instances, the consumer may be required to comply with the conditions stated by the supplier or trader, but it may not disadvantage the consumer.

Thus, the commission or court has to analyze the instance to be able to conclude whether the process is unconscionable under statutory law or not. In some cases, the product or service could have been acquired from a third party provider meaning that the trader or company may not be responsible for the terms of the dealing. It has to investigate matters leading to the formalization of the contract or transaction.

Establishing unfair contract terms

Finally, the Australian Competition and Consumer Commission has to consider whether the terms of the contract or transaction constituted unfair contract terms as defined in the constitution.

A contract term is taken to be unfair if it leads to considerable imbalance in the rights of the parties involved in the contract or causes financial or non-financial disadvantage to the consumer involved in the contract (Consumer Affairs Victoria, 2008, 3; & Hugh 1999, 73).

It may not necessarily protect the legal interests of the company or supplier. Therefore, the commission must establish the transparency of the terms of the contract before instituting a legal proceeding against the trader, supplier or company (Geraint 1997, 257).

Generally, the Australian Competition and Consumer Commission has to consider various factors which include whether the person (complainant) is a consumer or not, whether the good(s) or service(s) in question are covered and the consumer laws or not.

After ascertaining that, it can then establish conducts in the contract or transaction process which violate consumer laws before instituting legal proceeding against the trader or company.

Specific Protections

False or misleading representations about goods or services

When selling or advertising products, businesses should not provide misleading or false information that the good in question is of a given value, grade, standard, model, or style.

For example, in 1975, Sharp Corporation made the false claim that the Standards of Australia had tested and approved every sharp microwave. According to the court’s decision, this was a false representation and as a result, a fine of $ 100,000 was imposed on Sharp (Australian Consumer Law 2011).

Bait advertising

A business is said to take part in bait advertising when it rues consumer to buy a certain product by offering an attractive price in full knowledge that the product in question has the likelihood of running out of stock (Australian Consumer Law 2011). In 2005, an investigation of Repco by ACCC revealed that the company had been involved in bait advertising for some products that had run out of stock.

Wrongly accepting payment

Businesses are prohibited from receiving payment from buyers if they have no intention of supplying them with the products within the specified time.

For example, in 1981, World Travel Headquarters received a tour booking to Singapore from a client in the full knowledge that the tour had been changed form a 2-day trip to an overnight trip (Australian Consumer Law 2011). According to the decision made by the court, WTH had disobeyed the ban by accepting payment with the intention of supplying the service.

Inertia selling

Inertia selling involves spontaneously sending goods to an individual after which one coerces the individual to make payment for the goods. Businesses are prohibited from engaging in Inertia selling (Australian Consumer Law 2011). In addition, a person does not have to pay for an unsolicited good.

Pyramid schemes

This is a form of product distribution scheme in which participants earn a commission or profit once they have sold a product to a buyer. In addition, participants are encouraged to recruit other participants and for their efforts, they earn a commission as well. The more participants one introduces, the larger the commission.

Contingent referral selling

It involves giving buyers a commission, rebate or other benefits by a business so that the buyer can give the business constant details for other buyers. The ACL does not prohibit referral selling (Australian Consumer Law 2011). However, businesses are forbidden from participating in continent referral for later events, like referral for the purchase of products.

Consumer transactions

ACL intimately controls unwelcome consumer agreements, implying certain guarantee, and enforces certain minimum requirements with regard to the established agreements.

Consumer guarantees

The ACL endeavors to protect consumers by implying certain guarantees. In the case the consumer is being supplied with goods, the guarantees entails the ownership of the goods shall be passed on to consumers, that the consumer shall posses the goods wholly, and that the quality of such goods is acceptable (Australian Consumer Law 2011).

In addition, the consumer should be guaranteed of goods that are in line with their descriptions.

Unsolicited consumer agreements

This agreement entails the supply of services or goods of approximately $ 100. Such an agreement is unsolicited conducted over the phone outside the business premises and over (Australian Consumer Law 2011). The consumer has also not received any invitation from the seller to negotiate over the supply of the goods or services.

Evidence of transactions

When a consumer orders for goods or service, he/she is at liberty to obtain evidence of the ensuing transaction. This is mandatory for transactions exceeding $ 75. The consumer can also request for proof of transaction for goods and services below this amount.

Safety of consumer goods

ACL Part 3-3 is charged with the responsibility of controlling consumer products.

Product safety standards

The ACL support the establishment of product safety standards. As a result of these standards, businesses are supposed to fulfill certain requirements regarding composition, contents, performance, design, and packaging (Australian Consumer Law 2011). The requirements also take into account testing of consumer goods, as well as the content and form of warning instructions, and markings on consumer goods.

Bans

The ACL issues interim bans products and services that may cause injury to consumers. Interim bans should end after 60 days but can be extended (Australian Consumer Law 2011). The ACL prohibits businesses from selling products and services capable of injuring consumers, and which have received a permanent or interim ban.

Recalls

The ACL can recall goods failing to comply with the established product safety standard and which are capable of causing injury (Australian Consumer Law 2011). Once issues with a notice, businesses are required to recall products at once, and at the same time, inform the public of the defect and potential risk associated with the use of such products and services.

Reference List

Australian Competition and Consumer Commission 2009, Debt collection practices in Australia: Summary of stakeholder consultation. Web.

Australian Competition and Consumer Commission 2005, Don’t take advantage of disadvantage: A compliance guide for businesses dealing with disadvantaged or vulnerable consumers. Web.

Australian Consumer Law 2011, Australian Consumer Law Update. Web.

Australasian Legal Information Institute 2011, Competition and Consumer Act 2010: Schedule 2. Web.

Averitt, N. W. &Lande, R. H. 1997, ‘Consumer sovereignty: A unified theory of antitrust and consumer protection law’, Antitrust Law Journal, vol. 65, pp. 713.

Boya, U. O. 1987, ‘Consumer usage of unit pricing’, Journal of Consumer Studies and Home Economics, vol. 13, No. 1, p. 279.

Brody, G. 2010, Australian consumer law. The Law Handbook. Web.

Consumer Action Law Centre 2008,The consumer protection provisions Part V of the Trade Practices Act of 1974: Keeping Australia. Web.

Consumer Affairs Victoria 2008, Application of unfair contract terms legislation to consumer credit contracts: Consultation paper. Web.

Consumer Affairs Victoria 2007a, Preventing unfair terms in consumer contracts: Guidelines on unfair terms in consumer contracts, Consumer Affairs Victoria, Melbourne.

Consumer Action Law Centre 2007b, Submission to the Productivity Commission Inquiry into Australia’s Consumer Policy Framework. Web.

Consumer Affairs Victoria 2006,The report of the consumer credit review. Web.

Consumer Affairs Victoria 2004, Discussion paper: What do we mean by ‘vulnerable’ and ‘disadvantaged’ consumers? Web.

Department of Trade and Industry 2006, Representative actions in consumer protection legislation: Consultation. Web.

Gans, J. S. 2005, ‘Protecting consumers by protecting competition: Does behavioural economics support this contention?’, Competition & Consumer Law Journal, vol.13, No. 40.

Geraint H. 1997, ‘Seeking social justice for poor consumers in credit markets. In Iain Ramsay (ed).Consumer law in the global economy’, National and international dimensions, vol. 257.

Hugh, C. 1999, Regulating contracts, Oxford University Press, Oxford.

Jenkin, M. & Sylvan, L. 2007, Consumers and competition: Makingpolicies that work together. Presentation to the National Consumer Congress, Melbourne. Web.

Katy, B. 2002, ‘The uneasy position of unjust enrichment after Roxborough v Rothmans’, vol. 277, no. 23.

Kelly, J. 2010, ‘Shoppers and parents among those to benefit from law changes at midnight’, The Australian. Web.

O’Shea, P. & Rickett, C. 2006, ‘In defence of consumer law: The resolution of consumer disputes’, Sydney Law Review, vol. 28, n. 1, p. 139.

Victoria Consolidated Legislation 2011, Fair Trading Act 1999. Web.

Introduction

Over the past few years, firms within the health care industry in the US have experienced an increment in their profitability. One of the factors that contributed to the profitability relates to the high rate at which firms’ in the industry are incorporating the concept of mergers and joint ventures. The changes in the market have culminated into an increment in the intensity of competition amongst firms in the industry.

In an effort to attain an optimal market position, most health care organizations are increasingly considering the best competitive strategy to adopt. As one of the firms operating within the industry, our organization is considering entering into a joint venture with potential health care firms operating within the society.

However, the firm expects to experience a challenge arising from the recent policies that have been implemented by the presidential administration. The White House has implemented policies to increase regulations with regard to mergers and joint ventures. As a result, mergers and joint ventures will experience a high level of scrutiny.

One of the reasons that explain the increase in the intensity of regulation arises from the fact that the US administration intends to minimize the number of options available to consumers.

Due to these changes, organizations will be required to be more vigilant in the process of undertaking mergers, forming partnerships and joint ventures. This paper is aimed at evaluating the diverse laws and regulations that will guide joint ventures and competition. Understanding these laws will be a great source of insight for the firm in understanding the challenges that it might experience as a result of increased government intervention.

Laws that govern joint ventures and competition

Antitrust laws

The US government has incorporated a number of antitrust laws which are aimed at controlling business operations. Antitrust laws are aimed at preventing businesses from engaging in unfair business practices for example unfair competition or formation of unjust monopolies (Federal Trade Commission, 2009, p. 293).

Antitrust laws prohibit businesses from entering into unlawful associations or horizontal arrangements with their competitors. Under antitrust laws, such arrangements are considered unlawful if their core objective is to develop monopoly power in the market.

Antitrust laws also restrict certain relationships with competitors such as an arrangement aimed at establishing a collective refusal to deal with a certain business enterprise (establishing group boycotts). Such a relationship is considered to be unlawful under antitrust laws.

This arises from the fact that the relationship may reduce freedom of trade. Even if the objective of the relationship is not to restrain competition, antitrust laws consider it to be unlawful (Bloch & Falk, 1994, p.210).

As one of the business structures, joint ventures are lawful. However, there are instances when joint ventures can be considered to be unlawful if they violate antitrust laws. This may occur if the joint venture is established amongst a number of competitors and excludes others (Federal Trade Commission, 2004, p. 28).

If a joint venture takes into consideration a large number of firms compared to those which are excluded, the joint venture may be regarded to have violated antitrust laws.

For example, if all the firms in the health care industry in Houston form a joint venture but exclude a certain category of health care firms for instance non-physicians for anti-competitive objective, the joint venture may be regarded to have engaged in unlawful business action.

Antitrust laws also prevent competitors from engaging in horizontal price fixing. This entails colluding with competitors to set the price of products within a particular range. According to antitrust laws, it is illegal for competitors to involve themselves in market division which entails entering into an agreement to divide the market amongst them (Murray, 2002, p.3).

One of the ways through which organizations may involve themselves in market division entails dividing the market on geographic basis. For example, the health care organization may be restricted from venturing into a region that is assigned to its competitor. The objective of market division is to limit the intensity of competition that a firm experiences. However, such an arrangement is against antitrust laws.

Conclusion

The recent reforms within the health care industry will result into an increment in the intensity of competition within the industry. In an effort to position themselves in the market, most health care organizations will form affiliations such as joint ventures with other providers as a competitive strategy. The reforms were aimed at driving down the cost of offering health care to customers.

In order for health care organizations to successfully form joint ventures, they will be required to adhere with the various antitrust laws which regulate competition and joint ventures. One of the issues that the organization should take into consideration when forming partnerships or joint ventures in an effort to attain a competitive advantage relates to adhering to antitrust laws.

For example, the organization should desist from forming horizontal arrangements aimed at developing a market monopoly and establishing group boycotts. Additionally, the firm should not exclude other firms in the process of establishing the joint venture.

Antitrust laws also prohibit competitors from involving in price fixing. In an effort to ensure that the organization attains an optimal market position, the Board of Directors should be independent in setting the price of its health care services. The organization should also not engage in market division with its competitors.

Reference List

Bloch, R. & Falk, D. (1994). Antitrust, competition and health care reform. Bethesda: HOPE.

Federal Trade Commission. (2009). Inverness medical innovations, incorporation: agreement containing consent order to aid public comment. Federal Register. Vol. 74, issue no. 2, pp. 291-293. Retrieved from https://www.ftc.gov/sites/default/files/documents/federal_register_notices/independent-practice-associates-medical-group-inc-analysis-agreement-containing-consent-order-aid/090105independentpractice.pdf

Federal Trade Commission. (2004). Improving health care: a dose of competition. Health care and competition law and policy. Retrieved from https://www.ftc.gov/sites/default/files/documents/reports/improving-health-care-dose-competition-report-federal-trade-commission-and-department-justice/040723healthcarerpt.pdf

Murray, A. (2002). FTC cracks down on antitrust issue in health-care area. New York: Wall-Street.

The focus on a marketing strategy is important for any company which specializes in providing definite products or services because marketing is the key process not only to promote different products and services but also to contribute to the effective company’s performance and competition within the industry.

In spite of the fact that the main principles of marketing are appropriate to be used in different spheres, it is impossible to state that marketing in relation to the food production has no differences regarding health care marketing.

The view that the processes of marketing hotels or foods are the same regarding the processes typical for the health care marketing is rather naïve because there are many significant differences characteristic for marketing strategies used in various industries.

The differences which can be determined in relation to food production marketing and health care marketing are affected by the challenges of the health care industry. Marketing strategies operated in different industries depend not only on the characteristics of this or that industry but also on the specific demands of the customers or the company’s target audience (Berkowitz, 2010).

That is why, all the associated features and characteristics should be taken into account in order to state about differences in marketing processes. From this point, it is naively to apply the general principles of marketing to the health care industry without references to the specific features of the spheres and companies’ activities because health care marketing is the unique filed which requires the distinctive approach.

Nevertheless, health care marketing is similar to marketing other products or services in relation to relying on the basic marketing principles. Thus, marketers in the health care industry also develop their plans basing on the correlation of such parameters as product, price, promotion, and place (Berkowitz, 2010). Moreover, the process of working out a marketing plan depends on the dynamic development of the industry without references to its particular features.

Health care marketing strategies as strategies used in any other industry can be discussed as oriented to effective competition within the industry, successful use of different advertisements, attracting customers, and improving the brand recognition and reputation. Moreover, many organizations in the health care industry as well as in any other sphere can be described as market-oriented because of the focus on the effective promotion and increased sales.

However, health care marketing is also characterized by a lot of differences while comparing its approaches, techniques, and key points with the principles significant for developing the marketing strategies within the other industries. To begin with, the target market is important for the health care industry without referring to the specific groups of consumers.

Secondly, while referring to customers of the health care industry, it is important to pay attention to the changes in the populations and their demographics as well as to the people’s changing demands and interests in the health care products and services. Health challenges typical for different groups of population are various, and marketers working within the health care industry should respond to different categories of the population and their needs separately (Berkowitz, 2010).

The challenges of the health care industry influence the specifics of the used marketing strategies, thus, any changes in the government health care policies such as revisions of the drug prescription policies or new insurance laws can affect the changes in the marketing environment.

Thus, although health care marketing is based on the general marketing principles, there are many differences in the approaches which should be taken into consideration by marketers.

Reference

Berkowitz, E. (2010). Essentials of health care marketing. USA: Jones & Bartlett Publishers.

Introduction

One of the core facilitators in the successful operation of any health care organization is coming up with the most appropriate strategic mapping techniques. The duty of a strategist is to perceive the competition within the field and be able to handle it (Porter, 2008). Competitive analysis of the service area is necessary to provide a better understanding of the company’s environment (Ginter, Duncan, & Swayne, 2013). Such analysis allows discerning particular issues concerning competitors and service areas.

The Importance of Hospital Competition and Strategic Planning

Strategic planning is a vital element in any health care organization’s activity. Its core function is to determine the competitors and their strong and weak points. Obtaining such data allows us to predict the strategic actions of the rivals and thus helps to overcome them. Apart from accumulating data on the competitors, strategic management presupposes finding out information about the service area (Ginter et al., 2013). Concentration on service area makes it possible to prevent unexpected situations, decrease the time necessary to answer the rivals’ actions, establish vacant positions in the market, and learn through correlating one’s strategies with the competitors’ (Ginter et al., 2013).

Porter (2008) identifies five forces defining strategy: the threat of entry, power of buyers, power of suppliers, the threat of substitutes, and competition among existing organizations. New entrants put the existing competitors under threat as they can change the present capabilities. The impact of buyers lies in their possibility to demand better quality and lower costs. Suppliers have the power to modify the industry’s profitability. Substitutes are dangerous as they may replace the original product or service. Finally, competition among existing organizations restricts production’s profitability (Porter, 2008). However, a recent study by Cooper, Gibbons, Jones, and McGuire (2011) shows that such competition is extremely beneficial for the patients.

The Most Appropriate Characteristics of Mapping Strategic Groups in Service Area

In the modern health care environment, strategic groups can be mapped according to patient-centered care and the cost of services. Patient-centered care has become an important issue for people when choosing a health care facility (Bertakis & Azari, 2011). By finding out the competitors’ approaches, one can design a plan for his/her organization’s patient-centered care methods which would help to win the service area’s trust. Patient-centered care has grown popularity among customers as it suggests a better attitude and a higher quality of service (Bertakis & Azari, 2011). Such an approach enables customers to take part in the decision-making process, gives them the power to choose services and specialists, and provides the best approaches to treatment. By mapping strategic groups in service areas against the patient-centered care characteristics, the strategist will increase his/her organization’s prospects for encouraging more customers to use their services.

Another critical component of mapping the strategic groups is presented by service prices. The current situation in the health care industry requires people to spend a lot of money on medical services (Baicker & Goldman, 2011). While it is getting more and more difficult to compensate for a hospital stay, customers tend to choose the facilities whose prices are lower. It is necessary to set the fees acceptable for clients and manage the facility’s budget to maintain a balance suitable for both sides and allow to win the service area competition.

Conclusion

Strategic planning is a crucial element of any health care facility’s success. By comparing one’s strategies to the competitors’ ones, it is possible to create a plan for improvement and development. Strategic mapping is an essential feature of management as it provides an opportunity to evaluate the customers’ needs and propose them the most suitable options.

References

Baicker, K., & Goldman, D. (2011). Patient cost-sharing and healthcare spending growth. Journal of Economic Perspectives, 25(2), 47-68.

Bertakis, K. D., & Azari, R. (2011). Patient-centered care is associated with decreased health care utilization. The Journal of the American Board of Family Medicine, 24(3), 229-239.

Cooper, Z., Gibbons, S., Jones, S., & McGuire, A. (2011). Does hospital competition save lives? Evidence From the English NHS patient choice reforms. The Economic Journal, 121(554), F228-F260.

Ginter, P. M., Duncan, W. J., & Swayne, L. E. (2013). Strategic management of health care organizations (7th ed.). San Francisco, CA: Jossey-Bass.

Porter, M. E. (2008). The five competitive forces that shape strategy. Special Issue on HBS Centennial. Harvard Business Review, 86(1), 78-93.

Introduction

Today the arguments and counter arguments in the medical and health sectors embattle the profession. A common squabble entails professions’ ability to provide good patient care in adherence to the medical ethics. Do standard medical ethics apply in disaster conditions? The medical profession is slowly becoming an endangered career because of various conflicting perspectives concerning enhancement of people’s health.

According to Levine’s Writing (79), doctors are highly outraged by some of the medical professionals arrests linked to negligence, since their acts are in respect for ambiguity during the disastrous situations, when the government procedures lack better options to save lives.

This paper is an analysis in support for, ‘deduction of moral obsoletes for medical professions during disastrous conditions.’ Logic ought to triumph over all the other aspects during a life and death situation.

As the population ages, the expectorations are that the demand for grow would rapidly become better, but because of some tight working rules and regulations, people are opting for other careers that support more freedom of decision-making procedures. There is anticipation that the medical field might end up suffering severe shortages unless the rule adjusts to accommodate some of the trends.

Professionalism

When practitioners face the task of making tragic choices, what is supposed to prevail, compassion or absolutism? Eventually, the practitioners are accountable for their deeds regardless of whether the law protects them or not. Due to the conscious aspects, their specialties and medical acts such as decision-making during the critical conditions have to engage compassion.

Currently it is observable that beyond any reasonable doubt, professional face the fear of the law and has to engage all possible rules or regulations to ensure professional safety. It is difficult to predict how long utilization of core autocratic skills takes place before breaking off to enhance use of the conscious mind especially during emergencies. Perversely, decision-making and medical procedures management was, until recently, a medical responsibility.

Now, specialists have to depend on others procedural principles or regulations during their undertakings (Ciottone, 64). In consideration of the Hurricane Katrina, at the Gulf States of Louisiana and Mississippi, the natural disaster with magnificent damages left thousands in need of medical assistance and in conditions where the government of the United States could have done so little to cover up the effects.

The analogies that support tragic choices of painless or brutal deaths that the medical professional have to face especially during disasters creates a negative public perception on physicians as a noble profession, and makes people to have an equally strong opinion that it is difficult and often unpleasant.

Autonomy

Is there variability on the degree of autonomy in the medical career? Considering the case study of the hurricane Katrina, despite the government’s inability to cater for the victims, the practitioners have very little real freedom. The medical freedom especially administration of drugs is very limited and therefore the professionals perform to their utmost in strangle for any independent thought or action.

There is evident fear of expensive litigation due to the existence of protocols for everything these days, and woe betides those who dare to use initiative outside the law. This is evident with the arrests of two nurses and a physician in July 2006 in a case linked to the Hurricane Katrina disaster.

Nurses and physicians have to make decisions and account for outcomes. This makes physicians to be essentially in charge of patient care, and the public view them as the final authority over all patient care decisions. The trend is quite different in current procedures due to the legal perspectives and therefore the many health professional remain reluctant to challenge rules or be assertive even during the disasters (Steinbrook, 2002).

Although not certified, the charges regarding physician-assisted deaths after the Hurricane Katrina disaster where the doctor and nurses were accused of injecting excess morphine to severely ill patients, or those beyond the hopes of recovery raises many questions regarding life.

Is there a justification of euthanasia during extreme conditions? According to Lavine (81), “increasing acceptance of euthanasia and assisted suicide is relatively recent in the history of medical ethics, representing a significant departure from the historical traditions that hold life as a non-negotiable value.” The law and the church proscribe assisted death even at extreme situations. The question this paper asks is, ‘can euthanasia be justifiable in unusual situations?’

The May 21, 2005 incident as illustrated by Lavine (82), where a fellow compatriot Capt Rogelio Maynulet shot an accident severely wounded soldier to relieve him pain and misery is a good example of situations where euthanasia ought to prevail. With the acts of the incident on tape, doctors were certain that nothing would have been possible considering the time, location and fatality, where the accident blew off part of the victim’s brains out of the skull.

However, the biggest challenge regarding the allowable exceptions over prohibition of euthanasia. What are the definitions and limits of applications for allowed euthanasia? The society can easily agree with euthanasia at certain limits but equally engage resistance due to risks of getting situations out of hand (Medscape, 3).

Blame for reactions

Physicians are accountable for the health and patient’s welfare. They have a personal interaction with people in need. In cases of severe illnesses or even death, people view the professions as the main cause of errors, and therefore the full blame befalls them.

This destroys people’s confidence for the professions and stops development dead on its tracks. Some of the severe scenarios place the professionals in an impossible dilemma or situations that involve emotional and personal liabilities, some of which are too painful to bear.

Their tasks are to protect, care for and not sacrifice the entrusted patients. It might not be practical but some situations press the physicians between a rock and hard place especially on issues regarding death. The situations are comparable to Levine’s narration (85), of Adina Blady Szwajger, who used morphine to kill the severely malnourished, sick and staving infants instead of having them murdered by the Ukraine guards.

If faced with the situation of choosing the kind of death to prefer, would one pick or let the river take its course? Would you prefer your loved one to die under the chain-saw cuts or a morphine-sleep death, if circumstances involve you in their death? According to Williams (2), today the rule is hard to bend and no administered death is justifiable as gentle or merciful, but there is need to allow for occasional contingencies.

Conclusion

The conflicting perspectives in medical and health practices mainly arise because of lack of independence especially in decision-making for treatment and care and lack of good interrelationship with other medical practitioners. The interactions or communication between physicians can be conflictive to the point of dysfunctional.

This conflict mainly arises from competition for status and power or differences on values and beliefs. Some physicians still may harbour the notion that they must be “captain of the ship” and rules or regulations to follow regardless of the situation at hand (Steinbrook, 12).

Such individuals view a recommendation or a direct request for alteration in the plan of care as a challenge to their status and power, or a risk of the career endeavours. What do the self-conscious tell you? Do you respect the ambiguities of a situation of rules? Physicians treat disease based on what they can hear, see, and count. They view medical needs as a life experience. Therefore there is need to address certain constraint to narrow the gap of the conflicting perspective in the profession.

Works Cited

Ciottone, Gregory. Disaster Medicine. Maryland, MD: Elsevier Health Sciences Press. 2006. Print.

Levine, Carol. Taking Sides: Biometrical Issues. (12^th Ed) New York, NY: McGraw-Hill Press. 2009. Print.

Medscape. Nursing Politics. 2005. Web.

Steinbrook, Ryun. Nursing in the crossfire. 2002. Web.

William, Scott. Nursing profession ranks low in desirability despite public’s high regards for nurses. NurseWeek. 2001. Web.