Pierre Larouche

• BCL, LLB, M iur comp, PhD
• Professor at Université de Montréal

Empirical research in law is thriving, contributing to the creation of new knowledge and providing jurists with innovative ways to study issues and phenomena. Embracing empiricism is no easy task, but the authors of this article have taken the plunge to shed light on such research. By developing two distinct methods (for two projects), they tested...

En plein essor, la recherche empirique en droit participe à la création de nouvelles connaissances et ouvre aux juristes d’autres voies pour étudier une question, un phénomène. Oser l’empirisme n’est pas chose aisée, mais les auteurs du présent article ont pris ce virage et proposent d’en exposer le récit. En construisant deux méthodes distinctes (...

The paper focuses on the role of the World Health Organization (WHO) in promoting a healthy world population as a generative and robust idea within health policy. The WHO’s health credo transcends national boundaries to promote health globally. It is embedded in norms, values, and standards promulgated by the organization and contributes in shaping...

In many economic sectors – the digital industries being first and foremost – the market power of dominant firms has been steadily increasing and is rarely challenged by competitors. Existing competition laws and regulations have been unable to make markets more contestable. The book argues that a new competition tool is needed: market investigation...

I. Introduction The last three years have seen a legislative acceleration in tech regulation in Europe and the emergence of an EU platforms law.¹ In the context, the European Commission tabled a very significant Digital Markets Act proposal in December 2020.² If adopted by the EU legislature in 2022, it could be applicable to the European activitie...

This study provides a comprehensive analysis of the governance of standard development organizations (SDOs), with a particular emphasis on organizations developing standards for Information and Communication Technologies (ICT). The analysis is based on 17 SDO case studies, a survey of SDO stakeholders, an expert workshop, and a comprehensive review...

Standardization may allow the owners of standard‐essential patents to charge higher royalties than would have been negotiated ex ante. In practice, however, standard‐setting efforts are often characterized by repeated interaction and complementarities among technologies. These features give firms that contribute technology to standards both the abi...

As part of the standard-setting process, certain patents become essential. This may allow the owners of these standard-essential patents to hold up implementers of the standard, who can no longer turn to substitute technologies. However, many real-world standards evolve over time, with several generations of standards succeeding each other. Thus, s...

In an era of increased reliance on private regulatory bodies and globalised economic activity, standardisation is the field where politics, technical expertise and strategic behaviour meet and interact. International standard-setting bodies exemplify the rise of transnational governance and the challenges that it brings about relating to institutio...

The legal literature concerning the interplay between innovation and law is split between two streams: law and economics (broadly defined) and law and technology. They seem to exist in parallel and largely non-intersecting inter-disciplinary silos. This paper attempts to reconcile these two streams and identify synergies. Even the definition of inn...

Disruptive innovation, according to business literature, occurs when an innovative product is brought to a market, such as meets the basic requirements of the lower-end of an established value network and also offers added value outside of that value network. That product wins over consumers and progressively takes over the established market, disp...

Whilst there is widespread agreement in policy circles that fostering innovation should be a priority, there is far less consensus on what this entails and how to achieve this objective. This lack of consensus is echoed in the academic literature on innovation. In this paper, we seek to reconcile two lines of literature with which lawyers are most...

Should injunctive relief be available to the holder of a Standard-Essential Patent (SEP) which committed to license on fair, reasonable and non-discriminatory (FRAND) terms, in order to prevent a third-party implementer from practicing a standard reading on that SEP, when that implementer is willing to take a license but the parties disagree on the...

This article reviews the recent proposal by Mark Lemley and Carl Shapiro that standard-setting organizations (SSOs) amend their intellectual property rights (IPR) policies to require standard-essential patent (SEP) owners and willing licensees to resolve disputes over licensing terms, particularly fair, reasonable, and nondiscriminatory (FRAND) roy...

Should injunctive relief be available to the holder of a Standard-Essential Patent (SEP) which committed to license on fair, reasonable and non-discriminatory (FRAND) terms, in order to prevent a third-party implementer from practicing a standard reading on that SEP, when that implementer is willing to take a license but the parties disagree on the...

While the traditional literature and the policy statements concerning standardization as such emphasize the benefits of standardization, the intellectual property and competition law literature and policymaking has been more critical of standardization. Intellectual property is relevant, as the technology embedded in a standard is often protected w...

In the light of economic theories, this chapter investigates a series of distinct and sometimes competing rationales or purposes for Impact Assessment of legislation or regulation (IA). They include the mainstream economic rationale, i.e. improving the quality of legislation, as well as a number of purposes which link in with fundamental legal prin...

This chapter provides a brief introduction to a volume which encompasses the outcome of a research project at the Tilburg Law and Economics Center on the future of national legal systems in the era of globalization. The chapter introduces the research questions answered and the research methods used in subsequent chapters of the book.

In this paper we compare the concepts of monopolization and abuse of dominance as in §2 of the Sherman Act and Article 102 of the TFEU, respectively. After identifying a number of distinctive features in wording and interpretation – including the special responsibility of the dominant firm, competition of the merits and protection of the competitiv...

This paper reviews the recent proposal that SSOs amend their IPR policies to require SEP owners and willing licensees to resolve disputes over licensing terms, particularly FRAND royalty rates, using mandatory, binding baseball-style (or “final offer”) arbitration. We first consider the fundamental underlying premise of the arbitration proposal - n...

This chapter highlights key trends in EU law in the last ten to fifteen years, as regards the regulation of network industries and of services of general economic interest (SGEIs) more generally. Our central claim is that over the relevant period of time, EU law has been-and still is-in the process of moving from one legal paradigm to another. The...

This chapter summarizes the lessons drawn from the work of the Economic Impact Group (EIG), a part of the CoPECL Network of Excellence funded by the EU to prepare a Draft Common Frame of Reference (DCFR). First, it revisits basic principles which are central to the work of the whole group. For one, contract law is not just about remedying market fa...

This is the concluding chapter of a collective volume grown out of a research project at the Tilburg Law and Economics Center on the future of national legal systems in the era of globalisation. The chapter begins by providing a brief summary of the findings of each chapter, part by part, before setting out some more general conclusions arising fro...

From the vast and on-going network neutrality discussion, this contribution picks five neglected issues, which could affect the terms of the debate. After a brief introduction to the state of play in the EU (1.), it deals with market definition as it relates to the relationship between the ISP on the customer side and the content provider (2.), wit...

Global legal scholarship should aim to be both post-national and inter-disciplinary. By post-national, we imply that it should rise above national legal systems and cover a more abstract corpus of knowledge about law, of which national legal systems would be an application. By inter-disciplinary, we mean that legal scholarship is enhanced by a deep...

The development of new digital technologies has resulted in significant transformations in daily life, from the arrival of online shopping to more fundamental changes in the ways we work and communicate. Many of these changes raise questions that transcend market access and liberalisation, and demand cooperation and coherent regulatory design. Inte...

This chapter takes a broader perspective on issues of convergence and divergence between legal systems, in the light of law and economics and the comparative law literature. It deals with the set of fundamental questions which are typically arising in the academic and policy debate. First of all, it examines why different legal systems would diverg...

This book presents the results of research project financed by the Hague Institute for the Internationalization of Law (HiiL) and carried out at the Tilburg Law and Economics Center (TILEC) of Tilburg University. The project team shows that globalization, instead of threatening national legal systems, put them in a new role and gives them continuin...

This paper puts forward an alternative path, next to regulatory competition models and comparative law endeavors, called legal emulation. Regulatory competition suffers from its very restrictive assumptions, which make it a relatively rare occurrence in practice. It is also endogenously driven, ignoring legal change brought about from within the la...

A specific EU model for national regulatory authorities (NRAs) has evolved in the course of the liberalization processes in network industries (electronic communications, energy and others). It rests on two broad lines: NRAs are independent and accountable.The CERRE Report on Independence and Accountability of national regulatory authorities (NRAs)...

The WTO Telecommunications Agreement of 1997 marked a new beginning in international regulation. For a number of significant players, like the EU and the United States, the Agreement essentially consolidated at the international level the liberalization movement to which they were already committed nationally. Other, notably developing, countries c...

Network neutrality as a cluster of issues The 'network neutrality' moniker has some advantages, but it also affects the thrust of the discussion. First, it creates an illusion of unity among a number of disparate questions and oversimplifies the debate into a battle between proponents and opponents of 'network neutrality'. Secondly, it isolates the...

Cloud computing is a new development that is based on the premise that data and applications are stored centrally and can be accessed through the Internet. Our Article sets up a broad analysis of how the emergence of clouds relates to European law. We single out European competition law, network regulation, and electronic commerce regulation, which...

This paper is the first of a larger project aimed at exploring, among other things, whether Europe has a consistent innovation policy in the context of EU economic law (competition policy, intellectual property law, sector regulation). As such, its primary aim is to present our approach for answering this question and outline the anticipated contri...

While much attention is given at EU level to the design and operation of National Regulatory Authorities (NRAs), the enforcement and review of NRA decisions has been largely left to the Member States to organize.With this report, CERRE provides a comprehensive examination of Member State law and practice regarding the enforcement and review of NRA...

This paper is a contribution to the 2nd edition of Craig and de Búrca, The Evolution of EU Law. It highlights key trends in EU law in the last ten to fifteen years, as regards the regulation of network industries and of services of general economic interest (SGEIs) more generally. Our central claim is that over the relevant period of time, EU law h...

This paper contains the conclusions from the work of the Economic Impact Group (EIG), a part of the CoPECL Network of Excellence funded by the EU to prepare a Draft Common Frame of Reference (DCFR). Part 1 revisits basic principles which are central to the work of the whole group. For one, contract law is not just about remedying market failures, i...

The network neutrality debate discussed the differences in telecommunications regulation between the U.S. and the European Union, that surrounded the introduction of differentiated QoS and network neutrality in Europe is still continuing. Internet service providers (ISPs) are considered as the key developments that prompted the debate with an aim t...

The European institutions are currently debating the desirability of imposing restrictions on the way in which internet service providers (ISPs) in the EU can manage their networks and develop their offerings, under the broad heading of 'network neutrality'. In our opinion, so far, the need for new legislation on network neutrality in Europe is unp...

This chapter takes a broader perspective on the issues of convergence and divergence between legal systems. It examines why different legal systems diverge. It illustrates that the basic proposition that the existing state of affairs is not fortuitous and will usually turn out to be in equilibrium: in other words, that it is the outcome of various...

This essay was written as part of a liber amicorum for Egbert Dommering of the University of Amsterdam, Professor of Information Law at the University of Amsterdam. The author argues that, for a number of reasons information law will never be the same as it was during Dommering's tenure, which should cause current members of the information law com...

This article puts the judgment of the EC Court of First Instance (CFI) in Microsoft in perspective and links it with the ongoing discussion on competition policy and innovation. It also replies to some claims made by Ahlborn and Evans in their piece on the same judgment (http://papers.ssrn.com/abstract_id=1115867). The first section takes a general...

Why do we conduct Ex ante Evaluation of Legislation or regulation (EEL)? In the light of economic theories, this paper investigates a series of distinct and sometimes competing rationales or purposes for EEL. They include the mainstream economic rationale, i.e. improving the quality of legislation, as well as a number of purposes which link in with...

Most of the draft CFR (DCFR) concerns contract law, yet in Book VI the DCFR deals with another major component of private law which could not be ignored in the work of the Economic Impact Group (EIG). What the DCFR accurately if dryly defines as "noncontractual liability arising out of damage caused to another" roughly corresponds to tort law as it...

This essay looks into the influence of European law and policy on infrastructure investment decisions. After a brief survey of how EC law generally affects regulatory decisions concerning infrastructure, the mission paradox arising from the separation of regulatory and operational functions and the creation of regulatory externalities are dealt wit...

This paper seeks to assess exactly where and how the network neutrality discussion taking place in the United States is relevant in the EU context, and thus where Europeans should be concerned. Secondly, where there is a concern, it looks to EC law to ascertain whether it already provides a response or whether further action at the legislative or r...

Sometimes differences between legal systems can provide the best explanation for differing outcomes in matters of competition policy and regulation. Each system made its own choice between equally valid policy options, and even if the same corpus of economic science is used under each system, the respective outcomes will be different. Under these c...

In this article, the authors review the relationship between the Commission, the national regulatory authorities (NRAs) and national courts in light of the Commission's proposals for reform as laid out in the 2006 Review. They focus upon the Article 7 and Article 4 procedures of Directive 2002/21. They conclude that the Commission proposals leave k...

This chapter reviews EU competition cases related to abuses of dominant positions. It then reviews the experimental literature that deals with market dominance. It is concluded that little experimental work has been done and that, hence, the link is weak between competition policy practice and experimental economics in the area of market dominance....

This paper aims to take a broader perspective on issues of convergence and divergence between legal systems.

In European Commission (2005), the Commission’s most recent progress report to the Council on the application of the Postal Directive1, it is stated: “Competition has yet to develop in the addressed mail segment outside niche services, and this suggests that limited initial market opening combined with sometimes limited regulatory capacity or cert...

In 1986, at the start of the Uruguay Round, there were few precedents and little discussion of liberalization in telecommunications. By way of illustration,1 the United States was in the aftermath of the AT&T break-up, and the EC had not taken any internal liberalization measures yet, and national telecommunications operators (“TOs”) were still fir...

The introduction of VoIP telephony raises concerns about current regulatory practice. Access regulation has been designed for PSTN and the liberalization of the PSTN market. This paper explores the effects of access regulation of PSTN networks on consumers’ adoption of a new technology in the form of VoIP. It also discusses the link between access...

The multiplication of competent authorities – the Commission, national competition authorities (NCAs), national regulatory authorities (NRAs) and courts – in the wake of recent reforms of competition law and regulation makes coordination a key issue. This paper begins by considering whether there is a need for coordination. In the horizontal (betwe...

This paper attempts to make a global assessment of remedies imposed in the various network industries (post, telecommunications, energy, etc.) under European competition law and sector-specific regulation. As far as the substance of these remedies is concerned, there is a trend to view remedies as an isolated analytical element, with the risk that...

Based on a discussion of the specific characteristics of the postal market, such as economies of scale and scope and cost structure, we assess the extent to which there are substantial entry barriers in the postal market. While economies of scale and scope are obviously present and relevant, the observed practice of entry in the Netherlands indacte...

This is the inaugural lecture of Prof. Pierre Larouche. In its first part, the paper sets out a research agenda for a global approach to economic regulation. Legal scholarship on economic regulation must escape its national and sectoral boundaries and look at the core issues of economic regulation in a global fashion (much like economic science doe...