Showing papers by "Francisco Marcos published in 2008"

Tender Offer Merger and Regulatory Review in Spanish Law (in Spanish)

Abstract: The interface and coordination of securities regulation of tender offers, merger review proceedings set up by competition law and any other bodies of sectoral regulation potentially applicable to a given transaction is a key issue in governing modern markets. Indeed, Securities Regulation, Competition Law and Regulation impose mandatory conditions and bureaucratic procedures on mergers and acquisitions - which are inspired in different objectives and with disparate aims - that may delay the execution of these transactions and, in some cases, even lead to the introduction of substantial changes in their terms. In comparison with the pre-existing legal rules, as this paper analyzes in detail, the new regulation of merger review and tender offer proceedings - both of 2007 - make compatible the satisfaction of private business interests with the adequate protection of investors' interests and the public interest in maintaining effective competition in the market, as well as the diverse objectives sought by other regulations, sensibly reducing the delays in tender offers that may distort the working of securities markets. However, several doubts and some problematic issues remain in the overlap of these different regulatory bodies (securities/competition/regulation) that require further reflections, which constitute the focus of the present article.

Is the U.S. Supreme Court Giving a New Shape to Antitrust Law? (in Spanish)

Abstract: This brief note reviews the judgments on antitrust law delivered by the U.S. Supreme Court in the last two years and provides a concise reference to the issues examined in each of them. It also gives a general overview of the effects that they may have in the stare decisis doctrine and in antitrust law practice.

european review of private law

Abstract: The past decade has shown a rapid development of the markets for digital content. The further development of these markets, however, may be hindered because of the lack of a functioning legal framework to deal with digital content contracts. In this article, it is argued that the future Optional Instrument should contain rules governing digital content contracts. Moreover, suggestions are made as to the content of such rules. Resume: La derniere decennie a connu un developpement rapide des marches des contenus numeriques. La poursuite du developpement de ces marches peut cependant etre entravee en raison de l’absence d’un cadre juridique qui fonctionne pour faire face a des contrats de contenu numerique. Dans ce papier, il est soutenu que le futur Instrument Optionnel devrait contenir des regles regissant les contrats de contenu numerique. Par ailleurs, des suggestions sont faites quant a la teneur de ces regles. Zusammenfassung: Das letzte Jahrzehnt sah eine sturmische Entwicklung der Markte fur digitale Inhalte. Das Fehlen eines angemessenen rechtlichen Rahmens fur Vertrage uber digitale Inhalte konnte allerdings den Fortschritt und die weitere Entwicklung dieser Markte erheblich beeintrachtigen. Dieser Artikel argumentiert, dass das zukunftige Optionale Instrument auch Regeln fur Vertrage uber digitale Inhalte beinhalten sollte, und machte konkrete Vorschlage, wie solche Regeln aussehen konnten.

The Workers' Information Rights in Spanish Tender Offer Regulation (in Spanish)

Abstract: The expansion of workers' rights in case of corporate takeovers is one of the novelties of the new Spanish tender offer regulation. The interest of the workers who may be affected by the transaction is acknowledged through rules primarly aimed at protecting the interest of investors without disrupting the normal development of the market for corporate control. In this vein, workers' right to information is equated to the right of information of the shareholders. This article examines the new regulatory regime, analyzing its accommodation with other laws that recognize information and consultation rights to workers' representatives.

Lights and Shadows in the Modernization of Spanish Merger Review

Abstract: Almost a year ago, and after substantial debate and a long legislative process, the reform of Spanish competition regulation was completed. The new Competition Act, which came into force on September 1, 2007, supersedes the previous Act of 1989 and significantly transforms the Spanish system for the defense of competition. The Competition Act has introduced major changes in the review of mergers and other business transactions that may lead to increased market concentration. With the aim of modernizing the merger review (MR) procedure, several features of the system have been modified and deserve comment. Major institutional overhauling through the creation of the National Competition Commission (NCC) will significantly impact all aspects of competition regulation in Spain, including MR.

Damages for Breach of the EC Antitrust Rules: Harmonising Tort Law Through the Back Door?

Abstract: Tort Law is not harmonised at a European level. Substantive and procedural regulations vary substantially across EU Member States in most of the facets and dimensions of damages actions. These differences derive, amongst other causes, from different legal traditions. However, significant efforts are being made in order to find common ground for the approximation or even harmonisation of these laws across the EU - building on the Principles of European Tort Law and other projects, such as the European Code of Civil Procedure. However, harmonisation of Tort Law and the corresponding Civil Procedure regulations is still open to debate and the process is envisaged to take a significant delay before any formal legal instruments are approved. Such regulatory diversity is inevitably reflected in the field of antitrust private enforcement - based on claims for harm inflicted as a result of the anticompetitive behaviour - , which the European Commission is trying to encourage and promote as a key element of the modernisation process of the EC antitrust rules undertaken in 2003. In this regard, a Green Paper on damages actions for breach of the EC antitrust rules was published in December 2005 with the purpose of opening up a reform process that could facilitate private damages actions across the EU. Most remarkably, the Green Paper put forward most of the divergences in national Tort Law and Civil Procedure regulations that jeopardize the effectiveness of a privately enforced competition system. These differences in national regulations contrast with the nearly-full de facto harmonisation existing in antitrust law and its public enforcement. Consequently, the Commission proposed harmonisation alternatives that imply deep reforms in national Tort Law and Civil Procedure regulations. Those proposals are to be developed and further analysed in a forthcoming White Paper - foreseen to be adopted around the turn of the year 2007. At this stage, and before the Commission puts forward new harmonisation proposals, this paper analyses its need and adequacy and wonders whether the efforts of the Commission for the harmonisation of antitrust damages actions constitutes a "backdoor harmonisation" of fundamental aspects of Tort Law and Civil Procedure with much broader implications and effects in fields of Law other than antitrust.