Damages

About: Damages is a research topic. Over the lifetime, 9365 publications have been published within this topic receiving 89750 citations. The topic is also known as: compensation award.

The Design and Duration of Contracts: Strategic and Efficiency Considerations

Abstract: A vast body of economic theory is concerned with the way in which parties design contracts to align incentives and promote efficient exchange.' An alternate view, however, ascribes to contract design a more sinister purposethat of excluding or otherwise disadvantaging rival firms.2 Although the latter argument has tended to target a specific set of suspect practices such as tie-in and exclusive dealing arrangements, recent efforts have begun to associate strategic objectives with more conventional pricing and incentive terms in contracts, including such common provisions as multi-part pricing schedules3 and stipulated damages clauses.4 In the course of developing and applying the antitrust laws, the courts have analyzed the effects of various contractual provisions on competition. The resulting body of law recognizes that contracts have the potential to exclude competitors but also that exclusion can serve efficiency purposes.5 The broadening of exclusion claims to include the strategic use of common contractual designs, and the corresponding potential to challenge a widely used class of contractual arrangements on antitrust grounds, stand to complicate rule-of-reason analyses of anticompetitive exclusion and raise

Investment Treaties as Corporate Law: Shareholder Claims and Issues of Consistency

Abstract: Claims by company shareholders seeking damages from governments for so-called "reflective loss" now make up a substantial part of the investor-state dispute settlement (ISDS) caseload. (Shareholders’ reflective loss is incurred as a result of injury to “their” company, typically a loss in value of the shares; it is generally contrasted with direct injury to shareholder rights, such as interference with shareholder voting rights.) This paper considers the consistency issues raised by shareholder claims for reflective loss in ISDS. The paper first compares the approach to shareholder claims in ISDS with advanced systems of national corporate law (and other international law). ISDS arbitrators have consistently found that shareholders can claim individually for reflective loss in ISDS under typical BITs. This can be seen as a success story from the point of view of consistency of legal interpretation and improves investor protection for potential claimant shareholders in many cases. In contrast, however, advanced national systems and international law generally apply what has been called a "no reflective loss" principle to shareholder claims. Second, the paper analyses the policy issues relating to consistency that are raised by shareholder claims for reflective loss in ISDS. National and international law barring shareholder claims for reflective loss is often explicitly driven by policy considerations relating to consistency, predictability, avoidance of double recovery and judicial economy. Limiting recovery to the company is seen as both more efficient and fairer to all interested parties. In contrast, ISDS tribunals and commentators have generally given limited consideration to the policy consequences of allowing shareholder claims for reflective loss. The third part of the paper addresses the issue of company recovery (including two different existing systems which expand the ability of foreign-controlled companies to recover in ISDS) and its relevance to shareholder claims for reflective loss. The paper also contains a series of questions for discussion and has been discussed by governments participating in an OECD-hosted investment roundtable.

The Disintegration of Intellectual Property? A Classical Liberal Response to a Premature Obituary

Abstract: The title of this paper plays off the title of Thomas Grey's well known article, The Disintegration of Property, which argued in part that the ceaseless consensual fragmentation and recombination of property rights revealed some inner incoherence of private property institutions. I take the opposite position and treat this supposed disintegration as evidence of the robust nature of private property rights, not only for land but for all forms of intellectual property. I use this framework to critique modern intellectual property rights cases that impose limits on the terms of private licenses, and the efforts, some of which were embodied in the now dormant Patent Reform Act of 2007 to limit the use of injunctions, damages, and attorney's fees, including at least one effort to shield an important class of admitted infringements of patents from all forms of liability. One broad issue that patent reform initiatives raise concerns the question of whether the per se rules for physical takings carry over to the patent area, which in turn raises the larger philosophical question of the transference of legal principles from the physical to the intellectual realm.

Measuring the true harm from price‐fixing to both direct and indirect purchasers*

Abstract: Legal actions by direct and indirect purchasers to recover damages from price-fixing, common in the United States for years, are now appearing in a number of other countries. Traditional measures of damages are flawed as measures of the true harm suffered and will often significantly understate that true harm. This paper provides measures of the degree of understatement of the true harm when traditional approaches are used and shows how the size of the error depends on the degree of competitiveness of downstream markets. The paper also provides measures of distribution of the true harm between direct and indirect purchasers.