For a long time it was assumed that the search for profits was inseparable from the carrying on of economic activity. Where the profit motive was absent, economic activity could not be imagined, or could at most be conceived of only as occasional and marginal. Current studies have shown, on the other hand, that nonprofit organizations, although neglecting profit-maximizing goals, also face inter and infra-sector competitive challenges, in some cases undertaking anticompetitive practices. Therefore, these organizations should no longer be a priori exempted from competition laws. This study discusses limits and challenges of the application of European competition law to nonprofit market actors. The analysis focuses in particular on the enforcement of Articles 81, 82 and 86 of the EC Treaty, discussing current criteria of interpretation and possible implementations.
The recent judiciary reform in Brazil (Constitutional Amendment 45) added Paragraph (3) to Article 5 of the Brazilian Constitution. The new clause establishes that international human rights treaties if approved by three fifths of the members of the Parliament, in two readings in both Houses (Chamber of Deputies and Federal Senate), are to be incorporated into the Brazilian legal order as constitutional amendments. Contrary to what a significant number of Brazilian legal circles have asserted, the author argues that the judiciary reform, at least in regard to the matter of the status of human rights treaties in Brazilian domestic law, represents a backslide from the normative point of view when compared to what was originally established by the authors of the 1988 Constitution. This is so, because, from now on, rights established in treaties cannot be considered as equal in rank to rights originally established in the 1988 Brazilian Constitution, by the Constituent Power, but as rights originated from the Amending Power a difference with substantial consequences from the Brazilian constitutional law point of view. Some controversial topics originated from the new Article 5 (3) are analyzed in order to stress the problems Brazilian legal profession will have to face to provide a stronger sense of openness of Brazilian law to the International Law of Human Rights.
En España, a diferencia de lo que sucede en la mayor parte de los ordenamientos del Civil Law y del Common Law, el derecho de la responsabilidad civil o extracontractual está fragmentado: casos sustancialmente idénticos están sujetos a cuatro regulaciones materiales distintas, son litigados ante cuatro jurisdicciones diferentes, de acuerdo con sendos códigos de procedimiento también distintos. Así, por ejemplo, un accidente escolar estará sujeto a un estándar de negligencia o de responsabilidad objetiva y será juzgado por un tribunal civil u otro administrativo, según que la escuela donde el accidente ocurrió fuera privada o pública. Lo mismo sucede si un viajero muere en un accidente aéreo o de ferrocarril o si un paciente sufre una lesión iatrogénica en una clínica privada o en un hospital público. A esta notable originalidad del derecho español se suman otras características singulares: a) No hay una línea clara que delimita la causalidad del mismo modo en todas las jurisdicciones; b) Las distintas Salas del Tribunal Supremo aplican criterios encontrados en materia de Collateral Source Rule; c) El daño moral es apreciado con laxitud y, con frecuencia, funge de instrumento sancionador del dolo o de aligeración de la prueba de los daños; d) Los daños morales y el lucro cesante por daños personales sufridos en accidentes de circulación están sujetos por ley a baremos, pero la jurisprudencia discute sobre la aplicabilidad general de los criterios legales a otros tipos de accidentes sin haber llegado a una solución uniforme en la fecha de cierre de esta edición, de julio de 2005.
Incentive compensation has been used through history by those in charge as a means of achieving performance goals and positive financial objectives. Since the early 1990s, the United States Securities and Exchange Commission has approached executive compensation as a matter of disclosure. In 1992, the Commission adopted its new executive compensation proxy disclosure rules; the regulatory changes were adopted in response to complaints that the compensation paid to corporate executives had become excessive, and in the hope that the new regulation could produce an increased shareholder awareness that would make executives more accountable to the shareholders. Data on executive pay shows that SEC-mandated, detailed disclosure of information of executive compensation has not reduced the United States level of compensation of officers. While, arguably, disclosure generates a greater understanding of corporate executive pay for the shareholders, the availability of these numbers constitutes also an enormous advantage for CEOs and CFOs. Indeed, unless paid at a level equal to, or above the market average, a CEO/CFO may well decide to move to a different corporation. This problem makes retention a crucial issue in all public corporations and contributes to further driving executive pay to excessive levels. In addition, the Sarbanes-Oxley has not directly assessed, nor really improved, the mechanisms for compensation. Instead of decreasing excessive executive pay, public knowledge of salaries has created in the United States a sort of "race to the bottom" in which companies have to be willing to pay unjustifiable amounts of money to retain good management. While this history should have shown the Commission that disclosure will not suffice in the area of executive compensation, its staff, once again, has decided to enhance disclosure of executive pay in order to curb the problem of excessive pay packages. This paper argues that there is no reason to believe that enhanced disclosure will produce the desired effect.
As the result of a series of U.S. Supreme Court decisions over the last several years, the U.S. has entered a period of chaos sentencing in criminal cases. For nearly twenty years, reformers of sentencing had tried to get states to adopt a sentencing guidelines model that helped structure sentencing decisions and that protected defendants from the sort of arbitrary sentencing power that was possible in many U.S. jurisdictions where judges were given broad sentencing discretion with few limits on their power. The Court's recent decisions, however, have dealt a major blow to sentencing guidelines and the result is uncertainty over issues even as basic as who should sentence the judge or a jury.This Article explains how sentencing works in the U.S. and then analyses the recent Supreme Court decisions that have had the rather disturbing consequence of favoring those jurisdictions that leave sentencing within the broad discretion of the trial judge with no significant limits on that power.In the last section of the Article, the author shows that the intellectual confusion that plagues sentencing in the U.S. stems from the fact that the U.S. has difficulty recognizing that sentencing in the U.S. has traditionally been built on a model that is strongly inquisitorial, vesting tremendous power in the trial judge. This model does not integrate well with a trial system which is at the same time extremely adversarial. The Article concludes that any reform of sentencing that fails to understand the clash of values between a trial system that puts tremendous power in the hands of the parties and a sentencing system that puts similar power in the hands of a single judge is likely to be ineffective and counterproductive.
