Business Law International (BLI)

The climate crisis is a major challenge for our societies − left unchecked, it will have serious consequences and create huge uncertainty and impact on markets and in our economies. The climate emergency will require a whole-of-policy approach to tackle it – and this article seeks to explore the question of whether and how competition law enforcement can contribute within its current existing framework.

The article examines how competition authorities can consider environmental effects in the competitive assessment when enforcing competition law within their existing legal and analytical frameworks. Understanding how this field will evolve will be important for businesses as they move towards greening their activities too.

The article begins by delving into the challenges that competition authorities may face when integrating environmental considerations into the competitive assessment and analysing efficiency claims. Next it explores the specific challenges of this assessment in relation to anti-competitive (horizontal and vertical) agreements and cooperation agreements. It continues by discussing merger control analysis and how it can be adjusted to integrate such considerations.

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Hot on the heels of the ‘corporate purpose’ and environmental, social and governance (ESG) debates, investor stewardship is the latest buzzword in comparative corporate governance. What started as a domestic regulatory initiative in the United Kingdom in 2010 morphed into a global phenomenon and eventually reached Indian shores. A stewardship code is essentially a principles-based framework, which aids institutional investors in fulfilling their responsibilities, in terms of protecting and enhancing the value of their clients. A corollary of this, meaningful implementation of the stewardship principles also improves the corporate governance practices of the investee companies – institutional investors are required to actively engage as ‘stewards’ in the corporate governance of their portfolio companies.

The Insurance Regulatory and Development Authority of India (IRDAI) floated its stewardship code in 2017 (and revised in 2020) and the Pension Fund Regulatory and Development Authority (PFRDA) followed suit in 2018. Most recently, the stewardship code of the Securities and Exchange Board of India (SEBI) (India’s capital markets regulator) was implemented in July 2020 and the SEBI, through a separate circular dated 5 March 2021, also mandated mutual funds to vote on all resolutions from 1 April 2022 (collectively, the IRDAI, PFRDA and SEBI stewardship codes are referred to as ‘the Indian stewardship codes’).

Today, UK-style stewardship codes have been exported to over 20 jurisdictions, and the Indian stewardship codes resonate with the global stewardship movement and the drive towards corporate sustainability and engagement on ESG-related issues. However, while the Indian stewardship codes have made a laudatory start, there is significant scope for improvement, in light of developments in the global stewardship movement. One significant reason why improvements are necessitated is the modelling of the Indian stewardship codes along the lines of the UK code. This modelling has overlooked the differences in cross-jurisdictional shareholding patterns and consequently limited its success – the article explores the structural weaknesses flowing from the transplantation of the UK code to India (a country with a concentrated shareholding pattern).

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Civil tax disputes are primarily all about money. Occasionally, a Canadian Charter of Rights and Freedoms issue finds its way into the process of challenging the government’s taxpayer assessment, but it is not common. From the government’s perspective, a civil tax dispute generally involves a principled approach, applying both the language of the taxing statute and the relevant common law. More often than not, while a taxpayer seeks to comply with the law, the primary concern is how much will it cost; ‘What do I have to pay in tax, if anything?’

This dynamic sets the stage for the majority of civil tax disputes. No one needs to be told that challenging a tax dispute is an expensive, time-consuming and not entirely efficient process. In Canada, there are a few ways to resolve a tax dispute. This article provides the reader with an overview of the options to resolve Canadian tax disputes.

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As witnessed in a series of studies, analyses and papers published over the course of 2019−2020, an international consensus was emerging that the public policy concerns arising consistently in connection with digital platforms either required a fundamental rethink of how competition policy should address such concerns or provide the rationale for the creation of a sui generis regulatory regime. If the latter approach were to be chosen, this would mean that competition policy would be left with a complementary role to play, and one that would logically be directed at new modes of commercial behaviour.

The genesis of such a public policy choice in the European Union was brought into sharp focus by the protracted competition law investigation into various commercial practices of Google in internet search by the European Commission (the ‘Commission’), which had been ongoing since 2010 and which had to wait to be resolved by the vindication of the Commission’s 2017 decision before the General Court as late as November 2021. In response to the demands by EU Member States that appropriate action be taken to compensate for the slow and arguably ineffective application of EU competition rules, a draft regulatory package was introduced by the Commission in December 2020 that would regulate key problematic business practices of large digital platforms across the EU. Whereas the so-called Digital Services Act was to deal with critical public policy issues that were consumer-facing, it was the Digital Markets Act (DMA) that laid out the unique regime that would apply economic regulation to large digital platforms.

The object of this article is to: (1) provide an outline of the defining elements of the DMA; and (2) identify key aspects of that legislation, whether from a substantive, procedural or institutional point of view, where the intended outcomes of the DMA might be compromised.

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Pamela DeNeuve, John Grimley

Globe Law and Business (2021)

111 pages (softback)

ISBN: 9781787425101

£85

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