SEMINAR 2.05: Modernization of the Commercial Law.

Date: May 2022

Place:  University of the Philippines UP 

Leader: Eugenio Olmedo Peralta

SUMMARY AND CONTEXT:

The main goal of this Working Package is to focus on the main developments of the European and Spanish Commercial Law in the last decades. Three have been the driving forces for the changes in the Regulation of this field of Law: 

  1. The first one is the effective creation of a European Internal Market and the fulfillment of the four main Community freedoms: free movement of goods, workers, capitals and services. The building of a strong and competitive Internal Market requires the harmonization of national regulations on commercial issues, so as the creation of other rules to foster the development of a community industry, the creation of European companies and the removal of national barriers.
  1. The second one is the need to adapt commercial regulations to the requirements of new technologies. Many factors have determined important changes in the functioning of commercial relationships: the development of a near zero marginal cost economy, the possibilities offered by the processing of Big Data and the implementation of technologies based on Artificial Intelligence, the use of algorithms to predict and automatically respond to changes in the markets in real time, changes in consumption patterns (that pay more attention to the availability of services than to the ownership of goods) and the general dematerialization of most services (digital, media, audiovisual…) are just some of the dynamics in the functioning of the markets. This implies that the very conception of commercial relationships needs to be changed. Many of the commercial institutions and theories are based on a prize theory. These do not fit in a market where many services are provided for free or -more accurately- in exchange of the data of the users. Along with that, the so-called platforms economy and multilateral markets will determine the functioning of the market with the widening relevance of large companies providing services in different markets (GAFAMs – Google, Amazon, Facebook, Apple and Microsoft, among others). 
  1. Finally, we are living in a more and more connected and global World. Commercial relationships are increasingly becoming international. This implies the need to promote unified international rules and practices governing international commercial contracts and to stablish a competitive legal framework to avoid unfair international practices (dumping, infringement of intellectual property rights…) while allowing companies to compete at an international level in the interest of consumers and the general economy.

To offer a guide on the practical and regulatory actions taken in Europe and Spain, we propose a Work Package consisting in different seminars and workshops to be held at the Philippines Supreme Court and the University of the Philippines in June 2022. The activities we propose are divided into four big themes: 

  1. Market Unity and regulation for a competitive market in the European Union and Spain. Experiences for the ASEAN and the Philippines
  1. The regulation of intellectual property at an international, European and national level. The role of IP as a tool to compete at an international level: patents, trademarks, designs, copyright… and new rights for the digital World.
  1. European and Spanish regulation on commercial companies: the adaptation of Corporate Law to a technological and global World and the need to promote legal mechanisms to create pan-European companies
  1. Contracts and European Private International Law

From an academic point of view, the contents will be designed in consonance with some of the specific curricular contents on the different courses offered by the University of the Philippines and other educational institutions in the Philippines. Amongst them, we may mention the courses on Obligations and contracts, Sales, Agency & Partnership, Credit Transactions, Bill, notes & commercial papers, Corporation Law & securities, European Private International Law or Remedial Law. The contents of the proposed activities will especially fit within the curricular objective of the master’s in law (LL.M.) program, so as on specific programs such as the ones covering “Competition Law and Policy” and the one on “Technology, Law and Policy”. Obviously, the formative proposal may also be of interest for other scholars. 

Along with that, we intend to offer a building activity based on the legal practice in Spain and the European Union. Thus, the conclusions achieved in the seminars and workshops may result of special interests for practitioners or judges in the Supreme Courts and other relevant law courts mainly covering commercial matters.

PROPOSED SEMINARS AND WORKSHOPS: Contents and objectives

  1. Section 1: Market unity and regulation of competition
  1. The construction of an Internal Market in Europe and the creation of a framework for competition without barriers within the EU Union. Experiences for the ASEAN

Main contents to be analyzed: 

  1. The creation of an Internal Market in Europe: History and legal process. From a Single Market to an Internal Market
  2. Community freedoms: free movement of workers, goods, capitals and services. The need for legal rules. 
  3. Foundations of Market Unity: the integration of national markets and the integration of a community market. Regulatory issues: the removal of unjustified barriers to commercial activities
  4. Recent trends: the prohibition of geo-blocking, the provision of digital contents and services, free provision of services in the European space 
  1. The regulation of Competition Law

Main contents to be analyzed: 

  1. The prohibition of anticompetitive behaviors: the prohibition of anticompetitive agreements (collusion) and conducts of abuse of a dominant position. The prohibition of unfair practices in the market that may distort competition
  2. Market definition
  3. PEnforcement mechanisms: public enforcement and private enforcement. A criminal enforcement of antitrust Law? The proceedings at the European Commission and the Spanish National Commission on Markets and Competition. The role of individuals in the enforcement of Competition Law. The compensation of damages suffered as a consequence of a breach of Competition Law. 
  4. Public interests protected by Competition Law. 
  5. Mergers control. The need to foster national and European champions (industrial policy) vs. the need to avoid excessive concentration of market power 
  6. The control of State aids as a prerequisite for competition in a Regional level 
  1. Section 2: The regulation of Intellectual Property at an International, European and national level 
  1. Foundations of intellectual property: economic relevance for a global market

Main contents to be analyzed: 

  1. The goals of the protection of intellectual property
  2. Intellectual property rights as a mechanism to foster creation and research
  3. Intellectual property within a framework of free competition: restrictive conducts and unfair practices relating to IP
  4. The international regulation of IP: intellectual and industrial property 
  1. Specificities of the regulation of IP in the European and Spanish legal system 

Main contents:

  1. Regulation of the European Unified Patent and Unified Patent Court
  2. Regulation of the European Trademark as a community IP right 
  3. Regulation of other European Rights: designs, plant varieties, geographical indications 
  4. Spanish national regulation on copyright
  5. Spanish national regulation on industrial property
  6. Recent trends: the protection of trade secrets
  7. New technologies and IP 
  1. Section 3: European and Spanish regulation on companies
  1. Foundations of corporate Law in the European Union and Spain

Main contents:

  1. General principles on the regulation of companies in Spain: types, economic function, structural basis
  2. Morphology of capital companies: structure, bodies, shareholders/partner’s rights
  3. Disclosure of activities and information: Commercial Registry and Accounting duties
  4. Structural changes of companies 
  1. Measures to promote European companies: overcoming borders

Main contents:

  1. The European Public Company as an instrument for pan European companies
  2. European Directives for the harmonization of Corporate Law
  3. Corporate operations and transactions in the European Union: 
  • Mergers and acquisitions
  • Transfer of the company’s registered office
  1. Section 4: Contracts and european private international law
  1. European Harmonization of Private International Law

Main contents:

  1. Article 81 of the Treaty on the Functioning of the European Union (TFEU). Principle of subsidiarity

b.    Jurisdiction under the Brussels System: 

  • Choice of Courts Agreements
  • Jurisdiction in the Absence of a Submission Agreement

c.    Legal regime of the International Contracts:

  • The Rome I Regulation. Relationship with existing international conventions
  • Choice of Applicable law: the Principle of Party Autonomy
  • Applicable Law in the Absence of a Choice by the Parties

d.  Recognition and Enforcement of Foreign Judgments: The Brussels I bis Regulation

  1. Specific Contractual Types

Main contents:

  1. Contracts for the International Sale of Goods
  2. Consumer Contracts
  3. Electronic Contracts

WORK PLAN

  1. Seminar 1 (aprox. 5 hrs)

The construction of an Internal Market in Europe and the creation of a framework for competition without barriers within the EU Union. Experiences for the ASEAN

  1. The process of Economic Integration: the creation of a Single Market and the achievement of an Internal Market
  2. Foundations of the European Internal Market
  3. Community Freedoms
  4. An internal market for digital contents and services
  5. Competitive foundations of the Internal Market
  6. Internal market and the suppression of regulatory obstacle to free enterprise
  1. Seminar 2 (aprox. 5 hrs)

The regulation of Competition Law

  1. Foundations of European Competition Law
  2. Market definition
  3. The prohibition of anti-competitive agreements
  4. The prohibition of conducts of abuse of a dominant position (monopolization)
  5. Public Enforcement of Competition Law. Proceedings before the European Commission and the Spanish National Commission on Markets and Competition. Enforcement instruments: leniency, settlements, commitments, compliance, whistleblowing… 
  6. Private Enforcement of Competition Law. The right to a compensation for the damages suffered as a consequence of a breach of competition rules
  7. Mergers control
  8. The control of State aids 
  1. Seminar 3 (aprox. 5 hrs)

Foundations of intellectual property: economic relevance for a global market

  1. Economic foundations of IP
  2. The protection of IP within the innovation policy
  3. IP rights in a framework of free competition: unfair practices
  4. The territorial nature of IP Protection. Different legal systems: international treaties, European regulation and national regulation
  5. The need for European rights for Intellectual property within an Internal Market
  1. Seminar 4 (aprox. 5 hrs)

Specificities of the regulation of IP in the European and Spanish legal system 

  1. The regulation of patents
  2. European initiatives for the protection of patents: European Patent, European Unified Patent and European Unified Patent Court
  3. The regulation of trademarks
  4. The European trademark system 
  5. Other European IP Rights: EU plant varieties, EU designs, EU geographical indications… 
  6. Intellectual Property (copyright) in the Digital Age 
  7. The protection of trade secrets
  1. Seminar 5 (aprox. 5 hrs)

Foundations of corporate Law in the European Union and Spain

  1. Different kinds of companies in Spain: characters
  2. The regulation of capital companies: public companies limited by shares (S.A.) and private companies limited by stakes (S.R.L.)
  3. Shares and stakes
  4. Shareholders’/partners’ rights
  5. Corporate bodies: board of directors and general meeting
  6. Functioning of companies: agreements, results, outcomes, decisions, changes
  7. Disclosure of information: Commercial Registry and Accounting
  1. Seminar 6 (aprox. 5 hrs)

Measures to promote European companies: overcoming borders

  1. The European Public Company as a way to create pan European companies
  2. Structural changes of companies
  3. Mergers and acquisitions
  4. Split-offs and divisions
  5. Global assignment of assets and liabilities 
  6. Changes on the registered office of companies 
  1. Seminar 7 (aprox. 5 hrs)

European Harmonization of Private International Law

1)   Article 81 of the Treaty on the Functioning of the European Union (TFEU)

2)   Principle of Subsidiarity

3)   Jurisdiction under the Brussels System

4)   Choice of Courts Agreements

5)   Jurisdiction in the Absence of a Submission Agreement

6)   Legal regime of the International Contracts

7)   The Rome I Regulation. Relationship with existing international conventions

8)   Choice of Applicable law: the Principle of Party Autonomy

9)   Applicable Law in the Absence of a Choice by the Parties

10) Recognition and Enforcement of Foreign Judgments: The Brussels I bis Regulation

  1. Seminar 8 (aprox. 5 hrs)

Specific Contractual Types 

1)   Contracts for the International Sale of Goods

2)   Consumer Contracts

3)   Electronic Contracts

EXPECTED OUTCOMES AND OBJECTIVES

The expected outcomes are necessarily related to the objectives presented.

Expected outcomes – Seminar 1 (The construction of an Internal Market in Europe and the creation of a framework for competition without barriers within the EU Union. Experiences for the ASEAN)

By the end of this seminar, participants:

  1. Will be able to identify the process of construction of an Internal Market within the European Union, understanding those characters that are similar for the construction of an Internal Market for the ASEAN
  2. Will be able to identify the main obstacles to create an integrated Internal Market and the objectives to be achieved (Community Freedoms)
  3. Will understand the relevance of creating a competitive market for the countries integrated in a Union (experiences for the ASEAN), so as the advantages for the national economies and the individuals (consumers)
  4. Will understand the European Policy for the Digital Economy and its implications for the functioning of the markets and competition
  5. Will identify the need for new regulations in the ASEAN and the Philippines to allow the construction of a digital single market 

Expected outcomes – Seminar 2 (The regulation of Competition Law)

By the end of this seminar, participants:

  1. Will understand the rules used in Europe to define the relevant market and develop a comparative and contrastive approach to the ones used in the ASEAN and the Philippines
  2. Will know the European approach to anticompetitive practices: collusion, abuse of a dominant position, distortion of free competition by unfair practices, and compare this approach with the one held in the ASEAN and the Philippines
  3. Will understand the European Competition Law enforcement system (public and private enforcement) and compare its instruments and potentials with the ones designed for the ASEAN and the Philippines
  4. Will know the rights of undertakings and individuals in the cases of breaches of Competition rules
  5. Will be introduced to the European merger control system
  6. Will understand the way State aids are controlled in Europe by the European Commission, so as the goals of this instrument  

Expected outcomes – Seminar 3 (Foundations of intellectual property: economic relevance for a global market)

By the end of this seminar, participants:

  1. Will understand the different levels of protection of Intellectual Property Rights
  2. Will assess the importance of the protection of inventions, creations and distinctive signs for innovation policy, the creation of wealth and the competitiveness of companies
  3. Will be able to interpret the adjustments on IP rights regulations that are needed for the Digital Economy 

Expected outcomes – Seminar 4 (Specificities of the regulation of IP in the European and Spanish legal system)

By the end of this seminar, participants:

  1. Will be updated with the different regulations into force in Europe to protect IP
  2. Will understand the objectives of creating European Union IP Rights and their relevance for the creation of an Internal Market
  3. Will be able to compare the system of protection held in the EU for the different rights (patents, trademarks…) with the one held in the ASEAN and the Philippines 

Expected outcomes – Seminar 5 (Foundations of corporate Law in the European Union and Spain)

By the end of this seminar, participants:

  1. Will understand the main features and structure of corporates in Europe
  2. Will comprehend the need of legal structures to foster the creation of pan European companies
  3. Will be able to compare the foundations and functioning of capital companies in Europe with the Philippines system
  4. Will be able to assess the relevance of the harmonization of corporate Law within a process of economic integration so as to use the European experiences to propose improvements for the ASEAN

Expected outcomes – Seminar 6 (Measures to promote European companies: overcoming borders)

By the end of this seminar, participants:

  1. Will be introduced to the different ways the EU is fostering a process of internationalization and europeization of companies
  2. Will know the different ways European companies may cooperate among themselves
  3. Will be able to assess the relevance of the interaction between companies for the creation of an integrated market, so as to determine the actions that may be taken in the ASEAN for the fostering of a more competitive corporate system 

Expected outcomes – Seminar 7 (European Harmonization of Private International Law)

By the end of this seminar, participants:

1. Will know the basic elements of the legal regulation of international commerce and be able to interpret this regulation and to apply it in the most frequent situations of the international contracts.

2. Will identify the legal relationships that are the object of the Private International Law (in the field of international contracts), of the four sectors that make up its content and of the sources; its management, interpretation and correct application to cross-border cases. 

Expected outcomes – Seminar 8 (Specific Contractual Types)

By the end of this seminar, participants:

  1. Will know the legal regulation of some specific contractual types (Contracts for the International Sale of Goods, Consumer Contracts and Electronic Contracts).
  2. Will get rigor, systematicity and coherence in the identification of problems, in the management of sources, in the resolution of cases and in oral and written exposition

SUMMARY OF THE BASIC LEGAL REFERENCES 

  • Treaty on the Functioning of the European Union
  • Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty
  • Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings
  • Spanish Competition Act, Act 15/2007, of 3 July
  • Spanish Act against Unfair Competition, Act 3/1991, of 3 January
  • Spanish Regulation on the Commercial Registry, Royal Decree 1784/1996, of 19 July
  • Spanish General Advertising Act, Act 34/1998, of 11 November
  • Spanish General Act for the Protection of Consumers and Users, Royal Legislative Decree 1/2007, of 16 November
  • Spanish Act on Capital Companies, Royal Legislative Decree 1/2010, of 2 July
  • Spanish Act on Structural Changes in Commercial Companies, Act 3/2009, of 3 April
  • Spanish Insolvency Act, Act 22/2003, of 9 July
  • Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty
  • Spanish Act on Patents, Act 24/2015, of 24 July
  • Spanish Act on Trademarks, Act 17/2001, of 17 December
  • Spanish Act on the Legal Protection of Industrial Designs, Act 20/2003, of 7 July
  • Spanish Act on Trade Secrets, Act 1/2019, of 20 February
  • Regulation (EU) No 1257/2012 of the European Parliament and of the Council of 17 December 2012, implementing enhanced cooperation in the area of the creation of unitary patent protection
  • European Patent Convention of 5 October 1973
  • Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trademark
  • Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs
  • Regulation (EC) 2100/94 on EU plant variety rights
  • Spanish Copyright Act, Royal Legislative Decree 1/1996, of 12 April
  • Trade Related Intellectual Property Rights Convention (TRIPS) WTO
  • Regulation (EC) No 593/2008 of the European Parliament and of the Council, of 17 June 2008, on the law applicable to contractual obligations (Rome I)
  • Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007, on the law applicable to non-contractual obligations (Rome II)
  • Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012, on jurisdiction and recognition and enforcement of judgments in civil and commercial matters
  • United Nations Convention on contracts for the international sale of goods, made in Vienna on 11 April 1980