Legal Studies Research Paper Series Vol. 10, No. 8

The Faculty has published Volume 10 Number 8 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Brian Sloan: The ‘Social Contract’, Care and Inheritance in England and Hong Kong (28/2019)

In common with much of the world, the populations of both England and Hong Kong are ageing. One of the most important questions of our age is therefore how to allocate the burdens of providing and funding the care that increasing numbers of people are likely to need. Another vital question affecting the elderly and their families is that of inheritance: how legitimate is the claim of family members (including adult children) to a person’s assets? The aim of this paper is to explore the relationship between these questions, with reference to concepts such as the ‘social contract’ and family solidarity, and the law of family provision in England and Hong Kong.

Liang Li: Data and Market Definition of Internet-Based Businesses (29/2019)

Market definition is the first step of competition analysis. In practice, relevant markets are mostly defined for the end products and services and it is also the same for current cases concerning Internet-based businesses (IBBs). Data has important influence on the competition of IBBs. However, instead of selling data directly, the IBBs usually use data to produce, improve and innovate products and services. Under such circumstances, there may be no relevant market defined for such data following the conventional market definition methods. This article’s inves- tigation shows that online data play different roles in the competition of IBBs and the conventional competition analysis methods only miss some aspects but not all of them. Alternative approaches including the input market definition and the putative online data market definition proposition fail to solve the problem. What might be of help is to switch focus to improving the relevant market definition methods for products and services which online data are related to and pay more attention to the inner relationship between online data and the Internet-based products and services when identifying which market to define.

Anna L. Christie & J S Liptrap: Goldilocks (Control) and the Three Bears: Panel on Takeovers and Mergers v King (30/2019)

The Outer House and Inner House decisions in Panel on Takeovers and Mergers v King provide a glimpse into the esoteric world of takeover regulation. Takeover transactions occur in a unique environment and are governed by rules and institutions not normally conceived of as situated within “company law”. This analysis focuses on how one of the most important rules in takeover regulation is applied and enforced in practice – the Mandatory Bid Rule. Historically, the courts have never been involved in the enforcement of the rules regulating takeover transactions. Consequently, these decisions shed light on the nature of the relationship between the institutions that regulate takeover transactions and the courts in the enforcement context. Allied to this, the issues arising from the decisions occasion a closer look at a tactic that can be deployed to avoid triggering the Mandatory Bid Rule, namely what we define as “goldilocks control”.

David Erdos & Krzysztof Garstka: The 'Right to be Forgotten' Online within G20 Statutory Data Protection Frameworks (31/2019)

Although it is the EU’s General Data Protection Regulation and the Google Spain judgment which has brought the concept of the ʻright to be forgottenʼ online to the fore, this paper argues that its basic underpinnings are present in the great majority of G20 statutory frameworks. Whilst China, India, Saudi Arabia and the United States remain exceptional cases, fifteen out of nineteen (almost 80%) of G20 countries now have fully-fledged statutory data protection laws. By default, almost all of these laws empower individuals to challenge the continued dissemination of personal data not only when such data may be inaccurate but also on wider legitimacy grounds. Moreover, eleven of these countries have adopted statutory ʻintermediaryʼ shields which could help justify why certain online platforms may be required to respond to well-founded ex post challenges even if they lack most ex ante duties here. Nevertheless, the precise scope of many data protection laws online remains opaque and the relationship between such laws and freedom of expression is often unsatisfactory. Despite this, it is argued that G20 countries and G20 Data Protection Authorities should strive to achieve proportionate and effective reconciliation between online freedom of expression and ex post data protection claims, both through careful application of existing law and ultimately through and under new legislative initiatives.

Johnathon Liddicoat, Kathleen Liddell et al: Continental Drift? Do European Clinical Genetic Testing Laboratories Have a Patent Problem? (32/2019)

Recent US Supreme Court decisions have invalidated patent claims on isolated genomic DNA, and testing methods that applied medical correlations using conventional techniques. As a consequence, US genetic testing laboratories have a relatively low risk of infringing patents on naturally occurring DNA or methods for detecting genomic variants. In Europe,however, such claims remain patentable, and European laboratories risk infringing them. We report the results from a survey that collected data on the impact of patents on European genetic testing laboratories. The results indicate that the proportion of European laboratories that have refrained from providing associated testing services owing to patent protection has increased over the last decade (up from 7% in 2008 to 15% in 2017), and that the non-profit sector was particularly strongly affected (up from 4% in 2008 to 14% in 2017). We renew calls for more readily available legal support to help public sector laboratories deal with patent issues, but we do not recommend aligning European law with US law at present. Watchful monitoring is also recommended to ensure that patents do not become a greater hindrance for clinical genetic testing laboratories.

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