Jens Scherpe, Marital Agreements and Private Autonomy in Comparative Perspective, Oxford: Hart Publishing, 2012, 532 pp, hb £75.00.
| Published date | 01 March 2013 |
| Author | Rebecca Probert |
| Date | 01 March 2013 |
| DOI | http://doi.org/10.1111/1468-2230.12019_2 |
The third condition of the test proposed is arguably the least convincing.
Akman contends that ‘conduct that leads to a (non-trivial) increase in efficiency
and thus has an efficiency explanation should not be found abusive’ (316). One
wonders whether the author has fully considered the implications of this position
or at least whether this position has been spelled out with sufficient clarity.
Many of the traditional categories of potentially abusive practices can in fact be
explained on efficiency grounds. Exclusive dealing/rebates and tying/bundling
are examples that come to mind. From an economic standpoint, the relevant
question when the abusive nature of these practices is at stake is not whether they
are an actual or potential source of efficiency gains but whether, in spite of these
gains, they are likely to lead to the exclusion of equally efficient competitors
in the specific market context in which they are implemented. Leaving
such practices outside of the scope of Article 102 TFEU merely due to their
efficiency-enhancing potential would lead to the under-enforcement of the
provision in a way that would be difficult to justify.
Akman’s book shows that EU competition law is a fast-moving discipline of
ever-growing relevance in which some of the most basic legal principles still
need to be clarified. There is therefore every reason to welcome the novel
perspectives and methodological approaches explored by the author, one of the
most promising legal scholars in the field and one who will undoubtedly deliver
works of a similar high quality in the future.
Pablo Ibáñez Colomo*
Jens Scherpe,Marital Agreements and Private Autonomy in Comparative
Perspective, Oxford: Hart Publishing, 2012, 532 pp, hb £75.00.
In Dorothy L. Sayer’s novel Busman’s Honeymoon, a couple wrangle over the
wording of the marriage service, eventually agreeing that the groom will consent
to be obeyed if he can ‘endow’ rather than ‘share’ his worldly goods. ‘Shocking
victory of sentiment over principle’ comments his mother. Modern family lawyers,
by contrast, are rather more exercised by agreements limiting any future claim that
one spouse may have in the event of a divorce, and by the question of precisely
what principles should determine whether worldly goods are shared or not.
Jens Scherpe’s fine edited collection offers a fascinating comparative overview
of the various ways in which different jurisdictions approach this question. Based
on a conference held in Cambridge in 2009, its publication has been strategically
deferred until after the decision of the Supreme Court in Radmacher vGranatino
[2010] UKSC 42 and the publication of the Law Commission’s consultation
paper on the topic, enabling these key developments to be included (as well as
a number of other changes in other jurisdictions).
With any collection of this kind, its value lies not only in what is compared,
but how it is compared. All too often, edited collections with a comparative
*Department of Law, London School of Economics and Political Science.
bs_bs_banner
Reviews
© 2013 The Authors. The Modern Law Review © 2013 The Modern Law Review Limited. 425
(2013) 76(2) MLR 419–428
To continue reading
Request your trial