Monthly commercial law update: Top 5 developments in December

Monthly commercial law update: Top 5 developments in December

Strange to see how a good dinner and feasting reconciles everybody: Samuel Pepys

So is everyone happier then? Relaxed, recharged and a tad more rotund after a long break?

Perhaps you are struggling to plough through the various files on your desk that you were hoping would magically disappear over the holiday period?

If so, why not take a break for a few minutes and check out December's commercial law update? It contains details of some of last month’s top developments, from 'pay and stay' clauses to news on the ever-developing 'right to be forgotten' remedy.

Supply of goods and services: 'Pay and stay' clauses

There was plenty of discussion in the media last month as the news broke that Premier Foods received various sums of money from their suppliers to secure ongoing relationships with them: so-called 'pay and stay' arrangements.

Nicholas Spearing, head of the London antitrust group at Milbank, Tweed, Hadley & McCloy, considered the key competition law issues for us and found that the matter is not as clear-cut as some critics have claimed (see ‘Pay-to-stay’ deals – where’s the harm? from our blogging colleagues at Randi).

In our interview with him, he stated:

frequently, pay-to-stay deals will be treated as part of the normal cut and thrust in a competitive market. They do not appear to be an enforcement priority either in the UK or Brussels.

He added:

in assessing regulatory risk, much will depend on the market shares of the participants and the importance of their business to other players in the supply chain. Where a supplier or retailer is dominant, adverse effects on competition and consumers are likely to be more marked.

It is clear that this requires ‘particular caution under both UK and EU law’ and that ‘payments that deliver effective exclusivity will be judged accordingly’.

He finished by adding by way of warning:

competition risk will be further heightened where the scheme generates few demonstrable efficiencies or consumer benefits.

Contracts: Common European Sales Law withdrawn

Mid-month, the

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