Two Men Destroyed by a Secret Essay Example for Free

Two Men Destroyed by a Secret Essay The characters of Oedipus from Sophocles Oedipus the King, and Torvald from Henrik Ibsens A Dolls House, while coming from two different periods in time, are in some ways very similar. Torvald and Oedipus share many qualities, such as arrogance and a fiery temper. Their lives also mirror each other in many ways. They were both prestigious well-off men with powerful positions, happy families, and everything to lose. Both men were destroyed by the revelation of a secret, which had been kept from them by their wives. Oedipus and Torvald both seem to be created by the author to have their lives shattered by a secret, and this premeditation by the author is the cause for the similarities between both the personalities and biographies of the two characters. Torvald and Oedipus share a great number of traits and flaws giving them similar personalities. Oedipus and Torvald are both arrogant stubborn men who are quick to anger and are often too curious for their own good. We are provided with spectacular evidence of Torvalds temper during the last act of the play. Torvalds explosion of anger upon the discovery of Noras secret, shows us the extent of his fiery temper. Torvalds statement, You Miserable thing, what have you done? (Ibsen, pg 104) shows us clearly the rage, which can erupt from his gentle exterior. The same blind rage is also present in the character of Oedipus. On several occasions in the play, he becomes deeply incensed and abandons his wits. This is true of his lengthy dialogue with Tiresias, the following argument with Creon, and the encounter with the Shepard at the end of the play. During this dialogue with Tiresias he remarks, Enough! I wont listen to this sort of talk from you. Damn you! My curse upon you! (Sophocles, pg 29) He is so angry that he dismisses the warning of Tiresias, failing even to consider their dire predictions. The curse he utters against Tiresias was truly a dire action since the ancient Greeks took curses much more seriously than we would today. In the play we see the fulfillment of the curse that Oedipus unintentionally brings upon himself, and from this we can gauge the seriousness of Oedipus statement. Another shared characteristic of Oedipus and Torvald is stubbornness. Oedipus stubbornness is evident in both the scene with Tiresias and the scene with the Shepard. Tiresias is unwilling to speak but (Sophocles, pg 23) Oedipus drives him to it. Oedipus is so stubborn that he ignores the warning of Tiresias, Jocasta and the shepherd not to pursue the issue of his parentage and the identity of Laius murderer. He pushes past all resistance and learns the truth to his own detriment. Torvald also is at times very stubborn. Torvald comments several times that Nora is incredibly stubborn, (Ibsen, pg 61) but it is Torvald that prevails in the battle of will that occurred over Krogstads dismissal. In this argument Torvald shows his resolve by resisting the charms of Nora, leads to the revelation of Noras secret, which shatters their marriage.

Economic Globalisation and Competition

Economic Globalisation and Competition 1. Introduction Competition is a vital mechanism of the market economy and is an efficient means of guaranteeing consumers a level of quality in terms of the value and price of products and services. Economic globalization has increased volatile growth within international trade and as a result in subject of competition law. Article 81(1) of the EC Treaty ‘prohibits agreements between undertakings; decisions by associations of undertakings and concerted practices which may affect trade between Member States and which prevent restrict or distort competition’. These agreements shall be void according to 81(2). However, the agreements which satisfy the conditions set out in article 81(3) EC shall not be prohibited, no prior decision to that effect being required. 1.1. Anti-Competitive Agreements Article 81 of the EC Treaty, prohibiting anti-competitive agreements, must be considered in relation to all commercial agreements with a probable EU cross-border impact. The Horizontal and the Vertical agreements are the agreements, which are relevant for the purposes of the application of the competition rules. Horizontal agreements are those between undertakings operating at the same level of production or marketing, while vertical agreements are those completed between undertakings operating at different economic levels. Under EC Competition Law, restrains included in vertical agreements are regarded as not as much damaging than those included in horizontal agreements. In Consten and Grundig v Commission the European Court of Justice considered that Article 81(1) EC applies not only to horizontal agreements but also to vertical agreements. The later decisional practice of the Commission on the treatment of vertical arrangements under Art 81(1) and 81(3) EC, and the case law of the Community Courts, have been one of the most controversial and severely criticized aspects of Community competition policy. These agreements are very important for the functioning of the economy. Commercial agreements may be exempted from the application of article 81(1) under article 81(3). 1.2. The Vertical Block Exemption Regulation However, there is a ‘safe harbour’ for undertakings: the Vertical Block Exemption Regulation 2790/1999. Safe harbours exist for certain agreements including restrictions providing conditions are met so that agreements falling within the terms of the Regulation are exempt from the application of Article 81(1) EC guaranteeing the enforceability of the agreement and granting protection from antitrust prosecution. Thus, if undertakings wish to be certain that their vertical agreements are in line with EC competition law, they should agree on clauses within the scope of the Regulation. Outside this safe harbour, the European Commission’s Notice Guidelines on Vertical Restraints are a helpful guide for the assessment under Art 81(3) EC and are explaining the application of Regulation 2790/1999 and the Commission’s approach to vertical restraints. The Guidelines on Vertical Restraints sets out the principles for the assessment of vertical agreements under Article 81, including the application of the Regulation to vertical agreements. Article 2(1) of the Vertical Block Exemption Regulation gives the definition of vertical agreements and states that Article 81(1) shall not apply to ‘agreements or concerted practices entered into between two or more undertakings each of which operates, for the purposes of the agreement, at a different level of the production or distribution chain, and relating to the conditions under which the parties may purchase, sell or resell certain goods or services’. The Commission adopted the Vertical Block Exemption Regulation on 1999 and the new Block Exemption Regulation is expected in 2010. Modifications might remain quite limited and might concern, especially, the presentation of more certain rules on e-commerce, on internet sales and the treatment of resale price maintenance. 1.3. Scope of Application of the Vertical Block Exemption Regulation The objective of the Vertical Block Exemption Regulation is to exempt certain categories of vertical agreements that, under certain conditions, may improve economic efficiency within a production or distribution chain and is directed at vertical agreements for the purchase or sale of goods or services. The Regulation covers various vertical agreements and applies to any type of agreement entered into companies, which do not operate at the same level of the production or distribution chain. Agreements are covered by the Vertical Block Exemption Regulation on franchising, selective distribution, exclusive dealing, exclusive purchasing, exclusive supply, and non-genuine agency agreements within the scope of Article 81. An agency agreement falls outside article 81(1) where the agent bears no or only insignificant risks in relation to either of these matters. Article 81(1) does not apply to certain agreements or concerted practices entered into between two or more undertakings. The concept of an undertaking was discussed in Hofner and Elser v Matrocton. It was stated that: â€Å"The concept of an undertaking encompasses every entity engaged in economic activity regardless of the legal status of the entity and the way it is financed†. The definition of competing undertakings in Article 1(b) includes actual or potential suppliers in the same product market. The exclusion may be quite wide and uncertain in application. In Tetra Pack I it was considered that a contract within the terms of the Vertical Block Exemption Regulation enjoys exemption from Article 81(1), but not from article 82 unless the Commission withdraws the exemption for the future, with a decision. The Regulation does not apply, however, to vertical agreements to rent and lease agreements, as no sale takes place and to agreements which have as their primary object the licensing of intellectual property rights, nor automobile distribution agreements, nor agreements between competitors, except if they are ancillary to a vertical agreement and facilitate the purchase, sale or resale of the contract goods or services by the buyer and vertical agreements whose subject matter falls within the scope of another block exemption regulation. Also, the Vertical Block Exemption Regulation does not cover any restrictions or obligations that do not relate to the conditions of purchase, sale and resale. The Regulation does not apply to vertical agreements with a subject matter that falls within the scope of any other Block Exemption Regulation. The application of the Regulation, in certain circumstances, can be withdrawn by a decision of the European Commission, or the national competition authorities. Also, the European Commission can enact a regulation declaring the Regulation usually inapplicable to certain agreements including specific restraints. 1.4. Agreements between Competitors The Vertical Block Exemption Regulation does not cover vertical agreements that are concluded on a reciprocal basis between competitors. This exclusion may be very broad because it includes both actual and potential competitors, with the latter being defined as companies that would be able and likely to enter the market within one year. Vertical agreements between competitors are covered by the Vertical Block Exemption Regulation if the agreement is non-reciprocal and the buyer has a turnover not exceeding â‚ ¬100 million or the buyer is not a manufacturer of competing goods but only a competitor of the supplier at the distribution level. Also, are covered and where the supplier is a provider of services operating at several levels of trade, while the buyer does not provide competing services at the level of trade where it purchases the contract services. 1.5. Summary Article 81(1) EC prohibits agreements which have anti-competitive effects. By enacting the Vertical Block Exemption Regulation, the Commission has establish ‘safe harbors’ for undertakings, that outline conditions regarding when vertical agreements and concerted practices that have an anti-competitive purpose or results and would be prohibited under article 81(1) might be acceptable because they satisfy the criteria of article 81(3). When an agreement fulfills the conditions set out in the Regulation, the agreement is valid and enforceable. The Vertical Block Exemption Regulation is a measure under European Union law that grants an exemption from the application of Article 81. Agreements that meet the conditions set out in the Regulation are considered either not to adversely affect competition on the relevant European market(s) or only to affect competition to a limited degree. It is now time to examine if the Vertical Block Exemption Regulation has worked and whether the Regulation and the vertical Guidelines are need any modification, and, if so, what have to be done. PART I Requirements of the Application of the Vertical Block Exemption Regulation The Vertical Block Exemption Regulation contains certain requirements that have to be satisfied before, for the vertical agreement is able to benefit from the Regulation. The market share of the supplier must not exceed 30% (Article 3). Also the agreement must not contain any of the hard-core restrictions (Article 4). Finally, the Regulation contains conditions relating to three certain restrictions (Article 5). 2. The Market Share Cap The Market Share threshold is probably one of the most important provisions of the Vertical Block Exemption Regulation. In Article 3(1) is stated that ‘the market share held by the supplier does not exceed 30% of the relevant market on which it sells the contract goods or services’. Also, Article 3(2) states that ‘in the case of vertical agreements containing exclusive supply obligations, the exemption provided for in Article 2 shall apply on condition that the market share held by the buyer does not exceed 30% of the relevant market on which it purchases the contract goods or services’. In Telenor/Canal+/Canal Digital the 30% rule prevented the application of the Vertical Block Exemption Regulation. The market share threshold is aimed to reduce regulatory burdens from those businesses that, according to Bishop and Ridyard, ‘could not behave anti-competitively even if they tried’. The introducing of a market share cap was one the most hotly contested aspects of the Vertical Block Exemption Regulation. Businesses and its lawyers argued that such a rule would be unworkable, since it is so difficult to establish market shares with any degree of precision, particularly in rapidly developing markets. However, the Commission insisted that there was no better means of ensuring that the benefit of the Block Exemption, did not go to firms with too much market power, and the market share cap stayed, albeit in the form of a single threshold of 30%, rather that two of 20% and of 40% which had been proposed in an earlier draft. If the market share of the parties exceeds the 10% threshold described in the De Minimis Notice, Article 81(1) EC will normally not apply to the agreement if the product is new or if the existing product is sold for the first time on a different geographic market. One factor which may have assisted the Commission in prevailing was the fact that while discussions on the Vertical Block Exemption Regulation were going on, it published its white paper on procedural modernization in the application of articles 81 and 82 EC, which proposed the abolition of the notification system altogether. This may have led some to feel less strongly about the content of the Regulation. 2.1. Calculating the Market Share In order to calculate the market share there must be identified the manufactured goods and geographic markets. Regarding market definition, the general rules apply. On the relevant market, the supplier calculates its market share by comparing its turnover achieved on that market with the total value of sales on that market. However, the benefit of the Vertical Block Exemption Regulation will, subject to certain conditions, not always be lost if the market share exceeds the 30% threshold. In Rewe/Meinl the European Commission considered that a supplier is in a situation of â€Å"economic dependence† when the buyer accounts for over a 22% market share and thus buyer power might distort competition. John De Gregorio, European counsel for consumer goods manufacturer Kimberly-Clark Corporation, has stated: ‘With the introduction of market share thresholds to the block exemption analysis, it’s more important than ever for in-house counsel to know how the Commission and European courts may define the â€Å"relevant market† for the goods that your company manufactures and sells, and to be comfortable with the definition your company adopts’. 2.2. The De Minimis Doctrine and Agreements of Minor Importance In addition to the Vertical Block Exemption Regulation and the Guidelines the Commission has issued a series of notices, called ‘Notices on agreements of minor importance’ which give guidance on the agreements which will escape Article 81(1), because the market share of each or both of the parties to the agreement is too small. The European Commission’s de minimis Notice states that no Article 81 subjects are raised by an agreement between undertakings where in vertical agreements the market share of each party to the agreement does not exceed 15% of the relevant market, or 5% for vertical agreements where access to the relevant market is foreclosed by the increasing effect of parallel networks of vertical agreements by several companies. The ‘de minimis’ notice sets the relevant threshold at 5% for horizontal agreements. Commercial agreements between parties where market shares exceed these thresholds might however not have a considerable effect on competition or might benefit from exemption. Nevertheless, the presumption in the de minimis Notice will not apply if the commercial agreement contains hardcore restrictions. In Franz Volk v Establissments Vervaecke SPRL the 0.6% of market share in washing machines considered insignificant. In general, agreements taken between Small and Medium size Enterprisers are ‘de minimis’. Paragraph 3 of the Notice recognizes that agreements between small and medium-sized undertakings are rarely capable of appreciably affecting trade between Member States. Finally, Article 8 provides that the Commission can withdraw the benefit of Block Exemption where ‘50 % of a relevant market, contain specific restraints relating to that market. This Regulation shall not become applicable earlier than six months following its adoption’. 2.3. Market Power The Vertical Block Exemption Regulation states that, with some certain exceptions, all vertical restrains are acceptable unless they are coupled to significant market power. Market share thresholds are criticized to be uncertain because they need a definition of the market which is the reason why the idea of market share thresholds has been discarded in most systems. Also, the amount of market power can be considered by reference to market share. Scherer and Ross state that economic analysis shows that in most cases the welfare-reducing effects of vertical restrains depend on the degree of market power the involved firms have. If market shares are in general indicative of potential market power, they can never be considered without considering some other factors to achieve a reasonable assessment of market power for instance the barriers to entry and prospective competition and the characteristics of the oligopolistic dealings between businesses. The Commission in some of its judgments show that market shares do not equal market power. For example, in Alcatel-Telectra the Commission cleared a merger which gave the parties market shares of 83%. Also, in Rhone-Poulenc/SNIA the high degree of concentration was ought to weighed by the existence of rapid technology development. The most obvious issue, according to Professor Denis Waelbroeck, is to consider whether the system should not allow all vertical agreements which do not include hardcore restrictions, separately of the market share of the parties involved, and only apply a control under Article 82 EC in cases of dominance. That would remove the burden above the threshold for businesses to achieve a complex evaluation of their agreements under Article 81(1) and Article 81(3) EC and it will provide more legal certainty in this subject. In addition, the economic assessment required by the Guidelines on Vertical Restrains and the Guidelines on the application of Article 81(3) of the Treaty is challenging, and it is doubtful that many judges and parties will have the income or abilities to undertake it sufficiently, thus raising the danger of extensive, expensive and uncertain litigation. 2.4. Arguments about the Threshold The use of market shares as a key element of the Regulation’s treatment has been criticised as being possible to lead to uncertainty and unpredictability given the difficulties in defining the relevant market and market share. It may be argued that the threshold is too low or that it is improperly cast. Those who argue that the threshold is too low point out that the anti-competitive risks can arise only when there is a dominant firm. A non-dominant firm cannot increase rivals costs and cannot make damage to the consumers as they still benefit from inter-brand competition. Those who argue that the threshold is improperly cast would agree with the above criticism but bear in mind that anti-competitive effects can manifest themselves when there is the risk of oligopolistic interdependence. Bishop. and Ridyard state that an assessment of the market’s concentration would be more useful than the assessment of one players market share. Some argue that given the uncertainties over market definition, a market share threshold is not a substitute for a detailed analysis of whether the consumers suffer consequently of a particular practice but this might damage the effectiveness of the existing system which creates a safe harbour so that analytical incomes are allocated to those cases where anticompetitive effects are most possible to occur. The Vertical Block Exemption Regulation creation of a market share threshold which the Regulation does not apply, limits manufacturing businesses that manufacture extremely innovative goods and want to sell them before other businesses have the chance to promote competitive goods into the market. In this situation, the manufacturing businesses with the extremely innovative goods might have a very high market share in a particular industry within a specific geographic area as no competing goods exist. However, as its market share is more than 30%, the manufacturing business is unable to take benefit from the Regulation and would be banned from effectively distributing and selling its manufactured goods in the market. 2.5. Removing the Threshold The Vertical Block Exemption Regulation is unduly restrictive by setting the threshold at 30%. Many agreements thus escape the safe harbour though they are completely harmless from a competition law perspective. By removing the thresholds the sellers using private resellers may be penalised not as much as vertically integrate businesses. Also, abolishing the threshold would give more stability to the system because not all restrictions of competition under 81 are an abuse under 82. On the other hand, if the system is seen as too essential one may think a less radical change to the Regulation consisting of a differentiated approach identifying those clauses which can be problematic above 30% although the parties are not dominant. Those clauses which are always straightforward, even in cases of dominance and which thus essentially deserve an exemption and should not to be matter to any market share threshold and also those clauses which should never advantage from a group exemption even they are below 30%. 2.6. Summary The Vertical Block Exemption Regulation can simplify issues but also can cause difficulties. It makes issues simple as it offers the parties more flexibility in establishing their agreements and if a business’s market share is less than the related market share threshold the agreement will fall outside the scope of the competition rules or be qualified for exemption provided that it does not include hardcore restrictions. The Regulation can also cause difficulties as the parties’ market share must be verified in every case and this can be very hard in situations, for instance as those concerning new markets. Where the market share threshold is exceeded, issues become more difficult as the Regulation requires a complete evaluation of the agreement to define whether it would restrict competition under Article 81(1) and, if so, whether it would meet the requirements for an exemption under Article 81(3). This requires the parties to verify the economic effect of certain restrictions by considering how they would operate in the specific product market involved. The Vertical Block Exemption Regulation principally proposes that businesses with small market shares are given more choice to establish their agreements and will not require undertaking an antitrust review of their dealings. Businesses with large market shares might need to spend time and resources to assessing their agreements from an antitrust perspective. 3. The Hard-Core Restrictions The Vertical Block Exemption Regulation does not apply to vertical agreements that have certain anti-competitive objects. The Regulation lists a number of hard-core restrictions that, if included in the agreement, prevent the safe harbour from applying and cause the exclusion of the whole agreement from the benefit of the Block Exemption even if the market share of the supplier or buyer is below 30%. There are hard-core restrictions which apply to agreements between competitors, and agreements between non competitors. If one hard-core restriction is present in the agreement, the agreement will lose the benefit of the block exemption so Article 81(1) EC may apply. This can result in the unenforceability of the entire agreement and may even lead to fines and it is important that a severability or invalidity clause is included in the agreement where appropriate. Hard-core restrictions are considered to be so serious that they are almost always prohibited. In Javico International and Javico AG v Yves Saint Laurent Parfumes SA it was considered that hard-core restrictions do not infringe Article 81(1) except if they might have considerable effect on trade between Member States. There are five hard-core restrictions which, if there are contained in a vertical agreement, they have the consequence of taking the whole agreement outside the scope of the Regulation. 3.1. Resale Price Maintenance The first hard-core restriction concerns resale price maintenance. Article 4(a) states that the benefit of the Vertical Block Exemption Regulation does not apply to vertical agreements that fix prices and have the object of restricting a buyer’s ability to determine its sale price. A supplier is not allowed to fix or minimum the sale price at which distributors can resell his products. The restriction on the buyer’s power to establish his sale price is a hard-core restriction. The Commission in Yamaha considered that an obligation of a purchaser to resell at a particular price is ‘an obvious restriction of competition that is prohibited by Article 81(1)’. However, Paragraph 47 of the Guidelines states that ‘the provision of a list of price recommendations by the supplier to the buyer is not considered in itself as leading to resale price maintenance’ if they do not amount to a fixed or a minimum sale price. In Pronuptia de Paris v Pronuptia de Paris Irmgard Schillgalis, the Court held that the recommendation of prices would not infringe Article 81(1). In genuine agency agreements, where the principal bears all or almost all the financial and commercial risks related to the transactions concluded on his account by the agent, Article 81(1) would generally not be applicable. In Vlaamse Reisbureaus an agreement between travel agents and tour operators indented to oblige the travel agents to examine the prices and tariffs set by the Tour operators and the agents were banned from sharing commissions with or granting refunds to their customers. The Court held that the Belgium system infringed Article 81(1). From an economic point of view, it can be said that there is no certain analysis nowadays as to how to treat with resale price maintenance. Resale price maintenance can be pro-competitive or anti-competitive. Nevertheless, even when applying an effect based approach, it is obvious that in many cases competition will be delayed and that cases when resale price maintenance is efficient are actually quite rare. 3.1.2. Anti-Competitive and Pro-Competitive Effects in Resale Price Maintenance Resale price maintenance is a complex issue and may be harmful in some circumstances. There are two major anti-competitive effects in relation to resale price maintenance. These are the elimination of intra-brand price competition which has as a direct effect the price increase, and the resulting risk of a reduction in inter-brand competition which gains from increased price transparency, thus make easiest price collusion between manufacturers or distributors at a horizontal level. Other anti-competitive effects of the resale price maintenance, according to Luc Peeperkorn, are the loss of pressure on the seller’s scope and the loss of dynamism and innovation from in particular discounters. However, the doubts about the efficiency of and the likelihood that resale price maintenance leads to positive aspects. Economic theory has shown that this practice might have a number of efficiency benefits. For instance, price fixing may prevent ‘free riding’ by retail price discounters on the pre-sales services and/or reputation of full price dealers while it is obvious that intra-brand price competition will be reduced by imposing a fixed or minimum price. This can be reasonable, for example, where a distribution outlet offers first-class services on which customers then rely to buy at a cheaper discounter which does not provide these services and thus is able to charge lower prices. Free riding arises when one business benefits from the performance of another with no paying for it. A minimum price would remove the pricing advantage from the discounter and change intra-brand price competition with competition on services. Minimum resale price maintenance can thus occasionally be economically and commercially reasonable if certain conditions are fulfilled. One could argue that the ‘free riding’ problem could be solved by using other block exempted restrains achieving the same result. Some inefficiencies and externalities caused by the ‘free riding’ problem might be solved by exclusivity clauses, or selective distribution but this restraint may not be an ideal substitute in all conditions for resale price maintenance and it is then questionable that resale price maintenance should be per se prohibited in all cases. Also, resale price fixing can be useful to entrant manufacturers as it might assist them to position their products and thus retailers would have the incentives to invest in making the entrant’s products better known to consumers. Resale price maintenance has created worries in Commission because is being stand on national limits with different costs in different member states. According to Professor Boscheck, taking into account that the economic conditions to consider such restrains ‘are still either too crude or too costly to apply to allow for efficient rules and structured rule of reason’, it is difficult to argue that fixed or minimum prices should not be part of the hard-core list. On the other hand, it appears that such clauses are not considered as if an exemption were inconceivable in any case. There are reasonable arguments that such restrains, considered under an effects-based approach, can rarely be deemed as pro-competitive. It is still uncertain whether free riding by resale price maintenance to rationalize the exclusion of price competition between dealers or retailers. There are methods, for instance promotional allowances or service requirements, which can avoid ‘free riding’ without the anticompetitive side effect of reducing price competition between dealers and retailers. 3.2. Territorial and Customer Restrictions Article 4(b) states that restricting sales by the buyer into specified territories or to specified customers is a hard-core restriction. Distributors must remain free to decide where and to whom they sell. Paragraph 49 of the Guidelines recognizes two restrictions on buyers that would not be considered as hard-core under 4(b): a prohibition on resale except to certain and users for which there is an ‘objective justification related to the product’, and an obligation on the reseller relating to the display of the supplier’s brand names. There are exceptions to 4(b), such as restriction ‘of active sales into the exclusive territory or to an exclusive customer group reserved by the supplier or allocated by the supplier to another buyer’. The Commission in Souris-Topps held that Topps’s distribution agreements for its Pokemon Stickers and Cards failed to benefit from the Block exemption as they violated Article 4(b). The Paragraph 51 of the Guidelines deals with the Internet. It states that ‘A restriction on the use of the Internet by distributors could only be compatible with the Block Exemption Regulation to the extent that promotion on the Internet or sales over the Internet would lead to active selling into other distributors’ exclusive territories or customer groups’. The Commission in Yves Saint Laurent case held that a prohibition on internet publicity and sale usually constitutes a hard-core restriction. The Commission is awry of deterring the growth of e-commerce, and has confirmed that the use of the internet is not considered a form of active sales as it is a reasonable way of reaching customers. Provisions that restrict the territory into which, or the customers to whom, the buyer might sell the contract goods or services are illegal. There are four exceptions to that rule: (1) The restriction of active sales into the exclusive territory or to an exclusive customer group reserved to the supplier or allocated by the supplier to another buyer, where such a restriction does not limit sales by the customers of the buyer, (2) Restrictions of sales to end-users by a buyer operating at the wholesale level of trade, unless it relates to a selective distribution system. This Principle was established by the Commission in Villeroy Boch, (3) the restriction of sales to unauthorised distributors by the members of a selective distribution system, and (4) the restriction of the buyers ability to sell components, supplied for the purposes of incorporation, to customers who would use them to manufacture the same type of goods as those produced by the supplier. A restriction on active sales might not restrict sales by the consumers of the buyer. Thus, a seller can not prohibit his consumers to sell his goods or services on-line without an objective reason and he also can not reserve such sales to himself and/or advertising over the internet. The Vertical Guidelines contain definitions of the terms ‘active sales’ and ‘passive sales’. ‘Active sales’ are defined in paragraph 50 of the Guidelines and it means actively approaching individual customers inside another distributor’s exclusive territory or exclusive consumer group while ‘passive sales’ means responding to unsolicit Economic Globalisation and Competition Economic Globalisation and Competition 1. Introduction Competition is a vital mechanism of the market economy and is an efficient means of guaranteeing consumers a level of quality in terms of the value and price of products and services. Economic globalization has increased volatile growth within international trade and as a result in subject of competition law. Article 81(1) of the EC Treaty ‘prohibits agreements between undertakings; decisions by associations of undertakings and concerted practices which may affect trade between Member States and which prevent restrict or distort competition’. These agreements shall be void according to 81(2). However, the agreements which satisfy the conditions set out in article 81(3) EC shall not be prohibited, no prior decision to that effect being required. 1.1. Anti-Competitive Agreements Article 81 of the EC Treaty, prohibiting anti-competitive agreements, must be considered in relation to all commercial agreements with a probable EU cross-border impact. The Horizontal and the Vertical agreements are the agreements, which are relevant for the purposes of the application of the competition rules. Horizontal agreements are those between undertakings operating at the same level of production or marketing, while vertical agreements are those completed between undertakings operating at different economic levels. Under EC Competition Law, restrains included in vertical agreements are regarded as not as much damaging than those included in horizontal agreements. In Consten and Grundig v Commission the European Court of Justice considered that Article 81(1) EC applies not only to horizontal agreements but also to vertical agreements. The later decisional practice of the Commission on the treatment of vertical arrangements under Art 81(1) and 81(3) EC, and the case law of the Community Courts, have been one of the most controversial and severely criticized aspects of Community competition policy. These agreements are very important for the functioning of the economy. Commercial agreements may be exempted from the application of article 81(1) under article 81(3). 1.2. The Vertical Block Exemption Regulation However, there is a ‘safe harbour’ for undertakings: the Vertical Block Exemption Regulation 2790/1999. Safe harbours exist for certain agreements including restrictions providing conditions are met so that agreements falling within the terms of the Regulation are exempt from the application of Article 81(1) EC guaranteeing the enforceability of the agreement and granting protection from antitrust prosecution. Thus, if undertakings wish to be certain that their vertical agreements are in line with EC competition law, they should agree on clauses within the scope of the Regulation. Outside this safe harbour, the European Commission’s Notice Guidelines on Vertical Restraints are a helpful guide for the assessment under Art 81(3) EC and are explaining the application of Regulation 2790/1999 and the Commission’s approach to vertical restraints. The Guidelines on Vertical Restraints sets out the principles for the assessment of vertical agreements under Article 81, including the application of the Regulation to vertical agreements. Article 2(1) of the Vertical Block Exemption Regulation gives the definition of vertical agreements and states that Article 81(1) shall not apply to ‘agreements or concerted practices entered into between two or more undertakings each of which operates, for the purposes of the agreement, at a different level of the production or distribution chain, and relating to the conditions under which the parties may purchase, sell or resell certain goods or services’. The Commission adopted the Vertical Block Exemption Regulation on 1999 and the new Block Exemption Regulation is expected in 2010. Modifications might remain quite limited and might concern, especially, the presentation of more certain rules on e-commerce, on internet sales and the treatment of resale price maintenance. 1.3. Scope of Application of the Vertical Block Exemption Regulation The objective of the Vertical Block Exemption Regulation is to exempt certain categories of vertical agreements that, under certain conditions, may improve economic efficiency within a production or distribution chain and is directed at vertical agreements for the purchase or sale of goods or services. The Regulation covers various vertical agreements and applies to any type of agreement entered into companies, which do not operate at the same level of the production or distribution chain. Agreements are covered by the Vertical Block Exemption Regulation on franchising, selective distribution, exclusive dealing, exclusive purchasing, exclusive supply, and non-genuine agency agreements within the scope of Article 81. An agency agreement falls outside article 81(1) where the agent bears no or only insignificant risks in relation to either of these matters. Article 81(1) does not apply to certain agreements or concerted practices entered into between two or more undertakings. The concept of an undertaking was discussed in Hofner and Elser v Matrocton. It was stated that: â€Å"The concept of an undertaking encompasses every entity engaged in economic activity regardless of the legal status of the entity and the way it is financed†. The definition of competing undertakings in Article 1(b) includes actual or potential suppliers in the same product market. The exclusion may be quite wide and uncertain in application. In Tetra Pack I it was considered that a contract within the terms of the Vertical Block Exemption Regulation enjoys exemption from Article 81(1), but not from article 82 unless the Commission withdraws the exemption for the future, with a decision. The Regulation does not apply, however, to vertical agreements to rent and lease agreements, as no sale takes place and to agreements which have as their primary object the licensing of intellectual property rights, nor automobile distribution agreements, nor agreements between competitors, except if they are ancillary to a vertical agreement and facilitate the purchase, sale or resale of the contract goods or services by the buyer and vertical agreements whose subject matter falls within the scope of another block exemption regulation. Also, the Vertical Block Exemption Regulation does not cover any restrictions or obligations that do not relate to the conditions of purchase, sale and resale. The Regulation does not apply to vertical agreements with a subject matter that falls within the scope of any other Block Exemption Regulation. The application of the Regulation, in certain circumstances, can be withdrawn by a decision of the European Commission, or the national competition authorities. Also, the European Commission can enact a regulation declaring the Regulation usually inapplicable to certain agreements including specific restraints. 1.4. Agreements between Competitors The Vertical Block Exemption Regulation does not cover vertical agreements that are concluded on a reciprocal basis between competitors. This exclusion may be very broad because it includes both actual and potential competitors, with the latter being defined as companies that would be able and likely to enter the market within one year. Vertical agreements between competitors are covered by the Vertical Block Exemption Regulation if the agreement is non-reciprocal and the buyer has a turnover not exceeding â‚ ¬100 million or the buyer is not a manufacturer of competing goods but only a competitor of the supplier at the distribution level. Also, are covered and where the supplier is a provider of services operating at several levels of trade, while the buyer does not provide competing services at the level of trade where it purchases the contract services. 1.5. Summary Article 81(1) EC prohibits agreements which have anti-competitive effects. By enacting the Vertical Block Exemption Regulation, the Commission has establish ‘safe harbors’ for undertakings, that outline conditions regarding when vertical agreements and concerted practices that have an anti-competitive purpose or results and would be prohibited under article 81(1) might be acceptable because they satisfy the criteria of article 81(3). When an agreement fulfills the conditions set out in the Regulation, the agreement is valid and enforceable. The Vertical Block Exemption Regulation is a measure under European Union law that grants an exemption from the application of Article 81. Agreements that meet the conditions set out in the Regulation are considered either not to adversely affect competition on the relevant European market(s) or only to affect competition to a limited degree. It is now time to examine if the Vertical Block Exemption Regulation has worked and whether the Regulation and the vertical Guidelines are need any modification, and, if so, what have to be done. PART I Requirements of the Application of the Vertical Block Exemption Regulation The Vertical Block Exemption Regulation contains certain requirements that have to be satisfied before, for the vertical agreement is able to benefit from the Regulation. The market share of the supplier must not exceed 30% (Article 3). Also the agreement must not contain any of the hard-core restrictions (Article 4). Finally, the Regulation contains conditions relating to three certain restrictions (Article 5). 2. The Market Share Cap The Market Share threshold is probably one of the most important provisions of the Vertical Block Exemption Regulation. In Article 3(1) is stated that ‘the market share held by the supplier does not exceed 30% of the relevant market on which it sells the contract goods or services’. Also, Article 3(2) states that ‘in the case of vertical agreements containing exclusive supply obligations, the exemption provided for in Article 2 shall apply on condition that the market share held by the buyer does not exceed 30% of the relevant market on which it purchases the contract goods or services’. In Telenor/Canal+/Canal Digital the 30% rule prevented the application of the Vertical Block Exemption Regulation. The market share threshold is aimed to reduce regulatory burdens from those businesses that, according to Bishop and Ridyard, ‘could not behave anti-competitively even if they tried’. The introducing of a market share cap was one the most hotly contested aspects of the Vertical Block Exemption Regulation. Businesses and its lawyers argued that such a rule would be unworkable, since it is so difficult to establish market shares with any degree of precision, particularly in rapidly developing markets. However, the Commission insisted that there was no better means of ensuring that the benefit of the Block Exemption, did not go to firms with too much market power, and the market share cap stayed, albeit in the form of a single threshold of 30%, rather that two of 20% and of 40% which had been proposed in an earlier draft. If the market share of the parties exceeds the 10% threshold described in the De Minimis Notice, Article 81(1) EC will normally not apply to the agreement if the product is new or if the existing product is sold for the first time on a different geographic market. One factor which may have assisted the Commission in prevailing was the fact that while discussions on the Vertical Block Exemption Regulation were going on, it published its white paper on procedural modernization in the application of articles 81 and 82 EC, which proposed the abolition of the notification system altogether. This may have led some to feel less strongly about the content of the Regulation. 2.1. Calculating the Market Share In order to calculate the market share there must be identified the manufactured goods and geographic markets. Regarding market definition, the general rules apply. On the relevant market, the supplier calculates its market share by comparing its turnover achieved on that market with the total value of sales on that market. However, the benefit of the Vertical Block Exemption Regulation will, subject to certain conditions, not always be lost if the market share exceeds the 30% threshold. In Rewe/Meinl the European Commission considered that a supplier is in a situation of â€Å"economic dependence† when the buyer accounts for over a 22% market share and thus buyer power might distort competition. John De Gregorio, European counsel for consumer goods manufacturer Kimberly-Clark Corporation, has stated: ‘With the introduction of market share thresholds to the block exemption analysis, it’s more important than ever for in-house counsel to know how the Commission and European courts may define the â€Å"relevant market† for the goods that your company manufactures and sells, and to be comfortable with the definition your company adopts’. 2.2. The De Minimis Doctrine and Agreements of Minor Importance In addition to the Vertical Block Exemption Regulation and the Guidelines the Commission has issued a series of notices, called ‘Notices on agreements of minor importance’ which give guidance on the agreements which will escape Article 81(1), because the market share of each or both of the parties to the agreement is too small. The European Commission’s de minimis Notice states that no Article 81 subjects are raised by an agreement between undertakings where in vertical agreements the market share of each party to the agreement does not exceed 15% of the relevant market, or 5% for vertical agreements where access to the relevant market is foreclosed by the increasing effect of parallel networks of vertical agreements by several companies. The ‘de minimis’ notice sets the relevant threshold at 5% for horizontal agreements. Commercial agreements between parties where market shares exceed these thresholds might however not have a considerable effect on competition or might benefit from exemption. Nevertheless, the presumption in the de minimis Notice will not apply if the commercial agreement contains hardcore restrictions. In Franz Volk v Establissments Vervaecke SPRL the 0.6% of market share in washing machines considered insignificant. In general, agreements taken between Small and Medium size Enterprisers are ‘de minimis’. Paragraph 3 of the Notice recognizes that agreements between small and medium-sized undertakings are rarely capable of appreciably affecting trade between Member States. Finally, Article 8 provides that the Commission can withdraw the benefit of Block Exemption where ‘50 % of a relevant market, contain specific restraints relating to that market. This Regulation shall not become applicable earlier than six months following its adoption’. 2.3. Market Power The Vertical Block Exemption Regulation states that, with some certain exceptions, all vertical restrains are acceptable unless they are coupled to significant market power. Market share thresholds are criticized to be uncertain because they need a definition of the market which is the reason why the idea of market share thresholds has been discarded in most systems. Also, the amount of market power can be considered by reference to market share. Scherer and Ross state that economic analysis shows that in most cases the welfare-reducing effects of vertical restrains depend on the degree of market power the involved firms have. If market shares are in general indicative of potential market power, they can never be considered without considering some other factors to achieve a reasonable assessment of market power for instance the barriers to entry and prospective competition and the characteristics of the oligopolistic dealings between businesses. The Commission in some of its judgments show that market shares do not equal market power. For example, in Alcatel-Telectra the Commission cleared a merger which gave the parties market shares of 83%. Also, in Rhone-Poulenc/SNIA the high degree of concentration was ought to weighed by the existence of rapid technology development. The most obvious issue, according to Professor Denis Waelbroeck, is to consider whether the system should not allow all vertical agreements which do not include hardcore restrictions, separately of the market share of the parties involved, and only apply a control under Article 82 EC in cases of dominance. That would remove the burden above the threshold for businesses to achieve a complex evaluation of their agreements under Article 81(1) and Article 81(3) EC and it will provide more legal certainty in this subject. In addition, the economic assessment required by the Guidelines on Vertical Restrains and the Guidelines on the application of Article 81(3) of the Treaty is challenging, and it is doubtful that many judges and parties will have the income or abilities to undertake it sufficiently, thus raising the danger of extensive, expensive and uncertain litigation. 2.4. Arguments about the Threshold The use of market shares as a key element of the Regulation’s treatment has been criticised as being possible to lead to uncertainty and unpredictability given the difficulties in defining the relevant market and market share. It may be argued that the threshold is too low or that it is improperly cast. Those who argue that the threshold is too low point out that the anti-competitive risks can arise only when there is a dominant firm. A non-dominant firm cannot increase rivals costs and cannot make damage to the consumers as they still benefit from inter-brand competition. Those who argue that the threshold is improperly cast would agree with the above criticism but bear in mind that anti-competitive effects can manifest themselves when there is the risk of oligopolistic interdependence. Bishop. and Ridyard state that an assessment of the market’s concentration would be more useful than the assessment of one players market share. Some argue that given the uncertainties over market definition, a market share threshold is not a substitute for a detailed analysis of whether the consumers suffer consequently of a particular practice but this might damage the effectiveness of the existing system which creates a safe harbour so that analytical incomes are allocated to those cases where anticompetitive effects are most possible to occur. The Vertical Block Exemption Regulation creation of a market share threshold which the Regulation does not apply, limits manufacturing businesses that manufacture extremely innovative goods and want to sell them before other businesses have the chance to promote competitive goods into the market. In this situation, the manufacturing businesses with the extremely innovative goods might have a very high market share in a particular industry within a specific geographic area as no competing goods exist. However, as its market share is more than 30%, the manufacturing business is unable to take benefit from the Regulation and would be banned from effectively distributing and selling its manufactured goods in the market. 2.5. Removing the Threshold The Vertical Block Exemption Regulation is unduly restrictive by setting the threshold at 30%. Many agreements thus escape the safe harbour though they are completely harmless from a competition law perspective. By removing the thresholds the sellers using private resellers may be penalised not as much as vertically integrate businesses. Also, abolishing the threshold would give more stability to the system because not all restrictions of competition under 81 are an abuse under 82. On the other hand, if the system is seen as too essential one may think a less radical change to the Regulation consisting of a differentiated approach identifying those clauses which can be problematic above 30% although the parties are not dominant. Those clauses which are always straightforward, even in cases of dominance and which thus essentially deserve an exemption and should not to be matter to any market share threshold and also those clauses which should never advantage from a group exemption even they are below 30%. 2.6. Summary The Vertical Block Exemption Regulation can simplify issues but also can cause difficulties. It makes issues simple as it offers the parties more flexibility in establishing their agreements and if a business’s market share is less than the related market share threshold the agreement will fall outside the scope of the competition rules or be qualified for exemption provided that it does not include hardcore restrictions. The Regulation can also cause difficulties as the parties’ market share must be verified in every case and this can be very hard in situations, for instance as those concerning new markets. Where the market share threshold is exceeded, issues become more difficult as the Regulation requires a complete evaluation of the agreement to define whether it would restrict competition under Article 81(1) and, if so, whether it would meet the requirements for an exemption under Article 81(3). This requires the parties to verify the economic effect of certain restrictions by considering how they would operate in the specific product market involved. The Vertical Block Exemption Regulation principally proposes that businesses with small market shares are given more choice to establish their agreements and will not require undertaking an antitrust review of their dealings. Businesses with large market shares might need to spend time and resources to assessing their agreements from an antitrust perspective. 3. The Hard-Core Restrictions The Vertical Block Exemption Regulation does not apply to vertical agreements that have certain anti-competitive objects. The Regulation lists a number of hard-core restrictions that, if included in the agreement, prevent the safe harbour from applying and cause the exclusion of the whole agreement from the benefit of the Block Exemption even if the market share of the supplier or buyer is below 30%. There are hard-core restrictions which apply to agreements between competitors, and agreements between non competitors. If one hard-core restriction is present in the agreement, the agreement will lose the benefit of the block exemption so Article 81(1) EC may apply. This can result in the unenforceability of the entire agreement and may even lead to fines and it is important that a severability or invalidity clause is included in the agreement where appropriate. Hard-core restrictions are considered to be so serious that they are almost always prohibited. In Javico International and Javico AG v Yves Saint Laurent Parfumes SA it was considered that hard-core restrictions do not infringe Article 81(1) except if they might have considerable effect on trade between Member States. There are five hard-core restrictions which, if there are contained in a vertical agreement, they have the consequence of taking the whole agreement outside the scope of the Regulation. 3.1. Resale Price Maintenance The first hard-core restriction concerns resale price maintenance. Article 4(a) states that the benefit of the Vertical Block Exemption Regulation does not apply to vertical agreements that fix prices and have the object of restricting a buyer’s ability to determine its sale price. A supplier is not allowed to fix or minimum the sale price at which distributors can resell his products. The restriction on the buyer’s power to establish his sale price is a hard-core restriction. The Commission in Yamaha considered that an obligation of a purchaser to resell at a particular price is ‘an obvious restriction of competition that is prohibited by Article 81(1)’. However, Paragraph 47 of the Guidelines states that ‘the provision of a list of price recommendations by the supplier to the buyer is not considered in itself as leading to resale price maintenance’ if they do not amount to a fixed or a minimum sale price. In Pronuptia de Paris v Pronuptia de Paris Irmgard Schillgalis, the Court held that the recommendation of prices would not infringe Article 81(1). In genuine agency agreements, where the principal bears all or almost all the financial and commercial risks related to the transactions concluded on his account by the agent, Article 81(1) would generally not be applicable. In Vlaamse Reisbureaus an agreement between travel agents and tour operators indented to oblige the travel agents to examine the prices and tariffs set by the Tour operators and the agents were banned from sharing commissions with or granting refunds to their customers. The Court held that the Belgium system infringed Article 81(1). From an economic point of view, it can be said that there is no certain analysis nowadays as to how to treat with resale price maintenance. Resale price maintenance can be pro-competitive or anti-competitive. Nevertheless, even when applying an effect based approach, it is obvious that in many cases competition will be delayed and that cases when resale price maintenance is efficient are actually quite rare. 3.1.2. Anti-Competitive and Pro-Competitive Effects in Resale Price Maintenance Resale price maintenance is a complex issue and may be harmful in some circumstances. There are two major anti-competitive effects in relation to resale price maintenance. These are the elimination of intra-brand price competition which has as a direct effect the price increase, and the resulting risk of a reduction in inter-brand competition which gains from increased price transparency, thus make easiest price collusion between manufacturers or distributors at a horizontal level. Other anti-competitive effects of the resale price maintenance, according to Luc Peeperkorn, are the loss of pressure on the seller’s scope and the loss of dynamism and innovation from in particular discounters. However, the doubts about the efficiency of and the likelihood that resale price maintenance leads to positive aspects. Economic theory has shown that this practice might have a number of efficiency benefits. For instance, price fixing may prevent ‘free riding’ by retail price discounters on the pre-sales services and/or reputation of full price dealers while it is obvious that intra-brand price competition will be reduced by imposing a fixed or minimum price. This can be reasonable, for example, where a distribution outlet offers first-class services on which customers then rely to buy at a cheaper discounter which does not provide these services and thus is able to charge lower prices. Free riding arises when one business benefits from the performance of another with no paying for it. A minimum price would remove the pricing advantage from the discounter and change intra-brand price competition with competition on services. Minimum resale price maintenance can thus occasionally be economically and commercially reasonable if certain conditions are fulfilled. One could argue that the ‘free riding’ problem could be solved by using other block exempted restrains achieving the same result. Some inefficiencies and externalities caused by the ‘free riding’ problem might be solved by exclusivity clauses, or selective distribution but this restraint may not be an ideal substitute in all conditions for resale price maintenance and it is then questionable that resale price maintenance should be per se prohibited in all cases. Also, resale price fixing can be useful to entrant manufacturers as it might assist them to position their products and thus retailers would have the incentives to invest in making the entrant’s products better known to consumers. Resale price maintenance has created worries in Commission because is being stand on national limits with different costs in different member states. According to Professor Boscheck, taking into account that the economic conditions to consider such restrains ‘are still either too crude or too costly to apply to allow for efficient rules and structured rule of reason’, it is difficult to argue that fixed or minimum prices should not be part of the hard-core list. On the other hand, it appears that such clauses are not considered as if an exemption were inconceivable in any case. There are reasonable arguments that such restrains, considered under an effects-based approach, can rarely be deemed as pro-competitive. It is still uncertain whether free riding by resale price maintenance to rationalize the exclusion of price competition between dealers or retailers. There are methods, for instance promotional allowances or service requirements, which can avoid ‘free riding’ without the anticompetitive side effect of reducing price competition between dealers and retailers. 3.2. Territorial and Customer Restrictions Article 4(b) states that restricting sales by the buyer into specified territories or to specified customers is a hard-core restriction. Distributors must remain free to decide where and to whom they sell. Paragraph 49 of the Guidelines recognizes two restrictions on buyers that would not be considered as hard-core under 4(b): a prohibition on resale except to certain and users for which there is an ‘objective justification related to the product’, and an obligation on the reseller relating to the display of the supplier’s brand names. There are exceptions to 4(b), such as restriction ‘of active sales into the exclusive territory or to an exclusive customer group reserved by the supplier or allocated by the supplier to another buyer’. The Commission in Souris-Topps held that Topps’s distribution agreements for its Pokemon Stickers and Cards failed to benefit from the Block exemption as they violated Article 4(b). The Paragraph 51 of the Guidelines deals with the Internet. It states that ‘A restriction on the use of the Internet by distributors could only be compatible with the Block Exemption Regulation to the extent that promotion on the Internet or sales over the Internet would lead to active selling into other distributors’ exclusive territories or customer groups’. The Commission in Yves Saint Laurent case held that a prohibition on internet publicity and sale usually constitutes a hard-core restriction. The Commission is awry of deterring the growth of e-commerce, and has confirmed that the use of the internet is not considered a form of active sales as it is a reasonable way of reaching customers. Provisions that restrict the territory into which, or the customers to whom, the buyer might sell the contract goods or services are illegal. There are four exceptions to that rule: (1) The restriction of active sales into the exclusive territory or to an exclusive customer group reserved to the supplier or allocated by the supplier to another buyer, where such a restriction does not limit sales by the customers of the buyer, (2) Restrictions of sales to end-users by a buyer operating at the wholesale level of trade, unless it relates to a selective distribution system. This Principle was established by the Commission in Villeroy Boch, (3) the restriction of sales to unauthorised distributors by the members of a selective distribution system, and (4) the restriction of the buyers ability to sell components, supplied for the purposes of incorporation, to customers who would use them to manufacture the same type of goods as those produced by the supplier. A restriction on active sales might not restrict sales by the consumers of the buyer. Thus, a seller can not prohibit his consumers to sell his goods or services on-line without an objective reason and he also can not reserve such sales to himself and/or advertising over the internet. The Vertical Guidelines contain definitions of the terms ‘active sales’ and ‘passive sales’. ‘Active sales’ are defined in paragraph 50 of the Guidelines and it means actively approaching individual customers inside another distributor’s exclusive territory or exclusive consumer group while ‘passive sales’ means responding to unsolicit

Marketing Unit Essay -- Business and Management Studies

Marketing Unit Throughout this unit I am going to try to develop my own marketing strategy and techniques for the company Tommy Hilfiger. The store that I will be assessing is the Bluewater store. I will attempt to identify the methods and strategies that are used by the company when promoting and trying to increase the sales of the Tommy Denim range of jeans and clothing, I shall then attempt to develop my own, better strategies. Marketing is essential to the success of any business. Its primary aim is to enable businesses to meet the needs of their customers and potential customers, whether for profit or not but in the long term hopefully increasing sales. Tommy’s target market is extremely varied but the designs of the clothing tend to focus more on the needs and tastes of the older, more classic generation. In an attempt to expand sales and increase profits a new range of products were developed which were aimed for a younger, trendier target market. The problems that currently face the Tommy Hilfiger Company are as follows: * The cost and expense of the products is quite high and when considering the fact that the products are aimed at a younger target market, often they are unable to afford them. * Insufficient advertisement – The Tommy Hilfiger store at Bluewater is fairly new, being only six months old. Unless people are regular visitors of the shopping complex, they are often unaware as to the presence of the store. The man...

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Film Analysis of King Kong Produced by Merian C. Cooper Essay examples

Film Analysis of King Kong Produced by Merian C. Cooper A classic adventure-fantasy film in the earlier talking films is King Kong (1933). King Kong was conceived by director/producer Merian C. Cooper. Cooper tells the story of an attractive blonde woman and a frightening gigantic ape-monster who are immersed in a Beauty and the Beast type tale. A major section of the film is the struggle on Skull Island between the filmmakers, the islanders, and the other resident of the island. The other resident being a mutant creature who must also fight civilization when it is brought to New York City for display. From the beginning of the movie, its screenplay by James Creelman and Ruth Rose foretells the coming terror. The film included many revolutionary technical innovations for its time, and some of the best stop-action animation ever sequences and special effects (by Willis O'Brien) ever captured. King Kong was a film with many wonderful sound and cinematic techniques. The filmed contained a dramatic musical score, which helped set the mood of the film. The sound effects were also unusual for films of its time. The director used different animal’s sounds to create Kong’s voice. The narrative of the story was one that was of interest of movie goes. In King Kong the story unfolds pretty directly in front of you so there is not a lot of confusion. To me the film is a montage not mise-en-scene. The story is told in a straightforward manner that doesn’t s...

CORPORAL PUNISHMENT Essay

Positive Effects of Corporal Punishment Corporal punishment in regards to spanking has been used for hundreds of years in educational systems and in house holds and is still legal in all fifty states for parents to use in there household because it is an effective way to punish a child for wrong behavior. Even though in the last couple of decades this topic has been very controversial, many countries and educational systems have decided to outlawed corporal punishment because of the belief that it has created more and more violent behavior in children. But, there is still no direct link to spanking causing children to have more violent behavior. However, if youth violence and dysfunction is increasing at the same time that corporal punishment is decreasing, we should be open enough to consider whether the two trends are related. Maybe there is no connection. But maybe lawmakers and child welfare workers should pay more attention to the research suggesting that physical discipline can be helpful in certain contexts (Larzele re,2005). The whole reason for ‘punishment’ is to stop a behavior from happening again by applying an unpleasant stimulus immediately after a bad behavior has occurred. Therefore, we use corporal punishment because it is a method of punishment called punishment by application which spanking is applied to the child after a bad behavior, preventing it from happening again, which also help implement discipline. But corporal punishment is being apposed because other studies say it promotes more anger and aggression in juveniles, but places where it has been totally outlawed have shown different results. For instance, after Sweden outlawed spanking, violent behavior did not decrease. Instead, there has been substantially more violence in Sweden than ever before– violence by children, violence by parents, and violence by society in general (Grusec, 1994). That being said, there is no direct link to corporal punishment being the cause of violence increase because this shows it did just the opposite. But research does show that it could be linked to  something else, journalist Patricia Hersch tells of the ‘deluge of adolescent dysfunction sweeping the nation, manifesting itself in everything from drugs, sex, and underachievement to depression, suicide, and crime’; and it is being seen in younger and younger children. About 20% of kids now ‘have some sort of developmen tal, learning, or behavioral disorder.’ And as the Carnegie Council on Adolescent Development warns, ‘substantial numbers of American youth are at risk of reaching adulthood unable to meet adequately the requirements of the workplace, the commitments of relationships in families and with friends, and the responsibilities of participation in a democratic society.’(Hersch, 1998) And a lot of this is being caused by the lack of parenthood and how parents are raising their kids now days with substantially fewer parents staying home with their kids and we have become addicted to TV, movies, and videogames (Rosemond, 1989). Parents don’t have to attend to their kids as much because they just put a T.V. or some kind of videogame system in front of them to keep them occupied. Thus, giving the kids less interaction with other people and their parents, which can lead to bad relationships and also antisocial which leads to aggression as well. So we see all these thin gs that easily effect our children and their behavior but people still try to link all of it back to corporal punishment when we should look at the big picture. A common misunderstanding is how to use corporal punishment correctly, and the primary goal most parents have in administering corporal punishment is to stop children from misbehaving immediately (Gershoff, 2002) and is indeed a good method when used correctly. When a parent is using corporal punishment out of anger, frustration, or aggression, the child will learn that same action you apply on them. Therefore, the punishment can be classified as abuse to an extent and when pain is being forced on a child out of your own aggression and anger they learn those same attributes and those later on cause behavioral problems down the road. But when used just to stop a specific behavior with out trying to inflict pain on the child is when it is most effective, and yes spanking is a primitive discipline method. But a child’s mind is also primitive. As researchers like Dr. Jean Piaget of the University of Geneva have popularized, kids learn from the tangible to the intangible—fro m the concrete to the abstract. It is during  the tangible, concrete stages when physical discipline seems to be the most helpful (Fuller, 2010). Thus, when using corporal punishment correctly and not abusively, the child understands immediately at a younger age. It is just like a dog, you need to train them at a very young age for the training to be most effective. Same thing goes for children because at a young age is when it becomes concrete, and just like dogs again, and when they start getting older it’s harder to get children to obey, and you cant teach a dog new tricks. But statistics from Sears, Maccoby, and Levin (1957) show that they found that 99% of the children they studied experienced CP at least occasionally. If that’s true and corporal punishment causes aggression, promotes violent activities, and learning disabilities like people say then why doesn’t everyone have aggression, behavior problems, and learning disabilities? They don’t because spanking is to be better at controlling aggression than mental punishments like timeout, reasoning, scolding, â€Å"non-contact† punishment, privilege removal, love withdrawal, or diverting. Also showing that calm and controlled spanking, and spanking in response to defiance, is uniformly more beneficial than other punishments. (Larzelere,2005) Growing up in a household where corporal punishment was definitely used by my parents, I feel my experience has had a huge impact on me because it has honestly helped me now more than anything. I say that because at a young age I learned fast what was right and wrong and have always been able to pick up onto things fast, and as I grew up I might have had some family problems and what not but I feel like me being disciplined at such a young age, it has kept with me all along. And I’m not just disciplined because I think I will be punished or something, but I have learned to be more, I’ve learned to be self-disciplined, and being disciplined has helped me in school, sports, living life on a daily basis, and my future. And that is another reason I believe corporal punishment is effective; it teaches discipline at such a young age, and with discipline comes responsibility, and these two traits are key for healthy lifestyle not just at a young age but through your whole life . Because no matter how old you are their will always be a punishment for your disobedience, whether it’s disobeying your parents or it’s  disobeying a police officer, either way your going to have to disciplined enough to take responsibility for your actions. And if your making bad decisions or choices then you’ll probably have a worse punishment whether it’s a spanking or you go to prison. Punishments just get worse as we get older so might as well be disciplined now then end up in jail. In conclusion, I see corporal punishment as a very effective way for children to learn not to disobey your parents but to also just be obedient in general. Even though some researchers say it has evidence leading to violent behaviors and aggression, their research seems to be inadequate when it comes to the results and observations of research. Research trying to support the outlaw of corporal punishment even says the evidence presented is not strong enough to permit a conclusion that it has been proven that smacking causes long term adverse effects on children (Larzelere,2005). Proving my point that corporal punishment is not a direct link to issues down the line, and I would like to reinforce that corporal punishment is an effective way of punishment if used for the right reason and depending on the context of the behavior, and that it has personally directed me and influenced me in more of a positive way. Abstract After using the information I was able to gather from R. E. Larzelere, J. E. Grusec, P. Hersch, as well as J. Rosemod to help support my idea that corporal punishment is still an effective way of punishment in today’s society. Even though there is so many argued topics on the issue at the moment, I still concluded from my research that corporal punishment has no direct link to violence, aggression, and behavioral problems. Even after looking at evidence from E. Gershoff that tries to support the idea that corporal punishment causes behavioral problems as well as violent behaviors, a thorough understanding of whether and how corporal punishment affects children has not been reached. It hasn’t been reached because the research that is being used is unreliable and some of the parents are not aware of how to properly use corporal punishment on a child, so they are actually doing harm to their child because they are punishing the child out of anger rather than the sole reaso n to stop a behavior. Therefore, I believe  corporal punishment is an effective way of punishment and helps direct children the correct way down the road in life with quality traits like discipline, responsibility, and respecting and obeying your authorities. Reference Robert E. Larzelere & Brett R. Kuhn, Comparing Child Outcomes of Physical Punishment and Alternative Disciplinary Tactics: A Meta-Analysis, 8 CLINICAL CHILD & FAM. PSYCHOL. REV. 1, 32 (2005) [hereinafter Larzelere, Meta-Analysis] Joan E. Grusec & Jacqueline J. Goodnow, Impact of Parental Discipline Methods on the Child’s Internalization of Values: A Reconceptualization of Current Points of View, 30 DEV. PSYCHOL. 7 (1994) PATRICIA HERSCH, A TRIBE APART: A JOURNEY INTO THE HEART OF AMERICAN ADOLESCENCE 12 (1998) JOHN ROSEMOND, JOHN ROSEMOND’S SIX-POINT PLAN FOR RAISING HAPPY, HEALTHY CHILDREN 179-80 (1989) Gershoff, E. (2002). Corporal punishment by parents and associated child behaviors and experiences: A meta-analytic and theoretical review.Psychological Bulletin, 128(4), 539-579. Retrieved from http://www.comm.umn.edu/~akoerner/courses/4471-F12/Readings/Gershoff (2002).pdf

London Analysis by William Blake

London by William Blake A poem which makes a social or political statement is London by William Blake. Blake’s poem is about the social problems, inequalities and Injustice that arose due to the industrial revolution. In London, William Blake brings to light a city that was overrun by poverty and hardship. Blake discards the glorifying view of London. He believes that London is nothing more than a city suffocated by a harsh economy, where Royalty and the church have allowed morality and goodness to deteriorate so that suffering and poverty are all that exist.Blake wrote the poem in 1792 and it was published in 1794 as part of ‘Songs of Experience’. The collection of poems were written to illustrate the negative effects of life on people and nature. The poems highlighted the dangerous industrial conditions, child labour, prostitution, capitalism and mass poverty which were rife during the industrial revolution. The experience poems were written in contrast to †˜The songs of innocence’ poems which Blake wrote with a more positive tone to convey the goodness of humanity, innocence of childhood, love and nature.Blake lived and worked in the capital, so he was arguably well placed to write accurately about the conditions people who lived there faced. . It wasn’t until after his death in 1827 that his work was given recognition, so his life was blighted by poverty. He felt an affiliation with the proletariat and loathed inequality. Throughout this poem Blake uses a range of different poetic techniques to convey the inequalities and unjust treatment of the poorer classes. This gives the reader a stronger understanding overall.The poem is written in the first person. The structure is broken down into four stanzas and is written in mostly iambic tertrameter (It’s so called tetrameter as each stanza has four feet or lines). The third and fourth stanzas use both iambic and trochaic meter. In the first two line of the first sta nza Blake uses repetition â€Å"I wandered thro’ each charter’d street, Near where the charter’d Thames does flow† This scansion serves to reinforce the theme of the whole poem.The word chartered is used ironically to imply ownership, early capitalism and control of trade. The wealth it’s creating in the upper classes and therefore the class divide and poverty that’s been caused as a by-product. Blake writes of the river being charter’d, thus saying even a river that’s meant to be natural and free flowing is controlled. To compare Blake’s use of the word Chartered. His friend Thomas Paine had stated in his book Rights of Man the year before, â€Å"It is a perversion of terms to say, that a charter gives rights.It operates by a contrary effect that of taking rights away†. Blake goes onto say â€Å"And mark in every face I meet, marks of weakness, marks of woe† The repetition of â€Å"marks† emphasizes the visible signs of sickness, misery and suffering experienced by most. Everyone was on the same boat. The literary conventions in the first stanza set the tone for the political and social oppression and strengthens ones understanding. In the second stanza Blake tells the reader what he can hear on the oppressed streets of London. in every cry of every Man, In every infants cry of fear, In every voice: in every ban, The mind- forg’d manacles I hear† Again the repetition and rhythm of ‘every’ reinforces the anger and oppression, everybody’s affected. Even the infant, born into a life of poverty and oppression feels the suffering. In line three ban could refer to every area or it could be used to describe prohibition. In 1789 shortly before the poem was written the French Revolted and used violence and murder to overthrow the aristocracy and those in power.As a throwback Britain’s government grew nervous and restricted freedom of speech. They were worried the British would revolt due to the social and political inequalities felt by most at the time. The mind-for’d manacles is a metaphor for how impoverished people were and how they had no future to look forward to, no escape. People’s thoughts were shackled, perhaps due to the restriction on freedom of speech. The reader understands through the word ‘I’ in line four of the second stanza that Blake was not a distant observer but he was suffering himself.This further enhances ones understanding. In the third stanza. Blake uses an acrostic anagram on the first letter of every line to spell out the word hear. This is to echo the importance and signiificance of what he heard on the streets in the second stanza. He talks of the chimney sweepers cry, in those days children were used to do this job as their tiny frames were able to fit up the chimneys. It was a dangerous job and often resulted in serious death or injury. â€Å"Every black’ning Church appals, and the hopeless Soldiers sigh, Runs in blood down palace walls†.Blackening was used as a metaphor for the smoke coming from the industrialised chimneys staining the church’s walls or metaphorically tarnishing the church’s reputation. Blake is literally wondering what the church is doing to help the impoverished. He believes the church should be using its force for good however he is disillusioned and sees it as a negative power that’s capitalising on child labour and the means of production. The monarchy is controlling all the wealth and cushioning itself with luxuries. All the while men and families are dying with hunger and through industrialised disease.The monarchy like the church are doing nothing to help mankind so the blood of the oppressed is on their hands and metaphorically running down the palace walls. This particular stanza is prominent as it alerts the reader to the oppressive institutions that stand to perpetuate the injusti ce. In the fourth and final stanza. Blake tells the reader that there’s worse to come by using the word ‘But’ as the first word on the first line. â€Å"But most thro’ midnight streets I hear How the youthful Harlot’s curse Blasts the new- born infants tear And blights with plague the marriage hearse†.This is a metaphor which is used to describe how prostitution and venereal disease were prevalent at this time. The harlot is a young victim. She has been robbed of the chance to love her baby, because the baby is the result of means and capitalism through the prostitute’s trade. The prostitutes curse or venereal disease has infected the aristocratic men she copulates with, thus infecting their wives and ripping marriage apart through death and infection. The metaphor and oxymoron â€Å"marriage hearse† is so haunting.With the word marriage the reader imagines a blossoming union between two lovers but hearse lambasts that notion co mpletely with the reader imagining death and suffering. By attacking the institution of marriage and family. One believes that nobody was immune to this downtrodden capitalist society; even the bourgeoisie! It’s a devastating portrait of a society in which all souls and bodies were trapped, exploited and infected. Throughout this poem Blake has successfully conveyed his anger at the institutions he believed should have been in place to help.He has hammered home the notions of inequality and unjust suffering due to the control and ownership of the means of production by the ruling classes. Through the different poetic techniques and structure of the poem one has an enriched understanding and can truly imagine how hard life was during these times. Reference Paine Thomas, The Rights of Man 1791, published by Dover thrift edition, Feb 2000 Various, The Nation’s favourite Poets, BBC worldwide Limited 1996 http://en. wikipedia. org/wiki/London_(poem) http://anglisztika. ektf . hu/new/content/tudomany/ejes/ejesdokumentumok/2007/Racz_2007. pdf