CCP Seminar: Unfair Competition
January 15, 2013 Leave a comment
The CCP’s Spring seminar series continues on Friday 18th January as we welcome back from study leave our very own Christopher Wadlow (CCP and UEA Law School) who shall be presenting his latest research on ‘Unfair Competition‘. An abstract for his seminar can be found below.
Two Worlds and Welcome to Them.
The double lives of Franz Bohm (1895-1977) and Rudolf Callmann (1892-1976).
Competition is sometimes portrayed as a race, a struggle, a game, or a fight to the death. Do any of these metaphors help us to understand competition, and its legal regulation, or do they mislead? This seminar will revisit a theory originated by Franz Bohm in Germany in the 1930s, and taken up by Rudolf Callmann in the USA, which attempted to provide an underlying theoretical model for a law of unfair competition.
Callmann’s theory of unfair competition was based on the proposition that there were two co-existing spheres of human activity: a (social) sphere of peaceful co-existence, and an economic sphere of (regulated) conflict. Rules of conduct accepted in the peaceful social sphere of life were inherently unsuited to the competitive economic sphere, where the primary objective of legal regulation was to promote competition as a good in itself, and only to moderate the competitive process if it failed, or threatened to get out of hand. The primary per se prohibitions were against monopolisation and cartelisation, but other proscriptions of anti-competitive conduct were valid, provided that their effect was to optimise the level of competitive activity, rather than to protect competitors against abstract or subjective ‘unfairness’.
These propositions may sound simple, even trivial. From my point of view in unfair competition law (rather than the body of law which has emerged as antitrust) I would rather say that they are touched with profundity, and that they undermine the stated or unstated bases of many of the elaborate ‘unfair competition’ laws with which I have any acquaintance.