In the European Union no form of agriculture, whether conventional, organic, GM, should be excluded. Farmers are free to choose the production type they prefer, without being forced to change patterns already established in the area, and without spending more resources.

Today EU rules on genetically modified crops are very rigid; in particular, before starting a GM crops commercial cultivation, it is compulsory to obtain a specific European Commission authorisation (based on a safety risk assessment carried out by the European Food Safety Authority), and GM food and feed (threshold 0,9%) must be labeled (to inform consumers) and traced.

Coexistence is the weak point of the European legislation in the field. The European Commission defines the term coexistence as the farmers’ ability to make a practical choice between conventional, organic and GM-crop production, in compliance with the legal obligations for labeling and/or purity standards. In simple terms, coexistence is a way of allowing farmers to choose between the three agricultural systems. Farmers’ choice to grow GM or non-GM crops depends not only on technical aspects related to the productivity gains and agronomic benefits to be gained from adopting this technology, but also on consumers’ preferences. Particularly in Europe, consumers continue to be concerned about the potentially adverse implications of widespread GM crop production for the environment and food safety. According to Directive 2001/18/EC (Article 26 bis), Member States may organise measures to avoid the unadventitious presence of GMOs in other non-GM products. In order to help the Member States to organise national coexistence measures, the European Commission adopted the Recommendation 2003/556/EC on the guidelines for the development of national strategies and best practices to ensure the coexistence of genetically modified crops with conventional and organic farming. The act establishes that the approaches to coexistence need to be developed in a transparent way, based on technical guidelines and in co-operation with all stakeholders concerned. The guidelines are based on experiences with existing segregation practices and, at the same time, they ensure an equitable balance between the interests of farmers of all production types. Further, they state that management measures to ensure coexistence should be efficient and cost-effective, without going beyond what is necessary to comply with EU threshold levels for GMO labeling. Today it is accepted that total isolation of GM material, certainly once agricultural biotechnology is widespread in the EU, is impossible; coexistence focuses on the practices used to decrease the adventitious GM presence. The implementation of coexistence measures is a complex process owing to the diversity in field, farming and natural conditions extending over Europe.

On 13 July 2010, the European Commission adopted a new coexistence package that consists of a coexistence Communication, a new Recommendation on co-existence of GM crops with conventional and/or organic crops, and a draft Regulation proposing a change to the GMO legislation. The new approach aims to achieve the right balance between maintaining an EU authorisation system and the freedom for Member States to decide on GMO cultivation in their territory. The new flexible European scenario will give to the Member States the possibility to decide whether to cultivate biotech crops, maintaining at the same time an EU wide science-based authorization system.

As regards the first category, the Italian Corte di Cassazione has pointed out that the legal provision implies a comparison between the conduct of the victim and that of the producer in order to assess which one of two was in the best position to avoid this risk of damage. Therefore, the mechanism of apportionment of the risk is not different from the one implied by a fault liability rule. It is interesting to note that the third American Restatement on torts does not make any reference to the user’s behavior in its black letter on product defectiveness. The analysis shows how this different approach impacts on judicial decision-making.

With respect to the second category, the development risk defense clause (expressly provided for by the directive) produces the effect of leaving the victim uncompensated, despite the fact that the European lawmaker has declared his intention to place a liability without fault upon the producer.

The problem arises with the third category, because the directive has not envisaged a specific rule for those damages that were statistically foreseeable yet unavoidable, such as the manufacturing defects. On the contrary, Italian law makes explicit that a product “is defective if it does not provide the safety normally provided by other products in the same series.” Under this rule (that is one of the application of a more broad doctrine on business risk), the producer is deemed strictly liable for those damages that, even though unavoidable, were manageable as quantifiable in advance. The question is whether this doctrine could be applied also to those design defects actually foreseen by the producer. Following the business risk doctrine, the producer should be held strictly liable as he had accepted the risk in full awareness, having taken it into account in his cost/benefit analysis. However, according to those European courts that do apply the risk/utility test (such as the German courts), the producer is insulated from liability if the cost of an alternative design overweighed the foreseeable risk of damage.

The goal of this paper is threefold: (i) to compare the US, EU, and Italian leniency policies in order to identify their key differential features; (ii) to employ game theory as a yardstick to assess the different solutions and (iii) to single out the most effective ones for an optimal leniency scheme.

To this end, this paper will first discuss, drawing upon insights from Rubinfeld, Leslie, Motta, and Polo, the application of game theory to cartels and leniency programs in general. Second, it will carry out a comparative assessment of the US, EU, and Italian systems. Once the key distinctive features have been identified, they will be analyzed through the lens of game theory in order to determine the incentives those solutions create for co-operation by cartel members with antitrust authorities.

To conclude, specific recommendations for an optimal leniency scheme will be presented, having specific regard to: i) the eligibility of cartel instigators, ringleaders, and coercers for antitrust leniency; ii) penalty reductions for follow-up whistleblowers; iii) Amnesty Plus-style incentives to report membership in multiple cartels; and iv) decreasing penalty discounts according to co-operation order.

The decision in Akzo Nobel should not have been surprising because the ECJ was applying well-established principles. In 1982, the ECJ had ruled in AM&S Europe v. Commission that to be privileged a communication between attorney and client must relate to the client’s right of defense and must be with an independent/external lawyer.

In addition, the decision should not be of great concern to companies in Europe for three reasons. (1) In very few European countries are in-house counsel members of the bar and are granted the professional privilege. Even if the ECJ had recognized the privilege, its decision would only have applied to cases involving the Europe Union, not to cases involving individual countries in Europe. (2) The professional privilege that the ECJ excludes for in-house counsel differs in significant ways from the U.S. attorney-client privilege. Had the ECJ recognized the privilege, the features of this privilege would have been different from those of the attorney-client privilege. (3) In the U.S., the attorney-client privilege is especially important because of the existence of discovery, while in Europe there is no discovery. Because discovery is essentially nonexistent in Europe, the risk of disclosure of communications between in-house counsel and their employers in private litigation is very small. Broad requests for pretrial discovery in Europe emanating from cases pending in the U.S. are limited under reservations adopted by most European countries under Article 23 of the Hague Convention. In public litigation in Europe, the authorities may seek to obtain documents from companies, but these materials will be protected by the professional privilege when they involve confidential communications between outside counsel and the company (subject to similar exceptions that apply in the U.S.), if the company has retained outside counsel, which is typically the case both because of the significance of the matter and the fact that in-house counsel cannot represent the client at trial.

The second part of the paper considers the extent to which international contract law as reflected in the Principles of International Commercial Contracts (the UNIDROIT Principles) and the Convention on the International Sale of Goods (CISG) provides relief from fundamental market disruptions. Article 6.2.1 of the UNIDROIT Principles recognizes that when supervening circumstances lead to a fundamental change in the equilibrium of the contract, relief on the ground of hardship may be available. A few cases have granted relief under this provision, but they are rare. In addition, arbitration panels are divided on the question of whether hardship is part of the general commercial law, the lex mercatoria.

Article 79 of the CISG provides for relief due to an “impediment” beyond the control of a party that the party could not reasonably have been expected to take into account. Controversy exists as to whether the concept of impediment encompasses economic hardship due to market change. The paper examines the contending arguments and case law on this issue.

Because both common and international law rarely provide relief from market change, a party who wishes to have protection against market disruptions should provide for this contingency by contract. The final section of the paper, with no intent of being complete, suggests various types of clauses for the parties to consider incorporating into their contracts to deal with market change: whereas clauses; express conditions; MAC (market adverse condition) clauses; expanded force majeure clauses; hardship clauses; renegotiation and adjustment clauses; choice of law, forum, and arbitration clauses; Take-or-Pay and Hell-or-High-Water clauses. The fundamental message of the paper is that the parties should address relief from market changes in the negotiation of the contract. If they choose not to do so, they cannot expect to obtain relief from courts or arbitrators.

In the first part, the inversion transactions will be defined and the most common juridical forms through which the transaction takes place and the consequent tax treatment will be synthetically described.

In the second part, a historical analysis of the phenomenon in the U.S. will be provided.

In the third part, the tax motives why American corporations have decided to invert (or may decide to invert in the future) will be investigated. The basic features of the U.S. international tax rules that encourage corporations to expatriate will be investigated. Considering the existence of an international tax regime, and the significant degree of convergence in international tax matters, the conclusions can be clearly adopted by other policy makers.

In the last part, an overview of other possible policy tools that may be implemented in the future (in the U.S. or in other jurisdiction) to efficiently prevent inversion transactions will be shown, as a conclusion of the article.

More specifically, a change in the definition of corporate residency for tax purposes, the use of corporate governance tools as tax anti-avoidance measures and a reconsideration of the residence based taxation principle will be proposed as possible solutions to prevent domestic corporations from expatriating.