Axel Marx and Jan Wouters
Frans G. von der Dunk
Shamnad Basheer and Rahul Bajaj
In this chapter we reflect on the question: Who or what exactly is the patent office? And how best do we secure its judicial proficiency and independence? We offer a framework for assessing this question, after cutting through the vast morass of often confusing case law in this regard that has failed to draw a conceptually sound distinction between the judicial, the quasi-judicial and the administrative. We argue that agencies such as the patent office tasked with a high level of adjudicatory functions are predominantly ‘judicial’ in character and ought to be therefore categorized as ‘Adjudicative Regulators’. As such they are to be vested with a significant degree of judicial competence and independence. We offer some broad suggestions in this regard. Our frame is likely to be useful for characterising other regulatory agencies with predominant judicial functions, and could well prove instructive for agencies in other countries with legal regimes similar to that of India.
Dimity Kingsford Smith and Olivia Dixon
Since the advent of modern securities regulation in the 1930s, disclosure has been king in terms of regulation. In the last decade regulators and policy-makers have accepted the arguments of consumer advocates and the insights of behavioural research, showing that with retail investors or financial consumers, disclosure does not work well. It is insufficiently protective, given the evidence of modest levels of consumer financial literacy. This chapter looks at regulatory strategies other than disclosure, which assume a more interventionist approach. These include bans on conflicted remuneration, product design and distribution obligations and regulators’ product intervention powers. Indeed, it might be argued that regulation now requires caveat vendor or ‘seller beware’ rather than the caveat emptor ‘buyer beware’ that underlies disclosure. Against this background we also consider the implications for the financial consumer of a variety of digital economy approaches to the sale and distribution of retail investments.