Chapter 3: Legislative power and harmonization
The choice between rules and ‘rulelessness’ can be seen as presenting a principal–agent problem, where the legislature, as principal, by the adoption of a certain form of legal direction, aims to control the decisions of its agents (the courts). The merits and demerits of ex ante versus ex post decision making; the avoidance of the perception of bias in decision making; and the demands and attendant costs of harmonizing the national intellectual property laws of European countries, one way or another, can be seen in these terms. There are considerable tensions when different factors influencing choice of form point to contradictory outcomes. Keywords: legislature; courts; ex ante; ex post; bias; harmonization
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