Abstract
In academic discourse it is often said that “tort must not pay”. However, the legal reality
looks very different. Infringements of e.g. competition law, unfair commercial practices
law, capital market law, intellectual property rights, or personal rights by mass media, or the
breach of fiduciary or confidentiality duties are—for various reasons—generally highly
profitable for the wrongdoer. Thus, in practice unlawful conduct regularly pays as the illegal
profits remain with the wrongdoer. A general idea of disgorgement of unlawful profits does
not exist yet. This general report considers the question whether or not “disgorgement of
profits” is a keyword to be introduced in legal discourse and how the law may be shaped in
order for illegal profits to be disgorged as efficiently as possible and thus to reduce the
incentives for unlawful behaviour. According to the approach selected here, it is the private
law instruments, in particular what is called “disgorgement damages”, which are the centre
of attention. Can their use contribute to an increase in efficiency and what national
experiences are on hand? Which legal circumstances should be necessary for their application
and what are the requirements?
looks very different. Infringements of e.g. competition law, unfair commercial practices
law, capital market law, intellectual property rights, or personal rights by mass media, or the
breach of fiduciary or confidentiality duties are—for various reasons—generally highly
profitable for the wrongdoer. Thus, in practice unlawful conduct regularly pays as the illegal
profits remain with the wrongdoer. A general idea of disgorgement of unlawful profits does
not exist yet. This general report considers the question whether or not “disgorgement of
profits” is a keyword to be introduced in legal discourse and how the law may be shaped in
order for illegal profits to be disgorged as efficiently as possible and thus to reduce the
incentives for unlawful behaviour. According to the approach selected here, it is the private
law instruments, in particular what is called “disgorgement damages”, which are the centre
of attention. Can their use contribute to an increase in efficiency and what national
experiences are on hand? Which legal circumstances should be necessary for their application
and what are the requirements?
| Original language | English |
|---|---|
| Title of host publication | General reports of the XIXth congress of the International Academy of comparative law/Rapports généraux du XIXème congrès de l’Académie internationale de droit comparé |
| Editors | Martin Schauer, Bea Verschraegen |
| Place of Publication | Dordrecht |
| Publisher | Springer |
| Pages | 115-134 |
| Number of pages | 20 |
| ISBN (Electronic) | 978-94-024-1066-2 |
| ISBN (Print) | 978-94-024-1064-8 |
| DOIs | |
| Publication status | Published - 2017 |
Publication series
| Name | Ius comparatum |
|---|---|
| Volume | 24 |
| ISSN (Print) | 2214-6881 |
| ISSN (Electronic) | 2214-689X |