bluuebunny/crossref_metadata_2025 huggingface dataset:
More Efficient Collective Redress Mechanisms? Will the New Deal Directive on Representative Actions for Protecting the Collective Interests of Consumers Improve the Resolution of Mass Harm Situations in the Visegrad 4 Countries
Authors: Simon Rita
Published: April 2022

Classic injunction actions before a court are very rarely used instruments in the Visegrad 4 countries; they are too expensive, too long proceedings, with uncertain results. On one hand, a lost court case can cause insolvency for the organization and on other hand a won case cannot ensure a direct compensation of the harmed consumer. Therefore, the Visegrad 4 consumer protection organizations tend to move to other redresses. After a short introduction to existing injunction actions and their shortcuts in the Visegrad 4 counties (1); the article explains why the way of amending representative actions, as recommended by the new Commission Proposal cannot provide more efficient or effective justice in the Visegrad 4 countries (2); and based on the best practices of the Visegrad 4 countries I will propose alternative instruments, such as public enforcement and more flexible enhanced consumer measures by administrative authorities, which have proved quite efficient in resolving mass harm situations (3).

Mass harms, injunction, collective redress mechanism, public enforcement, consumer compensation, Visegrad 4 countries, more flexible enhanced consumer measures, efficient enforcement
Austrian Succession Law Rewritten: A Comparative Analysis
Authors: Nemeth Kristin , Christandl Gregor
Published: April 2022

This article outlines and assesses the most important features of the recent reform of Austrian succession law from a comparative perspective and analyses the changes in the light of the law of other European legal systems. It thereby highlights common trends and diverging developments and focuses on intestate succession, wills, the law of reserved shares, unworthiness to inherit and disinheritance as well as the newly introduced succession rights for cohabitants and the new statutory legacy for care provided to the deceased.
Governance and the Transformation of European Private Law
Authors: Sammut Ivan
Published: April 2022

The Europeanization of European Private Law (EPL) is an ongoing process that has gained momentum with the communautarization of judicial cooperation in civil and commercial matters with the Amsterdam Treaty. Attention needs to be given to the governance structure of EPL. Europeanization of private law can be achieved through a new approach involving innovative modes of governance in EPL. This article sets out to argue that the further Europeanization of EPL requires a multi-level mode of governance, confirming the traditional supra-national Community Method mode of governance in EPL with the introduction of intra-governmental innovative methods in EPL such as the Open Method of Coordination (OMC) and soft-law. The innovative modes, together with the traditional mode of governance, can take forward the development of EPL so that it can better serve the needs of the European legal community into the future.
Chances as Legally Protected Assets
Authors: Auvray Françoise , Nuninga W.Th. , Verheij D.J. , Kahn C. , Borucki C.
Published: April 2022

The doctrine of loss of a chance has been deployed by courts jurisdictions in cases presenting causal uncertainty for over a century. In both the civil and common law jurisdictions where it is applied, however, there is debate as to the precise rationale and scope of application of the doctrine. In this working paper we compare theories, cases and practices from four Western European jurisdictions: France, Belgium, the Netherlands and England & Wales. Our methodology departs from a more traditional institutional comparison. We move towards an argument for a version of the theory of loss of chance that could work across jurisdictions. First, we briefly outline the application of the doctrine in the four jurisdictions. Subsequently, we present a typology of current practical application across jurisdictions. Finally, we present a theory of loss of a chance that reduces it to its (logical) core: for a chance to be lost, itmust have been possible for the claimant to ‘possess’ thechanceandthedefendant must have made him lose this chance. Hence, we argue that mere ex post uncertainty on the existence of causation is not sufficient to justify application of the doctrine of loss of chance.
A Comparative Analysis of Recent Modifications to Several Legal Regimes for Apartment Co-ownership
Authors: Willemot Charlotte
Published: April 2022

On 5 February 2018, the Belgian government submitted a draft bill to the Chamber of Representatives for a Law containing various provisions on civil law and amending the Judicial Code in view of promoting alternative forms of dispute resolution. This bill, referred to hereafter as the ‘Law of 18 June 2018’ was approved by the Belgian Parliament on 7 June 2018 and published in the Belgian Official Gazette on 2 July 2018 (Law containing various provisions on civil law and amending the Judicial Code in view of promoting alternative forms of dispute resolution, 18 June 2018, Belgian Official Gazette, 2 July 2018, p 53455.). The Law of 18 June 2018 has introduced numerous changes to the Belgian Civil Code (BCC), in particular to the section on apartment co-ownership (Arts 577-3 to 577- 14 BCC). Most of these amendments came into force on 1 January 2019 (For the transitional provisions, see Art. 179 Law of 18 June 2018.). In France, the Apartment Ownership Law of 10 July 1965 has also recently been amended by the Law Loi portant Evolution du Logement, de l'Aménagement et du Numérique (ELAN) of 23 November 2018 (Law ‘ELAN’ on the evolution of housing, development and digital technology, 23 November 2018, French Official Gazette, 24 November 2018.). Meanwhile, the French Ministry of Justice has been planning a structural reform of the regime for apartment co-ownership by resolution (‘par ordonnance’) since 2017. As a result, the French government now faces a very complex legislative situation, since in the next few months, it intends to carry out a major reform of the apartment co-ownership regime while at the same time having to amend the existing Apartment Ownership Act in order to implement the ELAN Law (D. TOMASIN, ‘Les dispositions de la loi ELAN relatives à la copropriété’, (1) AJDI 2019, p 40.). Finally, the Dutch apartment legislation has also been subject to some interesting modifications in the last few years, such as the obligation for apartment owners to contribute a fixed amount to the reserve fund (Law amending Book 5 of the Civil Code in connection with improving the functioning of owners’ associations, 29 May 2017, Stb. 2017, p 241.). By no means is this contribution intended as an exhaustive analysis of the recent changes to these three different legislations. The main objective of this publication is to give a general overview of some interesting developments regarding apartment co-ownership legislation in Belgium, France and the Netherlands, using the recent Belgian reform as a starting point for the comparative analysis.
Transnational Contract Law: Lando’s Contribution and the Way Forward
Authors: Beale Hugh
Published: April 2022

The lecture outlines how Lando’s thinking progressed, beginning with Private International Law and moving through the harmonization of European Law to, in the later part of his career, the idea of a Global Code. It considers the extent and form of harmonization that has taken place to date, and then the changes that are taking place in transnational contracting and their implications for both the substance and the form of any future harmonizing measures. The lecture concludes by exploring a possible way forward for overcoming differences between the laws for business-to-business contracts, involving an ‘optional’ soft law approach under which traders would voluntarily agree to be bound by the chosen soft law principles.
Mandatory Rules of Third States From Ole Lando to Contemporary European Private International
Authors: Siehr Kurt
Published: April 2022

On 18 October 2016 the European Court of Justice, in the case Greece v. Nikiforidis, decided: ‘Article 9 (3) of the Regulation No. 503/2008 on the law applicable to contractual obligations must be interpreted as precluding overriding mandatory provisions other than those of the State of the forum or of the State where the obligations arising out of the contract have to be or have been performed from being applied, as legal rules, by the court of the forum, but as not precluding it from taking such other overriding mandatory provisions into account as matters of fact in so far as this is provided for by the national law that is applicable to the contract pursuant to the regulation’. Ole Lando already anticipated this development when he dealt with this problem arising under the Rome Convention of 1980 on the law applicable to contractual obligations still in force in Denmark.

Harmonization, contract law, European private law, restatements
Commercial Agents, the Directive and European Private International Law
Authors: Remien Oliver
Published: April 2022

The protection of commercial agents under Directive 86/653 in international cases raises questions of private international law. Here, several different fact situations are analysed: In, first, the normal single market case where commercial agent and principal both are active in Member States, Article 3 (4) Reg. Rome I assures protection of the commercial agent even where the law of a third country has been chosen by the parties. Where, second, the principal is from a third state but the commercial agent is active in the single market, the European Court of Justice (ECJ) in Ingmar has ruled that the protection according to the Directive applies. Its rules then should be considered as overriding mandatory provisions in the sense of Article 9 Reg. Rome I. Where, third, the protection provided for by the Directive has in Member State law been extended to commercial agents not covered by the Directive, this extended protection according to the UNAMAR judgment of the ECJ may under certain conditions override even the law of another Member State – and the Belgian Court of Cassation has actually decided in this sense. In the specific case, though, the result is odd and apparently helped to oust an arbitration clause. Fourthly, in case of an extra-EU commercial agent and an EU-principal, according to the ECJ case Agro the protection foreseen by the Directive need not necessarily be granted to the foreign commercial agent by the applicable Member State law. This, according to the ECJ, even is the case where the EU-provisions have been transplanted into the legal system of the third state where the commercial agent is active. It is shown that this is very questionable and that the third state rule can – similarly to Ingmar – be an overriding mandatory provision. The restrictive Article 9 (3) Reg. Rome I here poses some problems, which, however, can be overcome. The Belgian Enterprise Court in Ghent in fact used Article 7 Rome Convention
When Is a Contract Considered Unreasonable according to Danish Law? The Application of Section 36 Through 45 Years of Case Law
Authors: Østergaard Kim , Frier Christan
Published: April 2022

Most jurisdictions have different types of relief rules in the event that a contract is considered unreasonable. Danish law contains a general clause, section 36 of the Contracts Act, which makes it possible to either wholly or partially set aside a contract if the contract is considered unreasonable. It is even possible to amend the contract if the equilibrium of the contract is fundamentally affected. The wording of section 36 is quite similar to the provisions with the same scope in other Nordic countries. However, the section does not define when a contract is considered unreasonable. Thus, in order to understand the scope and range of the legal standard in section 36, it is a prerequisite to have an insight into the comprehensive case law applying it in Denmark. The section has been in force for 45 years and when we take the vast amount of case law into consideration, it is possible to deduce the additional considerations developed throughout the years by the Danish courts. This will help us decide – at least to some extent – when a contract might be considered unreasonable. Thus, the aim of the article is twofold. First, and most importantly, we address the additional considerations developed through case law to establish prevailing law. Second, we briefly discuss the application of other types of relief rules compared to the application of section 36.
Modification Due to Unreasonableness in Nordic Commercial Contract Law (Sweden)
Authors: Håstad Torgny
Published: April 2022

Swedish as well as Danish, Norwegian and Finnish law had between 1936 and 1976 an Article 8 in their joint Promissory Notes (Debt Instruments) Act providing that obviously unconscionable terms could be modified. This article was in some cases, but very restrictively, applied by analogy. Courts had however other means to take reasonableness into regard. This contribution discusses these other means and the application of article 36 of the Contracts Act in force since 1976.
The Equalisation of Benefits (Compensatio Lucri Cum Damno) in the Italian Law. A Possible Inspiration for Other European Member States?
Authors: Spada Carlotta
Published: April 2022

The Compensatio Lucri Cum Damno concerns cases in which the behaviour of the wrongdoer caused both damages and advantages to the victim. The question is: when and under which conditions such advantages can be set-off against the liable person’s obligation of paying damages? On the contrary, should such mitigation of liability be denied?

In 2018 the Italian Highest Courts established principles with regard to these questions, but only with reference to the specific cases submitted to their attention. This article shows how the Italian Courts were inspired by the common principles of European private law and the comparative method with regard to: i) the impossibility of stating a general rule (thus, the necessity of proceeding for categories and classes of cases), and ii) the necessity of looking at the purpose of the benefit, rather than at the causal link between tort and advantages. The author believes that the criteria identified by the Italian case-law for the deductibility of benefits from damages might be of inspiration for other European Member States. Furthermore, it is here highlighted that the Italian Highest Courts made decisions on Compensatio Lucri Cum Damno using an argument explicitly based on the Soft Law and this could strength the effect of the moral suasion within the Draft Common Frame of Reference and the Principle of European Tort Law.
Judicial Governance in European Private Law: Three Judicial Cultures of Fundamental Rights Horizontality
Authors: Colombi Ciacchi Aurelia
Published: April 2022

This article sketches and compares, in the light of the author’s approach to judicial governance, different models of application of fundamental rights by civil courts. It proposes a taxonomy of three cultures of fundamental rights horizontality: (1) the post-authoritarian culture, (2) the old continental culture, and (3) the Nordicinsular culture.
The Scope of Defense Against Hostile Takeovers in Poland: Another Argument for the Triviality Thesis
Authors: Wolangiewicz Michal JJ.
Published: April 2022

M&A, takeovers, hostile takeovers, acquisition, defence
Due Diligence and Environmental Damages Under Rome II
Authors: Aldag Ole
Published: April 2022

Within the European Union, the Rome II Regulation determines the applicable law on cross-border matters of non-contractual nature. The paper examines the applicable law on environmental-related tort claims against European multi-national companies utilizing production facilities in third countries, either based on active misconduct or on alleged omission of environment-related due diligence. As these types of claims are an expression of misconduct by multinational corporations conducting business abroad, particular notice will be given to the applicable law on compensation claims for environmental damages allegedly caused by negligent compliance for environmental standards of either independent or subsidiary production facilities. While doing so, its main point of interest will be whether claims against European-based companies may be governed by the law of the effective seat of the latter. Considering that Article 7 Rome II provides for a special connecting factor regarding environmental damages, the paper examines whether Rome II does justice for due diligence-related cases on the conflict of laws level and argues for a nuanced approach to localize the place of the event giving rise to such damages.

Private International Law, Environmental Damages, Civil Compensation, Torts, Corporate Social Responsibility, Rome II, Mandatory Rules, Public policy
I (Won’t) See You in Court Alternative Dispute Resolution for Medical Liability Conflicts: Examples from Europe
Authors: Lúcia Raposo Vera
Published: April 2022

In many jurisdictions, courts and the related tort liability rules have failed to adequately address conflicts arising from healthcare delivery that has caused harm. The litigation model – the classic model used to deal with medical liability – must be, if not replaced, at least supplemented by another model, and alternative dispute resolution is best suited to this task. Because conflicts are resolved in a less adversarial environment than a courtroom and led by people with knowledge of both medicine and law, alternative dispute resolution promotes a congenial procedure, is faster and cheaper than traditional litigation and can provide more satisfactory outcomes for all parties. This paper reviews some of the failures of litigation as a means of resolving disputes related to medical liability and considers how alternative dispute resolution methods can address these failures, providing some examples from civil law jurisdictions in Europe.

alternative dispute resolution, doctor-patient relationship, litigation, medical liability Motsclés: résolution alternative des conflits, relation médecin-patient, contentieux, responsabilité médicale Schlüsselwörter: alternative Streitbeilegung, Arzt-Patient-Beziehung, Gerichtsverfahren, Arzthaftung
Legal Ignorance in Belgian Private Law
Authors: Samoy Ilse , Terryn Evelyne , Peeraer Frederik , Auvray Françoise , Verbiest Pauline
Published: April 2022

Legal ignorance typically refers to a situation where one is ignorant of the existence of a certain legal prescript or is ignorant of the precise understanding of a prescript or its consequences.

In Belgian law, there is no general provision dealing with legal ignorance or its effects. In principle, one cannot escape the application of law based on the mere fact that one does not know the law or its consequences. However, in specific situations Belgian law and case law deviate from this basic principle, provided that strict conditions are fulfilled.

The authors of this article report on the application of the concept of legal ignorance in the areas of contract law, tort law and prescription.

As for contract law, the article examines whether a mistake as to the law may qualify as an excusable error leading to the nullification of a contract. Although the Cour de Cassation applies a very strict interpretation and states that mere legal ignorance cannot be an excusable error, some lower courts seem to apply a more lenient interpretation. In tort law, the starting point remains that mere legal ignorance is not excusable. To escape liability despite the infringement of a specific rule, one will have to overcome the difficult task of proving that the mistake was ‘unavoidable’. Lastly, the general provision for prescription periods does not deal explicitly with the issue of legal ignorance. In principle it is not necessary that the person subject to prescription is aware of the fact that the prescription started to run. In specific situations, some statues and case law deviate from this principle.
Legal Ignorance in England and Wales: A Study of Contract, Tort, Unjust Enrichment and Civil Procedure Law
Authors: Giliker Paula
Published: April 2022

This article was written as part of a comparative law project to consider how different European legal systems (common and civil law) address the problem of legal ignorance in private law, that is, the extent to which the rules of contract, tort and unjust enrichment make allowances for ignorance of the law by legal actors. It also addresses the question of civil procedure and whether legal ignorance can provide a ground for disapplying or postponing the commencement of limitation periods. The aim of this article is to identify both the common law response and the motivation of the courts in this field to facilitate comparison with civil law systems. In seeking to understand common law legal reasoning, the starting point remains that citizens should be encouraged to familiarize themselves with the law. The law needs to set rules for the benefit of society in general. Issues such as security of transactions, legal certainty and efficiency also play a role. Nevertheless, some allowance is made for legal ignorance in the interests of fairness, although such examples are often controversial and subject to ongoing academic debate.
The Nature of the Beneficiary’s Interest in English, Japanese and Quebec Trusts
Authors: Lee Joyman
Published: April 2022

In the English trust, the beneficiary is viewed as the substantive owner of property held under trust, even as the trustee holds legal title to the property and is the only party who is able to perform the legal functions associated with ownership. In the mixed legal systems of Quebec and of Japan, the juristic pathways to the beneficiary’s substantive ownership are vastly different. In the case of Japan, arguably the ‘patrimony’ conception is applicable, whereas in Quebec the new ‘ownerless’ trust departed significantly from the problems associated with the trustee’s ‘ownership’ of property under the old trust. The article submits that the ability of the beneficiary to enforce his interests independently from other parties is crucial to the trust’s ability to achieve broadly similar effects to English law. From an English perspective, it is vital that civilian trusts recognize and accommodate the differences inherent in the beneficiary’s rights to due administration and to the economic enjoyment of property.
The Right to Safe Transport + Air Passenger Rights After COVID-19
Authors: Verheyen Wouter , Hörnig Julia
Published: April 2022

The coronavirus crisis has been extremely disruptive for the international passenger transportation market. It has also triggered a major legal disruption in the field of passenger rights. In recent decades, the focus of air passenger policy has largely shifted from safety to rights in case of delay and cancellation, a change predominantly induced by the EU. COVID-19 has led to a major paradigm shift, with safety again becoming the number one policy target. Passengers have a wide range of tools to enforce their rights to timely travel and these remedies have made an effective contribution to a reduction in delays and cancellations in air transport. Passengers’ remedies in case of unsafe transport seem largely limited to the possibility of bringing an action in case of bodily injury, lésion corporelle, based on the Montreal Convention (MC). This contribution aims firstly to evaluate the effectiveness of this remedy as a preventive tool for increasing passenger safety. Secondly, it aims to assess the impact of COVID-19 on existing passenger rights in respect of cancellation and delay, as well as the impact of existing passenger rights policy on airlines’ operational margin for enhanced safety management. Based on this analysis, we aim to make recommendations for a more effective model for the protection of passengers’ safety, while at the same time embedding safety in the existing passenger rights policy instead of overriding it. Sommaire: La crise du coronavirus a extrêmement perturbé le marché du tra
The Quality of Life: Protecting Non-personal Interests and Non-personal Data in the Age of Big Data
Authors: Van Der Sloot Bart
Published: April 2022

Under the current legal paradigm, the rights to privacy and data protection provide natural persons with subjective rights to protect their private interests, such as related to human dignity, individual autonomy and personal freedom. In principle, when data processing is based on non-personal or aggregated data or when such data processes have an impact on societal, rather than individual interests, citizens cannot rely on these rights. Although this legal paradigm has worked well for decades, it is increasingly put under pressure because Big Data processes are typically based indiscriminate rather than targeted data collection, because the high volumes of data are processed on an aggregated rather than a personal level and because the policies and decisions based on the statistical correlations found through algorithmic analytics are mostly addressed at large groups or society as a whole rather than specific individuals. This means that large parts of the data-driven environment are currently left unregulated and that individuals are often unable to rely on their fundamental rights when addressing the more systemic effects of Big Data processes. This article will discuss how this tension might be relieved by turning to the notion ‘quality of life’, which has the potential of becoming the new standard for the European Court of Human Rights (ECtHR) when dealing with privacy related cases.
Public and Private Transnational Enforcement of EU Consumer Law
Authors: Betlem Gerrit
Published: April 2022

This article examines in some detail the two main EC law instruments containing specific provisions on powers to enforce consumer law: a 1998 Directive and a 2004 Regulation. The focus is on intra-Community infringements, the envisaged enforcers and their powers, and extraterritorial consumer protection, including a comparison with the Alpine Investments case. Their combined effect on a number of conceivable transnational enforcement scenarios is analysed. Conclusions are drawn in the light of the 2003 OECD Guidelines on transnational enforcement of consumer law, in order to answer this central question: What progress has been made with the 2004 Regulation and how does it fare when judged by the standards set by the OECD? Despite some shortcomings in the private law sphere (the public law aspects are largely satisfactory), the legislative framework improves on the ECJ’s case law by requiring equal protection of consumers based in the home State and abroad.
Arbitration in Denmark: The Parties’ Influence on a Danish Arbitration Case
Authors: Werlauff Erik
Published: April 2022

Having lagged behind in its arbitration rules for 30 years, Denmark has become an attractive country in which to conduct arbitration. Denmark now has one of Europe’s most modern and streamlined arbitration acts, and if they so wish, the parties can exert a substantial influence on how the case is handled.

The author, who often acts as arbitrator in Danish and International arbitration cases, will analyse the options which the parties have under the new Danish arbitration act (hereinafter called the AA) for influencing how their case is handled, and thus for making this process more efficient. This article thus analyses the degree of party autonomy associated with the choice of arbitration in Denmark.

It will be shown that the AA provides a very broad framework for autonomy, and the article will seek to balance the parties’ desire for efficiency in the handling of an arbitration case against the fundamental protection of legal rights. The article concludes by listing 18 specific areas in which autonomy can be used to advantage when pursuing arbitration in Denmark.

The law is of course often a balance (jus) between opposing interests. In this case the opposing interests can be defined as 1) the desire for an efficient case handling, and also 2) the desire to protect the parties’ legal rights. By opting for arbitration, the parties must be said to have expressed a desire for streamlining and speedy handling which implies that justice delayed is justice denied, and which therefore often also implies the waiving of certain guaranteed legal rights – although the parties and their representatives may not directly experience this as a waiving of rights.

The following is an attempt to define the point of balance between the two opposing interests in more detail, and the article concludes at the practical level with an overview of arbitration areas to which party autonomy applies.
Tighter Control on Foreign Acquisitions in China? – The XCMG Case
Authors: Bu Qingxiu
Published: April 2022

As the world’s fourth-largest economy, China’s dramatic economic growth has facilitated the increasing pace of foreign merger and acquisition (M activities. In 2001 the landmark entry of China into the World Trade Organisation (WTO) has even fuelled the process for foreign investors to acquire Chinese companies during the reorganisation of state-owned enterprises (SOEs). A large number of foreign investors are adjusting their investment strategies to match these opportunities. Globalisation has not only presented new opportunities for business, it has also brought new challenges. Nevertheless, China’s legal environment is not as developed as its economic achievements, which makes foreign acquisitions subject to restrictive rules and burdensome procedures. Such an uncertain phenomenon is illustrated through the spectrum of the Xuzhou Construction Machinery Group Co. Ltd (XCMG) Case (hereinafter referred to as XCMG), which is at a crucial stage of macro-economic control implementation. The Carlyle Group, a major international private equity firm’s acquisition of XCMG has been pending since October 2005. The outcome of this ongoing acquisition will be considered a significant test case of China’s attitude toward foreign acquisitions. This article analyses possible legal risks during an M&A transaction. It would be conducive for potential foreign investors not to ignore but understand better the unique legal environment in China. Meanwhile, it could be considered a wake-up call for China to be aware of the legal significance afterwards.
Is There More to it Than the Fight Against ‘Dirty Money’? Article 95 EC and the Criminal Law
Authors: Herlin-Karnell Ester
Published: April 2022

The fight against dirty money and financial crimes in general is a very high priority for the EU – increasingly often on the top of the agenda – in the integration mission to establish a genuine, crime free, European space. Especially, the EC has frequently addressed the problem of white collar crime, accusing it of undermining the confidence in the market and thereby hampering the smooth running and full effectiveness of it. A considerable crux in this EC ‘tough on crime’ approach has, however, been the lack of a legislative competence, at the supranational level. Nonetheless, recently the landmark ruling of C–176/03, Commission v Council, came partly to the rescue. More specifically, this case set the constitutional snowball rolling, bringing with it a range of dormant/latent EC proposals eagerly suggesting a criminal law competence. This paper provides a critical analysis of current developments in the area of financial crimes by discussing the federal scope of Art 95 EC and Art 5 (1) EC.
Using the WTO for the Protection of Human Rights in China?
Authors: Chan Phil C.W.
Published: April 2022

The question of the conflict and commensurability between human rights and trade has received an abundance of scholarly attention (and mass protests) in the past two decades. Many human rights advocates believe that liberalisation of trade regulations causes and contributes to human rights abuses and violations, whilst trade advocates believe that enhanced international trade provides benefits and opportunities and a generally higher standard of living especially in developing countries. With China’s accession to the World Trade Organisation in December 2001, the significance and immediacy of the relationship between human rights and trade has become ever more pronounced, as the human rights situation in China continues to be unfavourable. This article examines the notion and development of human rights in China, whether the WTO is legally capable of impacting the development and enforcement of human rights in China through its compulsory dispute resolution and enforcement mechanisms and its provision for trade sanctions and whether it is indeed desirable for the WTO to do so.
A Disadvantageous Dichotomy in Product Safety Law – Some Reflections on Sense and Nonsense of the Distinction Food–Nonfood in European Product Safety Law
Authors: Brack Antoni
Published: April 2022

This paper researches a number of similarities and differences between European legal regimens with regard to food and non–food product safety, based on the assumption that these regimens may have overly diverged. A tentative conclusion is that there are enough similarities to justify an effort to reconcile the two regimens. The point of departure for this research (Section 1) is an overview of sources of law laid down in the EC Treaty for drawing up legislation in the area of product safety (food and non–food). In Section 2, the Product Safety Law acquis is presented; this is the cumulative body of European law implemented so far, based on these sources. EC–Treaty articles constitute the legal basis for the Product Safety Law acquis, which in turn forms the legal basis for policies. Therefore, Section 3 deals with the Commission’s current policy intentions: indications of what can be expected in this area in years to come.

A core characteristic of the Product Safety Law acquis is the precautionary principle (Section 4), which refers to safety risk management, intended to prevent the marketing of defective products. Should preventive risk management measures fail, the producer’s ability to trace already marketed hazardous products is crucial in order to limit liability, as explained in Section 5. Section 6 highlights an important legal presumption in non–food safety law. The safety of non–food products is presumed if production took place according to standardised norms. A long term European law–reform programme is introduced in Section 7. This so–called Better Regulation programme is a perfect opportunity to adjust the Product Safety Law acquis to new insights. Section 8 summarizes our observations and findings. Section 9 discusses the utility of the Confident Consumer concept. Because it seems disadvantageous to focus on the differences between food and non–food safety rules, the possible advantages of a policy and law reform are assessed. Therefore Section 10 concludes to attune both parts of product safety law to the similarities instead of focusing on differences. Maintaining the dichotomy is disadvantageous to progress.
Ownership Restrictions, Risk and Team Considerations in Family-owned Businesses
Authors: Bjuggren Per-Olof , Sund Lars-Göran
Published: April 2022

At the start of a new business both team and risk aspects have to be considered in the choice of business form. The partnership form offers advantages in terms of team considerations while the corporate form provides limited liability which provides a way to handle the risk problems associated with owning a firm. The advantage of having a well synchronized team is important for many new firms and especially for cases where family relations are considered important. Seen from that angle the partnership form should be opted for. But risk is high up in the mind of founders. Events might unfold in an unexpected way and in the process the economy and well being of the family is at stake. The corporate form with limited liability is in this sense a very attractive choice that is commonly chosen. But with the corporate form comes transferability of ownership of shares without consent of other owners. The shareholder team might therefore change in an unexpected and unwelcome way. Therefore it is important to consider different types of transfer restrictions when a new corporate form of business is started. This aspect has not been much considered in practice and in the entrepreneurship literature. An accountant or a lawyer often has to remind an entrepreneur of the importance of stability in ownership positions.

 

In the paper we attempt to ascertain whether it is possible to foresee future complications and thus prepare already at the start of the business. The paper combines law and economics analysis of the different transfer restrictions found in various legal systems.

 

The paper was presented at the Seventh AGSE International Entrepreneurship Research Exchange, Feb. 2-5 2010, University of the Sunshine Coast.
A Market-Based Competition Enforcement Policy
Authors: Hodges Christopher
Published: April 2022

This paper notes important features of current competition enforcement policy at EU level: reliance on fines, the theory of deterrence, leniency, the encouragement of compensation, decentralised enforcement, and the debate on criminalisation. It examines the evidence on whether current competition enforcement policy is effective, and on whether deterrence is the correct theoretical goal, and suggests serious concerns on both issues. It proposes that the correct competition enforcement policy for the EU should be a market-based policy, which aims at maintenance of a balanced market and positively affecting the behaviour of actors before and after imbalances occur.
EUs Monitoring of Chinas Compliance with WTO Obligations
Authors: Kong Qingjiang
Published: April 2022

To World Trade Organization (WTO) members, admitting a country with a rapidly expanding economy into the WTO was a great experiment as the country would make significant decisions concerning resource allocation. In the history of the world trading system, never has a country of such trading importance and system incompatibility with WTO norms been admitted. Given China's trade weight, its anticipated gigantic trade surge would disrupt the market of its trading partners, and the rule-based multilateral trading system would be endangered if China opted to ignore the WTO rules.

To safeguard itself, the European Union (EU), like the United States, imposed upon China a comprehensive protocol which has more far-reaching obligations beyond the WTO. The EU also kept a close watch on China's behaviour in the WTO. With no task forces to monitor China's compliance, the EU has taken full advantage of the built-in mechanisms in the WTO, i.e., Trade Policy Review Mechanism and the Dispute Settlement Mechanism, as well as other measures (including bilateral channels and unilateral measures). This is pursued in the broader context of China's rise and with a broader vision of integrating a rising China into the existing global economic order. After all, a WTO-adhering China is conducive to cementing China's place in the global economy, buttressing the internal reform process, and strengthening the rule of law, which is in the interest of the world.

For the EU, the real question is how to encourage China to change its economy into one that relies more on domestic demand than on export on one hand, and one that allows market access to more imports and protects IPRs on the other hand. Therefore, monitoring shall be conducted to facilitate a smooth and thus healthy China-EU trade relation, which will .nally hinge on EU's patience and skills in dealing with a rising China.
Reforming European Union Financial Regulation: Thinking through Governance Models
Authors: Lange Bettina , Castellano Giuliano G. , Jeunemaître Alain
Published: April 2022

This article examines the relationships between governance structures and regulatory approaches. It develops a typology to explain and fine-tune supranational regulatory models for the governance of markets. The article suggests, firstly, a range of regulatory options which are defined according to two dimensions: (a) the degree of centralization of regulation, which includes networks, meta-organizations, and single central authorities; and (b) the degree of invasiveness of regulation, which ranges from sunshine regulation to command and control approaches. The aim is to relate structural alternatives (considered in terms of centralization) to regulatory approaches (considered in terms of invasiveness). The typology here constructed is applied to analyse the governance structure of EU competition law. Secondly, the article focuses on the recent structural changes reshaping the governance of European financial markets. The reform is discussed through the lens of the typology. It appears that, differently from what was observed in the EU competition law model, the newly established European Supervisory Agencies (ESAs) are part of a complex structural development, in which the separation between a highly invasive regulatory approach and a decentralised supervisory structure adds further complexity. The article concludes by noting a set of possible normative implications, suggested by the typology, to ensure a consistent governance model for financial markets regulation and supervision in the EU.
Unfair Commercial Practices: Regulation at Risk
Authors: Shears Peter
Published: April 2022

In the UK the Consumer Protection from Unfair Trading Regulations came into force on 26 May 2008. They implemented the EU Unfair Commercial Practices Directive, introducing a general duty on traders not to trade unfairly with their consumers. This article will seek to show that they have been working well, but that their continued effectiveness has been put at risk, initially by the Government's massive cutbacks on expenditure, and currently by the nonsense of their assurances that consumer protection will be maintained.
Reassessing the Rationales for the Takeover Bids Directives Board Neutrality Rule
Authors: White Alexander
Published: April 2022

This article evaluates the Takeover Bids Directive's board neutrality rule, in light of the European Commission's option to propose the revision of the Directive and a recent suggestion put forward by some commentators to make the rule, which is optional, harder to opt-out. It does so by reassessing the two rationales behind the Commission's original intentions for the rule to be mandatory: (i) disciplining the management of listed companies with dispersed ownership, and (ii) wealth creation. It finds that the first rationale continues to lack relevance to European 'coordinated market economies', whilst empirical evidence is not conclusive that hostile takeovers are more wealth creating than friendly ones, but could be particularly damaging for European coordinated market economies. Arguments that have been put against a more permissive approach to board defences are also contested.
Promoting Uniform Sales Law
Authors: Meyer Olaf
Published: April 2022

The success of the CISG as a uniform law convention has stirred the desire for subsequent projects. Now, the draft of a Common European Sales Law looms as a competing instrument at the regional level, which, although not yet final in form, obviously attempts to follow to some extent in the footsteps of the CISG in scope, structure and substance. To this extent, however, the experience of the latter cannot simply be transferred to the new instrument, as the CISG has thrived in a particular formative context that would be markedly different under the CESL. This article takes a look at the contribution of case law and academic studies to the practical success of the instruments, as well as the potential role of contract law practice and university legal education.
Status Quo Bias, CISG and the Future of the Common European Sales Law
Authors: Aksoy Hüseyin Can
Published: April 2022

Common European Sales Law ("CESL") is not the first legal instrument directed at the formation of a uniform legal regime applicable to international commercial sales. Not surprisingly its scope overlaps with the scope of the already existing United Nations Convention on Contracts for the International Sale of Goods ("CISG"), which is the default cross-border sales law regime in 23 European Union member states that have adopted the Convention. Unlike the CISG, the CESL has acknowledged an "opt-in" mechanism. However the studies show that when they can choose among alternatives, individuals prefer to leave things as they are. The author argues that status quo bias is a huge barrier in front of the CESL's future success.
The Liability of the Tobacco Industry for Damage Caused by Smoking. Legal Theories and Legal Fictions
Authors: Donna Luca Di
Published: April 2022

The tendency of the jurisprudence and doctrine on the nature of the liability for damages sustained by the consumer of tobacco is incoherent and vague, since sometimes the victim is burdened by the harshest burden of proof based on fault, other times is helped by the recognition of strict liability of manufacturers.

In the latter case, the protection of victim is undoubtedly more effective, because the damages are recognized regardless of the evidence of the subjective element of the infringement and, in particular, of the cigarette manufacturer's fault. Reaching this result has not been a easy route, and different legal systems have reacted with different legal arguments. In Italy the Supreme Court has recently put a full stop at the question, qualifying as "dangerous" the activity of production and trade of tobacco and applying, therefore, the rules devoted to govern this field which are devote to the liability of activities dangerous per se like mining or for the means used, like electricity. But this legal fiction is not always feasible.
Developments in Collective Redress: Whats New in the New German KapMuG?
Authors: Stadler Astrid
Published: April 2022

The landscape of collective redress in Europe is quite heterogeneous. Whereas some Member States compete with each other for attracting mass damage cases for either litigation or settlement proceedings, Germany remains reluctant to implement new instruments of collective redress. The most important regulation in Germany is the Capital Market Model Case Act enacted in 2005 - the legislature's reaction to the "Deutsche Telekom" securities litigation in Frankfurt. The act was restricted to cases arising under securities regulations and was highly controversial from the outset. In November 2012, following an evaluation of the act, some moderate changes came into force. This article will present the background and some essential features of the reform. It will argue that the German government and legislator could not bring themselves to take more than another half-hearted reform step.
Collusive Practices Inside a Business Network: The Case of Information Exchange
Authors: Estevan de Quesada Carmen
Published: April 2022

Business networks are systems of business cooperation integrating several firms that have at the same time cooperation and competition relationships, what makes them a relevant phenomenon for Competition Law. This paper analyses whether some agreements between network members may infringe Art. 101.1 TFEU, taking as an example one of the most important features of business networks - the information exchanges inside them. To this aim, it delimits the different kinds information exchanges taking place in horizontal or vertical networks, identifies the most relevant cases for Competition Law, and proposes an adequate assessment methodology that takes into account the existence and features of the network. The paper therefore concludes that competition law rules cannot be automatically applied when the cooperating companies belong to a business network, and that an accurate competitive analysis in these cases has to consider also the existence, aims, interests, and organizational and functional needs of the network