bluuebunny/crossref_metadata_2025 huggingface dataset:
Experience of Internationalization of Chinese Corporate Law and Corporate Governance: How to Make the Hybrid of Civil Law and Common Law Work?
Authors: Junhai Liu
Published: April 2022

This paper focusses on the Chinese approach to corporate governance. It begins with a survey of the historical foundations of the modern corporate law of China. The unique relationship which arose between Chinese markets and foreign suppliers from the consular judiciary power enjoyed by many nations in the early twentieth century and its impact on the development of Chinese corporate law is considered first. A specific focus is the circumstances surrounding the drafting of the first Chinese Corporate Law of 1904, enacted with the goal of making China a strong commercial power. The hybrid nature of the first Chinese corporate law, being drawn from Japanese and English structures, and its impact on modern legislative approaches to corporate law form the basis of the discussion of the relationship between the facets of the modern corporation in China. The position of shareholders as the corporate power centre, their relationship with the boards of directors and supervisors, and the powers of each are noted.

Another core focus is the method of enforcement of the corporate law in China. The proper plaintiff, defendant and the possibility of derivative actions under the Corporate Law of 2013 are discussed, with a particular focus on the ability of shareholders to bring actions to protect the interests of the corporation. These powers must be exercised so as to guard against possible abuses of restrictions on action by wrongdoing supervisors and directors acting in collusion. The article concludes with an analysis of the role of the Chinese Securities Regulatory Commission (CSRC) in improving corporate governance. Significantly, it is noted, that the possibility of class actions in China can be used to hold corporations, controlling shareholders, and management accountable for exercises of power which are against the public interest.
A Behavioural Analysis of Shareholders Meetings
Authors: Marchisio Emiliano
Published: April 2022

The law relating to shareholders' meetings is almost invariably built on the assumptions of rational operators (shareholders, directors etc.), perfect information and no transaction costs. In such a model all operators select, within the alternatives available, the path of action that maximises their own utility; their decisions are based on stable, consistent and objective preferences; their choices are rational and based on all information available.

Under this hypothesis, the only requirement needed in order to reach an "efficient" outcome in a shareholders' meeting is to provide its participants with the highest degree of information available.

On the other hand, behavioural economics provides undisputable empirical evidence that all actors make their economic choices under the systematic - and, therefore, predictable - influence of errors in both reasoning and preferences, which leads them (sometimes far) away from the path of "rationality".

When applied to shareholders' meetings and more generally to group decisions, behavioural analysis show that the patterns governing such events are very likely to bring the output of any group discussion far away from the objective of more informed decisions and a better composition between the different interests represented therein.

In this paper we examine the most common errors at both the individual and group levels, providing some comments and highlighting how they may impact on shareholders' meetings.

After such a summary, we develop some provisional proposals that we claim would contribute to debiase group decisions and help shareholders' meetings in reaching their scopes, highlighting the need for further research and action in this field.
Public Awareness through Private Law Remedies: The Struggle for Information in the Samsung/Apple Case
Authors: Brutti Nicola
Published: April 2022

Compelling a party to disseminate judicial orders through her Homepage implies a relevant discretionary power. The work discusses the extension of such a judicial power, pointing out some questions and raising some concerns.

What is the real function of such prominent advertising? Is it possible to repair a damage beared by a private plaintiff by restablishing a correct information of the public at large? Can injunctive reliefs transcend the immediate interests of the litigants in order to further social objectives? This paper does not provide definitive answers, rather it is a starting point for a discussion.

The survey recalls other questions like: the increasing use of moral arguments in Courts' reasoning in order to prevent violations or breach of duties, public information and commercial certainty as legal goals, the controversial shaming effect of the remedy at issue and the threats to personality rights and freedom of expression.
Societas Unius Personae (SUP)  The New Corporate Element in Company Groups
Authors: Jung Stefanie
Published: April 2022

Due to a preliminary failure of the European Private Company (Societas Privata Europaea – SPE), the European Commission presented its proposal for a “Societas Unius Personae” (SUP) on 9 April 2014. The Commission aims at introducing and regulating harmonised single-member private limited liability companies (SUP). This shall allow medium and large-sized enterprises especially to organise their subsidiaries (abroad) with the help of this legal form.

The proposal of the European Commission has been discussed controversially in the Council. On 28 May 2015 Member States agreed on a general approach that significantly amended the provisions put forward by the Commission.

This contribution focuses on the substance of the SUP’s rules and in this regard compares the Commission’s proposal and the Council’s general approach.
Harmonization: A Need for EU Action on Consumer Credit?
Authors: Jørgensen Tanja
Published: April 2022

As in the consumer area in general, the objective of the internal market has been applied as a reason why there is a EU need for action regarding consumer credit. Even though it is more than 25 years ago since the first Consumer Credit Directive harmonized aspects of the legislation in the Member States, cross-border activities are still extremely low. The achievement of the internal market depends on the consumers’ and the creditors’ overall incentives to cross-border activities, where harmonized aspects of the legislation are only an insignificant motivation. Despite a need for EU action may seem small, there is still a need for EU action, but with a different approach that considers the nature of consumer credit. This means a focus on preventing overindebtedness and ensuring financial stability as well as a high level of consumer protection in a financialized and thereby more complex and globalised world.
The EUs Precautionary Principle in Food Law is an Information Tool!
Authors: Purnhagen Kai
Published: April 2022

The precautionary principle in EU food law is a tool primarily for regulatory agencies to acquire information on whether they can justify regulatory intervention under the principle that preventive action shall be taken. The precautionary principle is hence an information tool, while the principle that preventive action shall be taken is the basis for content-related regulation to directly further social goals in internal market regulation.
Theory of the Firm and Organisational Contracts: The Remedial Aspects of Good Faith
Authors: Farina Marco , Maltese Demetrio
Published: April 2022

The aim of this paper is to investigate which conceptual place long-term contracts have within the legal system and how the theory on relational contracts fits within a general theory of justice that has an objectification in a doctrine of good faith.

We present a definition of commercial long-term contracts and give examples as to understand how, within the wide range of contracts that can fall within this definition, some can have an organisational colour. After this, we examine the good faith doctrine as understood and employed in both common and civil law jurisdictions; the paper provides the analysis of a recent civil law case involving a distributorship agreement and the function of abuse of right. Nevertheless, the focus is mainly on good faith as a generally accepted clause in European jurisdictions, that is paving its way to general acceptance in common law jurisdictions too.

Lastly a brief explanation on how law and economics can help us in descriptively understanding the interplay between contract law and trust games is given, so as to have also a normative insight on why granting judges such a discretional power does not only achieve justice and fairness but also efficient outcomes for business players.
The Consumer Protection Regulations in the UK: The Story So Far
Authors: Shears Peter
Published: April 2022

The Consumer Protection from Unfair Trading Regulations (the CPRs) have been in force for seven years. They apply to commercial practices before, during and after a contract is made. In general they require traders not to treat consumers unfairly. They also outlaw 31 specific commercial activities. We know what the CPRs say, but, as with any new law, we do not know what they mean until they have been tested. Only the courts can decide whether or not a commercial practice is unfair within the meaning of the CPRs. This article seeks to illustrate what we have learned so far.
Current Issues of Directors Liability  The Scottish View
Authors: Heidemann Maren
Published: April 2022

The author reviews three recent Scottish cases in company law – Eastford v. Gillespie, Naxos and William Campbell. These cases add to the discussion of a number of issues in company law such as the role of the common law in the sections on directors’ duties of the 2006 Companies Act, lifting the corporate veil and generally a director’s civil liability for breach of statutory duty and in particular failure to arrange employers’ liability insurance. The author critically evaluates these cases in the context of Scots law within the UK and explains how these can be seen to develop a distinct Scottish view on company law matters while contributing to the development of UK company law as a whole. The author also considers relevant legislative initiatives on the part of Scottish and UK governmental bodies and Parliaments.
Is a Common Structure of Company Directors Duties Evolving in EU?
Authors: Dotevall Rolf
Published: April 2022

As opposed to other areas of company law, directors’ duties have not been the subject of any extensive harmonization at the European level. The system of directors’ duties in the EU continues to be characterized by a variety of approaches and legal strategies. However, the practical effect of the legal strategies deployed in the Member States, which have been in focus, is often quite similar. A very good example is the business judgment rule. The duty of loyalty shows greater variance than the duty of care. In UK law directors’ duties are regulated in quite detailed manner, especially the duty of loyalty. But in Germany, France and the Scandinavian countries the duties are not comprehensively regulated and the law relies on general principles based on fiduciary and agency laws.
Do Specialized Courts Make a Difference? Evidence from Brazilian State Supreme Courts
Authors: Garoupa Nuno , Arlota Carolina
Published: April 2022

Specialized courts have been a panacea of legal reform in Europe in the last ten to twenty years. Few studies have studied their performance and alleged advantages. This paper considers a particularly interesting example. It explores possible variations in terms of constitutional review across Brazilian state supreme courts. We focus on possible differences between decisions made by a non-specialized court en banc or by a specialized court panel (órgão especial), the latter being frequent in the larger states. An original dataset was constructed by the authors to empirically explore this question. The dataset considered 630 cases of abstract review judged between January 1, 2006, and December 31, 2010, across twenty-five state supreme courts of the Brazilian federation. The main purpose of our inquiry is to determine whether or not there are significant variations in the outcome of the cases of abstract review as a function of a specialized panel. We find some evidence that the existence of specialized panels matters for the likelihood and rates of dissent as well as duration of procedures, but not for other variables. Implications for legal reform are also discussed.
Law and Economics of Central Counterparties (CCP)  Selected Issues of Regulation and Competition Concerning Financial Market Infrastructure
Authors: Szpringer Wlodzimierz , Szpringer Mariusz
Published: April 2022

The obligatory clearing of certain contracts through CCPs, that is imposed by Regulation (EU) no. 648/2012 of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (called “EMIR”, i.e. European Market Infrastructure Regulation), is justified by the need to increase the transparency of the derivatives market, to mitigate systemic risk and to promote stability of the financial system. Central counterparties (CCPs) are clearing houses that interpose themselves between the counterparties to the contracts traded on one or more financial markets, becoming the buyer to every seller and the seller to every buyer. In this way CCPs are responsible for the clearing of transactions concluded on derivatives market, which reduces the credit risk of individual counterparties. The EU legislator creates a legal framework for the functioning of CCPs that become new systemically important institutions. In addition, EMIR leads to the creation of a kind of monopoly as CCPs’ services become compulsory for entities involved in trading on financial instruments that will be subject to central clearing. For these reasons, EMIR represents new and difficult challenges for effective oversight and supervision of financial markets. The tendency to maintain a market structure where operate only a relatively limited number of CCPs is likely to be perpetuated due to the predominance of entities with established market position, as well as the presence of high sunk costs associated with the rigorous regulatory requirements that determine the possibility of entering the market. The regulation of financial market infrastructure has to take into consideration and to integrate two perspectives: micro (transaction costs) and macro (systemic risk).
Liability of Parent Companies for Human Rights Violations of Subsidiaries
Authors: Baisch Rainer , Weber Rolf H.
Published: April 2022

The infringement of human rights by subsidiaries of multinational enterprises has become a thoroughly discussed topic. It is obvious that potential corporate liability under any regime gives incentives to group companies for structuring themselves in a way that, if ever agents who do not respect human right will be held responsible, the liability risks remain within the sphere of a foreign subsidiary. Looking from the perspective of the injured person, this strategy motivates to invoke veil-piercing, direct liability or forum-doctrines to tap the financial capability of the parent company. Following the UNGP the question arises what can be done to establish fair jurisdiction, suitable to hold negligent parent companies liable e.g. based on mandatory due diligence obligations in respect of the adherence to human rights.
Exit in Non-Listed Firms: When and How to Use Share Transfer Restrictions?
Authors: Gomtsian Suren
Published: April 2022

Share transfer restrictions are typical elements of governance in non-listed firms where members, given the locked nature of investments, are in strong dependence upon each other’s actions and contract for special share transfer clauses to ensure successful cooperation. First purchase rights, such as a right of first refusal and a right of first offer, and tag-along rights stipulate efficient investments by discouraging value-decreasing transfers of shares to third parties and reducing incentives for opportunistic renegotiation. Similar problems arising during the ordinary course of business are solved by different forms of put and call options, including their special buy/sellout modifications – Russian roulette clauses. The study of the best practices of contracting for share transfer restrictions in closely-held firms can help improving the practices of business organization.
The Right to be Forgotten on a Swing
Authors: Krzysztofek Mariusz
Published: April 2022

This article looks at the European Commission’s concept, developed through the first reading by the European Parliament, and the case of Google Spain v. AEPD to the General Data Protection Regulation (EU) 2016/679 of 27 April 2016 (GDPR).
The Impact of Brexit on the Legal Framework for Cross-Border Corporate Activity
Authors: Kokkinis Andreas
Published: April 2022

The extent of the legal impact of the withdrawal of the UK from the EU on crossborder corporate activities, transactions and investment will depend on whether the UK remains part of the European Economic Area. If the UK leaves the EEA, it will be more difficult for UK companies, and in particular for financial sector firms, to do business and expand in the EEA either by acquisitions or by establishing subsidiaries and branches. In parallel, it would be more difficult for the UK to attract investment by EEA companies and investors. Furthermore, the preeminent position of London as a major global financial centre would be challenged due to the combined effect of two factors: (a) it would be more difficult for UK and EEA companies to offer their securities to investors across the EEA; and (b) selecting the UK as the country of incorporation either of the top holding company of an internationally active corporate group or of the main European arm of such a group would be less attractive. Maintaining full access to the Single Market is thus crucial for the UK economy.
Crises Financières, Criminalité et Moralité
Authors: de Maillard Jean
Published: April 2022

This article examines the relationship between financial crises and ethics on the one hand, and criminality on the other. The main thesis is three-fold. First, minimal governance – which characterises economic and financial globalisation – produces by itself both the crises and fraudulent or criminal behaviours. Secondly, however, crises and frauds produced by the weakness of governance do not develop independently of each other. They are tightly interconnected, because both are due to the inner contradictions of the financial system. Thirdly, when dealing with systemic crises, fraud becomes the managerial tool that prevents the economic and financial system from collapsing.
Directors and Officers Insurance in the UK
Authors: Mukwiri Jonathan
Published: April 2022

This paper examines the significance of the directors’ and officers’ (D&O) insurance policies in the UK. It argues that the significance of D&O policies lies in D&O policies being commercial than legal tools for directors. When third parties sue a director, unless the director assumes personal responsibility (where this assumption is an element of the civil wrong), English law does not impose personal liability against the director, and a D&O policy, as a legal tool, may not respond. Moreover, as a legal tool, it may not be necessary, as defence costs can be provided to directors under company indemnity. As commercial tools, D&O policies provide directors with defence and investigation costs, and in criminal cases defence costs until the final judgment or admission of dishonest conduct. Moreover, as a commercial tool, unlike under company indemnity where directors would repay defence costs if unsuccessful, defence costs will usually be covered off by a D&O policy in the event of a negative judgment.
Judicial Approaches to the IBA Guidelines on Conflicts of Interest in International Arbitration
Authors: Ahmed Masood
Published: April 2022

This paper seeks to close the gap in the research surrounding the IBA Guidelines by critically considering how national courts actually perceive and utilise the IBA Guidelines during the decision making process when determining conflicts applications. Through a doctrinal analysis of case law from various jurisdictions, this paper reveals the existence of two distinct judicial approaches. The first approach places heavy reliance on the IBA Guidelines and, as a result, they form an integral part of the adjudicative process. The second approach utilises the IBA Guidelines merely as a guide, a point of reference and a means of simply reinforcing judicial reasoning. It will be argued that the first judicial approach is highly unsatisfactory both from a legal and policy perspective. It will be argued that the second approach is to be desired because it remains consistent with the aims of the IBA Guidelines and it has enabled the courts to identify inherent weaknesses in the IBA Guidelines. Finally, recommendations for reforming aspects of the IBA Guidelines will be made in order that they may continue to be a source of guidance and assistance to the arbitration community and national courts.
Is Internationalisation Going Too Far?  Constitutional Challenges of International Data Exchange Programmes
Authors: Heidemann Maren
Published: April 2022

This article introduces the latest international and national legal frameworks effecting an international exchange of financial accounts data as well as other general anti tax avoidance legislation based on the work of the OECD carried out over the past decade. It asks whether internationalisation as effected through the OECD can be trusted to respect constitutional guarantees of the rights of individuals and companies by adopting this novel set of rules. The author critizises the present proposals and enactments with particular reference to current and proposed tax law in the UK and Germany and proposes an alternative way forward based on crucial and internationally accepted fundamental rights and civil liberties.
European Product Liability after Boston Scientific: An Assessment of the Courts Judgment on Defect, Damage and Causation
Authors: Pilgerstorfer Marcus
Published: April 2022

In this article, the authors explore the recent decision of the European Court of Justice in Boston Scientific and its impact on the sphere of product liability. The Court’s approach to determining whether a product is defective is examined, in particular the notion, adopted by the court, of defect as an ‘abnormal potential for damage.’ Over and above the issue of defect, the authors also consider the Court’s application of the principle of “full and proper” compensation when deciding whether the cost of removal of medical devices fall within the scope of recoverable damage under the product liability directive and also explore the court’s approach to causation.
Is there Scope for Reforming the Emaciated Concept of Fiduciary Law in Finance? Critically Discussing the Potential Achievements of Reform
Authors: Chiu Iris H-Y
Published: April 2022

This article is dedicated to Professor Mads Andenas on the occasion of his 60th birthday in 2017. Professor Andenas was my PhD supervisor, co-author and mentor, and this topic was very much inspired by discussions we had in the course of writing The Foundations and Future of Financial Regulation (Routledge 2014). I never cease to be amazed at the breadth of insight Professor Andenas has in many diverse areas of law. He is a scholar of many talents and remains a beacon of inspiration to me.

This article argues that the limited application of fiduciary law in finance, which has been both a persistent doctrinal trend, as well as a position supported by the financial services industry for its friendlier commercial effects, has played no small part in bringing about the modern financial sector and its negative externalities

However it is no panacea to embrace general fiduciary law in finance to address all of the contemporary problems, as such an embrace may be over-inclusive and disruptive to wholesale sector transactions. However we consider it timely to introduce a regulatory principle of a ‘thick’ fiduciary law to provide extended and more intensive consumer protection in certain areas of lacunae identified in the article. We do not regard the introduction of a ‘thick fiduciary’ principle as being able to supplant regulatory law in consumer protection. However we think it provides a complement for the existing regulatory framework and its reforms in progress.
Agency Agreement: From Innominate Contract to the Reference Model of Commercial Distribution Agreements
Authors: Bertino Lorenzo
Published: April 2022

The purpose of this article is to demonstrate that some Italian rules in relation to the commercial agent also can be applied to the distributor. The few Italian judgements rendered on this matter state that rules governing the commercial agent are not applicable to the distribution contract: this innominate contract could be governed through applying by analogy the regulation of supply contract. This Italian Courts’ point of view could be revised.

This analysis is based on an historical approach and on the examination of case law in the German, English and Italian legal systems.

The historical analysis demonstrates that Italian legislator has regulated the commercial agent contract as a framework model for all distribution contracts.

An analysis of the case law demonstrates that in some legal systems the commercial agent’s regulation can sometimes be applied to the distribution contract.
The Influence of Fundamental Rights on the Law of Succession
Authors: Viglione Filippo
Published: April 2022

One of the most debated issues that European lawyers are tackling is the enforcement of fundamental rights in private law. Nonetheless, the intersection between inheritance law and fundamental rights is still neglected, due to the misleading idea of the static nature of the former. The aim of this paper is to investigate whether in Europe a nexus exists between the evolutionary patterns of inheritance law and fundamental rights. The article ascertains if and how the rules aimed at identifying the heirs have been influenced by the jurisprudence on fundamental rights, considering that those rights have emerged as leading factors in directing many legislative reforms. The paper then concludes by examining the possibility of a horizontal application of fundamental rights and, more specifically, if the will of the testator can be limited, somehow, by direct application of those rights, such as the principle of non-discrimination or the respect of private and family life.
A Banks Duty of Care: Perspectives from European and Comparative Law  Part I
Authors: Busch Danny
Published: April 2022

In this article we place a bank’s duty of care in a European and comparative law perspective. We have chosen five topics which are hotly debated in theory and practice. The first topic is the scope and intensity of the essential duties which typically flow from a bank’s duty of care: duties to investigate, duties to disclose or warn, and – in exceptional cases – outright duties to refuse to render financial services or products. In some jurisdictions, financial disputes between investors and banks are not so much resolved by reference to a bank’s duty of care, but by reference to the traditional doctrine of error or mistake, and fraud. That is the second topic we discuss in this article. The third topic is the impact of the European Markets in Financial Instruments Directive (MiFID) on a banks’ duty of care. The fourth topic focuses on the role of the financial regulator in settling disputes between banks and clients. We conclude this article with the bigger picture and relevant reform perspectives
Regulatory Strategies towards the Commodity Market Financialization Risk: Position Limits Regime, Transparency and Enforcement Tools
Authors: Grossule Edoardo
Published: April 2022

The commodities market sector has been affected by a large financialization process, raising concerns about the role of financial speculation in this sector. Following the broad international mandate of G-20, both US and EU policymakers issued specific provisions for commodity derivatives in order to increase transparency, addressing the turbulence in the commodity markets during the last decade and curbing negative effects of speculation. The article analyses, from an EU perspective, the main regulatory strategies adopted by legislators, focusing in particular on the new position limits’ regime and product intervention. In light of the exemptions to the general regulatory framework in favour of commercial operators, the article highlights how the new set of rules amplifies the role of supervisory authorities, introducing a range of interventionist tools that, ultimately, will determine the effectiveness of the new measures.
The Brexit Reform of European Financial Supervision: Lost in Transition?
Authors: De Arriba-Sellier Nathan
Published: April 2022

This article reviews the impact of Brexit on the European System of Financial Supervision (ESFS) and claims that the withdrawal of the United Kingdom will lead to more centralisation of supervision at EU level and a tightening of the supervision over third countries’ markets actors. This conclusion is based on a study of both the European authorities’ activism and the amendments recently adopted by EU legislators to reform the functioning of European financial supervision. Brexit has highlighted the extent of the remaining gaps in European financial supervision, which are partly due to the role that the UK played in designing European financial supervision. The reform is also geared towards mitigating the “costs” for the European economy incurred by Brexit. By analysing these developments, this contribution argues that Brexit has been seized by the European Union as an opportunity to significantly strengthen European financial supervision.
Borrowing Beyond the European Stability Mechanism: Arranging Additional Facilities
Authors: Megliani Mauro
Published: April 2022

Since its arrival in late spring 2018 the Italian Government has presented a series of measures capable of questioning the sustainability of the Italian public debt. The key point is that, in the absence of a steady economic growth, spending measures may involve an increase in interest rates and a downgrade of public debt. In this case, without a significant correction, market access can be lost and debt burden might become unsustainable. In order to avert this scenario, Italy would be obliged to require assistance to the ESM machinery. Nevertheless, such possibility has brought to light that the ESM machinery may be unavailable for some reasons: disagreement on conditionality, unsustainability of debt and insufficiency of resources. Additional resources may come from the OMT programme, but its operation is subject to some constraints, like the market access status of the requesting country.

 

In this context, it is useful to investigate whether and to what extent financial assistance may be sought elsewhere. A first route may be for the Euro countries to establish a borrowing facility within the ESM, but this must take into account the borrowing limits of the ESM. A second route may be for Euro countries to establish a parallel mechanism outside the ESM that may overcome some requirements of the ESM assistance. A third route may be for non-Euro countries to establish a lending facility, provided that conditionality is respected. A fourth route may be for Euro and non-Euro countries alike to establish a facility in the case of withdrawal from the monetary union with the purpose of preserving the stability of the EU.
The Standardisation of the Leasing Contract Under Italian Law and the Unidroit Principles
Authors: Bertino Lorenzo
Published: April 2022

Despite its financial nature, for over forty years, Italian case law has classified the financial leasing contract as an atypical contractual form, often qualifying it as a sale or rental agreement. In this respect, various indexes were formulated, such as the amount of the rental fees and the existence of a redemption agreement.

 

In August 2017, the Italian legislator sought to standardise the leasing contract under the law, attempting to define its contractual form and to regulate certain aspects, such as the lessee’s breach and possible consequences deriving from its termination.

The comparison between the approach taken by case law prior to the legislative reform and the new regulatory framework shows that the legislator did not transpose the long-established jurisprudential outcomes into the reform. Instead, through comparing the legal reform with the UNIDROIT Principles (The Ottawa Convention and the Model Law), it would appear that the new legal framework closely resembles the solutions adopted therein. Conversely, it is clear that the legal reform does not incorporate the rules adopted by the Draft Common Frame of Reference.
Enhancing Whistleblower Protection: It’s all about the Culture
Authors: Andreadakis Stelios
Published: April 2022

Whistleblowers and their role as accountability and fraud prevention mechanism have recently been in the centre of attention. Despite several initiatives to encourage and motivate whistleblowers internationally, there are numerous recorded instances of retaliation and harassment practices. As a result, potential whistleblowers do not feel adequately protected to step up and raise their concerns.

The improvement of the protection regime internationally and the establishment of a robust system of incentives requires going beyond the introduction of new rules. Emphasis needs to be given to corporate culture so that the existing culture of silence is replaced by a new culture of honesty, integrity and transparency.

Drawing inspiration from the UK Bribery Act 2010, an attempt will be made to offer practical recommendations for this much-anticipated change of corporate culture to be initiated and for companies to be actively involved in this process.

whistleblowers, culture, retaliation, speak-up, Bribery Act, accountability, transparency, incentives, harassment, rewards
Money Market Funds Reforms in the US and the EU: The Quest for Financial Stability
Authors: Alshaleel Mohammed K.
Published: April 2022

This article considers the impact of money market funds (MMFs) reforms in the US and the EU on the money market fund industry and global financial stability. The 2008 financial crisis proved that MMFs are a source of considerable instability to the global financial system, and highlighted their susceptibility to runs. The shareholders’ incentive to redeem their shares before others do when there is a perception that the MMFs might suffer a loss makes MMFs vulnerable to runs. Given this reality, the article argues that the emphasis of the financial regulators on achieving the stability of the entire financial system after the 2008 financial crisis necessitates the strictness of the new reforms.

Divided into six parts, the article outlines the attributes and classification of MMFs, the definition of financial stability, and the run and systemic risk posed by MMFs during the financial crisis, before assessing the MMFs’ reforms in the US and the EU and the impacts of these reforms on the MMFs industry and global financial stability system. The major component of the US reform is the introduction of the floating net asset value (FNAV), where an MMF’s share price will fluctuate to reflect the daily market value of the fund assets. In the EU the new regulation provides investors with a high degree of optionality for investing by introducing Low Volatility Net Asset Value (LVNAV) MMFs. The article concludes that despite that, the reforms are likely to jeopardize the viability of some categories of MMFs, they enhance global financial stability, and the complexity of the reforms has made MMFs more appropriate products to financial institutions’ investors than retail investors.

Money market funds, financial stability, the UK, the US, macro-prudential policy
Fundamental Rights as a Part of Contract Law
Authors: Gentili Aurelio
Published: April 2022

Fundamental Rights are now not only political ideals, but legal Concepts, based on the European Charters and the Constitutions. However, their meaning in concrete cases still depends on argumentation. They are not Rights in the same sense of civil Rights because they lack a specific content of claims and so they have no immediate practical meaning in a private relationship. They are rather Principles, applicable to Contract Law, directly when expressly involved in the case as the only possible remedy, otherwise indirectly, assessing which solution gives the greatest possible protection to the Fundamental Right with the least possible sacrifice of the opposed principle.

Human Rights, Inviolable Rights, Values, Fundamental Norms, Charters of Rights, Drittwirkung, Direct Application, Indirect Application, Principles, Balancing
The Tort Liability of CRAs in Europe and the Need for a Harmonized Proximity Requirement at the Union Level
Authors: Nästega°rd Emil
Published: April 2022

The union-wide civil liability regime for credit rating agencies relies on the national private laws of the Member State to a large extent. To prevent credit rating agencies from shopping for the most restrictive national private laws it is important that the Member States find common ground with respect to the interpretation and application and of central liability elements, such as the proximity requirement. This article focuses on identifying proximity requirements in the national tort laws of England, France, Germany and Sweden and commonalities regarding their application and interpretation. Such commonalities can form the basis for a harmonized interpretation and application of the proximity requirement in CRA liability cases.

Pure economic loss, rating agencies, proximity requirement, tort liability, European private law, harmonization
Parent Company Liability and the European Convention on Human Rights – An Analysis from the Perspective of English Law
Authors: Liston Gerry
Published: April 2022

The difficulties faced by individuals who seek to hold parent companies liable for the conduct of their subsidiaries are well-known. Much less discussed is the question whether international human rights law might require a state to make available a compensatory remedy against a parent company in such circumstances. Drawing on principles of European Convention on Human Rights (ECHR) law, this paper argues that the obligations, first, to create an effective deterrent against activities by private actors which infringe upon human rights and, second, to provide an effective remedy for such activities requires that parent companies be made liable for the conduct of their subsidiaries in certain circumstances. Recent developments in English law on parent company liability are also examined. While these developments bring English law further into line with these ECHR obligations, it is argued that it may still fall short of what the ECHR requires in this context.’

Parent company liability – effective remedy – effective deterrence – duty of care
Asset Segregation at CSDs: Protecting Investors with a Level Playing Field
Authors: Priem Randy
Published: April 2022

This article provides an analysis of the various assets segregation requirements that central securities depositories (CSDs) need to adhere to. Omnibus segregation is likely to be preferred to individual client segregation in those jurisdictions where the legal rights of investors are equivalent regardless of the level of segregation. Individual client segregation could be chosen more often in jurisdictions where ultimate investor accounts are needed to determine the legal owner of the securities. Individual client segregation is expected to be costlier and CSDs are likely to reflect these costs in the settlement fees charged to their customers in order to stay profitable. Hence, CSDs located in Member States with a higher likelihood that individual client segregation is chosen are likely to face a competitive disadvantage vis-à-vis CSDs domiciled in a jurisdiction where omnibus segregation is deemed protective. This article further explains the level-playing-field issues regarding asset segregation between CSDs and global custodians. This paper describes the wish of CSDs to be exempted from certain asset segregation rules while global custodians require CSDs to be submitted to the same asset segregation rules to which they need to adhere to.

Central securities depositories, settlement, asset segregation, conflict-of-law rules, global custodians, investor protection, post trading, market infrastructures
Bail-in: Do Italians Do It Better (or Worse, or Not at All)?
Authors: de Gioia-Carabellese Pierre
Published: April 2022

The bank insolvency, hinged upon the new resolutions tools, particularly the bail-in, with its controversial right, bestowed upon an administrative authority, to covert/ write off/reduce the creditor’s rights should the bank fail, has played havoc in some EU jurisdictions, such as Italy. In this country, where the banking system has been put under intense pressure in the last five years, the application of the new rules has been sui generis, in some cases with an apparent misapplication of the new legal framework. Additionally, the existence of some constitutional values in the Belpaese, where the savings are expressly protected, may suggest that the judicial authorities, particularly the Italian Constitutional Court, may in the future decide to be more courageous in the way some fundamental legal provisions should be interpreted in their relationship with the new framework.

Bank insolvency, Bail-in, resolution tools, constitutional values, Italy, savings’ protection
A Decade after the Global Financial Crisis: New Regulatory Challenges to Financial Stability
Authors: Khair alshaleel Mohammed , Hoekstra Johana
Published: April 2022

Since the global financial crisis in 2008 regulatory measures have been taken to strengthen the international financial sector. There are however regulatory challenges that have the potential to destabilise the international financial sector. This article examines three of these challenges: Fintech, Brexit, and Emerging Markets Economies. There is currently no significant analysis of these issues in relation to their effect on global financial stability. This article addresses this gap and analyses why these issues form a threat to financial stability. Fintech is modest but growing exponentially and there is little regulation in place, Brexit is characterised by prolonged uncertainty and potentially significant negative effects on the economy, and Emerging Markets Economies now occupy a far larger part of the international financial sector than in 2008 and their potential effects on global financial stability are also significantly stronger. The analysis leads to the conclusion that the common threat emerging from these challenges is policy uncertainty which leads to increased wariness from investors, which in turn leads to sudden changes in capital flows. This can potentially affect international financial stability. To mitigate these effects a more internationally harmonised approach to policy and regulation is key.

Financial law, financial stability, systematic risk, financial regulation reforms, fintech, brexit, emerging markets, financial crisis, global financial market
The Relevance of Apologies in Non-pecuniary Damages: Between Remedies and Incentives
Authors: Brutti Nicola
Published: April 2022

Legal systems and their sources have significantly evolved during globalization, bringing out new ways of conceiving regulation and remedies. We can recall several examples in which certain social phenomena are treated beyond a pure ‘command and control’ approach.Think about the growing impact of self-regulation in several areas, the increasing relevance of corporate codes of conduct, the use of reputational sanctions in social networks, the emergence of public apologies in tort law.

In the latter example, we may focus on many legal implications such as the opportunity to provide a safe harbour legislation in order to facilitate the settlement of disputes, the acknowledgment of mitigating effects on non-material damages, the idea of judge-ordered apologies.

According to Law and Economics thought, apologies can be deemed to fall within the category of “merit goods”. They allow people to reach the difficult goal of nonmaterial compensation giving voice to personal feelings without having to translate them into money. The article shows how behavioral incentives and mediation proceedings might be more appropriate than authoritative measures in order to gain benefits from apologies.

Financial law, financial stability, systematic risk, financial regulation reforms, fintech, brexit, emerging markets, financial crisis, global financial market
Designing Generation Change in Family Firms: Lessons from Italy
Authors: Agstner Peter
Published: April 2022

In Italy, as in most other European countries, around 85-90% (in absolute numbers: 780,000) of all enterprises are family firms, which contribute to 80% of GDP and account for 70% of employment. 60% of publicly-traded corporations have a family as majority shareholder. However, only 20% of the family firms survive until the third generation. Already these first figures show the crucial importance of intergenerational succession in Italian family firms. In the management literature, family firms, and especially the topic of management succession, are widely investigated. Lawyers, on the contrary, still lag behind in this research field. The present paper seeks to close the research gap. First, the legal prototype for the governance of generation change processes in Italian family firms, i.e. the patto di famiglia (family pact) is analysed. The many limits and practical constraints surrounding this legislative product makes it necessary to look at alternati ve private orderings devices and evaluate their pros and cons. Thus, attention is drawn to the succession planning choices made by important Italian family firms (Benetton, Caprotti and Brunello Cucinelli), which opted for a regulation mainly in the corporate charter or by way of testament or trust. The casestudy approach here followed shall contribute to the better understanding of the practical tools employed in the design of such generation change and make them available for a broader comparative circulation.
Corporate Governance and Accountability in an Evolving Political Environment
Authors: Ilmonen Klaus R.
Published: April 2022

The political environment of corporations has been evolving rapidly. There has been increasing pressure to hold corporations accountable for social, environmental and political aspects of the business enterprise – even the very purpose of the corporation has been challenged. The salience of corporate matters has increased overall as a result of changes in the political environment and an increasing awareness of corporate externalities. With the growing economic and political significance of corporations, corporate governance has emerged as a relevant framework for political action. These developments have affected the relationships among corporate constituencies and the boundaries of the corporate enterprise. Based on a political approach to corporate governance, this paper considers the resulting implications for the legal premises of corporate governance in an EU context. The paper argues that current corporate structures may not reflect the requirements of the rapidly evolving political environment.

Corporate governance, corporate social responsibility, politicization of the corporation