bluuebunny/crossref_metadata_2025 huggingface dataset:
The EU’s New Directives on Digital Contracts, and Artificial Intelligence: Really Future Proof?
Authors: Gellert Raphaël
Published: April 2022

In 2019 the European Union adopted two key Directives on consumer protection with regard to digital contracts: the Directive on the supply of digital content and digital services (2019/770, hereinafter DCD), and the Directive on the online sale of goods (2019/ 771, hereinafter SGD). The European Commission has meant these Directives to be futureproof, which is the reason why the range of digital content under the scope of the DCD is as broad as possible, and the SGD applies to so-called ‘goods with digital elements’.

Yet, and in-spite of this future-proof ambition, no mention is made of what is probably the most pressing current technology: artificial intelligence (AI). This technology presents a number of important challenges as underscored by the European Commission in its recent White Paper on AI. Yet, they do not seem to have been taken into account by the Directives.

This contribution therefore tries to apply the challenges identified by the Commission in the context of product safety and liability to these Directives with a focus on the DCD. It shows that it presents a number of important challenges, in particular as far as provision on conformity, remedies, or liability are concerned. Ultimately, it raises the question as to whether these Directives are able to deal with AI.
Some Considerations on the Material Scope of the New Digital Content Directive: Too Much to Work Out for a Common European Framework
Authors: Chacón Ignacio Fernández
Published: April 2022

The aimof this article is to analyse some of themain issues regarding thematerial scope of the new Directive 2019/770/EU on certain aspects concerning contracts for the supply of digital content and digital services. It focuses on the concept of digital content and services and on the changes made to the rules laid down in Directive 2011/83/EU on consumer rights. To this end, it pays particular attention to the treatment of digital content depending on whether or not it is supplied in a tangible medium and to the identification of the rules applicable in each case. It also addresses the exclusion of so-called goods with digital elements from the scope of Directive 2019/770, the requirements for such exclusion and the legal regime applicable to such goods under the new Sales Contract Directive 2019/771/EU. Finally, it analyses the novel inclusion of the so-called ‘free contracts’ within the scope of Directive 2019/770 where the counter performance of the consumer consists solely in providing personal data in exchange for digital content or services supplied, the exceptions to that inclusion in viewof the formthrough which such data are collected and its problematic interaction with the General Data Protection Regulation 2016/679/EU.
Liability of Parents Due to Actions Which Endanger Their Children
Authors: Verweij-Hoogendijk J.H.G.
Published: April 2022

Traditionally, parents are deemed to have a certain immunity from liability towards their children. In the Netherlands, however, this view is subject to change and the question of how to deal with the assessment of liability for dangerous actions by parents with regard to their children should be addressed. This struggle is reflected, for example, in a recent judgement by the Gelderland District Court. (Rechtbank Gelderland 10 September. 2018, ECLI:NL:RBGEL:2018:4466, VR 2019/85, para. 4.6.) In Germany, which has a special provision on parental liability towards their children in the Bürgerliches Gesetzbuch (BGB), the debate on this topic within the judiciary and in the literature has progressed further. On the basis of a recent Dutch case, this contribution will compare the Dutch and German law on the liability of parents and examines on which points German and/or Dutch law deserve to be followed when it comes to the liability of parents for dangerous actions towards their children.
Re-regulation of Infrastructure Investment: Issues for the International Lawyer
Authors: Chan Phil C.W.
Published: April 2022

Foreign investment is prone to regulatory risk. This is particularly so in respect of the utility sector, given the immovability of the infrastructure and the strong public interest in its regulation. Re-regulation of infrastructure investment can take many forms, including legislative or regulatory changes that foster competition previously not existing or environmental standards more onerous as well as increased tariffs and taxation. Unbargained for re-regulation always affects returns on the relevant investment.
Navigating the Maze: Reviewing the Information Disclosure Requirements in the Financial Services Acquis
Authors: Long Jennifer
Published: April 2022

This paper considers how the Commission should carry out its planned review of the pre–sale mandatory information disclosure requirements in Community legislation relating to purchases of financial services products.

It examines the literature on the communication and validation of legal norms to determine which criteria should be applied in assessing the requirements. It argues that the legislation has an instrumentalist intent which requires an assessment of the aims the legislation was intended to serve, the validity of that selection, the technical specification and communication of the norm and its effectiveness in achieving the objectives. It considers commentators’ emphasis on the importance of coherence and consistency of the legal system and argues that this alone is insufficient to validate the choices made by the legislator or to validate the requirements, which must also demonstrate ‘external coherence’ with the context in which it is applied.

It applies these criteria to test the validity of the objectives and the use of disclosure to meet them. It finds incoherence between the mechanisms through which disclosure is intended to contribute to consumer protection and internal market policy objectives, and between the mechanisms assumed in the legislation and in the ECJ’s judgments.

Examining the requirements themselves, the paper argues that they do not clearly communicate the content of the norm and proposes techniques for specifying the norms more effectively. It considers the systematisation of the requirements, without assistance from adjudication, in the context of the Community legal system and ‘externally’ and identifies problems in both respects.

It considers whether these problems are sufficient to make the case for change and alternative approaches to securing change in the light of the effect of ‘due process’ requirements for the validity of new proposals on their content. It identifies constraints on the type of change likely to succeed, and identifies priorities for change in the light of the criteria for validity considered earlier.
Four Years of MADness? – The New Market Abuse Prohibition Revisited: Integrated Implementation Through the Lens of a Critical, Comparative Analysis
Authors: Staikouras Panagiotis
Published: April 2022

The 2003 Market Abuse Directive (MAD) aims at streamlining the legal framework on insider dealing and market manipulation on a Community–wide basis, with a view to promote market transparency and integration. Nonetheless, the accomplishment of the aforementioned objectives depends upon the quality of the relevant legal rules and the consistency of national transposition. The present paper intends to provide o comprehensive analysis of the new market abuse prohibition also detecting and critically reviewing potential points of ambiguity and inconsistency. Moreover, by attempting a comparative analysis of the MAD’s transposition into the legal orders of several Member States (most notably United Kingdom, but also Germany, France, Netherlands and Greece) and discussing relevant jurisprudence,the paper also seeks to advance regulatory and supervisory convergence and foster consistent implementation of the new market abuse framework.
Assessing the Content of Contracts: Implied Terms from a Comparative Perspective
Authors: Vey Antoine
Published: April 2022

The doctrine of implied terms is a useful device used by English courts to fill gaps that may have been left in a written contract. French law has not identified a similar doctrine and the process of implication mostly operates on the basis of statutes, equitable considerations, or through a distortion of the principles of interpretation. Therefore, introducing the concept of implied terms in French law could help to solve some inconsistencies and be an opportunity to establish clearer divisions between interpretation and incorporation of clauses, thereby bringing more certainty and transparency to this judicial practice concerned with the assessment of the content of contracts.
European Takeover Law: The Case for a Neutral Approach
Authors: Enriques Luca
Published: April 2022

This article argues that in revising the Takeover Bid Directive, EU policymakers should adopt a neutral approach toward takeovers, i.e. enact rules that neither hamper nor promote them. The rationale behind this approach is that takeovers can be both value-creating and value-decreasing and there is no way to tell ex ante which kind they are. Unfortunately, takeover rules cannot be crafted so as to hinder all the bad takeovers while at the same time promoting the good ones. Further, contestability of control is not cost-free, because it has a negative impact on managers' and block-holders' incentives to make firm-specific investments of human capital, which in turn affects firm value. It is thus argued that individual companies should be able to decide how contestable their control should be. After showing that the current EU legal framework for takeovers overall hinders takeover activity in the EU, the paper identifies three rationales for a takeover-neutral intervention of the EU in the area of takeover regulation (pre-emption of "takeover-hostile," protectionist national regulations, opt-out rules protecting shareholders vis-à-vis managers' and dominant shareholders' opportunism in takeover contexts, and menu rules helping individual companies define their degree of control contestability) and provides examples of rules that may respond to such rationales.
Personal Data Breach Notification System in the European Union: Interpretation of Without Undue Delay
Authors: Wang Faye Fangfei
Published: April 2022

The fast-moving technologies continually challenge present rules on data-privacy protection. The expansion of computing functions, speed of processing and storage capabilities makes personal information difficult to be controlled. In the EU, the revised EC e-Privacy Directive amended by the Directive 2009/136/EC modifies existing provisions and makes new provisions to enhance privacy protection in the electronic communications sector, which includes the further development of the system of notification of the personal data breach to minimise adverse effects. This paper aims to examine and evaluate the personal data breach notification system, interpret the requirement of "without undue delay" duty and discuss the impact of the revised Directive to business organisations. It finally proposes solutions to improve the notification system to increase the efficiency of privacy protection.
A Psychology of Choice of Laws
Authors: Low Gary
Published: April 2022

There is certainly a lot of choice going around in the market for contract law. This is a good thing, since choice is key to self-determination and may help improve our laws. Yet there may be such a thing as choice overload, and the introduction of the Common European Sales Law is a timely reminder to consider its effect for the market for contract law. This article does just that. It explains what choice overload is, why it comes about, and what can be done to ameliorate its effects. The conclusion is that CESL will not cause choice overload but will not help in that respect either. Given the prospect of overload, this article evaluates the possible solutions to the problem, and advances the argument in favour of categorizing laws in order to help decision-makers to choose prudently.
The Dismissal by Way of Redundancy in the United Kingdom as a Possible Legal Concept to Be Transplanted in Italy?: A Meditation on the Odyssey of an Impossible Dismissal (the Economic Dism
Authors: de Gioia-Carabellese Pierre , Grandi Gaetano Zilio
Published: April 2022

The dismissal by way of redundancy in Britain is analysed in this contribution with regard to both its legislative pillars and the most recent judicial stances. However, the discussion goes beyond the mere revision of secondary sources, as the Authors propose to contrast the British jurisprudence with the Italian one, a jurisdiction that has just recently ushered into its legislative body, under the pressure of the European Union and against the backdrop of an increasingly deteriorated economic scenario, an up-dated, albeit partly flawed, form of redundancy (the redundancy for economic reasons or giustificato motivo oggettivo).

The results of the discussion (a pure comparative analysis in law, within the area of the employment law) are quintessentially groundbreaking, as a theory is corroborated that the British legislation in the matter of the redundancy should be used as a decidedly apt yardstick to which its Italian counterpart should work towards, particularly in respect of the possibility (rectius the necessity) to extend this legislative tool, just recently made tenuously applicable to private sector workers, to the public arena also.
Regulation of Credit Rating Companies: An Economic Point of View
Authors: Horsch Andreas
Published: April 2022

The original idea behind credit rating agencies was to provide evaluations of creditworthiness to help investors gauge the credit risk of investment opportunities. Since the 19th century, financial market processes have led to the continuously increasing importance of these credit ratings and, thus, their producers. Not surprisingly, credit rating agencies became not only the deputies of regulators (regulation by ratings): they also became subject to regulation. While these regulations remained unobtrusive and rather indirect for decades, they have become more direct and, hence, more publicly debated in the 21st century. This paper illustrates the little-known history of the regulation of ratings first. Thereafter, modern attempts to justify this regulation are scrutinized, leading to a rather sceptical assessment of the current, rather crisis-driven regulatory approach.
Simply a Matter of Style? Comparing Judicial Decisions
Authors: Andenas Mads , Andenas Mads
Published: April 2022

The style and format of court judgments have been subject to developments worldwide as courts adapt to the increasingly important issue of visibility and accessibility of judicial decisions. This article considers the evolving nature of the form of judgments within the common law focussing upon the UK Supreme Court, and analysing recent changes within a historical and comparative law perspective. It is argued that the Supreme Court should now be ready to leave the experimental stage and establish one main form of judgment, a change which will require changes to working methods, particularly in terms of deliberations and drafting.
Environmentally Beneficial Agreements and Article 101(3) TFEU: Are Non-Economic Benefits an Option?
Authors: Reynisson Kristinn
Published: April 2022

With the aim of assessing the relevance of environmental concerns under Article 101(3) TFEU, this article starts out with posing the question whether environmental concerns should be considered as relevant at all. This is answered by addressing the interface between competition law and environmental concerns. Discovering that the latter's influence on EU competition law has gradually increased and that environmental concerns have taken on the form of competitive parameters, the integration principle in article 11 TFEU is rendered relevant to the issue. That again raises the overarching question of how precisely or in what form environmental concerns should be applied under article 101(3) TFEU.

To address that issue, two ways of incorporating environmental concerns into an article 101(3) TFEU assessment are introduced, i.e. an economic value approach - adopted by DG Competition - and the proposed non-economic approach. Problems regarding the former approach are highlighted. Most notable is the question whether the Union Courts could find the economic value approach to constitute a manifest error of appraisal. In an effort to introduce an alternative approach - one capable of accommodating other EU ambitions in the application of EU competition law - the article introduces and explores the benefits of the non-economic approach.
German and International Perspectives of the German Model of Codetermination
Authors: Sandrock Otto
Published: April 2022

The German model of codetermination by the employees of a company bears two idiosyncrasies: Its extremely complicated nature and its uniqueness in the international setting. In this paper it is pointed out that in a comparative context, no other nation has a statute or statutes allowing for more codetermination by employees than the statutes just referred to.

The German system of codetermination has some definite advantages and disadvantages, not only viewed form a German point of view, but also in an international context. Strikes occur less often in Germany than in other countries where codetermination is less prominent. During the global and European economic financial crisis of 2007-2012, codetermination facilitated cooperation between management and employees to overcome difficulties. On the other hand, employee representatives have abused their powers at times and the management of many companies feels constrained by codetermination when hard decisions which are desperately required for the economic success of their companies have to be taken, but these decisions are blocked by employee representatives.

The paper considers these advantages and disadvantages before turning to the question of whether anything could be changed in the future. The conclusion is that change is hardly to be expected. For many decades, German trade unions have, for example, prevented SEs (Societas Europaea) from coming into existence. Now they flex their muscles to hinder the formation of SPEs (Societies Privata Europaea). They planned their strategy for decades and seem determined not to give away any of their powers. It is predicted that the situation will remain stagnate for the foreseeable future.
Corporate Regulation, Climate Change and Corporate Law: Challenges and Balance in an International and Global World
Authors: Dine Janet
Published: April 2022

The focus of this paper is the impact of corporate governance on the way in which corporations handle their environmental obligations. It is noted that the current relationship between corporations and the environment is unsatisfactory, drawing on levels of climate pollution and disasters such as the Tafigura to demonstrate the fact. Possible methods through which corporate governance can be used to address environmental issues are explored. The neo-liberal bent of current supervisor standards, in particular the World Bank's country assessment and OECD's guidelines emphasis on shareholder interests, is highlighted. It is argued that the current capitalist models fails to take adequate account of environmental concerns. The paper compares of UK and Albanian approaches to the regulations of directors' duties, as a reflection on the corporate governance policy of these jurisdictions. The ability of shareholders to protect and enforce corporate and environmental interests against directors who mismanage the corporation under both systems in considered. The paper concludes that the adoption by Albania of laws allowing for the lifting of corporate veils for companies acting internationally represents a significant advantage for minority stakeholders, including the environmental lobby, to ensure corporate responsibility.
Directors & Officers Liability, D&O Insurance and Moral Hazard: More Control of Moral Hazard by D&O Insurers Needed to Increase the Incentives of Directors and Supervisory Boar
Authors: Weterings Wim
Published: April 2022

Directors & Officers (D&O) liability insurance offers directors and supervisory board members ample protection against directors' and officers' liability. Due to the presence of D&O insurance, however, there are fewer financial incentives vis-à-vis directors and officers to act with due care - the moral hazard. D&O insurers can take various measures in an attempt to mitigate the moral hazard. Field research shows, however, that the moral hazard is being insufficiently addressed by D&O insurers in the Netherlands. This most likely also holds true for D&O insurers in other European countries and in the United States. It is, however, necessary to ensure that the moral hazard is optimally addressed and that the incentives for careful acts of management from liability law continue to be retained as much as possible. That is why it is desirable for D&O insurers to start implementing a retention for the Side A coverage for (the liability of) directors and officers.
Free Movement of Lawyers Within the EU Internal Market: Achievements and Remaining Challenges
Authors: Muller Gilles
Published: April 2022

The outstanding development of the European Union has entailed profound transformations in the legal professions over the last four decades. These developments have changed the practice of lawyers, which has become more internationalized and business- oriented in order to meet the demand for international legal services. On the other hand, the legal profession has remained generally heavily regulated with a local focus, which leads to significant differences between Member States. Such situation has resulted in obstacles to free movement of lawyers within the EU internal market. In this context, the rules of the Treaty on the Functioning of the European Union and the European institutions play a major role in the promotion of the free movement of lawyers within the EU internal market. The objective of this paper is to analyze the achievements of the liberalization process, which have taken place within the EU internal market and examine the remaining challenges, which may lead to some changes in the current regulatory framework.
Main Features of the European Banking Union
Authors: Nielsen Bodil S.
Published: April 2022

The Banking Union has significantly changed both the legal and the political landscape of the EU. All supervision of banks in the Euro Area will now ultimately be the responsibility of the ECB and no longer of the national banking supervisors, and a new European Agency and ultimately the Commission, in cooperation with the Council of Ministers, will be responsible for the resolution of banks facing serious difficulties. This article explores the main constitutive elements of the Banking Union, how they came into being and how they interact both within the Banking Union itself and with the EU as a whole.
Collective Redress: Broadening EU Enforcement through State Liability?
Authors: Marson James
Published: April 2022

This article advances an argument that private enforcement of European Union (EU) rights has largely been stunted due to a series of blocking tactics by Member States, enabled through a form of tacitic subservience of the Court of Justice of the European Union. Currently, State Liability is neither an effective system of redress under tortious liability, nor a genuine enforcement mechanism in domestic law. By enabling collective redress in State Liability, we present an argument, missing explicitly in current literature, that both as a viable remedy through the (UK’s modified) tort of breach of statutory duty, and through granting effective redress through action by the EU Commission, State Liability will become the mechanism for corrective justice the Court of Justice envisaged in 1991. In 2011, the EU Commission issued a nonbinding Recommendation establishing collective redress for breach of competition law. Could this be seen as positive positioning by the EU to seize the initiative for greater access to individuals of justice and justiciable solutions?
Towards a Future Investment Treaty: Lessons from Indirect Expropriation Cases due to Measures to Protect the Environmental and Public Health
Authors: Andrina Sukma Dwi
Published: April 2022

This article considers the formulation of indirect expropriation in the Comprehensive Economic and Trade Agreement between the European Union and Canada (“CETA”) and the European Union – Singapore Free Trade Agreement (“EU-Singapore Trade Agreement”). It identifies the factors to be taken into account by tribunals when adjudicating indirect expropriation claims under these two agreements. Further, it examines how these factors have been interpreted by tribunals in cases which deal with environmental and public health measures. The article argues that the innovations introduced by CETA and the EU – Singapore Trade Agreement have successfully addressed the concerns generated by indirect expropriation cases but some questions still remain unresolved.
G20 Economic Coordination and the Rule of Law: A Case of Taxation
Authors: Blizkovsky Petr
Published: April 2022

The G20 has emerged as a key informal forum of global economic governance after the economic crisis of 2008. The paper argues that the rule of law aspect of the G20 economic policy coordination is a limited one. It is mainly due to the fact that the economic policy coordination, such as macroeconomic, monetary or financial services, focuses primarily at the target of public good rather than at the rule of law.

Emergence of a tax evasion coordination at G20 level creates a specific case of economic policy coordination. It targets multilateral coordination of taxation – a policy which is subject to national sovereignty. The paper analyses the rule of law impact of the tax policy guidance of G20 for the G20 members and others, through the channels of existing international organisations and beyond.
A Framework for a Nordic Corporate Governance Index
Authors: Ilmonen Klaus R.
Published: April 2022

The same metrics may not be appropriate for assessing the quality of corporate governance in different institutional environments and for different structures of corporate ownership. For example, it has been argued that the quality of corporate governance models in the Nordic region, with relatively high levels of concentrated ownership but with reportedly low levels of private benefits of control, is not fully reflected in established corporate governance indices that apply uniform metrics to different corporate governance systems.

This paper argues that many established corporate governance indices use metrics that are less relevant in the context of concentrated ownership. This results in inaccurate comparisons of country-level corporate governance regulation. Corporate governance mechanisms should be analyzed and rated in the context of the relevant corporate environment, recognizing functionally equivalent mechanisms. The study identifies relevant attributes for regulation in concentrated ownership environments that can be used to develop more accurate corporate governance indices.
Corporate Social Responsibility: A Comparative Study in Legal Perspectives
Authors: Jaradt Nashat Mahmoud Abdalla
Published: April 2022

Corporate Social Responsibility (CSR) is globally understood although not a legally binding requirement for companies to adhere to. That is not to say that legislative and regulatory factors are not at play, such as through tax reductions or carbon credits. The way in which CSR plays out in different countries can be vastly different or undertaken for various reasons. The CSR interplay between companies located in the United Kingdom and those located in UAE are reviewed in this research in order to determine whether Western CSR aligns to Middle Eastern CSR in everyday application. It can be seen that there are two basic reasons why companies undertake CSR; each reason has multiple avenues to it. The main reasons would be for energy efficiency and for social inclusion. Whereas companies in the United Kingdom can be seen to implement CSR on a legislative level in terms of trying to create energy efficiency, reduce carbon imprint and avail of optimal tax advantage status it can be seen the companies in UAE implement CSR procedures with the socio-economic social inclusion factor at its core, in order to provide for citizens who are unable to provide for themselves and in order to offer a level of subsidy to all citizens in relation to fulfilling their basic needs of food, housing and education.
Governance of the European Banking Unions Single Resolution Mechanism
Authors: Busch Danny
Published: April 2022

This article analyzes and discusses the governance or decision-making structure of the Single Resolution Mechanism (SRM) within the European Banking Union, particularly with respect to financing of the Single Resolution Fund and adoption of resolution schemes. The governance structure of the SRM is undoubtedly complex. It is clearly a compromise, desperately trying to strike a balance between the interests of individual Member States within the Eurozone, the interests of the Eurozone or the EU as a whole, and, sometimes, the interests of Member States outside the Eurozone. Certain aspects of the complexity are however due to technical reasons of EU law, particularly the Meroni-doctrine. The SRM’s governance structure features several layers of complexity. The SRM’s complex governance structure may well have a negative impact on the effectiveness of decision-making within the SRM framework – efficient, impartial, decisive and quick decision-making is obviously crucial in the case of bank resolution.
Women on Corporate Boards: A Comparative Appraisal of Italian Law
Authors: Venchiarutti Angelo , Monaco Paola
Published: April 2022

Both within and outside Europe, the number of women sitting on corporate boards is very low. In spite of the rising number of women earning post-graduate degrees in law, business and administration, only a minority of them ends up sitting on companies’ corporate boards. Against this context, the aim of this article is to study the Italian approach to this problem, and to set it against the framework of the solutions adopted in Europe. The articles starts by analyzing the initiatives carried out by the European Union with the goal of promoting equal treatment between genders on corporate boards. After the survey of the soft and hard measures undertaken by some European countries to tackle gender imbalance on boards, the paper will analyze the legislative reform recently adopted by the Italian Parliament. The conclusion will focus on the effectiveness of European positive actions to tackle gender inequality in corporate boards
The Emergence of Regulation: Market Failure, Subversion of Justice and Inadequacy of Private Law
Authors: Korotana Mohammed Shabir
Published: April 2022

Often the justifications for the emergence of public regulation have been explained as instances of ‘market failure’. In such instances, it is always argued that somehow an unregulated market has failed to produce social outcomes in accordance with the public interest. Market failure theory is a classic economists’ view regarding the emergence and justification of regulation. Nevertheless, market failures are ubiquitous and so cannot be put forward as a theory to explain the emergence of regulation. However, one might like to think from a different perspective – from a legal point of view – that regulation actually emerges because of the subversion of justice, inefficiency or inadequacy of the common law. It is the failure of contract and tort law as a mechanism to secure property rights that has prompted the emergence of regulation. However, there is another view that regulation also emerges on the basis of ideas of fairness and rights.
Is the Price Right?
Authors: Stonely Peter , Shears Peter
Published: April 2022

It was on sale! In 2017 our instinct is to protect against misleading price indications. 55 years ago a UK Government Committee reported. “Our reaction to the complaints about deceptive methods of indicating the price of goods on display is that consumers must be expected to go shopping with their eyes open and their wits reasonably alert. If it should happen to their cost that they fail to notice [the details of the price] they will have had a valuable lesson which might later help them more than anything we could recommend.” This article will seek to track the changes.
Regulating Bank Governance and the EU Capital Requirements Directive
Authors: Alexander Kern
Published: April 2022

This article pays tribute to Professor Mads Andenas’s scholarly contribution to European banking law and regulation. The article addresses how EU banking law under the Capital Requirements Directive IV regulates private shareholder rights regarding their governance or control rights over banking corporations and the extent to which public law regulatory powers are constrained by EU constitutional law regarding the application of administrative sanctions on EU banks or bank shareholders who violate CRD IV governance principles and rules. The analysis will focus on the CRD IV’s sound and prudent governance principle and related regulatory technical standards adopted by the European Banking Authority. It will also analyse the extent to which EU administrative or regulatory sanctions can be applied to banks for violating the sound and prudent governance principle and related regulatory standards and how the principle of proportionality could apply to the exercise of such regulatory powers. The article builds on the fascinating body of work of Professor Andenas in analyzing EU banking law and the extent to which EU member state supervisory authorities are constrained by fundamental EU legal principles in imposing sanctions on banks for violating applicable law and regulatory rules.
Governing the Good State Shareholder: The Case of the OECD Guidelines on Corporate Governance of State-Owned Enterprises
Authors: Rajavuori Mikko
Published: April 2022

The newly revised Guidelines on Corporate Governance of State-Owned Enterprises (2015) by the OECD are fast emerging as a new regulatory paradigm for the administration of State-owned enterprises and the organization of the State ownership function. This article analyses the Guidelines’ policy prescriptions, governance strategies, and integration into global governance. Noting that the instrument operates by governing the shareholder’s internal make-up, decision-making and objective setting, the article argues that the Guidelines amount to a robust model for an ideal State shareholder – the Good State Shareholder. Efficient, engaged, and accountable, the Good State Shareholder emerges as a critical actor in the contemporary global economy, where States continue to amass and command immense shareholder power. However, when juxtaposed with the recent attempts by the UN to adopt State ownership as an instrument of human rights governance, the fault lines of the Good State Shareholder model, as well as the emerging techniques of shareholder governance, are exposed.
Reforming Italian Insolvency Law: Bankruptcy vs Judicial Liquidation
Authors: Benocci Alessandro
Published: April 2022

The Italian Parliament has recently approved the Enabling Law no. 155/2017, which draws on the results of the work of the so-called Rordorf Commission, previously established by the Minister of Justice with the task of preparing a general reform proposal on corporate rescue and insolvency (Reform Law). Among the interventions envisaged, the Reform Law provides for the elimination of the term “bankruptcy” from the Italian insolvency panorama and the replacement of the bankruptcy proceeding with a new procedure, called “judicial liquidation”. The explanatory memorandum says that the decision to abandon the term “bankruptcy” aims to avoid the social stigma historically related to a person being declared “bankrupt” even though this is not justified by the mere fact of an entrepreneur failing to achieve a successful outcome. There is no doubt that an entrepreneurial crisis cannot be considered incontrovertible proof of inherently antisocial and illegal conduct. Nevertheless, experience shows that entrepreneurs who are declared bankrupt are strongly discredited by dint merely of the bankruptcy, even when their honesty is indisputable. The following pages will thus verify the elements of discontinuity between the “old” bankruptcy and the “new” judicial liquidation, in order to understand whether the transition from the former to the latter actually represents a cultural revolution or should instead be regarded as merely a cosmetic reworking of the regulations.
The Rent to Buy in Italy: Mater artium necessitas
Authors: Valentino Daniela
Published: April 2022

The paper analyzes the legal issues of rent-to-buy contracts which are mostly preferred in times of crises due to the lack of liquidity and the increased difficulty in obtaining credit for house purchase. Scholars qualify these agreements as a sale subject to a deferred payment and constant installments. The complexity of the bargain could lead to reflect alternatively on two independent and autonomous yet connected contracts or a new contract, characterized by its unique and original purpose (“causa”). Indeed, the essential articulation of the monthly option credit and the monthly rent amount is a typical pattern in rent-to-buy agreements. Unsurprisingly, Art. 23 of the Law Decree n. 133 of 12 September 2014 makes a clear choice for the latter: a single contractual sequence composed of two elements, one of which is merely accidental. The author also points out that the new type of contract is part of a series of contracts of enjoyment finalized upon the subsequent purchase. The phenomenon is carefully analyzed in practice, based also on the experience and the debate in France, Germany and the United States.
Multinational Enterprises and National Insolvency Laws: Lobbying for Special Privileges
Authors: Paulus Christoph
Published: April 2022

There is a friction between the global level playing field of multinationals and its fragmentation through national legislations. This is true for all areas of law but it is particularly significant for the insolvency laws of the national jurisdictions. Since insolvency law is one of the twelve key elements which are listed by the Financial Stability Board as being quintessential for the financial stability of each national economy. The article demonstrates how various multinationals very successfully overcome that friction by providing themselves privileges which contradict the fundamental principle of pari passu and shed irritating light on how lobbying is performed. It is particularly the national legislators’ acceptance of being lobbied that leaves a very bad aftertaste about how legislative work in modern times is performed, irrespective of all democratic décor. The article ends with a strong plea to the academic world to accept the responsibility for being the sole supervisory instance.
Cross-Border Business of UK Credit Institutions and Investment Firms with German Clients in light of Brexit, MiFIR and MiFID II
Authors: Nemeczek Heinrich , Pitz Sebastian
Published: April 2022

The passporting framework currently offers UK institutions a cost-effective access to the EEA financial markets for their cross-border activities. As this privileged access may cease to apply after Brexit UK institutions will possibly have to rearrange their approach to access the EEA financial markets. This article discusses the different options available to UK institutions if they want to continue their cross-border activities in Germany. It analyses the requirements and advantages of either establishing a licensed subsidiary under the sole supervision of BaFin and/or the ECB, or of a new ‘EEA hub’ in another EEA country. Further alternatives include cross-border services under the MiFID II/MiFIR framework that is applicable since 3 January 2018, the establishment of third-country branches, the German national exemption from licensing requirements, the privileged treatment through a German ordinance and possible activities on the basis of reverse solicitation.
The Case for Truly Independent EU Regulatory Authorities in the Field of Financial Regulation
Authors: Ortino Matteo
Published: April 2022

In the wake of the financial crisis, the European Union established the European System of Financial Supervision (ESFS), a ‘hub and spoke’ network of national and Union supervisory authorities, aimed at ensuring a stable and single Union financial market for financial services by linking national supervisors within a strong Union network. The ESFS is composed of three European Supervisory Authorities, as well as a Joint Committee of the European Supervisory Authorities and an European Systemic Risk Board. This article makes two arguments. The first is that the European Supervisory Authorities should be reformed. In order to work more effectively they should possess final regulatory and supervisory powers and, more generally, a higher degree of independence. The second claim is that EU Treaties allow such reforms, provided that they meet the constitutional requirements concerning the delegation of power as clarified in the case-law of the Court of Justice of the European Union.
The Heterogeneous Composition of Syndicated Loan Consortiums
Authors: Estevan de Quesada Carmen
Published: April 2022

The global syndicated loan market has been given new impetus after the slowdown during the worst years of the recent crisis. In recent times a new trend has become apparent with regard to the operators in this market, with institutional investors playing an ever more important role, as opposed to the banks that have traditionally dominated the market. This paper offers a brief introduction to the main features, contractual arrangements and players of syndicated loans, examines the structure and functions of syndicated loan consortiums in greater detail, and proposes their classification as a horizontal contractual business network. It also analyses their growing heterogeneous composition and concludes that some related goverance problems in the consortium could be fruitfully addressed from the business networks perspective.
The Making of Consumer Law and Policy in Europe and Italy
Authors: Alpa Guido
Published: April 2022

Before the creation of the European Economic Community in 1957 the Italian legal system did not know the notion of consumer in its legal meaning: “consumer” was a sociological and economic concept. Buyt for a quotation of this term in the Report made in 1942 by the Minister of Justice to the King concerning the presentation of the new Civil Code no statute had any reference to it. Only with the enactement of EC directives in different fields and only with the development of products liability the notion of consumer began to be a solid concept with important legal aspects. Today consumers occupy a relevent place in themarket, in contract law, in tort law, and also in competition law, and concumers associations are strong counterparties of entrepreneurs.
Autonomous Interpretation of Uniform Commercial Law: The East-West European Divide
Authors: Vassileva Radosveta
Published: April 2022

The requirement for autonomous interpretation of international instruments has been a subject of concern for decades. Academics have particularly paid attention to the so-called common law/civil law divide. Yet, is this the only divide, which persists? By showcasing the distinct Bulgarian approach to autonomous interpretation of international instruments, this paper raises concern about the East-West European divide, which has been ignored by Western scholarship. It draws on two concrete examples – the Bulgarian interpretation of the CISG and EU consumer directives – to underscore that Bulgarian legal cultural particularities endure in these different contexts despite the various mechanisms aimed at enhancing uniform interpretation, which have been put into place. Finally, the paper calls for the development of more elaborate strategies for facilitating autonomous and more uniform interpretation, which consider the idiosyncrasies of East European jurisdictions like Bulgaria. The question is relevant both for international instruments, which are already in force, as well as for the advancement of future harmonizing documents.
Law and the Market: Private Actors and Self-Regulation Towards a New Role Of Public International Law
Authors: D’Alvia Daniele
Published: April 2022

This paper re-interprets the new governance of financial markets. Indeed, in the aftermath of the recent financial crisis (2007-2010) the features of risk and uncertainty have presented a new ontological realism, so that the abstract theorisations of Knight and Keynes can be finally superseded. Therefore, a revaluation of uncertainty from a humanist perspective is suggested, taking into account risk and competition as forms of the new economy of financial systems. Treaties are traditionally considered as the  preeminent source of law in public international law, but in financial markets their role has been reduced to instances of ‘macro-regulation’ as opposed to ‘private rules’ that are embedded in self-regulation instruments. Indeed, these latter have paved the way to a specific knowledge of the financial industry. In this light, financial systems are studied as venues through which private forms of self-regulation can effectively substitute a Westphalian model of regulation or alternatively coexist with them in a mixed system of financial regulation.
Restoring Regulatory Credibility and Preventing Repo Runs: A Cautionary Tale
Authors: Mcvea Harry
Published: April 2022

In the aftermath of the global financial crisis (‘GFC’), policy-makers and regulators have been engaged in Herculean efforts to restore their tarnished reputations. These efforts have involved jettisoning much of their flawed ideological baggage of old, rooted in a belief about the self-correcting nature of markets and the ability of financial institutions to police themselves, and, in turn, building new, more muscular regulatory and supervisory regimes. This ongoing process is explored through the lens of a high-profile facet of shadow banking, namely the regulation of sale and repurchase agreements (so-called ‘repos’). Here, regulators have set out to address a key vulnerability associated with the maturity mismatch between the short-term liabilities of the repo borrower and its longer-term assets, which has the potential to trigger a so-called ‘repo run’. Through a review of a series of highly problematic reform options, the discussion indicates that there is a danger that regulators will repeat the mistakes of the past by substituting their misplaced faith, pre-GFC, in the self-correcting power of markets, with a misguided conviction, post-crisis, in their capacities to build regulatory regimes which can contain the risks associated with modern-day financial markets. It is suggested that such over-confidence is liable to lull us into a false sense of security about how robust these regimes really are, and to cause regulators to shirk some of the more difficult questions which remain to be addressed.