bluuebunny/crossref_metadata_2025 huggingface dataset:
Full Harmonization, Consumer Protection and Products Liability: A Fresh Reading of the Case Law of the ECJ
Authors: Verheyen Thomas
Published: April 2022

Abstract: It is debated whether the European Products Liability Directive (85/374/EEC) (EPLD) is meant to protect victims of product-related accidents or to create a level playing field. This article proposes to solve this controversy by making two separate, but interlinked claims. Taking advantage of a brand-new case and focusing on issues of burden of proof, it first identifies a trend in the recent case law of the ECJ to decide in favour of the consumer. Secondly, and more importantly, the article demonstrates that the question about the aim of the EPLD can be answered at two different levels of abstraction. In line with the legal basis of the directive (former Art. 100 EEC, current Art. 115 TFEU), the ECJ has always pressed the point that the EPLD, taken as a whole, is fully harmonizing within its scope – even to the detriment of consumers. Within this perimeter set by the ECJ, however, the directive undeniably counts as a consumer protection device. Not only the overall equilibrium struck by the directive bears witness to this phenomenon. It is also clearly manifested in the way the ECJ interprets the directive within the boundaries of the full harmonization.

 Résumé: La directive 85/374/CEE sur la responsabilité du fait des produits défectueux vise-t-elle au développement du « level playing field » ou à la protection du consommateur ? Voilà une question fort contestée dans la doctrine juridique européenne. En vue d’éclaircir ce problème, cet article consiste en deux thèses différentes, mais toutefois corrélées. Prenant comme point de départ un nouvel arrêt de la Cour de justice de l’Union européenne (CJUE) sur la preuve en matière de la responsabilité du fait des produits défectueux, l’article démontre d’abord que la jurisprudence récente de la CJUE sur ce sujet est caractérisée d’une volonté de la Cour de statuer en faveur du consommateur. En plus, l’article avance la thèse que l’on peut répondre à la question sur le but de la directive sur deux niveaux d’abstraction différents. Bien démarquant la liberté des États Membres d’avantager les consommateurs au-delà des provisions de la directive, la CJUE est toujours restée fidèle à sa base juridique, l’ancien article 100 de la CEE (l’article 115 TFUE), provision qui ne permet à l’Union de promulguer que de directives harmonisant complètement les matières qu’elles gouvernent. Néanmoins, au-dedans des contours de l’harmonisation complète, il n’existe aucun doute que la directive cherche à protéger les victimes d’accidents causés par des produits défectueux. Cela s’avère de l’équilibre maintenu par la directive entre les intérêts des différentes parties et de la jurisprudence de la CJUE sur d’autres thèmes que l’harmonisation.
Personalization of Information Duties Challenges for Big Data Approach
Authors: Poludniak-Gierz Katarzyna
Published: April 2022

Abstract: The purpose of this article is to identify the opportunities and risks of applying big data technology to regulate the information duties of entrepreneurs in business to consumer relationships. The proposed volatile regulatory framework is assessed from various perspectives, considering research on consumer behaviour, doctrine insights, broader legal contexts, and possible after-effects. As a result, the possibility of using personalization to tailor obligation duties is questioned. Nevertheless, consequences of consumer profiling from a civil law perspective require the immediate attention of legal doctrine and EU legislators.

 

Résumé: L’objectif du présent article est d’identifier les opportunités et les risques de l’application de la technologie ‘big data’ pour encadrer les obligations d’ information des entrepreneurs dans les relations B2C. Le cadre réglementaire proposé est examiné sous des angles différents, en prenant en compte les résultats des recherches menées en matière de comportements des consommateur, les réflexions issues de la doctrine, d’autres environnements juridiques et les effets secondaires possibles. Par conséquent, la possibilité d’utiliser la personnalisation pour façonner les obligations est discutée. Toutefois, les conséquences du profilage des consommateurs dans une perspective civiliste requiert l’attention immédiate de la doctrine et du législateur européen.
Electronic Platforms: Openness, Transparency & Privacy Issues
Authors: Mik Eliza
Published: April 2022

Abstract: Any discussion of the legal issues surrounding blockchain technologies seems doomed from the outset. The sheer amount and complexity of technical terms, which are often used inconsistently, precludes an exhaustive and disciplined analysis of the potential legal problems that could arise from the widespread, commercial use of blockchains. Consequently, the evaluation of the popular claims hailing blockchains as enablers of commerce is extremely challenging. Additional complications arise from the fact that blockchain technologies are accompanied by multiple ideological concepts that, at times, seem to preclude logical reasoning. Terms such as ‘decentralization’ or ‘trustlessness’ are presented as ultimate values that must be strived towards at any cost – even if their full implementation leads to commercially undesirable results. Acknowledging the practical impossibility to provide a thorough explanation of the relevant technological concepts and to surmount claims that ‘commerce must be decentralized’, this article provides an overview of the different types of blockchains and presents their practical shortcomings. It focuses on the division between permissionless and permissioned blockchains to demonstrate that only the latter could potentially serve as electronic platforms supporting a wide range of commercial transactions. The main point made in this article is that technology, irrespective of its sophistication, cannot exist without a supporting legal infrastructure – and without regard to legal requirements.
Tort Law and the Regulation of Classification Societies: Between Public and Private Roles in the Maritime Industry
Authors: De Bruyne Jan
Published: April 2022

Classification societies provide commercial certification services in the maritime sector. In this private role, they issue a certificate attesting that a vessel is built in accordance with class rules. The services of classification societies gradually expanded to carry out certification services on behalf of flag States. In this public role, they implement and enforce international maritime safety standards. The dual role of classification societies becomes important in assessing the potential of tort law in regulating their conduct. The article argues that the risk of tort liability can be used as a starting point to increase the accuracy and reliability of class certificates due its so-called deterring effect. The deterring effect of tort law, however, can be undermined by the dual role of classification societies. Against this background, the role and functioning of classification societies might need some reconsideration.
The Right to a Compensation In Case Of Long Delay of Flights: A Proposal for a Future Reform
Authors: Pazos Ricardo
Published: April 2022

The European Court of Justice case law on Regulation (EC) No 261/2004 has set out the right to a standardized compensation in case of long delay of a flight, a right which is not recognized according to the wording of the Regulation. The procedure to amend the European text is currently on a standstill, something that constitutes an opportunity to debate the future of the referred right. This article presents several options, showing a preference for coming back to the wording of the Regulation and not to recognize the right to a standardized compensation in case of long delay. A second proposal, more realistic, consists on replacing the lump sum compensation for one calculated on the basis of the ticket price. The arguments offered in the article concern both an abstract and a specific dimension, that is, both the rationale behind the current rule and its content are considered. The first set of arguments focuses on the justification for regulation and on some EU goals, such as enhancing consumer protection and fostering the internal market. The second set of arguments highlights some criticisms raised against the European Court of Justice (ECJ)’s case law and the fact that the current rule distorts competition because it favours certain business models, something that may ultimately harm European consumers.
Book review: The Future of Collective Redress in Europe: Limitations and Possibilities. A Review of Multi-Party Redress Mechanisms in Europe: Squeaking Mice?, edited by V. Harsagi & C.H. van Rhee
Authors: Fortes Pedro Rubim Borges
Published: April 2022

This article is both a review of the important book ‘Multi-Party Redress Mechanisms in Europe: Squeaking Mice?’, edited by Viktória Harsági and Remco van Rhee, and an analysis of the limitations and possibilities of European Collective Redress. The book contributes to theoretical and interdisciplinary debates in a range of topics related to collective actions. First, it reveals the European way and the particularities of the emerging model of collective redress. Second, it examines the scope and the restrictions of this instrument in comparison to the Class Actions. Third, the characteristics of the aggregation mechanism are discussed, especially rules for standing, membership, and notice. Fourth, the judgment of collective actions involves courts, trained judges, burden of evidence, functions and the possibility of settlement. Furthermore, different country reports describe the experience of eight national jurisdictions with representative actions and group proceedings. This article aims to take the debate one step further to assess the future of collective redress in Europe. An original argument about the existence of three legal families of collective actions – Class Actions, Civil Public Actions, and Collective Redress – is made. Additionally, there is an evaluation of the limitations of collective redress, followed by an assessment of possibilities. Finally, there is an assessment of the recent developments at the European Commission and a discussion of the innovations brought by the New Deal for Consumers.
The Spanish and Portuguese Systems: Two Examples Calling for a Further Reform – Uncovering the Architecture Underlying the New Consumer ADR/ODR European Framework
Authors: Cebola Cátia Marques , De La Rosa Fernando Esteban
Published: April 2022

The article scrutinizes the European Framework for consumer ADR and ODR with the purpose of uncovering how Europe aims to develop ADR and ODR in EU MS in order to deliver justice and ensure a better enforcement of EU consumer protection rules and a better functioning of the markets. It deepens on the transformations in the ADR systems required to better fulfil the new functions assumed by the certified ADR entities and the role that the technology may play inside efficient certified consumer ADR entities. The domestic implementation of EU law in Spain and Portugal rather seems to perpetuate the pre-existing systems although wrapped up in European packaging with a ribbon on top. The exam reveals the existence of a further path for improvement and for obtaining additional advantages that could lead to a better functioning of the markets and a more suitable encompass with the philosophy that underlies the EU Regulatory Framework. The article explores different ways to move forward and achieve a higher degree of compliance with the ADR/ODR Regulatory Framework.

ADR, ODR, Consumer Redress, European Regulatory Framework, Consumer Arbitration System, Spanish Law, Portuguese Law.
The Norwegian Application of the Contracts Act Section 36
Authors: Hauge Hilde
Published: April 2022

The article presents the general clause in the Norwegian Contracts Act section 36. The background and the purpose are explained, and the article provides an overview over the relevant case law, which indicates that the general clause serves different functions in the Norwegian contract law.
Incentives for Choice of Law and Forum in Commercial Contracts: Predicting the Impact of Brexit
Authors: Merrett Louise , Sommerfeld Antonia
Published: April 2022

Looking at the empirical data, English law and England as a forum are currently businesses’ prevailing choice for dispute resolution in international commercial transactions in Europe. This article analyses the factors determining businesses’ choice of contract law and forum in and the underlying mechanisms for businesses’ choices. These findings will be used to analyse what possible effects and consequences Brexit may have for the London commercial courts and the choice of English contract law. Will there be a switch of focus in approaching European commercial contracts and dispute resolution? Or will Brexit impact little on London’s prevailing position in the market for dispute resolution and the choice of English law in international commercial contracts?
Search Engines, Digitalization and National Private Law
Authors: Wolters P.T.J.
Published: April 2022

This article answers the following questions: Does the increased influence of digitalization lead to an expansion of the role of private law? How does this expansion affect the division of roles between national private law and the law of the European Union?
Les droits subjectifs inclusifs en droits belge, français et américain Analyse à partir du droit aux choses communes (y compris la public trust doctrine), du droit à l’usage des voies publiques et du droit aux biens communaux
Authors: Van de Voorde Johan
Published: April 2022

The search for instruments to protect the environment has lead to the rediscovery of some ancient legal concepts, notably the res communes in the sense of article 714 of the Belgian and French Civil Code (Article 3.43 of the new Belgian Civil Code) and the public trust doctrine in United States law. The res communes are things which cannot be appropriated by anyone (such as water in rivers and seas, atmospheric air, nature and several components of nature), on which each therefore has a subjective right of use and enjoyment. This subjective right is protected, as are all subjective rights, by a cause of action (even independent of any tort). The fact that the right concerning res communes or the public trust benefit in principle everyone has interesting implications: it is not an exclusive subjective right, but an inclusive subjective right. The category of inclusive subjective rights is rather unknown and neglected in legal analysis. This contribution analyses this category, firstly identifying some inclusive subjective rights (next to the res communes and the public trust, it studies in the first place the rights to use public highways and more generally government property destined for public use (domaine public) and in the second place the collective rights of inhabitants of local communities to certain goods held by the incorporated community). It analyses then some of the general principles of their legal status, followed by an examination of their protection by legal action before the courts.

Environmental protection - res communes - subjective rights - French law - Belgian law - Code Napoléon - inclusivity - inclusive subjective rights - exclusivity - public trust doctrine
Admissibility of a National Limitation Period Under the Principle of Effectiveness in EU Law
Authors: Norros Olli
Published: April 2022

Like most of the central legal questions in the field of civil law, the question when a debt becomes time-barred is not harmonized within the EU, but is governed by rules at national level. This applies normally even in situations where the grounds of the claim itself are based on EU legislation. In this situation the applicable national rules must meet the requirements of equivalence and effectiveness. The requirement of effectiveness provides that national procedural rules must not render the exercise of rights conferred by EU law virtually impossible or excessively difficult. This article analyses under what circumstances national limitation rules may become inconsistent with the principle of effectiveness. The finding is that in this assessment the most influential criterion is whether commencement of the limitation period is postponed until the creditor has or should have had the possibility to enforce their claim, or if the creditor has in any case had a real possibility to present a claim prior to expiry of the period. If the answer is negative, the question must then be asked whether this outcome, namely the creditor’s claim becoming time-barred, is justifiable by the objectives of the prescription regime, and whether the norms that led to this outcome are similar to corresponding norms in other legal systems. Perhaps the most important factor here is the length of the applicable ‒ expired ‒ limitation period. If it is seen as sufficiently long in proportion to its objectives and not particularly short in international comparison, the prescription regime should most likely be held as admissible in the light of the principle of effectiveness.

Law of obligations, European Union law, prescription, limitation of actions, the principle of effectiveness
Personalized Unfair Terms Control: EU Law Meets Innovative US Doctrines
Authors: Patti Francesco Paolo
Published: April 2022

According to part of the US scholarship, the use of big data and prediction algorithms could entail a paradigmatic change in contract law: No longer would one have general and abstract legal norms, but rather granular and personalized ones, customized on the needs and features of the contracting parties. This shift to a law tailored to specific individuals could affect both default and mandatory rules and provide for a more efficient and just legal system. The argument goes that such a flexible and technology-driven regulation is also capable of addressing the issue of unfair personalized pricing schemes applied by businesses in online transactions. The present contribution adopts a futuristic approach and investigates whether these doctrinal proposals could possibly pave the way for an amendment of the Directive 93/13 on unfair terms in consumer contracts. In doing so, the main elements of the unfair terms control are highlighted, together with their link with national default rules, which serve both as a benchmark for the assessment of the unfair character of the clause and as gap-fillers. Based on a comparison with the findings of US scholars, it then explores how the unfair terms control may change in order to reduce cross-subsidies to a minimum and tackle discriminatory pricing schemes. Finally, this article elaborates further on how the modifications could be implemented within a new enforcement mechanism, using a technology that would also cover so-called smart contracts.

personalization, unfair terms control, big data, consumer contracts. Motsclés: Personnalisation, Contrôle de clauses abusives, Grandes bases de données, Contrats conclus avec les consommateurs Schlüsselwörter: Personalisierung, Kontrolle missbräuchlicher Klauseln, Big Data, Verbraucherverträge
A NCC Case on Contract Interpretation from an English and Dutch Law Perspective
Authors: McKendrick Ewan , Luycks J.M. , Hendrikx A.M.M.
Published: April 2022

This contribution discusses the first instance decision of the Netherlands Commercial Court between Subsea Survey Solutions LLC and South Stream Transport BV from an English and Dutch law perspective. The principal issue before the court concerned the interpretation of Clause 7 of the Settlement Agreement entered into between the parties and in particular whether or not this release and discharge clause provided South Stream with a defence to the claim which had been brought against it. This contribution discusses in a comparative way the principles of English and Dutch law which govern the interpretation of contracts. The conclusion is that the gap between the English and Dutch approach in relation to contract interpretation, although different in form, does not seem to be as broad as believed by many.
Unfair Terms and Supplementation of the Contract
Authors: Farina Marco
Published: April 2022

Article 6, paragraph 1 of Directive 1993/13/EEC provides that unfair terms shall not be binding, whereas the contract shall continue to bind the parties with regards to the terms that can still be effective. Such a rule pursues the particular interest of the consumer, along with the more general interest towards an efficient and competitive market only when the abusive clause is not essential. In fact, when the unfair term constitutes one of the main obligations of the debtor, the contract is not able to continue to exist once deprived from the unfair term. In such situations, in order to provide the consumer with an adequate and effective remedy, a supplementation of the contract is needed.
The Franco-German Common Optional Matrimonial Property Regime: A Guide for Future European Harmonization
Authors: Thijs Hannelore
Published: April 2022

In 2010, France and Germany introduced a common optional matrimonial property regime of participation in acquisitions in both countries. One of its goals was to establish European harmonization, up until then a rare occurrence in the broad field of family law. The harmonization journey was continued by Belgium in 2018, when the Franco-German agreement was taken over in the Belgian Civil Code. This article evaluates the Franco-German regime from both an internal and an external point of view in order to determine the success of this operation. In the internal analysis, the regime will be presented as a modern and balanced compromise between the French and German domestic participation in acquisition regimes. In the external analysis, the regime will be qualified as a legal transplant in Belgium that at this moment in time does not survive the operation. Despite this seemingly negative evaluation, the regime may still increase its success rate, provided all actors involved take the required measures. In any case, the regime should be welcomed as harmonization initiative, considering that new projects may learn from its successes as well as from its stumbling blocks.
The Legal Regulation of Digital Wealth: Commerce, Ownership and Inheritance of Data
Authors: Parrilla José Antonio Castillo
Published: April 2022

Digital wealth and its necessary regulation have gained prominence in recent years. The European Commission has published several documents and policy proposals relating, directly or indirectly, to the data economy. A data economy can be defined as an ecosystem of different types of market players collaborating to ensure that data is accessible and usable in order to extract value from data through, for example, creating a variety of applications with great potential to improve daily life. The value of data can increase from EUR 257 billion (1.85 of EU Gross Domestic Product (GDP)) to EUR 643 billion by 2020 (3.17% of EU GDP), according to the EU Commission. The legal implications of the increasing value of the data economy are clear; hence the need to address the challenges presented by its legal regulation.
Legislative Responses in Times of Financial Crisis – New Deal Securities Legislation, Sarbanes-Oxley Act and Their Impact on Future German and EU Regulation
Authors: Rieckers Oliver , Heeren Kai-Alexander
Published: April 2022

The German Federal Government and the High Level Group of Company Law Experts set up by the European Commission have recently published proposals to foster the development of deep and liquid German/European capital markets. The proposed regulation shows remarkable resemblances to the Sarbanes-Oxley Act of 2002 (SOA). By comparing the SOA to the U.S. securities legislation of the New Deal era this article critically reviews the American answer to the recent corporate scandals. The authors doubt that the SOA has the capability of substantially improving the situation. In the long-run it may even cause adverse effects for U.S. capital markets. The future German/European regulatory approach has to avoid any overregulation and should not overstress investor protection, since investor protection should only be seen as a means to an end, i.e. the preservation of deep and liquid capital markets. The legislator should decide, whether it wants to rely primarily on a strong internal corporate governance structure or if it wants to follow a more market-based approach. As the recent U.S. legislation shows, a combination of internal and external corporate governance elements easily runs the risk of leading to inefficient overregulation. Thus, any hybrid approach has to be carefully balanced.
An Exercise in Effectiveness?
Authors: Herlin-Karnell Ester
Published: April 2022

The effectiveness of EC law is a celebrated and highly prestigious notion. Yet recently the effectiveness concept has taken new routes with considerable constitutional dimensions in sight. This paper intends to analyse what such a novel trend means (and could mean) for the phenomenon of European criminal law; by conceptualizing effectiveness in the context of, in particular, Article 5 (1) EC and the principle of attributed competences.
The New Version Company Law of PRC: Introduction, Comparison, Analysis and Criticism
Authors: Zhongshu Li , Luyang Chen
Published: April 2022

In order to fully develop market economy, establish a modern system of company law and tally with WTO rules, the 18th meeting of the Standing Committee of the Tenth National People’s Congress amended and adopted the new Company Law of the People’s Republic of China on October 27, 2005. The Law, as amended, is hereby promulgated and comes into force on January 1, 2006. By comparing the differences between the company law of 1993 and the new version, the authors list the following four significant amendments of the new company law, ie requirements of formation a company are relaxed; the autonomy of company management is highlighted, the protection of shareholders is increased; the interest of company and its creditors is balanced. The following section illustrates in detail and analyzes objectively contents about one-person company and piercing the corporate veil. In the last section the authors point out some deficiencies that still exist in the new version of company law.
The Concept of ‘Out of Sight — Offshore — Out of Mind’ under the International Financial Architecture: Do Tax Havens Impede Economic Growth and Development?
Authors: Leung Mei–Wah
Published: April 2022

For a long time the sovereignty of offshore jurisdictions had never really been in question; tax havens (‘offshore’) had existed in a sphere of relative peace and solitude providing financial services of varying degrees of sophistication to onshore, whilst correspondingly supporting their own existence.

However, since the late 1990s tax havens have found themselves the target of an irrefutable movement by particular international financial organisations ‘Organisations’) within the International Financial Architecture (‘IFA’).

The Organisation of Economic Cooperation and Development (OECD) has been most critical contending that tax havens hinder economic growth and development the world over; apparently embodying behaviour and values that are the antipathy to fair and sustainable progress.

This paper investigates the veracity of the two main assertions of the OECD and the Financial Stability Forum (‘FSF’): first, tax havens perpetuate unhealthy tax competition which then erodes tax revenue bases; and secondly, deficient financial regulations in tax haven jurisdictions bring forth instability to the global financial market.

Whether offshore is indeed the origin of the distress is important because of the damage apparently done to offshore itself, by these Organisations in their counterattack to the perceived endangerment. That is to say, there maybe no justification for what is evidently a heavy coercive approach. This would appear particularly pertinent to the less sophisticated tax havens in the Pacific, but to what extent is it true that they face eventual extinction as a result?

Furthermore, due to the centrality of offshore in the process of financial globalisation, what would be the repercussions of this for the future development of the international financial market? To this end, is the overall result likely to be Pareto–superior or Pareto–inferior?
Applicable Employment Law after Rome I –The Draft Rome I Regulation and Its Importance for Employment Contracts
Authors: Hansen Lone L.
Published: April 2022

This article analyses the extent to which implementation of the present proposal for a Rome I Regulation will change the existing principles for international choice of law with respect to employment relationships. The special concept of “temporary” posted employees will undergo significant changes with the Regulation, and the existing “mandatory” assessment of connection also seems likely to change character. The article also deals with the effect which the Regulation’s date of commencement may have on existing employment contracts, and concludes with some critical comments on legal policy.
The Cross-Border Transfer of Seat in European Company Law: A Deliberation about the Status Quo and the Fate of the Real Seat Doctrine
Authors: Erk Nadja Kubat
Published: April 2022

“It is beyond dispute now that corporations have replaced states as the most important makers of waves in the world’s economy.”
Legal Obstacles to Institutional Investor Activism in the EU and in the US
Authors: Santella Paolo , Baffi Enrico , Drago Carlo , Lattuca Dino
Published: April 2022

Starting from the observation that at the multilateral level shareholder activism is considered as an important aspect of good corporate governance, this paper examines several legal and economic obstacles to institutional investor activism in the EU and in the US.

We find that investors in the US seem to have easier access to proxy voting than in the EU (although recent EU legislation should remove several of the present legal obstacles) even though the SEC allows only long-term relevant shareholders to include nominees on the corporate proxy; that conflicts of interest might limit the activism of several categories of institutional investors both in the US and in the EU; that some national legislations in the EU limit the ability of institutional investors to coordinate their voting policies; that recent EU legislation has introduced discriminatory requirements for some institutional investors when they acquire control of listed and non-listed companies; that recourse to stock lending and other forms of separation of financial risk from voting rights seems to be practiced more by controlling shareholders at the expense of institutional investors than the opposite, something which should be clearer in the near future with an upcoming EU legislation which should extend the transparency requirements for all shareholders to borrowed securities, cash-settled derivatives and other instruments that allow to exercise voting influence in a company; and that proposed EU legislation provides transparency requirements and permanent limitations to naked short selling largely in excess of the US regulatory framework.
When Complexity Impairs Disclosure  A Critique of SFCs Proposal to Strengthen the Disclosure Regime after the Lehman Minibonds Incident in Hong Kong
Authors: Shen Will W
Published: April 2022

The shockwaves from Lehman Brothers' demise in September 2008 are still reverberating through the world of retail structured financial products in Asia. The retail buyers across the region, in particular, those in Hong Kong suffered losses from complex structure financial products linked to the failed US investment banks. The regulators in Hong Kong have proposed to tighten up the disclosure regime providing sufficient information regarding the risks involved in structured securities to the end customers. This article reviews potential problems pertaining to this regulatory move.
Future Directions in Public Service Partnerships in the EU
Authors: Bovis Christopher
Published: April 2022

Public-Private Partnerships reveal complex forms of co-operation between the state and private actors which exceed the remit of traditional contractual interface, moving into a strategic sphere of public sector management. Public-Private Partnerships aim at delivering both infrastructure facilities and public services and are regarded as attractive and credible solutions to the infrastructure deficit of many developed and developing states. In this chapter a conceptual forecast of the legal and regulatory mapping of Public-Private Partnerships will be attempted. In this article, the author will elaborate on the current and future legal trends within which the regulation of public service partnerships has been developed. The article will reflect on societal needs which need calibrating in terms of expectation, but mostly perception when faced with the modalities of public service partnerships for the delivery of public services. Finally, the article will attempt to cast a conceptual map of the challenges for the development of the law and regulation in relation to public service partnerships, by depicting their interface as public services instrument, as investment instruments and as economic growth instruments.
No Gift and Inheritance Tax: No Problems Left for Succession of Family-Owned Businesses?
Authors: Bjuggren Per-Olof , Sund Lars-Göran
Published: April 2022

Sweden abandoned the gift and inheritance tax in late 2004. One reason was that the government wished to enhance transfer of ownership of shares in family-owned businesses from the older to the younger generation and within the family. Anticipated outcomes of amendments in tax law are, however, not always fulfilled. This paper reports on a survey study of 143 Swedish small to medium-sized family businesses. The study is focused on companies and families that have carried out an intergenerational succession (some partly) during the lifetime of the older generation (127). Only in a few instances was the transfer of shares made in another way, i.e. six intestate inheritances and ten sales to an external person. According to the survey results abandoning the gift and inheritance tax is no quick .x. A succession within the family has still to be prepared and planned. Further, a transfer of the shares, for example to a daughter during the life time of the incumbent cannot always be made through a gift. The older generation may still require financial compensation in order to uphold their standard of living or compensate siblings who do not receive shares. A sale to a child at less than market value is still partly capital gains taxed. Even though having no gift and inheritance tax can be beneficial it nonetheless cannot produce miracles.

We conclude that more efforts should be made concerning taxation of intergenerational transfer of family-owned businesses, in order to smooth the process, which hopefully will also be recognized by the EU Commission in its recommendations.
The New and Shy Approach of the Court of Justice Concerning Golden Shares
Authors: Ruccia Nicola
Published: April 2022

The Court of Justice has always reasoned its judgments concerning golden shares on the basis of Art. 63 TFEU, despite claims before it have also involved submissions of breach of Art. 49 TFEU. Gradually, it has changed its approach and freedom of establishment has become an independent focus when assessing whether use of golden shares is lawful. This paper is aimed to grasp the new trend. Firstly, it analyses the original setting of the question by the Court in order to understand how free movement of capital is still important in the assessment of golden shares and why there is no definitively separation from it. Successively, it examines motivations and the modalities of the change of the freedom involved. Finally, it seeks to infer the implications and extent of the variation in progress.
Incorporation of standard terms according to the CISG and the CESL: Will these Competing Instruments Enhance Legal Certainty in Cross-Border Sales Transactions?
Authors: Kruisinga Sonja
Published: April 2022

This article compares the regulation of standard terms in the UN Convention on Contracts for the International Sale of Goods (CISG) and the Draft Regulation on a Common European Sales Law (CESL). Even though the CISG does not contain any express provisions concerning standard terms, this issue is governed by the Convention. The CESL contains an express provision concerning the incorporation of standard terms, but one may wonder what to conclude from this provision concerning B2B transactions. Concerning the battle of the forms, there is legal uncertainty in the application of the CISG as it is not clear from the text of the CISG and from the legal literature which approach should be followed. The provision in the CESL on this topic is rather clear as it provides which theory should be followed. However how, in practice, cases should be solved is not yet fully clear.
Proxy Access for Shareholders: A Mirage after the Business Roundtable Decision?
Authors: Crivellaro Jacopo
Published: April 2022

This article surveys the role of shareholder proxy access in US corporate law following the Business Roundtable decision of 2011 in which the D.C. Circuit Court of Appeals vacated the shareholder proxy access rule introduced in Rule 14a-11. The judgment engendered heated academic debate over the necessity and value of shareholder proxy access in the modern corporation in either its former or a revised form. To this end, this article highlights several criticisms of the proxy access framework insofar as it strengthens the role of shareholders at the expense of other stakeholders in the corporate setting. The article concludes with a summary of the current state of the law, with proxy access rules in place through the private ordering provisions of the revised Rule 14a-8.
VALE: Determining the Need for Amended Regulation Regarding Free Movement of Companies within The EU
Authors: Krarup Mathias
Published: April 2022

In its recent VALE-case the ECJ made it clear that Member States allowing national company conversions may not prohibit cross-border conversions. Thus, VALE complements the Cartesio-judgment by providing the right to move into a Member State. Recent Danish practice evidences the need for amended legislation among Member States until EU legislation will most likely be harmonised.
Bank Resolution Regimes in Europe  Part I: Recovery and Resolution Planning, Early Intervention
Authors: Schillig Michael
Published: April 2022

On 6 June 2012 the Commission published its long awaited Proposal for a Directive of the European Parliament and of the Council establishing a framework for the recovery and resolution of credit institutions and investment firms. The envisaged regime rests on 'three pillars': (i) preparatory and preventive measures; (ii) early intervention; and (iii) resolution tools and powers. This paper seeks to provide an overview and critical assessment of the Commission's Proposal. In two parts, it analyses recovery and resolution planning, early intervention measures and resolution tools and powers under the Proposal and in the context of the resolution regimes currently in place, or planned, in the UK and Germany, the two largest economies in the EU. The aim is to ascertain whether and to what extent the implementation of the Proposal would necessitate changes to these regimes were it to become law in its current form, and consequently where the most difficult policy debates are likely to arise in the course of further negotiations.
The Carrot and the Stick: The Issue of Directors Remuneration and the Scope for Employee Participation, a Comparative Analysis
Authors: Gajjar Jay
Published: April 2022

The UK Government has grappled with the issue of excessive directors' remuneration for many years with limited success; corporate governance initiatives, such as advisory shareholder votes on DRRs, have tended to be rarely used and hindered by economic and social obstacles. In the light of the BIS proposal to increase the impact of the shareholder vote on DRRs from advisory to binding, as set out in the Enterprise and Regulatory Reform Bill 2012, which has since received Royal Assent and become the Enterprise and Regulatory Reform Act 2013; this paper seeks to analyse the feasibility of the said reforms. The paper firstly finds numerous vital economic and social factors at play that drive directors' remuneration up. This is followed by a finding consistent with many academics that, despite a recent spate in dissenting votes by shareholders on remuneration packages, shareholders lack the requisite information, knowledge, and motivation to use a binding vote to meaningfully reform remuneration trends. The paper also finds that due to the close relationship that employees often share with their respective companies codetermination, akin to that which is famously used in Germany, has merit within the remuneration committees of UK PLCs.
Regulating Credit Rating Agencies in the EU: In Search of a Coherent Regulatory Regime
Authors: Chiu Iris H-Y
Published: April 2022

This paper argues that the EU Regulation of credit rating agencies is concurrently pursuing two objectives that conflict with and would undermine each other. One is the objective of enhancing rating accuracy, and the other is the objective of restoring market discipline in the wholesale investment markets for credit ratings as information goods. The Regulation places more emphasis on regulating for rating accuracy which has the effect of instituting a form of product regulation for credit ratings, raising the public interest profile of credit ratings. This paper argues that this is undesirable and is contrary to policy-makers' endeavours to enhance market discipline for rating quality and the private accountability of credit rating agencies. EU policy-makers would eventually need to confront the underlying conflicting objectives in the Regulation so that a normatively coherent and consistent regulatory regime can be designed and implemented.
Civil Liability for Credit Ratings Agencies: A Swedish Perspective
Authors: Verständig Aron
Published: April 2022

Since June 20, 2013 a specific civil liability regime regarding credit rating agencies has been in force in the EU. A credit rating agency that has - intentionally or with gross negligence - infringed the EUs: CRA-Regulation1 could be held liable towards investors and issuers that have incurred a loss due to that infringement. The article discusses whether or not the new civil liability regime will entail any significant changes in relation to the liability of credit rating agencies according to general tort law principles. In the article, Swedish tort law principles are analyzed in order to determine if a credit rating agency could be held liable towards an investor due to a negligently issued credit rating. The article also discusses the relationship between the Swedish tort law principles and the recently imposed civil liability regime of the CRA-Regulation.
Coping with Complexity and Securing Justice: Through Multi-Party Litigation  Lessons from The Cat And JJB Sports
Authors: Sorabji John
Published: April 2022

This article examines the draft UK Consumer Rights Bill, introduced into the UK Parliament in January 2014 as the Consumer Rights Bill 2013. It outlines its proposed reforms to the opt-in follow-on collective action that can be brought in the Competition Appeal Tribunal. In particular, it questions whether the proposed reforms will achieve the aim of furthering access to justice and compensatory damages for individuals who have suffered loss as a consequence of competition law breaches. It further questions whether the introduction of a statutory cy press mechanism to transfer any unallocated damages frustrates that aim.
The European Economic Interest Grouping  A Chance for Multinationals?
Authors: Meiselles M.K.
Published: April 2022

Developed as a supranational corporate form intended to facilitate cross-border activity by natural and legal persons alike, the European Economic Interest Grouping (EEIG) arguably offers multinational enterprises looking to collaborate with other entities an efficient and effective corporate vehicle for their projects.

Though this form offers multinational enterprises many attractive features, certain drawbacks associated with this form may impede take-up by such entities. After a review of the development of the EEIG (part I), this paper will examine the features and purposes of this corporate form (part II), before looking at the benefits (part III) and the drawbacks associated with this form (part IV). In the conclusion, the author will review possible reforms to this corporate form.
EU and UK Consumer Credit Regulation: Principles, Conduct, and Consumer Protection: Divergence or Convergence of Approach?
Authors: Brown Sarah
Published: April 2022

The regulation of financial services is going through major reform both at European and national level. This article examines the specific case of consumer credit, the new mortgage credit directive, and how European reforms in relation to secured lending on residential property are exhibiting signs of change of direction in relation to the basis of regulation of consumer credit. Whilst at EU level, legislative control is still sector specific, there is an observable shift in the UK towards a single regime for financial services. An examination of the new directive is made, giving a comparison between this latest consumer credit initiative and concurrent reforms in the regulatory framework that are taking place in the UK. It examines the extent to which the EU and UK regulatory initiatives reflect similarity in approach, highlights potential difficulties, and considers whether overall this is a positive development for consumer protection.