bluuebunny/crossref_metadata_2025 huggingface dataset:
Interpreting the Boundaries of Collective Dominance in Article 102 TFEU
Authors: Mezzanotte Félix E.
Published: April 2022

In this article I examine the scope of application of the law of collective dominance in Article 102 TFEU. It is unclear to what extent a group of competing as opposed to colluding firms may constitute what the European Court of Justice in the CEWAL II case has defined as ‘collective entity.’ The analysis draws from key case law of collective dominance. It first reviews early cases like SIV, Almelo and CEWAL II to later focus on more recent ones including TACA, Piau and Sony/BMG. I conclude that while colluding firms can constitute collective entity and eventually hold a position of collective dominance, competitive scenarios are seemingly excluded such as the relationship of non-collusive, economic interdependence between firms in oligopoly.
Beyond Tulips and Cheese: Exporting Mass Securities Claim Settlements from The Netherlands
Authors: Arons Tomas , Van Boom Willem H.
Published: April 2022

With the enactment of the 2005 Collective Settlement of Mass Damage Act (WCAM 2005) the Dutch legal system and indeed Dutch society has taken a significant step towards a more efficient resolution of mass damage claims. The WCAM 2005 seems especially promising for attaining relatively swift settlement of mass securities claims in the Dutch context. Since, however, stock traded on the Amsterdam exchange is not exclusively owned by shareholders resident in The Netherlands, the obvious question is to what extent settlements under the WCAM 2005 have cross-border effect. Against this background, this paper has a twofold purpose. First, we aim at providing a general outline of the Dutch legal system concerning the collective settlement of mass damage claims. Secondly, we discuss issues of international jurisdiction, cross-border recognition, res judicata and enforcement of opt-out securities settlements under the WCAM 2005. Have the Dutch found a new export product with the enactment of the WCAM 2005?
Passive  Aggressive Investments: Minority Shareholdings and Competition Law
Authors: Pini Gian Diego
Published: April 2022

Minority share acquisitions between competitors have been mistakenly considered of concern only in case they result in a change of control.

First the economic theory, closely followed by courts and doctrine, explained and demonstrated that even the acquisition of non-controlling shareholdings may distort competition and requires a close scrutiny by competition authorities.

This article analyzes the impact of minority shareholdings on the incentives of rival firms and ascertains whether the authorities are provided with adequate tools to investigate and address the potential anticompetitive effects.

The results of the economic theory are the starting point to assess whether the legal treatment of minority shareholdings under the EU and US antitrust systems is appropriate and adequate.
Board of Appeal of the European Supervisory Authorities
Authors: Blair William
Published: April 2022

This article is about an appeal board recently set up by the European Union to hear appeals in respect of decisions of the three new European Supervisory Authorities. This is the first time that such a body has been established at the European level in the field of financial regulation, and considerable responsibility has been vested in it.

Developments at the European level in this field are potentially of great significance, and are continuing, with proposals from the Commission as regards a banking union announced on 12 September 2012. This article gives a brief account of these developments, explains how the appeal board fits into the structure, and finally describes how the board will conduct appeals.
Is the Plain Meaning Approach to Construction of Unambiguous Words in Contracts Still Alive in the English Courts?
Authors: Adodo Ebenezer
Published: April 2022

Several pronouncements from all the three reasoned judgments in the recent appeals of Rainy Sky SA v. Kookmin Bank have essentially answered the question raised above in the affirmative. Two of the judgments take the view that clear and unambiguous language of contracts means what it says, and must be applied accordingly. For the third, however, the court should apply the language unless the application will produce an extremely unreasonable result. This article seeks to evaluate the soundness of these plain meaning approaches to construction in the light of Investors Compensation Scheme Ltd v. West Bromwich Society and selected subsequent decisions.
Trying or Failing Better Next Time? - The European Legal Framework for Credit Rating Agencies after Its Second Reform
Authors: Deipenbrock Gudula
Published: April 2022

Between 2009 and 2013 the European Union ( Union) introduced a regulatory and supervisory regime for credit rating agencies (CRAs) and reformed it twice. The Union left the path of industry self-regulation triggered by the financial crisis with its first peak in autumn 2008, the collapse of Lehman Brothers. The turmoil brought to the financial markets prevailed upon the Union at the same time to redesign the supervision of the European financial market fundamentally by introducing a new European System of Financial Supervision (ESFS). The Union's approach to financial market regulation has changed radically in the wake of the recent financial market crises. The Union continues to face far-reaching changes on its way to an 'ever closer' capital market with pivotal projects such as the banking union on its agenda. This paper discusses the Union's regulatory approach to the credit rating sector. It introduces critically the various legal acts forming the regulatory and supervisory regime for CRAs in the Union with a particular focus on its second reform. The paper explores whether the Union is on track to adequately address the main dysfunctions of the credit rating sector which remained unresolved: the overreliance on credit ratings, the oligopolistic structure of the credit rating sector, the civil liability of CRAs, the conflicts of interest, sovereign rating and a further enhancement of the quality of credit ratings. The paper argues that the regulatory framework for CRAs after the second reform appears to have only marginally improved thereby limiting its potential to achieve its ambitious goals. The analysis of the sector-specific, regulatory developing lines in the credit rating market as presented in this paper might also be considered to exemplify some of the general legal (- practical) challenges in the realm of European financial market law.
Regulation by Ratings: An Economic Point of View
Authors: Horsch Andreas , Kleinow Jacob
Published: April 2022

Although not designed for that purpose, privately produced credit ratings have become a popular tool used by regulators of financial intermediaries. However, not only the recent processes of the financial crisis have shown that the delegation of governance to credit ratings has become too widespread, and is fundamentally flawed. Besides an economic analysis of the status quo of financial regulation via credit ratings, and crisis-driven political initiatives that try to improve the regulatory framework, we discuss four alternative methods of credit risk assessment. By these means it could be possible to find a way to reduce the mechanistic reliance on credit ratings, thus improving the quality of regulation and promoting financial institutions' own credit risk assessment.
Europes Message about Law and Its Vitality: Past, Current and Future Perspectives
Authors: Grossi Paolo
Published: April 2022

1. The Legal dimension in Europe's history - 2. The 'European' message of the medieval ius commune - 3. Halfway between modern and post-modern: the start of a new 'European' message - 4. Europe of law: diversities in unity - 5. The role played by the European Court of Justice in the creation of 'European' law: the problem of identifying fundamental rights - 6. European law and its need for principles: the role played by legal science - 7. Europe of law and the current globalization of law
How Good are PIA Reports  And Where are They?
Authors: Wright David
Published: April 2022

Privacy impact assessments (PIAs) may soon be standardised. The European Commission plans to make PIAs mandatory if Article 33 of its proposed Data Protection Regulation is adopted without any serious depredations by lobbyists. Concurrently, the International Organization for Standardization (ISO) is considering a standard for PIAs. The approaches currently being pursued by the Commission and the ISO have their antecedents in the PIA methodologies used in Australia, Canada, Ireland, New Zealand, the UK and the US. However, almost no attention has been paid to actual PIA reports to see how well or poorly they have been prepared and how closely they follow the PIA guidance documents in their countries. This paper argues that it is worth doing - to review actual PIA reports to see what can be learned from how they are implemented and whether their implementation offers any signposts for the policymaking process. However, finding actual PIA reports is something of a challenge. Following a search for UK PIA reports, this paper provides the results of analysis of some of those in terms of how well they followed the ICO PIA Handbook guidance, and what we can learn from an analysis of actual PIA reports. Along the way, this paper argues that organisations in the UK should create a registry of publicly available PIA reports.
EU Financial Stability Mechanisms: Few Certainties, Many Lingering Doubts
Authors: Bianco Giuseppe
Published: April 2022

This article examines the institutional reaction to the sovereign debt crisis in Europe. The response has so far consisted of three new financial mechanisms: the European Financial Stabilisation Mechanism, the European Financial Stability Facility, and the European Stability Mechanism. These have each a different legal basis and a specific regime, and display a varying degree of compatibility with EU law.

The institutional quick .x employed by Eurozone countries was essentially a resort to private law and traditional international law techniques. Even after the well-known Pringle decision, several doubts still linger on. This framework constitutes a setback from the evolution of the EU, at the expense mainly of the European Parliament and the Court of Justice.
Crossing Borders: Exploring the Need for a Fourteenth EU Company Law Directive on the Transfer of the Registered Office
Authors: Baert Anneloes
Published: April 2022

Often a company has to overcome several obstacles in transferring its registered office abroad. This hinders corporate mobility and is one of the reasons why the right of establishment of companies within the European Union cannot be fully achieved. In the absence of positive harmonisation on the transfer of a company’s seat, the European Court of Justice determines nowadays to what extent companies can manoeuvre within the European Union. In analysing the case law on corporate migration, several flaws in the current negative harmonisation process become clear, notwithstanding that the Vale case brought more clarity in this area. Therefore, there is a need to reengage with the Fourteenth European Company Law Directive on the transfer of the registered office, in which a compromise between the incorporation doctrine and the real seat doctrine should be realised.
Slovenian Ten-Year Experience with the EU Internal Market
Authors: Hojnik Janja
Published: April 2022

On May 1st, 2014 Slovenia, together with nine other Member States, completed their first decade in the EU – which also entails a decade of adjustments to the principles of the internal market. Based on EU Court of Justice case law, Slovenia is not among the most serious of offenders of internal market rules for it was found to be in breach of these on a single occasion. Even so, practice shows that companies as well as state authorities are often poorly informed about EU internal market rules, which creates barriers nobody is acting against. Examples are numerous in various fields of the internal market and prove that Slovenian businesses as well as authorities are often not truly aware of the internal market yet, but also authorities of other Member States frequently do not regard Slovenia as a participant of the internal market, thereby creating barriers that are not compatible with the internal market.
Financial Supervision after the Crisis: The Structures, the Lessons, and the Way Forward
Authors: Staikouras Panagiotis , Triantopoulos Christos
Published: April 2022

The 2008 financial crisis not only exposed the weaknesses and loopholes in the financial regulatory framework but also casted doubt on the efficiency of the existing financial supervisory arrangements. Indeed, the 2008 meltdown has spurred intense debate regarding the appropriate institutional structure for financial supervision, which has culminated in the ongoing radical revamping of several countries’ supervisory frameworks. In this paper, our objectives are to discuss the role of central banks in financial supervision, with a special emphasis on macro-prudential supervision; to present the trends which have underlain the financial supervisory architecture in the EU-28 countries over the last two decades; and to make some preliminary observations on the effectiveness of the central banks as micro-prudential supervisors. In conclusion, we delineate the core institutional and organizational pillars of an effective model of financial supervision.
The Business Judgment Rule and the Problem of Hindsight Bias  Observations from a German Company Law Perspective
Authors: Deipenbrock Gudula
Published: April 2022

This paper introduces selected aspects of the German Business Judgment Rule (German BJR). The German BJR is explored in context with the internal liability of a member of the management board of a German stock corporation, Aktiengesellschaft (German AG). Recent rather spectacular litigations involving the liability of company organs have provoked a debate in Germany on whether or not the internal liability of the organ vis-à-vis the company under German law should be reformed. Against this backdrop controversies surrounding the effectiveness of the German BJR have also gained momentum. The German BJR is viewed mainly as a tool to limit the internal liability of company organs, in particular that of a member of the management board of a German AG. Is the German BJR in this context an effective legal instrument? Or does it rather require a reform to achieve its ambitious legislative goals? These questions stimulated the interest in analysing this topic in this paper which aims to prepare the way for responses. The tour d’horizon regarding the German BJR might not only allow a better understanding of the internal liability regime of a German AG which has become an issue of considerable practical importance. It also aims to provide some more general insights into German legal reasoning and the ‘operation’ of the German law of stock corporations (Aktienrecht). Its findings might not only be instructive to the practice of courts and practitioners of other legal systems in the realm of directors’ civil liability. As a concise ‘country report’ on the German BJR it could also be used as a basis for further comparative law explorations.
Brexit and the Consequences for Commercial and Financial Relations between the EU and the UK
Authors: Lehmann Matthias
Published: April 2022

The UK’s withdrawal from the European Union will have – and already has – a dramatic impact on the political, legal and economic landscape, both in Britain and on the continent. This contribution takes a closer look at the effects on individual relationships and businesses. Against the background of the possible scenarios (British accession to the European Economic Area (EEA), bilateral trade agreement with the EU, or ‘hard’ exit with third-country status), it scrutinizes Brexit’s consequences in five areas: contract law, the law of non-contractual obligations, corporate law, financial law, and international litigation. With regard to contract law, it examines the effects on the determination of the applicable law and on substantive contract law, in particular the possibility to terminate contractual agreements. Concerning non-contractual obligations, it deals with the conflict rules applicable to torts, which may change. In the context of corporate law, the focus is on the status of companies organized under English law that are domiciled in Member States, as well as on the fate of European public companies headquartered in Britain. Insolvency matters will also be discussed. The part on financial law analyses the options for EU market access available to English banks, asset and fund managers as well as insurance companies in light of the passport granted to EEA firms and the equivalence requirements for third-country firms. As regards international litigation, the discussion turns on the post-Brexit determination of the competent court as well as the recognition and enforcement of British judgements in the EU.
Gentle Brexit, a very British Exit: EEA Membership as the Most Favourable Model to Secure Financial Services Passports
Authors: Peña Francisco de la
Published: April 2022

Predicting the impact of the anticipated UK exit from the EU on passporting is rather difficult as the nature of the future EU-UK trade relationship is still unknown as of November 2016. At one end of the continuum, if the UK were to leave the EU but remain in the EEA, most passporting rights would remain available to UK firms trading in the EEA (and vice versa). At the other end of the spectrum, if no specific EU-UK trading arrangements were agreed for financial services, whether under EFTA or a bespoke FTA, UK firms would lose their automatic right to trade across the EU (and vice versa). While the third country access provisions introduced in recent financial legislation could provide an alternative means to mitigate the effects of a full UK exit on the financial markets, once trading under WTO rules, negotiating equivalence could unfold a rather cumbersome process after which the UK would be unable to have effective control of new financial regulation and secure rights akin to existing passporting. Through an analysis of the financial services passports under the EU single market directives and the pros and cons of each of the available trading models post-Brexit, this article advocates that continued access to the Single Market under the EEA Agreement –in its current form or in an amended version–, should offer the UK the most favourable framework to secure passporting –safeguarding jobs, economic growth and predictability for UK, EU and non-EU firms–, while retaining certain control over the internal market rules and possibly immigration.
Combating Money Laundering and Terrorist Financing: Monitoring the Implementation of FATF Recommendations
Authors: Aamo Bjørn Skogstad
Published: April 2022

This article gives an overview of the Financial Action Task Force (FATF), its history and organization. The main measures to prevent money laundering (ML) and terrorist financing (TF) are presented: Suspicious transaction reporting (STR) plays a key role among these measures. An overview of the revision of the standards in recent years includes a risk-based approach, a focus on beneficial ownership, and an introduction of tax crime as a predicate offence for money laundering. The role of mutual evaluations reports (MERs) in monitoring the implementation of the FATF recommendations is presented, including the recent FATF report on Norway. Finally, the tasks connected with fighting terrorist financing and corruption are discussed.
The Promotion of Sustainable Development through EU Trade Instruments
Authors: Douma Wybe Th.
Published: April 2022

The obligation to integrate environmental protection into other policy areas stems from 1987 and was refined by the Treaty of Lisbon. The EU is to ensure coherence of trade, environmental protection and sustainable development, inside and outside the EU. This article investigates how the Union operationalised this duty where its trade agreements are concerned, and whether this actually contributes to sustainable development.

It is set out how in 1999, Trade Sustainability Impact Assessments of proposed new trade agreements were introduced, how the system developed over time, and how actual provisions on sustainable development and environment were introduced from 2008 onwards. Furthermore, it is examined what these provisions entail. Given the identified weaknesses, evaluating and where necessary strengthening these parts of trade agreements is called for. An investigation on improvements to the environmental provisions of the EU-Canada Comprehensive Economic and Trade Agreement (CETA) could form a step in the right direction.
The Legal Regulation and Enforcement of Asymmetric Jurisdiction Agreements in the European Union
Authors: Ahmed Mukarrum
Published: April 2022

This article examines the legal regulation and enforcement of asymmetric choice of court agreements under the Brussels I Regulation (Recast). The two significant and related issues of the effectiveness of asymmetric jurisdiction agreements under Art. 25 of the Recast Regulation and whether proceedings commenced in the primary nonexclusive court identified in the agreement should trigger the application of Art. 31(2) of the Recast Regulation are analyzed. Notwithstanding, the rulings of the French Cour de Cassation in Rothschild and ICH v. Credit Suisse, it will be argued that asymmetric choice of court agreements should in principle be effective under Art. 25 of the Recast Regulation from the perspectives of validity, certainty, form and fairness. The validity and effectiveness of asymmetric jurisdiction agreements in the jurisprudence of the English courts is already well established. There also exists some support for the argument that proceedings initiated in the English courts (as the primary nonexclusive court identified in the clause) may invoke the protective cover of Art. 31(2) of the Recast Regulation where the borrower in an international finance agreement has breached his obligation to sue exclusively in the English courts.
Between Contract Law and Financial Regulation: Towards the Europeanisation of General Contract Law
Authors: Negra Federico Della
Published: April 2022

This paper explores the interactions between the general law of contract and the EU derived financial regulatory duties. Starting from the analysis of the legal nature of the EU-derived conduct of business rules duties and the role played by contract law in the governance of financial markets, the paper shows that, after the global financial crisis, national courts have used the remedies based on general contract law as tools to enforce the EU-derived conduct of business rules and to ensure a high level of client protection. This paper argues that this case law provides evidence of a gradual process of Europeanisation and modernisation of the general law of contract, i.e. of transformation of traditional autonomy-driven categories of general contract law into regulatory tools to govern financial transactions and increase the protection of investors.
EU External Competences and the Participation to the Basel Committee on Banking Supervision
Authors: Ortino Matteo
Published: April 2022

The legal issues addressed in this article are whether and, eventually, to what extent and how the EU Treaties govern the participation of EU bodies and national authorities to the Basel Committee on Banking Supervision. Although the solution to these legal issues is still uncertain, it is possible to highlight some of the elements that could allow and nudge the Court of Justice of the EU to interpret EU rules in the sense of obliging national authorities to act, within the Committee, in a coordinated manner with each other and with the EU bodies involved, on the basis of a common negotiating position. In support of this interpretation, it is possible to identify two legal bases within the EU Treaties and systematic interpretative arguments.
Promoting the Right Kind of Ownership: The Good, the Bad and the Passive
Authors: Madsen Marina B.
Published: April 2022

A great amount of responsibility for the severity of the recent financial crisis was placed on the shoulders of the institutional shareholders, and the European Commission put forward quite candid opinions on the ‘right’ kind of ownership. Adopting the ambition of the European Commission, the article aims to discuss the concepts of a ‘right’ and a ‘wrong’ kind of ownership and what consequences it might have for the European Commission’s ambition of an increased degree of shareholder engagement that institutional shareholders are a heterogeneous group. Applying a shareholder concept based on investment modus, the article examines the available legislative tools for means to promote the ‘right’ kind of ownership as well as searches for alternative approaches to supplement the traditional legislative strategies. The article finds that shareholders with different investment modi cannot be expected to demonstrate the same kind of behaviour. Consequently, the European Commission’s approach of targeting the aggregate group of institutional shareholders is not sufficient with respect to promoting the ‘right’ kind of ownership. With shareholder investment modus as a stepping stone, the article sets forth suggestions for legislative strategies and warns against loyalty promoting measures that may tip the company’s balance of power.
Arbitration and ADR Reforms in Italy
Authors: Alpa Guido
Published: April 2022

The administration of Justice in Italy has raised difficult problems, due to the high number of judicial proceedings pending before judges. Usually it takes three years for the first degree, other three years for the appeal, two years for the Cassation. Among other devices, the Minister of Justice has improved any kind of ADR. Arbitration is the most important because is a (private) proceeding equaled to a judicial one (see Order of Cassation, October 25,2013,n. 24153). The Minister has created a Commission for studying and proposing means of expansion of ADR in order to reduce the charge of judges. Mediation, conciliation, settlement agreements (particularly in family matters) are already very frequent, but the situation should be improved. The proposals suggested to the Minister (and to the Parliament) by the Commission concerning arbitration were: introducing arbitration in labor litigation; possibility of immediate appeal before the Court of Cassation on the grounds of invalidity of the award; including into the Code of Civil Procedure the rules concerning arbitration for disputes between shareholders; extending arbitration for settlement of disputes between private subjects and public Administration are only some of the devices for reaching a speed and technically reliable solution of the conflicts.
Forcing Shareholder Engagement: Theoretical Underpinning and Political Ambitions
Authors: Søndergaard Birkmose Hanne
Published: April 2022

This paper explores the post-crisis debate on shareholder engagement and argues that the debate and subsequent legislative initiatives aimed at increasing shareholder engagement and accountability seem to be moving away from the traditional corporate governance basis. While corporate governance theory may explain the need for shareholders to balance management powers, it does not support that shareholders have an obligation to engage in investee companies. Neither do we find that the ownership rhetoric supports any duties for shareholders. Finally, we examine elements of stakeholder theory and public policy theory. While these theories emphasise that companies should include other interests than shareholders’ financial interests, they do not support a stronger shareholder role in that respect. Thus, the paper concludes that the post-crisis debate on shareholder engagement should be seen as the result of a strong political agenda and that the theoretical basis for pushing shareholder engagement further is weak.
Object and Purpose in International Uniform Law Conventions
Authors: Heidemann Maren
Published: April 2022

Object and purpose of an international treaty appear frequently as word pair in the 1969 Vienna Convention on the Law of Treaties (VCLT) where the word pair is often understood to form a fixed expression with an interchangeable meaning of the two words. Most relevant for questions of interpretation of uniform law conventions in general is Art. 31 VCLT . The author submits that object has a separate meaning from purpose and that the object of a treaty in particular can be used as a powerful tool for the interpretation and justification of uniform law. An outline of the intricate interplay between the notion of contract and treaty interpretation is given and the meaning of both terms analysed in detail. The use of object and purpose can open up new avenues for putting the existing codified uniform law to best use as well as developing guidelines for future legislation.
The Implications of Big Data and Privacy on Competition Analysis in Merger Control and The Controversial Competition-Data Protection Interface
Authors: Wasastjerna Maria C.
Published: April 2022

The article examines the implications of big data for competition law, with a focus on personal data and the privacy concerns that such data may give rise to, especially in the area of merger control. Today, one of the biggest challenges for competition authorities in data-driven markets is how to deal with issues related to personal data and the protection of privacy in their analysis. A key question is the role of competition law in protecting consumers from potential data privacy risks arising in the context of mergers in digital markets. The article also engages with one of the currently most debated topics in the competition community, namely the competition-privacy interface, and considers how personal data in the digital economy is considered a currency in exchange for online offerings, and how a loss of privacy can be factored into quality competition. The article addresses some of the challenges with incorporating privacy as a non-price parameter into competition analysis and offers food for thought by discussing relevant methodologies to assign monetary values to personal data.
The Power of the Eurosystem to Promote Environmental Protection
Authors: Solana Javier
Published: April 2022

The misalignment of the Corporate Sector Purchase Programme (CSPP), the latest iteration in the development of the Eurosystem’s unconventional measures of monetary policy, with EU environmental global commitments has stirred a lot of political debate in recent months. Critics of the CSPP typically point to Art. 3 TEU and to the binding nature of the Paris Agreement on the ECB as the main sources of legal obligations for the Eurosystem. This essay puts forward an additional argument: the Eurosystem is bound by Art. 11 TFEU, which integrates environmental objectives into the mandate of the Eurosystem and requires it to take those objectives into account when designing and implementing monetary policy. On this basis, the essay provides a critical analysis of the validity of the controversial CSPP and explores the potential implications of Art. 11 TFEU for monetary policy. The essay concludes that, besides a distinctive source of legal obligations, Art. 11 TFEU represents an opportunity for the Eurosystem to contribute to improving our embryonic understanding of the relationship between climate change and financial stability.
A Regulatory Framework for Cryptocurrency
Authors: Lee Joseph , L’heureux Florian
Published: April 2022

The paper examines cryptocurrency in the crypto-finance ecosystem and identifies areas in which regulatory intervention is required. Part I focuses on the system and processes of cryptocurrency and identifies the features of this ‘decentralised’ system and the legal and regulatory implications. Part II discusses the perceived benefits and the rise of cryptocurrency to determine whether those benefits fit with regulatory objectives and contribute to the rise of cryptocurrency. Part III discusses the fall of cryptocurrency and some associated factors, particularly a lack of governance. Part IV discusses the need for regulation and governance.

Cryptocurrency, blockchain, DLT, tokenization, cryptoasset, exchanges, investor protection
Transformative Digital Economy, Responsive Regulatory Innovation and Contingent Network Effects: The Anatomy of E-Commerce Law in China
Authors: Bu Qingxiu , You Chuanman
Published: April 2022

Digital economy in the past decades has witnessed an explosive growth momentum in China. Arguably, China has now become the leader in many fronts of global innovative digital economy. This paper fills the academic gap by explicating the evolution of one of the prime constituents of digital economy, the electronic commerce (E-commerce) sector, and its accompanying regulatory paradigm. It is opined that the explosive market development has instigated a new governance model in China. This model features innovative, participatory and collaborative regulatory approaches. It represents a polycentric paradigm facilitating technological, industrial and regulatory innovation. It is argued that such industrial and regulatory innovation casts profound implications not only cross-sectionally on many other digital economy industries within China, but also trans-nationally on global governance of innovation economy as evidenced in the ongoing clash between China and the US.

Digital Economy, Electronic Commerce, Network Effects, New Governance, Coregulation Framework, Industrial Standards, Consumer Protection, Data Privacy, Blockchain Technology, Internet Court
Partnership Law: Used, Misused or Abused?
Authors: Berry Elspeth
Published: April 2022

This article analyses the increasing use of UK partnerships for criminal purposes, often in other jurisdictions, and argues that the regulatory responses are inadequate, and must be supplemented by a comprehensive ethical framework. I first argue that partnerships offer substantial benefits for a variety of businesses, but that they also have vulnerabilities which have led to their misuse and even abuse through criminal activities, which I also discuss. I then analyse the deficiencies of the regulatory measures designed to tackle the abuses, including requirements to disclose participant identity and accounts, and anti-money laundering and tax evasion measures. Finally, I evaluate the use of a supplementary ethical framework to reduce the abuses, and examine how such a framework could be created. My analysis provides an understanding of the causes and consequences of partnership abuses and of how they can be overcome. This advances the ongoing debate in the UK over the abuse of partnerships and the wider issue of business transparency, and has implications for the many other jurisdictions in which UK partnerships operate and in which the abuses take place, as well as for jurisdictions which have similar partnership vehicles to those in the UK.

General partnerships, limited partnerships, LLPs, money laundering, tax evasion, tax avoidance, regulation, ethics, transparency, accounts
The European Crowdfunding Service Providers Regulation: The Future of Marketplace Lending and Investing in Europe and the ‘Crowdfunding Nature’ Dilemma
Authors: Macchiavello Eugenia
Published: April 2022

The Regulation on European Crowdfunding Service Providers (ECSPs) for businesses, since its Proposal by the European Commission in March 2018, has experienced difficult trilateral negotiations. The length of the legislative process relates not only to nationalism resurgence, uncertain Brexit negotiations and COVID-19 outbreak but also to different views about crowdfunding and its optimal regulation within the three European Institutions. The present paper, after describing crowdfunding’s main features, will critically analyze the ECSPs Regulation in details as eventually adopted in October 2020, also in comparison with the alternative options available and their relative implications, in order to discuss the resulting picture of crowdfunding and its future under the new European regime, also providing suggestions for certain adjustments.

Bank resolution, insolvency, significant non-financial enterprises, enterprise groups, Carillion, early intervention, recovery and resolution planning, living wills, public interest, systemic risk, critical functions.
The Acceleration of the Development of International Business Mediation after the Singapore Convention
Authors: Hage Chahine Joséphine , M. Lombardi Ettore , Lutran David , Peulvé Catherine
Published: April 2022

The Convention on International Settlement Agreements Resulting from Mediation (hereinafter referred to as the Singapore Convention) entered into force on 12 September 2020.

The States’ striking enthusiasm for the Singapore Convention since the day of its enactment and onwards seems to be an encouraging indicator of the increasing use of mediation for the settlement of international commercial disputes. More precisely, the Convention establishes an international legal framework for the enforcement of settlements reached through mediation, and provides for a very limited number of requirements thereon. Hence, and considering that the enforceability of arbitral awards is perceived as arbitration’s most important feature, the cross-border enforceability of the settlement agreements reached through mediation conferred by the Singapore Convention could somehow erode arbitration’s edge. Furthermore, the entry into force of the Singapore Convention will promote the use of mediation in the States comprised within the Belt and Road Initiative, in Europe and in the Asia- Pacific, namely within the construction sector and the shipping industry and also in investor-state disputes insofar as the wording of the Convention leaves room for an extensive interpretation that could encompass such disputes.

Investment funds, reserved AIFs, share classes, fair treatment, seniority privilege, minimum interest privilege, non-contagion principle, preferential treatment, shift of wealth
Remedies for Infringements of Fundamental Rights
Authors: van Gerven Walter
Published: April 2022

Respect for human rights and fundamental freedoms belongs, together with the principles of liberty, democracy and the rule of law, to the founding principles of the European Union, and its Member States (see Art. 6 EU Treaty). However, if fundamental rights cannot be enforced, they could not have been granted as well. In other words, fundamental rights are only truly respected when the legal order concerned makes them enforceable against those who have breached them. Who says enforcement, says remedies and courts, plaintiffs and defendants. And that is what this article is about, with the emphasis, however, on private plaintiffs who claim their fundamental rights to be breached by public authorities, or by other private persons.
The Precautionary Principle in EC Law
Authors: da Cruz Vilaca José Luís
Published: April 2022

The precautionary principle was first spelled out, at the EC level, in the field of environmental protection by the Maastricht Treaty. The ECJ dealt with some issues relating to a precautionary approach since 1994, in particular after the BSE cases.
Bill and the Fall of the Constitutional Treaty
Authors: Ward Ian
Published: April 2022

The European Union, and before it the Community, has always seemed to lack a bit of pizzazz. Twenty years ago, the Adonnino Committee ventured the case for European flags and hymns and orchestras and so on. And the sentiment clearly resonated with those who were tasked with the need to shape a new European Constitution for the twenty-first century. To this end, amongst the trinkets recommended by the Convention and depicted in Article I-8 of the Constitutional Treaty was a Europe Day, to be celebrated on 7 May each year. The date was chosen because it would also serve to celebrate the original Schuman Declaration of 1950. The felt need for such a day, and such a celebration, lies at the heart of this article, which further seeks to address the wider debates which continue to oscillate around the nature of constitutions and constitutionalism in the new Europe. These debates, for obvious reasons, have become all the more intense following the various setbacks experienced as a result of the serial refusal of the Union’s citizens to ratify the proposed Constitutional Treaty. As we consider the deeper anxieties which pervade this current debate, we will also endeavour to investigate a further related issue which continues to haunt the new Europe, that of narrative and history, or its lack. And, by way of coincidence – which like so many coincidences is not entirely one at all – we shall do this in the context provided by Tim Luscombe’s recently produced play, The Schuman Plan. Schuman, it seems, haunts the European Union.
A New Status for the ECHR in Italy: The Italian Constitutional Court and the New ‘Conventional Review’ on National Laws
Authors: Mirate Silvia
Published: April 2022

The article aims to provide an analysis of the two judgments of the Italian Constitutional Court No. 348 and No. 349 dated 24 October 2007, which considered Article 117, paragraph 1, of the Italian Constitution as a constitutional rule granting superior legal authority to the European Convention over and above ordinary domestic statute law. A domestic law in contrast with the provisions of the Convention, as interpreted by the European Court, violates Article 117, paragraph 1, of the Italian Constitution and it must be declared unconstitutional by the Constitutional Court. In particular, the Constitutional Court has declared unconstitutional Article 5–bis, of the Law No. 359 dated 8 August 1992 (and of the following Article 37, paragraphs 1 and 2, of the Code of Expropriation Provisions, Presidential Decree No. 327 dated 8 June 2001) on the refund for legitimate expropriation and on the compensation awarded for the Italian public administrations’ practice of ‘constructive expropriation’, because they were calculated according to a criterion in contrast with Article 1 of Protocol No. 1 European Convention on Human Rights (ECHR), as interpreted by the Strasbourg case law.

The solution, adopted by the Constitutional Court, is very interesting and almost ‘revolutionary’, since it underlines the new place accorded to the ECHR in the Italian legal system in the last years, especially by the ordinary courts and finally by the Constitutional Court too.
Czech Republic 2006–2008: On President, Judges and the Lisbon Treaty
Authors: Slosarcik Ivo
Published: April 2022

The President of the Czech Republic is vested, by the Constitution of the Czech Republic, with an impressive catalogue of competencies, both in the domestic domain and in the formulation of the foreign policy of the Czech Republic. Several of these powers can be exercised autonomously by the President; the rest of the catalogue can be exercised only with the cooperation (approval) of the government. The Czech political life already identified several constitutional gaps that had to be filled by constitutional conventions and case law of the Constitutional Court. The presidency of Václav Havel (1993–2003) witnessed, among others, constitutional disputes on the constitutionality of the lustration act, the electoral act, and the appointment procedure of the governor of the Czech National Bank, whose results had significant impact on the political system of the Czech Republic. The presidency of Václav Klaus (2003 – present) brought forward another set of constitutional controversies, and this article contains an analysis of three constitutional issues recently decided by the Czech judiciary – review of the constitutionality of the Lisbon Treaty, the constitutional framework of the appointment of new judges ( Langer case), and the constitutional limits for removal of the judicial functionaries by the executive (Brožová case).
The Administration of Courts in the Czech Republic: In Search of a Constitutional Balance
Authors: Bobek Michal
Published: April 2022

This article focuses on the administration of courts in the Czech Republic and Slovakia. The comparison of the recent developments and case law in both countries suggests that in post-Communist societies, the problems encountered in the area of the administration of courts are the same irrespective of the institutional design chosen, that is, irrespective of the fact whether or not a country established a self-standing judicial council or not. Moreover, as the current developments in Slovakia show, the establishment of an independent judicial council in a politically immature environment may even lead to certain ‘hijacking’ of a new institution by the old Communist judicial elites and the sealing-off of the institution behind a veil of judicial independence
Administrative Cooperation between Member States and Implementation of EU Law
Authors: Lafarge François
Published: April 2022

Administrative cooperation between Member States as implementation of European Union (EU) law has so far attracted little attention. This article would like to demonstrate that it is nevertheless a key element of the functioning of many EU legislations and policies. Especially, its relevance is explicit for all the internal market-related matters. This article addresses three main points. First, EU law provisions related to administrative cooperation are analysed. Second, the instruments of cooperation displayed by EU law are categorized arguing that their use creates a network pattern of cooperation. Finally, side effects of administrative cooperation are addressed.
Regulation, Public Law, and Better Regulation
Authors: Scott Colin , Brown Ciara
Published: April 2022

In response to concerns about regulatory growth and anxieties about the efficiency and effectiveness of regulatory policies, most industrialized countries have, with the blessing of the Organization for Economic Cooperation and Development (OECD), developed policies on Better Regulation (BR). The technical nature of these policies has engendered a degree of dissonance between policy practices, on the one hand, and research on regulatory regimes in Europe from the perspectives of public law and regulation, on the other hand. A core conception of BR as being concerned with impact assessment of regulatory rules has emerged notwithstanding the fact that many official documents at both national and supranational levels give considerable prominence to consideration of alternatives to regulation alongside impact assessment in rolling out BR programmes. The squeezing out of alternatives to regulation by a technical focus on Regulatory Impact Assessment (RIA) has driven BR policies into a silo, substantially isolated from the main research concerns of regulation and public law scholarship. We suggest that both the scholarly and policy fields would benefit from a degree of reintegration. Such a reorientation should speak to the central concerns of scholarship both in regulation and public law. For the former, it raises the prospect of working better with the grain of social and economic activity and actors in regulated fields, a central theme of contemporary regulation scholarship. For the latter, it offers the promise of enhanced oversight over rule-making processes and a more democratic form of decision-making over the development and adoption of regulatory norms, rooted in theories of reflexive law, albeit linked to participatory rather than parliamentary democracy.

As a slogan, BR invites neither contradiction nor even debate. Who would promote Worse Regulation?