bluuebunny/crossref_metadata_2025 huggingface dataset:
Is It Legitimate and Beneficial for Judges to Use Comparative Law?
Authors: Kadner Graziano Thomas
Published: April 2022

Abstract: In many European jurisdictions, the courts use the comparative method when applying domestic law. In some countries, they use this method occasionally; in others, the highest courts use comparative law in the field of private law in between 10 per cent and more than 30 per cent of all cases. However, it is sometimes still questioned whether it is legitimate for courts to use the comparative methodology, alongside the traditional methods of interpretation, when determining and interpreting domestic law. A very animated discussion among judges of the US Supreme Court has helped put this issue on the agenda of comparatists, lawyers, and judges. The following contribution analyses the arguments against and for the use of comparative law by the courts. On the basis of court decisions, the numerous benefits that judges and courts derive when using the comparative method are demonstrated.

Résumé: Dans de nombreux pays européens, les tribunaux utilisent aujourd'hui la méthode comparative. Dans certains Etats, les tribunaux y font recours occasionnellement; dans d'autres, les arrêts des tribunaux suprêmes comportent des références comparatives à d'autres ordres juridiques dans 10% à plus de 30% des cas en matière de droit privé. Pourtant, certaines voix remettent toujours encore en question la légitimité de l'emploi de la méthode comparative par les tribunaux. Une discussion très animée entre différents juges de la Cour suprême des Etats-Unis a contribué à remettre cette question sur l'agenda des comparatistes et des juristes en général. La contribution suivante analysera la question de savoir s'il est légitime pour le juge, dans son raisonnement et lors de son interprétation de la loi nationale, de recourir à la méthode comparative en plus des méthodes classiques d'interprétation. Ensuite, à l'aide de nombreux exemples pratiques issus de la jurisprudence des tribunaux en Europe, les divers buts que poursuivent les juges en utilisant cette méthode et les multiples bénéfices de cette méthode pour les tribunaux seront exposés.

Zusammenfassung: In zahlreichen europäischen Staaten bedienen sich die Gerichte der rechtsvergleichenden Methode. In manchen Rechtsordnungen geschieht dies gelegentlich; in anderen vergleichen die obersten Zivilgerichte in den letzten Jahren in zwischen 10% und über 30% der Fälle. Andererseits wird auch im 21. Jahrhundert immer noch gelegentlich bezweifelt, ob es für die Gerichte legitim ist, sich bei der Interpretation des nationalen Rechts neben den klassischen Auslegungsmethoden auch der rechtsvergleichenden Methode zu bedienen. In den USA hat diese Frage kürzlich zu einer intensiven und vielbeachteten Diskussion zwischen den Richtern am Supreme Court geführt. Der folgende Beitrag untersucht zunächst die Argumente gegen und für den Einsatz der rechtsvergleichenden Methode durch die Gerichte. Auf der Grundlage einer Vielzahl von Urteilen zeigt er im Anschluss den vielfältigen Nutzen auf, den die Gerichte aus dem Einsatz der rechtsvergleichenden Methode in der Praxis ziehen.
The Hidden Potential of Regulatory Impact Assessments (RIAs) in the Private Law Acquis
Authors: Van Schagen Esther
Published: April 2022

Summary: This article argues that regulatory impact assessments (RIAs) are an important method to improve the private law acquis that are currently overlooked. Many problems of unpredictability and inconsistency can be traced to poor regulatory choices in the private law acquis, including the overenthusiastic use of blanket clauses and the lack of coordination in the development of the acquis. RIAs are a very suitable means to prompt the legislator to reconsider these choices. The use of RIAs however currently shows severe shortcomings. Particularly, RIAs frequently contain doubtful and unsubstantiated assumptions, and they do not neutrally assess the benefits and detriments of all possible ways to develop the acquis. These shortcomings should be addressed if RIAs are to contribute to the quality of the private law acquis. A more thorough evaluation of past and future measures such as minimum and maximum harmonization, guidance, databases, and self-regulation and more coordination would contribute to the predictability and consistency of the private law acquis.

Résumé: Cet article propose que les analyses d'impact sont un moyen important pour améliorer l'acquis de droit privé qui est maintenaint négligé. Beaucoup des problèmes d'imprévibilité et inconsistance peuvent être attribués aux mauvais choix politiques, ainsi que le trop enthousiast emploi des clauses générales et l'absence de coordination dans la formation de l'acquis. Les analyses d'impact sont un moyen apte à inciter le législateur à réviser ces choix. Toutefois, des erreurs graves se présentent dans l'emploi des analyses d'impact, en particulier les hypothèses douteux et le défaut d'une analyse neutre des bénéfices et des détriments de tous moyens possibles pour développer l'acquis. Si les analyses des impacts pourraient s'améliorer la qualité del'acquis de droit privé, il faut que ces fautes seront rectifiés.
The Disabling of the EC Disability Regulation: Stott v. Thomas Cook Tour Operators Ltd in the Light of the Exclusivity Doctrine
Authors: Koning Ingrid
Published: April 2022

Abstract: The (contractual) relationship between passengers and airlines is regulated on an international as well as a European level. However, problems arise in the demarcation between these levels. The cause of these demarcation problems lies, on the one hand, in the strict 'exclusivity doctrine' under which only the Montreal Convention can serve as a basis for any claim arising out of international carriage by air and, on the other hand, the refusal of the CJEU to deal with the matter. 

In Stott v. Thomas Cook Tour Operators Ltd, the UK Supreme Court has unequivocally confirmed the Exclusivity Doctrine to the detriment of the EC Disability Regulation. In this article, the decision of the UK Supreme Court will be discussed in the broader context of the problematic relationship between the international convention and European passenger rights regulations.
Transparency of Standard Terms under the Unfair Contract Terms Directive and the Proposal for a Common European Sales Law
Authors: Loos Marco B.M.
Published: April 2022

Abstract: This paper discusses whether and to what extent the transparency principle is applicable to standard contract terms legislation under European Union law and what the consequences are when the principle, in so far as it is recognized, is breached. To that extent, it focuses first on the Unfair Contract Terms Directive and second on the proposal for a Common European Sales Law.

Résumé: Cet article traite si et dans quelle mesure le principe de transparence s'applique à la législation européenne de conditions générales et quelles sont les conséquences lorsque le principe, dans la mesure où il est reconnu, a été violé. Dans cette mesure, il se concentre d'abord sur la Directive concernant les clauses abusive dans les contrats conclus avec les consommateurs et d'autre part sur la proposition d'un Droit Commun Européen de la Vente.

Zusammenfassung: Dieser Aufsatz beschreibt, ob und inwieweit der Grundsatz des Transparenzgebots gilt nach das europäischen AGB-Recht und was die Konsequenzen sind, wenn das Gebot verletzt wird. Der Aufsatz konzentriert sich zunächst auf die Klauselrichtlinie und zweitens über den Vorschlag für einen Gemeinsamen Europäischen Kaufrechts.
Public and Private Enforcement of European Private Law in the Financial Services Sector
Authors: Cherednychenko Olha O.
Published: April 2022

Abstract: Particularly in the wake of the global financial crisis, ensuring effective enforcement of the rules governing the relationship between financial institutions and their (potential) clients ranks high on the EU political agenda. Traditionally, such rules were enforced by civil courts at the initiative of one of the parties through the means available within national private laws. Over the past three decades or more, however, the EU and national legislators have tended to resort to the state and its agencies in monitoring the financial institutions’ compliance with their obligations towards the clients and ensuring the optimal level of enforcement. The rise of public enforcement by administrative agencies in the field of European private law for financial services gives rise to many interesting issues. How do financial watchdogs actually ‘manage’ private relationships between financial institutions and their clients? In what way does this affect the development of (European) private law? What role is left for private enforcement, in particular that by the judiciary, in the new reality? How do public and private enforcement interplay with each other? To what extent are the answers to these questions determined at EU level? And what are the major challenges in ensuring effective enforcement in the financial services field? By using the examples from EU law, as well as several European legal systems, this article seeks to address these issues and develop an agenda for further research.
Online Platforms as Providers of Transnational Payments Law
Authors: Janczuk-Gorywoda Agnieszka
Published: April 2022

Abstract: This article uses the example of one of the best-known global payment systems provided by an online platform, PayPal, to analyse the role of private legal orders in creating new markets beyond jurisdictional borders. It shows that a relatively uniform legal order reduces risks involved in cross-border transactions and in this way enables transnational markets. While transnational law is more easily created by private entities rather than states, it remains embedded in state laws. The continuous role of state law in shaping transnational private legal orders is guaranteed because the latter operate with the endorsement and support of states. In this way states facilitate globalization. At the same time, the impact of state laws is fragmentary and disintegrates the applicable global private legal framework. Finally, the scattered influence of state laws undermines the protection offered to consumers. This is particularly important, because mutual rights and obligations between transnational private rule-makers, like the online platform PayPal, and their ‘users’ tend to be strongly biased in favour of the former.

Résumé: Cet article se sert de l’exemple de l’un des systèmes mondiaux de paiement les plus connus fourni par une plateforme en ligne, PayPal, pour analyser le rôle de systèmes juridiques privés dans la création de nouveaux marchés au-delà des frontières juridictionnelles. Il montre qu’un système légal relativement uniforme réduit les risques impliqués dans des transactions transfrontalières et favorise de cette manière des marchés transnationaux. Alors qu’une règle transnationale est plus facilement créée par des entités privées que par des états, elle reste incorporée dans les lois étatiques. Le rôle constant du droit étatique dans la formation de systèmes juridiques privés transnationaux est assuré parce que ces derniers opèrent avec l’approbation et le support d’états. De cette manière, les états facilitent la globalisation. En même temps, la portée de lois étatiques est fragmentaire et désintègre le cadre juridique privé mondial applicable. Finalement, l’influence éparse de lois étatiques fragilise la protection offerte aux consommateurs. Ceci est particulièrement important dans la mesure où les droits et obligations réciproques entre les décideurs privés transnationaux tels que la plateforme en ligne PayPal, et leurs ‘utilisateurs’ tendent à être fortement déséquilibrés en faveur des premiers.
Dispute Resolution in Telecommunications: A Commitment to Out-of-Court
Authors: Gamito Marta Cantero
Published: April 2022

Abstract: The EU Regulatory Framework for Electronic Communications has for long favoured extrajudicial settlement for the resolution of sector-related contractual disputes. Different entities and procedures have been put in place as a way not only to enhance access to justice but also to strengthen the effectiveness of EU telecoms rules. This article argues that these out-of-court dispute procedures contribute to bridging the gap in the enforcement of EU rules concerning private relationships, allowing the integration of EU policy objectives by means of dispute resolution, at the expense of domestic fundamental rules and principles of contract law.

Resumé: Le cadre réglementaire européen des communications électroniques a consolidé l’existence de mécanismes extrajudiciaires de résolution des litiges spécifiques au secteur. Des institutions et procédures ont été instituées non seulement comme un moyen de faciliter l’accès à la justice, mais aussi dans le but de renforcer l’effectivité des normes de télécommunication de l’UE. Cet article soutient que ces procédures ‘out-of-court’ contribuent à réduire le déficit concernant l’application de règles de l’UE, ce qui permet l’intégration des objectifs de la politique de l’UE par la résolution extrajudiciaire des conflits, aux dépens des règles et des principes généraux du droit des contrats.
Concurrent Claims in Contract and Tort: A Comparative Perspective
Authors: De Graaff Ruben
Published: April 2022

Abstract: This contribution analyses whether, and to what extent, the law permits a choice between finding liability in contract and in tort. The answer to this question is important because the outcome of a case may differ depending on whether the claim for damages is based on a breach of contract or on a violation of a tortious duty. The contribution examines the approaches in several European jurisdictions. French law is straightforward: finding liability in tort is not possible if the damage is caused by or related to the (non-) performance of a contractual obligation. German, Dutch and English law take the opposite point of view: finding liability in tort is not precluded if the damage is caused by or related to the (non-) performance of a contractual obligation. This contribution traces the historical development of these approaches and explains their differences by looking at the underlying structure of these systems of private law. It also shows that the resoluteness of both solutions has softened over time, as a result of judicial and legislative interventions. To support this argument, recent developments in case law and legislation are discussed.

 Résumé: Cette contribution s’interroge sur la question de savoir si – et alors dans quelle mesure – le droit offre un choix entre les actions en responsabilité contractuelle et extracontractuelle. La réponse à cette question est importante car l’issue du litige peut varier selon que la demande en dommages-intérêts est fondée sur la violation d’une norme contractuelle ou extracontractuelle. La présente contribution examine cette question au sein des différents systèmes juridiques. En droit français, la réponse est univoque: la responsabilité extracontractuelle comme base de l’action en justice est impossible si le dommage est causé par ou lié à l’(in)exécution d’un contrat. Les droits allemand, néerlandais et anglais optent pour la solution inverse: utiliser la responsabilité extracontractuelle est possible même si le dommage a été causé par ou lié à l’(in)exécution d’un contrat. La présente contribution analyse le développement historique de ces approches et explique leurs différences en recourant aux structures sous-jacentes des systèmes de droit privé. Il se trouve que la détermination de chacune de ces solutions s’est atténuée avec le temps, à la suite des interventions du juge et du législateur. Pour soutenir cet argument, les développements récents dans la jurisprudence et la législation sont discutés.
Regulating Certification Bodies in the Field of Medical Devices: The PIP Breast Implants Litigation and Beyond
Authors: Glinski Carola , Rott Peter
Published: April 2022

This article uses the breast implants scandal around the French producer Poly Implant Prothèse (PIP) to discuss the regulation of medical devices in EU law. Thereby, the specific focus is on the role of tort liability of certification bodies in complementing the public law regime of medical devices law. As tort law has not been harmonized yet at the level of EU law, national legal systems may produce different results; which indeed the PIP case demonstrates, with diverging judgments from French and German courts. Showing the deficiencies of the public law system of the Medical Devices Directive of 1993 as well as of the new Medical Devices Regulation of 2017, the article argues that tort liability is a necessary regulatory instrument to ensure that certification bodies live up to their duties under medical devices law and therefore a necessary instrument for the protection of the health and safety of patients.
Inheritability of Digital Content under Austrian Law
Authors: Pierer Joachim
Published: April 2022

The German Supreme Court (Bundesgerichtshof) recently decided that a Facebook account is inheritable. This article examines how Austrian law would deal with this issue and concludes that the result would be identical. According to Section 531 Civil Code (ABGB), only rights and obligations are non-inheritable when the replacement of an obligee or obligor by an heir would change the performance of the obligation. This does not apply to social media or email accounts since an heir can take the deceased’s place without changing the performance that Facebook has to provide to each user. Telecommunications and data protection law does not prevent the heirs’ access eisther because they replace the deceased. Even if digital content is non-inheritable, courts may grant access to an heir who has a compelling reason (e.g., to use digital content as evidence in a lawsuit) that overrides the deceased’s privacy interests. Prior agreements between service providers and the deceased may also limit access and should be carefully scrutinized, but not hastily dismissed as void.
Reward-Based Crowdfunding and EU Consumer Rights
Authors: Biemans Jan
Published: April 2022

Crowdfunding has become a popular and mainstream way of financing projects and businesses, ranging from community projects and charities to small and mediumsized enterprises (SMEs), creative projects and high potential start-ups. Of the four types of crowdfunding that can be distinguished, this article focuses on reward-based crowdfunding. It will be argued that contracts concluded under a reward-based crowdfunding project within the EU will generally fall within the scope of several EU consumer rights regulations, including the Consumer Rights Directive. This article will focus on the contractual rights and obligations under this directive. As a reward-based crowdfunding project, apart from some exceptions, will have to comply with this directive, the crowdfunding platform and/or the crowdfunding initiator will have to comply with information and delivery requirements, of which especially the delivery requirement do not fit the nature of reward-based crowdfunding. Non-compliance may lead to consumers having the right to terminate, which may compromise the crowdfunding project, as it depends on the participation of the crowd. Possibly the biggest threat to reward-based crowdfunding is the right of withdrawal. Where the withdrawal period for services contract ends 14 days after the conclusion of the contract, with sales contract this period only ends 14 days after the delivery of the goods. The article argues for tailor made exemptions in the Consumer Rights Directive in order to avoid that exercising the right to withdrawal by one or more consumers leads to the collusion of the crowdfunding project.
EU Law-Making 2.0: The Prospect of a European Business Code
Authors: Lehmann Matthias
Published: April 2022

The Commission’s 2017 White Paper on the Future of Europe suggested as one policy option the codification of EU business law. This article demonstrates the necessity and feasibility of such a code. It posits that a uniform business codification is indispensable to complete the Internal Market Agenda. A closer examination reveals that tighter fiscal coordination alone is insufficient to supplement a monetary union with the necessary economic integration. A legal level playing field is necessary to overcome the large disparities in competitiveness between the Member States. Evidence from comparative law and legal history shows that the harmonization of business law comes before the harmonization of civil law, and that one does not necessarily result in the other. The failure of past codification efforts in the area of civil law thus do not stand in the way of more uniform business law.
Monetary Appreciation and Foreign Currency Mortgages: Lessons from the 2015 Swiss Franc Surge
Authors: Vassileva Radosveta
Published: April 2022

Since 2007 the Swiss franc had been getting stronger, but it was a decision by the Swiss National Bank to unpeg the Swiss franc from the Euro in 2015, which resulted in its significant appreciation and shocked FX markets. Many citizens in Central and Eastern Europe were directly affected because they had taken out mortgages denominated in Swiss francs or linked to Swiss francs. In these countries, foreign currencymortgages are common because the interest rates on foreign denominated loans are lower, foreign currencies are more stable than the local currency, some citizens earn their income abroad, etc. This article analyses the impact of the Swiss franc surge on mortgages denominated in or linked to Swiss francs fromthe perspective of contract law, consumer law and financial regulation. Then, it examines the strengths and weaknesses of the responses to the Swiss franc controversy of three jurisdictions – Bulgaria, Croatia and Serbia, which addressed the issue in distinct ways despite their relative legal cultural similarities. The purpose of the comparison is to consider what lessons may be learned from the Swiss franc surge and how they may inform the recent Directive 2014/17/EU on mortgage credit.
Island or Ocean: Empirical Evidence on the Average Consumer Concept in the UCPD
Authors: Schebesta Hanna , Purnhagen Kai
Published: April 2022

This article investigates the codification of the average consumer concept in secondary legislation and its interpretation in the Court of Justice of the European Union(CJEU)’s case law, using doctrinal and empirical methods. We first identify all secondary legislation explicitly using the ‘average consumer’ in its wording and respective case law. We show that only the Unfair Commercial Practices Directive (UCPD) developed significant case law and conducted a software supported systematic qualitative analysis of all UCPD average consumer case law to address five research questions: How is the average consumer test applied? How does the CJEU test the average consumer? How is the average consumer characterized? Who decides who the average consumer is (institutional dimension?) Is the ‘average consumer’ in the UCPD case law the same ‘average consumer’ as elsewhere? The results show that the ‘average consumer’ concept performs a distinct function in UCPD adjudication and has matured to a selfreferential ‘average consumer’ interpretation isolated from case law rendered in other areas. We argue that when the ‘average consumer’ serves as a constitutive feature in order to define what constitutes a misleading practice, a stronger mandate for the CJEU to interpret the concept can be warranted.
What Can We Do with the Data of Deceased People? A Normative Proposal
Authors: de Miguel Beriain Iñigo , Duardo-Sánchez Aliuska , Castillo Parrilla José
Published: April 2022

The health and genetic data of deceased people are a particularly important asset in the field of biomedical research. However, in practice, using them is complicated, as the legal framework that should regulate their use has not been fully developed yet. The General Data Protection Regulation (GDPR) is not applicable to such data and the Member States have not been able to agree on an alternative regulation. Recently, normative models have been proposed in an attempt to face this issue. The most wellknown of these is posthumous medical data donation (PMDD). This proposal supports an opt-in donation system of health data for research purposes. In this article, we argue that PMDD is not a useful model for addressing the issue at hand, as it does not consider that some of these data (the genetic data) may be the personal data of the living relatives of the deceased. Furthermore, we find the reasons supporting an opt-in model less convincing than those that vouch for alternative systems. Indeed, we propose a normative framework that is based on the opt-out system for non-personal data combined with the application of the GDPR to the relatives’ personal data.
Corporate Risks, Risk Bearing Ability and Equity
Authors: Handschin Lukas
Published: April 2022

There is a relation between corporate risks, risk bearing ability and equity. In order to assess the risk bearing ability of a corporation, one reference figure is equity, understood as the sum of legal capital and reserves, free reserves and accrued profits. Equity shows the risk bearing ability related to the risk of asset reduction as well as the ability of the corporation to attract new liquidity by increasing debts, in case of a negative free cash flow. Equity is the risk reserve of the corporation. The relation between equity and risk bearing ability allows defining the necessary amount of equity by analyzing the corporate risks. Furthermore, it leads to rules for the valuation of assets, the creation of reserves and as to the board's duty of care on how to pursue the corporate strategy.
Financing of CCS Demonstration Projects  State Aid, EEPR and NER Funding  An EU and EEA Perspective
Authors: Myhre Jonas W.
Published: April 2022

This article describes and assesses the divergent objectives and different conditions for obtaining financial support for CCS demonstration projects, through state aid, contributions from the European Energy Programme for Recovery (EEPR) and New Entrants Reserve (NER) funding. The interplay and possibility of cumulation of the different sources of financing, the question of a minimum financial commitment from the operator and possible required results concerning captured CO2 are given special attention. The analysis attempts to answer to the question whether the total available aid addresses the market failure in a cost-efficient way, without unduly distorting competition and trade.
Legal Narratives and Compensation Trends in Tort Law: The Case of Public Apology
Authors: Brutti Nicola
Published: April 2022

The metanarrations about legal concern reached an increasing role in criticizing overcompensation cases. Litigation-adversarial system is perceived as too expensive for private and public finances. Someone underlined that emphasis on communication and voluntariness renders mediation more likely to resolve disputes.

Today public apology is playing a positive role in policies centered on alternative-informal dispute resolution, due to a restorative justice model. A public gesture of apology by the wrongdoer could help to prevent litigation expecially in moral or punitive damages cases. The article suggests that a different narrative of facts by legal means can be achieved.

Different legal meanings of public apology in eastern and western legal traditions are here investigated. According to a comparative analysis, the article focuses on different solutions issued by case law and legal transplants. It points out that the situation is very patchworked, although some jurisdictions have provided a specific legal framework for apologies.

However, its proper legal effects could shift in a wide range of solutions depending on certain circumstances: shaming sanction, mitigating factor on damages assessment, admission against interests, moral redress, self-reputation healing. Some criticisms referred to each specific meaning are here underwrited. In particular, the threat about apologies as metanarrations enforced by Courts concerns: insincerity, rule of law violations, harm to freedom of expression, mediatic manipulation.
Myth of Shareholder Primacy in English Law
Authors: Mukwiri Jonathan
Published: April 2022

This article assesses the validity of the shareholder primacy norm, with particular focus on the pre and post Companies Act 2006 implications of shareholder primacy in English company law. Prior to the Companies Act 2006, much was written about shareholder primacy, which assumed it to be the basis of corporate governance in English law. In testing the validity of that assumption, this article examines the historical application of partnership principles to corporate governance, the case law often called in aid of the shareholder primacy norm, and finds that shareholder primacy remains at odds with the tenet of corporate legal personality in English law. It concludes that the assumption that shareholder primacy was the basis of corporate governance in English law is a myth.
Collecting Data: How will the ESRB Overcome the First Hurdle towards Effective Macro-prudential Supervision?
Authors: Keller Anat
Published: April 2022

This article provides a critical assessment of the European Systemic Risk Board's ('ESRB') data collection process and examines the likely effectiveness of the legal frameworks, mechanisms and structures set out to accommodate it. It presents the various sources from which the ESRB collects its data in order to produce, where necessary, concrete warnings and remedial recommendations regarding risks to the financial stability within the EU. The article then points to possible impediments to the smooth flow of information through these channels of information and suggests ways to refine the data collection process. It further explores two pressing areas where information gaps are most apparent: shadow banking and systematically important institutions. It concludes that there are indeed various challenges and possible obstacles to smooth flow of information both in the legal frameworks and the practical mechanisms of the data collection process. Yet, the ESRB's information base and its data collection mandate are wide enough to tailor its macroprudential analysis needs and are far from being a duplicating effort of other national and international players.
Jurisdiction and Cloud Computing: Further Challenges to Internet Jurisdiction
Authors: Wang Faye Fangfei
Published: April 2022

As a result of technologic innovation and optimization, the advent of cloud computing may change the way we work, communicate with each other and share information. In the cloud-based environment, access to computing resources (such as storage, processing and software) has shifted from an internal network to a public network in particular in the public cloud environment. It may challenge the allocation of responsibility among cloud providers, cloud customers and cloud users. Subsequently it may affect the attribution of title to data controllers and data processors. This paper undertakes primary research and provides insights into the significant yet complicated determination of the validity of jurisdiction clauses for cloud service contracts and the intertwined issues regarding the balance between the cloud interoperability and the protection of data privacy and intellectual property rights. It addresses key legal challenges faced by cloud computing providers and users today and proposes possible solutions to establish greater legal certainty in cloud computing service contracts with reference to the current practice in the EU and US. In general, this paper argues that although the deployment of cloud computing may complicate the determination of jurisdiction when disputes arise, a well-negotiated and sophisticated service contract of cloud computing may minimise such risk.
Increased Corporate Governance Powers of Shareholders and Regulators and the Role of the Corporate Regulator in Enforcing Duties Owed by Corporate Directors and Managers
Authors: Ramsay Ian
Published: April 2022

Two related developments influencing the globalisation and internationalisation of corporate law and corporate governance are the increased powers that have been granted to shareholders and regulators. These developments are related because when legislatures empower shareholders and regulators they typically do this as a way of constraining management power. It is possible to discern a trend in a number of countries to grant increased powers to shareholders and regulators. Such a trend was evident before the recent financial crisis but the crisis has accentuated the trend. As part of the analysis, the paper examines the role of the corporate regulator in enforcing duties owed by corporate directors and managers. Particular attention is given to the Australian Securities and Investments Commission (ASIC) which, in recent years, has had a very prominent role in bringing actions for breaches of duty against corporate directors and managers. The article concludes by examining the advantages and disadvantages of public and private enforcement of directors' and officers' duties.
Disapplication of Austrian Law Denying Compensation for Bereavement Damages: A Judgment by Italian Supreme Court on the Notion of Public Policy
Authors: Bona Marco
Published: April 2022

This paper addresses the application of Article 4 and Article 26 (“Public Policy of the forum”) of Rome II Regulation specifically in relation to claims for bereavement damages in cross-border fatal accidents. It does so by first illustrating an Italian Supreme Court’s judgment that disapplied Austrian law denying awards for nonpecuniary damages to secondary victims. This precedent and other developments, including recent ECJ judgments on Motor Insurance Directives, show that there are grounds for national judges to limit the negative effects of Article 4: the ‘public policy’ rule can be an effective weapon against any denial of or any relevant restriction to victims’ right to full and fair compensation. More in general this paper’s conclusion is that a national judge, pursuant to Article 26, is entitled to disapply the foreign law which, in contrast with his internal public policy, would require him to discriminate in peius among victims suffering violations of fundamental rights.
Thinking of Microfinance in the EU Framework: Regulatory Challenges
Authors: Gimigliano Gabriella
Published: April 2022

The paper investigates microfinance framework at Community law level. Drawing a comparison with international background, it is examined the organization of microcredit service providers as well as user-provider contracting relationship. Provided financial inclusion as rationale of microfinance, the analysis maintains that there is a microcredit standard to deal and it is so heavily characterizing microfinance business that inclusive objective becomes legally relevant in user-provider contractual relationship as well as in corporate structure of service providers.
Management Compensation in Switzerland: Say-on-Pay Votes, Bonus Bans, and Salary Caps
Authors: Jentsch Valentin
Published: April 2022

This article discusses two rather recent developments concerning the regulation of managerial compensation in Switzerland: the Swiss voters’ acceptance of the initiative “against abusive remunerations” on 3 March 2013 and the Swiss voters’ rejection of the so-called 1:12 initiative on 24 November 2013. Many international commentators have argued that Switzerland has imposed one of the most restrictive manager pay regimes of the world and has therefore become a much less attractive place to do business. In my article, I challenge this view by closely examining the relevant rules on say-on-pay votes, bonus bans, and salary caps. I conclude that the new Swiss rules on management compensation are not as interventionist as they are sometimes thought to be and Switzerland’s liberal economic spirit and dedication to free market economic ideals is still alive and well.
Corporate Management: Clubs of Old Boys or Something Else?
Authors: Asplund Aino
Published: April 2022

The European Union has issued a directive initiative on gender quotas to increase the proportion of the under-represented sex among non-executive directors of large companies listed on stock exchanges and related measures. The article critically discusses the impacts of quotas, which despite of the proposals relating to better performance, fundamentally are highly equality driven ignoring the purpose of corporations as entities that seek for long-term, monetary value through investing in skills and knowledge. This article suggests that by identifying professional managerial elites in listed companies’ governance organs and paying attention to their importance as the contributors of company value, male dominance in economic decision-making can be explained. The argumentation is based on the data collected from thirty-six Finnish listed companies. The findings support the presumption of governance organs as groups of competence.
Loans and Negative Interest Rates
Authors: Settanni Giuseppe
Published: April 2022

Payments of interest amounts in floating rate loans are generally linked to specific reference parameters, such as EURIBOR. Given the decrease of such parameters to reference values around zero, what would happen if such a fall continued below this value (so that lenders have to pay interest amounts to borrowers)? General principles of interpretation of contracts, good faith and equity, jointly with an analysis of nature / characteristics of loan contracts could help to find a solution being the most transnational possible. In particular, reference could be made to: (i) an interpretation of the loan contract by which such contract cannot betray its nature (and interest payments are necessary in non-gratuitous loans); (ii) the equity principle, under which contracts have to be reasonable / fair (and lenders should receive back by borrowers at least the capital amount); (iii) the nature of loans as contracts necessarily requiring interest payments by borrowers.
Interlocking Directorates in the European Union: An Argument for Their Restriction
Authors: Petersen Vidir
Published: April 2022

The EU Commission has recently undertaken a review of the EU Merger Regulation. In this process it has published a White Paper that proposes to extend the Regulation to cover situations in which firms acquire minority shareholding in their competitors. However, the White Paper is silent about the closely related phenomenon of interlocking directorates (interlocks), which occurs when the same person sits on the board of two firms. This issue has never been directly addressed by the European Union, perhaps because the theory of interlocks is underdeveloped in Europe. This paper provides comprehensive antitrust arguments for why the EU should restrict certain interlocking activity. The main argument is that the EU should prohibit horizontal interlocks (interlocks between competing firms) per se, as they raise serious antitrust concerns. The paper further argues that non-horizontal interlocks should be monitored, and it addresses certain important policy questions that the EU might face when designing the regulatory framework.
The End of Bankers Bonus Cap: How Will the UK Regulate Bankers
Authors: Lu Longjie
Published: April 2022

In response to the 2008–2009 financial crisis, the EU has launched significant regulatory reforms on the Capital Requirement Directives and introduced many tougher rules on bankers’ remuneration. Particularly, bankers’ remuneration across the EU should be subject to a ratio between the fixed and variable components, which is usually known as bankers’ bonus cap. On the issue of applying bankers’ bonus cap to local financial institutions, the UK government has always held an opposite stance against the EU.

This article analyses the deep reasons behind the conflicts between the UK and the EU on the issue of capping bankers’ bonuses, namely, the UK’s political economic interests in the global financial market and the opposite philosophies on bankers’ remuneration regulations. Furthermore, the article tries to predict the influences of Brexit on the regulations of bankers’ remuneration in the UK. Specifically, the artile argues that bankers’ bonus cap will eventually be removed and the UK will get back to its free market-based approach whereby the market plays the primary role in deciding bankers’ remuneration and enhanced regulations compensate the market deficiencies.
Bank Rescues and Legal Challenges: The Case of Bail In
Authors: Carriero Veronica
Published: April 2022

The absence of frameworks to cope with “Too big to fail” (TBTF) credit institutions has led several states to huge financial rescues, leaving it to taxpayers to bear the cost. Policy-makers have pooled efforts towards the set-up of a framework enabling them to overcome TBTF via the orderly resolution of credit institutions. Bail-in is the resolution tool that, at the EU level, epitomizes the policy response to the problem of social costs. The article focuses on legal complexities of this powerful tool’ s application, with particular reference to the right of property and to the creditor’s right.
Money as a Legally Enforceable Debt
Authors: Rahmatian Andreas
Published: April 2022

Money is usually regarded as a subject in the domain of economists, but it is really a fundamentally legal notion. In fact, it is a creation of the law. Money is a special object of property, and at the same time a form of debt, enforceable by law which ultimately confers on it the quality of money. The concept of dematerialised property assists in describing the concept of money accurately. The article discusses the different types of money, and the creation of money through central banks and through commercial banks by giving credit. It explores the possible legal foundation of this money creation process. The discussion also looks at the legal regulation of money creation in Germany and presents findings from an interview with a practising commercial lawyer in Germany which confirm the author’s thesis that money is a legally enforceable debt.
Legal Certainty in the Extrajudicial Dispute Resolutions
Authors: Proto Massimo
Published: April 2022

This essay explores the consequences of the existence of common principles in ADR proceedings, particularly in adjudicative ADR, which can supplement any limits of sectoral laws and regulations. In such cases, the role played by the individual called to settle the dispute may be extremely relevant: if, instead of applying the legal provisions laid down by the lawmaker, he evaluates the interests of the parties and ponders on their conduct, it may be possible to identify principles that are able to drive the decision-making process. Such principles would also apply to very different areas. However, the consequential and ambiguous concentration of the power to make the rule and the power to apply the rule under the same person may lead to unpredictable decisions.
Conflict Minerals in the Corporate Supply Chain: Is Transparency the Solution to Human Rights Violations in the Tantalum, Tin, Tungsten and Gold Supply Chains?
Authors: Härkönen Elif
Published: April 2022

The European Union has recently enacted the Conflict Minerals Regulation, introducing new transparency requirements for importers of tantalum, tin, tungsten and gold from conflict-affected regions. Similar legislation has previously been enacted in the United States. The purpose of the new transparency requirements in both jurisdictions is to cut off funding for armed groups in conflict areas and thus reduce the suffering of the civil population, with particular reference to the situation in the Democratic Republic of the Congo. The criticism of the legislation centers on the costs to companies in the minerals supply chain. In this article it is argued that the costs to companies subject to the transparency requirements can be minimized with carefully crafted legislation. It is also concluded that progress in achieving the humanitarian objectives of the legislation is slower than expected, mainly due to the lack of participation in the transparency efforts by all actors in the supply chain. Successful transparency regulation has to be supported by a multitude of actors in the international community. Also, mineral supply chain transparency regulation in itself is unlikely to solve armed conflicts in resource-rich but poor countries. Such legislation only provides for one component in a multi-level approach including legislative, economic and political efforts by the international community.
Unification, Harmonisation and Competition in European Company Forms
Authors: Ghetti Riccardo
Published: April 2022

The main tools for the convergence of company law are full legal unification, mere harmonisation, and regulatory competition. The article uses this framework to study both the existing and the proposed European company forms (ECFs): the European Company, the European Cooperative Company, the European Private Company and the Single Member Company. 

All ECFs aim at legal unification, but none of them are endowed with comprehensively unified legal regimes; their regulation is patchy and stratified and suffers from heavy referencing to national law in crucial areas such as corporate governance and corporate groups. It is therefore no surprise that ECFs have failed to win the favour of European entrepreneurs, and the data on the diffusion of ECFs are not encouraging: a large proportion of the few registered ECFs are in fact only shell companies, and most of the operating ECFs are found only in selected parts of central Europe. This failure is the result of high setup, legal and reputational costs, not offset by sufficiently important benefits. The roots of the fiasco go deeper, however, as regulatory protectionism impedes the adoption of attractive supranational company forms.

While acknowledging that forcing further cooperative convergence could be not only costly but also ineffective, it must be noted that to some extent non-cooperative convergence is already occurring, at least with reference to national company forms suitable for small companies. Here, in contrast with the cooperative/supranational level, the non-cooperative mechanism of regulatory competition needs not inevitably turn into regulatory protectionism but can instead be a positive source of emulation, causing the diffusion of effective national company forms and leading ultimately to spontaneous legal convergence without supranational intervention.

EU company law makers should consider that in the field of ECFs no law might be better than bad law, thus avoiding the path of cooperative adaptation and trusting the uniforming force of regulatory competition instead.
Diversity in Japanese Companies Boardroom: Sign of Shifts in the Japanese Model or Corporate Governance Reform as a Fashion?
Authors: Kozuka Souichirou
Published: April 2022

This paper discusses the gender diversity of the board in Japanese public companies. Its implications are analysed against the background of the recent reform of corporate governance in Japan. During the post-war period, the Japanese corporation has been the “insiders’ community”: the employees committed to a single company for almost throughout their career, and the board members were chosen from senior employees. Recently, however, the focus has shifted to changing the board from executive organ to monitoring mechanism, facilitated by the reform to increase independent (outside) directors. The female participation in the board could be another driver for the orientation towards the monitoring board, radically changing the traditional “insiders’ community.” Alternatively, in a company that still appoints most board members from among the senior employees, the increased female directors could serve as the role model for female employees, facilitating the gender diversity in the workplace, but reforming the board structure only gradually.