bluuebunny/crossref_metadata_2025 huggingface dataset:
Unsolicited Communication in Social Media
Authors: Trzaskowski Jan
Published: April 2022

This article discusses whether commercial communication in social media is covered by the European opt in-model concerning unsolicited electronic mail for direct marketing purposes found in the directive on privacy and electronic communications (2002/58). It is concluded that messages in social media - in contrast to news feeds and advertisements - may be characterised as electronic mail. However, the EU provisions on unsolicited electronic mail is found in the regulatory framework for telecommunication which as a starting point does not regulate web-based content such as social media services. The ban on unsolicited electronic mail does not apply to messaging systems in social media unless the system gives access to sending traditional e-mail. Until 12 June 2013, Member States could - in national law - uphold a broader definition of electronic mail in the light of the minimum harmonisation found in the distance selling directive (1997/7). Now, the use of electronic mail for direct marketing purposes in social media must be assessed in accordance with the full harmonisation in the unfair commercial practices directive (2005/29). This directive does not contain a ban on »unsolicited« but »unwanted« solicitations by e-mail and other remote media - i.e. an opt-out solution.
Interaction between Russia and England in Civil Procedure
Authors: Khodykin Roman
Published: April 2022

In civil or commercial disputes, the need sometimes arises to obtain evidence, to serve proceedings or other judicial documents, or to enforce some other judicial act in the territory of a foreign country.

Not only does this article present an overview of the Russian court system and its advantages and disadvantages, it also describes in great detail the legal assistance between Russia and England and covers the service abroad of judicial and extrajudicial documents, the taking of evidence abroad as well as the enforcement of English judgments in Russia.
Affordable and Accurate Civil Justice  Challenges Facing the English and Other Modern Systems
Authors: Andrews Neil
Published: April 2022

Modern legal systems, including the English, emphasise the need to promote mediation, uphold arbitration (which bypasses the courts), and achieve settlements. These are regarded as preferable to lengthy court proceedings culminating in trial. In England the Jackson reforms of April 2013 aim to control costs and stream-line proceedings. However, it is here argued that the challenges of promoting affordability and accessibility must not be permitted to undermine accuracy and that public adjudication in the courts of civil claims, including clarification of points of law, remain important for the vitality and health of the legal system. Inaccurate judicial decision-making would be unacceptably rough justice. It will be shunned. Furthermore, although mediation and arbitration have their place, both have their dangers, if they cause public adjudication to become too scarce or unreliable. For neither mediation nor arbitration involves public judgment of disputed matters of fact and law.
Party Autonomy and Choice of Law Applicable to Domestic Contracts
Authors: Alpa Guido
Published: April 2022

Until some years ago the principle of sovereignty prevailed over the principle of freedom of contract and the parties, whether they had the same citizenship, could not choose a foreign law applicable to their transaction. A broad interpretation of Regulation Rome I leads to a more liberal choice. In this contribution the Author explores the boundaries of freedom of choice and tries to envisage the opportunities offered to the parties by a comparative perspective of legal systems.
Cross-Border Investments in Undertakings and the Future of EU Company Law
Authors: van Bekkum Jaron
Published: April 2022

The golden share case law and other recent case law of the ECJ form a basis for the development of a rule of internal market law that all rules of general company law that may have as an effect that investors are prevented or deterred from making cross-border investments in undertakings restrict the freedom of establishment and the free movement of capital. Relevant rules that potentially restrict the freedom of establishment and the free movement of capital are, inter alia, rules that allow shareholders to include deviations from the principle of 'one share, one vote' in articles of association, such as multiple voting rights. Other potentially restricting rules are employee co-decision rules and shareholder liability rules. If certain of these rules are judged to restrict the fundamental freedoms, this would necessitate a fundamental reconsideration of the existing company laws of the Member States from the perspective of restrictions to cross-border investments.
Corporate Social Responsibility and Duties of Directors
Authors: Bevivino Guglielmo
Published: April 2022

The aim of the paper is to determine whether the breach of rules of Corporate Social Responsibility (CSR) can lead to a sort of legal liability of directors. The analysis evaluates if social and ethical instances characterizing CSR may take a legal significance that is different from the mere granting of legitimacy to a stakeholder-oriented director's conduct. The contractual meaning of "company's interest", adopted in this paper due to its conformity with systematic legal framework, allows an expansion of the spectrum of enforceable situations. This argument lets us consider the duties of directors to act for the protection of interests other than those of shareholders as proper obligations.

The part of the paper dedicated to the comparison prospective shows the neutrality of the Italian legal framework on the issue of Corporate Social Responsibility. The British and American legal systems - through, respectively, the 2006 Company Act and the Statutes - indicate a more explicit and marked trend to leave the paradigm of shareholder value.

The final part of the paper is devoted to the comparison between the evidence regarding the identification of substantial obligation to protect stakeholders' interests and the business judgment rule as a response to the agency costs which liability rules produce. The comparison reveals under which conditions directors' liability takes place. Then we have hypothesized actual categories of violations: the first one results in the violation of the contractual obligation which requires the care of stakeholders' interests; the second one concerns the breach of procedural rules during the adoptions of the actual decision.
Geography and Semiotics in Accounting: The Challenge of Globalisation
Authors: Grossfeld Bernhard
Published: April 2022

In this paper the focus is on the problems for corporate governance posed by the increased integration of national economies. One of the biggest concerns is the question of just how far local laws can be supplanted by globalised rules of corporate governance and accounting. The importance of standards of financial reporting, as demonstrated by the financial crises of the late 2000s, is touched upon. 'Global Accounting' has been developed as a method of control which superseded national rules. It is pointed out that companies today rarely have one central geographical location, due to factors such as faster communications, interconnected world markets, cheap cenres of manufacture and intercontinental financing. The present status of accounting regulation in several key locations is examined, with particular attention given to the tension between European and American systems. The article concludes that the future of global accounting raises many challenges for lawyers, stemming from the tensions of geography and semiotics.
Three Topics at the Periphery of Corporate Governance: Business Rescues and Wrongful Trading, Supervisory Law for Financial Institutions and the Perspective on Islamic Financial Institutions
Authors: Casper Matthias
Published: April 2022

In this paper three specific areas and their impact of corporate governance are analysed. The first part of the article questions the adequacy of current obligations under German law to inform shareholders of a financial crisis. The risk that directors and other managers will make risky decisions because of a desire to avoid insolvency and the rules governing corporate conduct in situations of insolvency or near-insolvency in Germany are considered and contrasted with the English approach. The approach to supervision of financial institutions, and the potential for these rules to apply to companies other than financial institutions, are considered. The current rules for financial institutions in Germany, and the ways in which the managements and auditing of such companies differs from the norm are analysed. The potential for Islamic law to have an effect on the management of corporations forms the subject matter of the final part of this article. The role of Sharia Supervisory Boards (SSB) in the German unitary and two-tier systems, and the proper classification of such boards are thoroughly explored. The possible consequences for SSBs and the corporations that use them under the German laws on Corporate Governance are considered. The article concludes with a summary outlining the ways in which Corporate Governance affects the areas covered; business rescue laws, supervisory laws for financial institutions, and Islamic Financial Institutions.
Reformation of the European Insolvency Regulation to Act as a Legislative Tool to Assist in Europes Growth Agenda
Authors: Liddy-Murphy Róisín
Published: April 2022

This article proposes that the European Insolvency Regulation should be reformed to provide for a more unified and harmonised system of bankruptcy discharge periods in the European Union for 'honest' bankrupts. It is argued that this would ensure that the reformation of the European Insolvency Regulation has the ability to seek to achieve its objectives of improving the efficiency of the European framework for cross-border insolvencies and the ability to act as a real as opposed to an apparent tool to link in with Europe's Growth Agenda 2020.
Spanish Legal System on Disclosure in Franchise Networks: Problems and Proposals for an Improved Regulation
Authors: Miravalls Jaume Martí
Published: April 2022

The aim of this paper is to describe the way in which the subject of disclosure in franchise networks is treated in the Spanish legal system. The paper concludes that the Spanish legislator will have an opportunity to modernize the regulation of these contracts soon. This will be a great moment to adapt the Spanish law on disclosure in franchise networks to the modern legal techniques already present in a number of countries. An adequate and updated regulation of the franchise contract would avoid the majority of the problems that Spanish case-law has been attempting to resolve over the last few years, as this paper will try to demonstrate.
Protecting Consumers from Unfair Terms in Standard Form Contracts: The UK Approach
Authors: Mason Lee
Published: April 2022

This article examines the current UK consumer protection regime specifically relevant to unfair terms in standard form consumer contracts, as provided for by the Unfair Terms in Consumer Contracts Regulations 1999 (pursuant to the European Union's Council Directive 93/13/EEC) and the solid body of case law that has grown around it. In particular, the article takes a closer look at the decision in Office of Fair Trading v. Ashbourne Management Services Ltd [2011] EWHC 1237 (Ch) and its impact on protecting UK consumers who enter into standard form gym club contracts.
Business Judgment Rule: A Generally Applicable Principle?
Authors: Told Julia
Published: April 2022

This article examines the reach and applicability of the business judgment rule as developed by US case law to civil law countries – especially countries from the European judicial area – that hold for an objective standard of due care and a wide margin of discretion for managers in making business decisions. The economic crisis and the awareness of the lack of predictability of all relevant economic parameters when making business decisions, make the applicability of the business judgment rule highly relevant. In light of this, the present article elaborates on the concrete functioning of the business judgment rule and focuses on its different components. Thereby, the business judgment rule is divided into a substantial and a procedural part. The paper’s findings are that only the substantial part of the business judgment rule may be applied in civil law countries that hold for an objective standard of due care for managers. However, the procedural part of the rule is likely to conflict with more specific national procedural rules that usually prevail.
The Distinction between Public and Private Companies and its Relevance for Company Law: Observations from the United Kingdom and the Netherlands
Authors: de Jong Bas
Published: April 2022

This article analyses the distinction between public and private (limited) companies and its relevance for company law. Usually, the distinction refers to the fact that the tradability of shares in private companies is more restricted than in public companies. In this paper the differences between the two company forms are studied from the perspective of the United Kingdom and the Netherlands. In both jurisdictions, the private company is of a more recent origin than the public company and currently the most popular company form in numbers. The paper discusses the motives to choose the public company form over the more lightly regulated private company form, and the justifications for the more extensive regulation of the public company. It is submitted that both British and Dutch law could relax certain mandatory provisions for non-listed public companies and thus offer more flexibility to shareholders. Curiously and in contrast with British law, a Dutch private company can make public offers of its securities and become listed, although there is no appropriate legislative regime as in case of a public company. The article concludes with a discussion of several topics where the British and/or Dutch company legislation make distinctions between public and private companies, including capital protection, resolutions and meetings, rights attached to shares, the board, accounting law and dispute resolution. Improvements in these areas are suggested for both British and Dutch company law.
Proposals of the European Commission after the Financial and Debt Crisis
Authors: Dinov Stanyo
Published: April 2022

The weaknesses in the implementation of financial supervision, the extensive harmonization of banking laws and the financial and eurozone crises have forced the EU Member States to reform the European financial supervision. In 2011 the EU introduced a new financial supervision system, and in September 2012 proposals for establishing a Single Supervisory Mechanism (SSM) were revealed. The European Commission made a new proposal for a Single Resolution Mechanism (SRM) in May 2013. The present article seeks to analyse the changes, problems and possibilities for improvement of the new financial supervision system. Chronologically the work follows the historical reforms of the European supervision and gives particular attention to the new model of centralised bank supervision through the ECB. At the end of the article the core issues of the reforms will be presented. Further to this the problems and the remaining open questions will be explored and the potential long-term prospects outlined.
Legal Limits on Food Labelling Law: Comparative Analysis of the EU and the USA
Authors: van der Zee Eva
Published: April 2022

The objective of this study is to explore to what extent freedom of expression should protect food businesses against government intervention with corporate communications on food labels. A functional comparative method was used to analyse the objective. It was found that expression on food labels should be considered primarily commercial in nature. In the USA some food labelling regulations are considered inconsistent with the freedom of commercial expression. EU courts seem to uphold government restrictions to commercial expression in all cases, especially when restrictions are based on protection of human health. It can be concluded that food businesses should only be able to claim free speech rights on food labels when it is of importance to the public or consumers.
Evolution of Corporate Essence: Public Benefit Corporation
Authors: Fomcenco Alex
Published: April 2022

This article points out a shift in the “human corporate self-apprehension” where profit maximization is not the sole reason for incorporation or investment. Public Benefit Corporation is a new type of a corporate vehicle. Its incorporation and functioning is regulated by the same legislation that applies to a traditional limited liability company. Its main distinctive attributes are corporate purpose, accountability of its management, and transparency requirements. Although, a Public Benefit Corporation does not impose any revolutionary amendments to the way the traditional corporations are, it offers a legal framework where public benefit is more important than profits. As a corporate entity, Public Benefit Corporation already exists in numerous jurisdictions and those jurisdictions that do not yet facilitate creation of this corporate form should most definitely consider it.
Global Business: National Law, EU Law and International Customs and Contracts
Authors: Gorton Lars
Published: April 2022

Lars Gorton is a professor emeritus presently connected to the Stockholm Centre of Commercial Law at the Stockholm University Law faculty. He has previously been engaged as professor of Banking Law at the university of Lund and as professor adiunct at the Stockholm School of Economics and the Copenhagen Business School. He is presently mainly engaged with matters related to General Commercial Law including Financial and Credit law. This article presents some overview of commercial law developments in the EU against a wider context.
Investor Protection under Mifid: A Survey of Greek Case Law
Authors: Tountopoulos Vassilios
Published: April 2022

There is a debate in the national and the European legal theory concerning the legal nature of Conduct of Business (CoB) rules and the organizational requirements provided for under MiFID. This paper deals with the impact of CoB rules and organizational requirements on private relationships and provides a survey of the relevant case law in Greece. It also analyses (a) the interrelation between CoB rules and organizational requirements and (b) aspects of contractual and non-contractual liability of an investment firm pursuant to Greek case law. Furthermore, we argue that the establishment of a single rulebook at the European level (MiFID II) will not impact on the current doctrinal analysis of CoB rules and organizational requirements in private relationships in Greece. Nevertheless, on a practical level, the new regulatory provisions are expected to strengthen civil law protection of investors.
Software Assistance and Maintenance Contracts
Authors: Valentino Daniela
Published: April 2022

The paper analyzes the legal issues related to software assistance and maintenance agreements. Contracts generally provide for highly diverse performances and are aimed at providing a global service. Since the assistance and maintenance agreement generally entails a long-term relationship, the regulations for long-term supply contract’s apply. Nevertheless, in specific circumstances, even the rules for service contracts may be applied. In Italy, like in other EU jurisdictions, the applicable regulatory framework depends on the content of the contract. The provider company naturally tends to restrict its liability in proportion to effectively commissioned activity. Exclusion clauses including intentional damage or gross negligence are void, while par. 2 of Article 1229 of the Italian Civil Code permits limitation of liability in cases of minor negligence. The impossibility of changing contractual terms disadvantages the weaker contracting party and the procedure imposed by par 2 of Art. 1341 c.c. has proved inadequate to protect the customer. Art. 9, of Law n 192 of 18 June 1998 (“Disciplina della subfornitura nelle attivita produttive”), which is now considered to be general principle allows exclusion clauses providing for minor negligence to be deemed void, if they oversimplify the debtor position, by defining the requirements of minor negligence. In addition, clauses regarding exclusion or limitation of liability towards third parties, beyond the limit set by Art. 1229, require an assessment based on the nature of the interest which is concretely protected.
Ethnographic Methods in the Study of Hybrid Processes in Arbitration: the Chinese and Western Perspectives
Authors: Jemielniak Joanna , Fan Kun
Published: April 2022

The paper seeks to explore what tools can help in capturing regional particularities in the hybrid proceedings (a departure from the strictly adversarial model, opposing the well-established trend of judicialization of arbitration), as well as the scope and character of this trend in the context of theory of growing autonomization of international commercial arbitration as a ‘transnational legal order’. The authors argue that unfolding all the aspects of the observable, growing interest in hybrid proceedings calls for a systematic, ethnographic study. The ethnographic approach combined with a research perspective of discourse theory would allow for an in-depth study and interpretation of the regional differences in use of hybrid processes.
Inward FDI and Local Institutional Building: Evidence from the Financial Sector in Italy
Authors: Supino Ilaria
Published: April 2022

The relationship between economic growth, institutional soundness and inward FDI has always been an ambiguous one. Extensive literature has tried over time to explore the way by which foreign capitals contribute to the host country’s economy, by specifically investigating on the role played by local institutions as moderating factors. In detail, this paper explores whether the financial institutions’ intermediating function exerts some (least indirect) influence on investments from abroad: for this purpose, I put under scrutiny the peculiar current banking scenario in Italy, which – after the recent financial distress – has implemented (and is still involved to implement) relevant institutional reforms, also with the purpose of attracting financial FDI.
BREXIT and English Jurisdiction Agreements: The Post-Referendum Legal Landscape
Authors: Ahmed Mukarrum
Published: April 2022

This article presents an early view of the impact of BREXIT on English jurisdiction agreements in international commercial contracts. It is almost certain that the Brussels I Recast Regulation will cease to apply in the UK after BREXIT and as a result the near automatic recognition and enforcement of English court judgments in the continuing EU (and Lugano Convention Contracting States) and vice versa will be in jeopardy. Contrary to some recent speculation, it is unlikely that the Brussels Convention will revive and the option to adhere to the Lugano Convention also does not seem to be viable for a newly ‘liberated’ UK. The article suggests practical solutions to minimise the litigation risk arising from English jurisdiction agreements in relation to the EU. Significantly, the Hague Convention on Choice of Court Agreements can be harnessed to regulate English exclusive jurisdiction agreements in relation to the EU in matters within the scope of the Convention. If the courts of a post-BREXIT EU Member State are seised in a case concerning an English exclusive jurisdiction agreement, Article 6 of the Hague Convention should accord deference to the elected forum.
Bribes, Crimes and Law Enforcement
Authors: Søreide Tina , Hjelmeng Erling J.
Published: April 2022

The law enforcement shortcomings in corruption cases are substantial and call for a greater scope of enforcement tools and efficient procedures. Main concerns in reform should include basic criminal law principles, consequences for markets, access to the information necessary for reactions, and value for money in enforcement operations. In this article, we suggest European governments can strengthen the preventive effects of criminal law vis-à-vis corporations by clarifying how various forms of negligence will lead to reactions, request self-assessments of estimated/accepted business risk, apply predictable principles for duty-based sanctions (with strict residual liability), and develop principled rules for negotiated settlements. In addition, for criminal law reactions to incentivize firms to self-police and self-report, we argue that debarment from public contracting and other severe consequences of a criminal-law reaction should be placed under the control of one law enforcement entity. Eventually, due to strict conditions on the use of criminal law reactions, it is also necessary to let civil law reactions better complement the enforcement strategies of criminal justice systems.
European Unions Investment Agreements and Public Debt
Authors: Bianco Giuseppe
Published: April 2022

The on-going global financial crisis has hit Europe in an especially significant manner. With the legal vacuum surrounding sovereign debt restructurings, Bilateral Investment Treaties (BITs) and Free Trade Agreements (FTAs) signed by European countries can provide grounds for litigation in future debt crises.

The sovereign debt crisis in the heart of the Eurozone has materialized such dangers, and has had an impact on the European Union’s strategy as an actor in international investment. The problems experienced by Argentina before the ICSID have made European countries more aware of the potential hidden in their BITs. This has in turn led to a careful drafting of the CETA and the TTIP, and potentially of all the other major FTAs to follow.
Investment Arbitration under EU Investment Agreements: Is There a Role for an Autonomous EU Legal Order?
Authors: Lenk Hannes
Published: April 2022

The present paper argues, that the investment court fails to guarantee overall compatibility with the Treaty. In particular, the principle of autonomy, which the Court of Justice has over the years developed into an effective tool protecting its own jurisdictional prerogatives, is likely to have an impact on the establishment of the investment court. Accordingly, as the investment court will ultimately engage in the interpretation of EU law and it assessment against broadly defined international standards it fulfills a judicial function that is reserved to the Court of Justice. In the absence of the prior involvement of the Court, and considering the exclusion of domestic courts from the process of dispute resolution, the present paper concludes that the currently envisaged investment court system is incompatible with the Treaty.
Promoting Renewable Energy in the EU: Shifting Trends in Member State Policy Space
Authors: Fauchald Ole Kristian , Létourneau-Tremblay Laura , Behn Daniel
Published: April 2022

Member States have sought to implement European Union (EU) initiatives on the promotion of renewable energy for almost 20 years. However, some Member States are now finding that some of these very policy initiatives on renewable energy promotion have the capacity to conflict with these same Member States’ other EU and international obligations, such as in the areas of international trade, foreign investment protection, and the functioning of the internal energy market. This article will provide an historical progression of EU laws and policies concerning the promotion of renewable energy generation, identify many of the factors inhibiting or challenging the achievement of EU renewable energy policy goals, and consider whether the proposed shifts in renewable energy promotion policy are likely to be effective in addressing these challenges.
The AIIB and the EU: Legal Opportunities and Risks
Authors: Chiu Yen-Lin Agnes
Published: April 2022

Forming an integral part of China’s grand vision “One Belt One Road” (OBOR or “Belt and Road Initiative”), the Asian Infrastructure Investment Bank (AIIB) launched operations at the start of 2016 with its headquarters located in Beijing. Notwithstanding the bank’s Chinese origin and regional focus, many European countries – including fourteen EU Member States (Austria, Denmark, Finland, France, Germany, Italy, Luxembourg, Malta, Netherlands, Poland, Portugal, Spain, Sweden, United Kingdom) – promptly decided to join as prospective founding members. With the subsequent admission of Belgium, Hungary, Ireland, Cyprus, Greece and Romania as prospective members, the number of participating EU Member States has further increased to twenty. As a result, the AIIB must be regarded as a novel financial institution with global significance, in line with multilateral development banks (MDBs) such as the World Bank or the Asian Development Bank. In the light of such unprecedented developments, this article analyzes major implications resulting from AIIB membership, notably in view of new opportunities but also possible risks for EU Member States and the European Union (EU) as a whole. In particular, the following study assesses the EU’s legal position and influence in the AIIB, explores the EU’s economic interests and anticipated benefits and, last but not least, evaluates the impacts of financial cooperation and integration in the long term. Based on an overall summary, the author concludes with recommendations and suggestions for achieving more sustainable, balanced and fruitful relations on the Eurasian continent.
Credit Rating Agency Regulation in the UK If and When Article 50 is Invoked: Round Holes for a Square Peg?
Authors: Cash Daniel
Published: April 2022

The decision taken by British voters to leave the European Union has created uncertainty in all walks of life, ranging from everyday concerns to professional anxiety. In this article, the focus is on the UK’s regulation of the Credit Rating Industry after the invocation of Article 50. The aim of the article is to examine some potential options available to policymakers and legislators in terms of their validity for taking on such an important task. Whilst it is not guaranteed that the UK will take sole responsibility for the regulation of credit rating agencies in its jurisdiction, it is a possibility. Therefore, assessing the credentials of the relevant agencies is a worthwhile endeavour. Yet, each option comes with its own set of issues, as will be discussed, so the article concludes by offering an option that may negate such issues whilst continuing to regulate the credit rating agencies efficiently and effectively.
Examples of Long-Term and Short-Term Decision-Making in the UK, Delaware and Germany  Gap-Filling Exercise in the Context of the Shareholder v. Stakeholder Debate and Share Ownership Structure o
Authors: Chalaczkiewicz-Ladna Katarzyna
Published: April 2022

This paper explores the extent to which the law in the UK , Delaware and Germany imposes an obligation on directors of solvent public companies to take into account the long-term consequences of their decisions while establishing the content and scope of long-termism in these three legal systems. This research draws on the academic literature and performs a gap-filling exercise by identifying examples of long-term decision-making in these jurisdictions, as well as examples of decision-making and conduct that is not long-term in nature. In the gap-filling exercise, case studies are presented in the context of (i) the contemporary shareholder v. stakeholder debate in corporate governance scholarship and (ii) the relevance of the share ownership structure of the company. These two important debates are used as variables to cast light on the ambit of the notion of long-termism, and the structural differences and similarities between the corporate governance systems and concepts of long-termism in the UK , Delaware and Germany.
Private Enforcement in the Realm of European Capital Markets Law Revisited and the Case of Credit Rating Agencies from the Perspective of European and German Law
Authors: Deipenbrock Gudula
Published: April 2022

This treatise revisits the debate on private enforcement in the realm of capital markets law from the European and German perspective. It has been inspired by and shall contribute to the wider debate on whether or not financial markets regulation and civil liability in European law have been steering a more coordinated course. The treatise introduces at the outset some vital aspects of the broader debate on the relationship of capital markets law and private law from the German perspective. The treatise then turns to the European civil liability regime for credit rating agencies (CRAs). The topic of this treatise thereby interweaves two realms of law: European capital markets law as an integral part of European financial markets law and national private (international) law. The treatise explores the efficiency and effectiveness of the European civil liability regime for CRAs in the European Union (Union) with a view to its design and implementation. It shows that the European civil liability regime for CRAs in the Union is a specific example of an ill-conceived private enforcement tool in the realm of European capital markets law. The complexity of its design is explored firstly from the perspective of the law in books. In highlighting the torso design problem of the European civil liability regime for CRAs focus lies on the role of private international law. Secondly – as to the perspective of the law in action – the approach of German courts is sketched to illustrate the challenge the national (German) judiciary faces in context with the civil liability of CRAs. The torso design of the European liability regime for CRAs appears to render it an alien concept rather than one fitting easily into the canon of (national) civil liability norms. The treatise concludes with a question rather than a response to the question on whether financial markets regulation and civil liability in European law have been steering a more coordinated course: Why not navigating better next time?
Building the Legal Framework of Privatizations in Cyprus: The Missing Link with Sustainable Development
Authors: Papadopoulos Thomas
Published: April 2022

This article presents and scrutinizes the Privatizations Law of the Republic of Cyprus, in the context of sustainable development. Cyprus was another victim of the Eurozone crisis. A bailout agreement was reached between Cyprus and its creditors. This bailout agreement was accompanied by a Memorandum of Understanding (MoU) on specific Economic Policy Conditionality requiring certain reforms. The Cyprus MoU required, among others, privatizations of certain State-owned enterprises. In 2014, Cyprus adopt ed the Privatizations Law stipulating the details of the privatization process. This article presents and discusses the most important aspects of this Law. A critical overview of the legal framework of privatizations is provided in the context of sustainable development. The contribution of this privatization procedure to sustainable development is examined. More specifically, the absence of sustainable development from the Privatizations Law is criticized. This article sheds light on the relationship between the privatized enterprises and sustainable development. Certain proposals in the light of the golden shares case law of the Court of Justice of the EU (CJEU) are made. It is argued that sustainable development could be pursued through golden shares in privatized enterprises. Proposals for the inclusion of Corporate Social Responsibility (CSR) in privatized enterprises are brought forward. This article also considers various challenges to the privatization programme of Cyprus.
Reforming the Duties of Directors under Kenyan Company Law: A Critique
Authors: Mwaura Kiarie
Published: April 2022

Company law plays a critical role in promoting commerce, industry, and other socioeconomic activities in a country. Apart from being a key driver for attracting investments in a country, it also provides a mechanism for prudent internal regulation of business. This article examines whether the framework for regulating the duties of directors under the Kenyan company law is adequate to protect the interests of investors and promote enterprise. The article examines how the interests of investors are protected by the codification of fiduciary duties as well as the duties of skill and care, enforcement of directors’ liability, and the disqualification regime for directors. It also makes suggestions for reform which, if adopted, would make the regulatory framework for directors more efficient.
Culpa in Contrahendo: Tortious Liability, Breach of Contract or an Autonomous Legal Instrument?
Authors: Henrik Edlund Hans
Published: April 2022

The legal character of contract negotiations is much debated and different answers are given to the question whether disloyal behaviour committed during unsuccessful contract negotiations can be met by contractual or tort law remedies or, as a third possibility, some unique sanctions developed for this certain semi-contractual situation only. In this article, it is argued that an agreement to negotiate a contract is a contract in itself, although a very non-binding one – a pre-contract. Subsequently, breach of the parties´ duties relating to the pre-contract might be sanctioned by using contractual remedies. Most of the usual remedies, however, are not relevant, except for damages. These may be measured according to the principles on expectation interest, but in this specific situation the outcome will be almost identical with damages that are calculated according to the reliance interest. It is of course not possible to claim damages related to the contract that could have been the result if the contract negotiations had been successful.
The Interplay of Board Control with Board Configuration: Evidence from the UK
Authors: Gkliatis Ioannis , Koufopoulos Dimitrios , Pastra Aspasia
Published: April 2022

The study aims to explore the control role that board directors undertake and understand the impact of several board characteristics on these roles. Building on existing literature a model was developed to test the hypothesised relationships – i.e. directors’ control role with board characteristics. The responses were collected from 115 directors in UK organisations. Principal component analysis was conducted to reduce the data and propose a set of directors’ roles and correlation as well as regression analyses are utilised in order to test the hypothesised relationships.

The results of the statistical analysis propose some impact of the board characteristics on what directors do, extending the limited empirical evidence found in the literature. However, the theoretical framework needs further examination and research.

The study is evidenced by various limitations. Firstly, additional constructs can be added as determinants of the directors’ control role. Secondly, the response rate in the survey is relatively low which is regarded as a limitation, although there are limited studies offering quantitative results from board members.

Board of directors, board characteristics, agency theory, control role, board structure, independent directors, frequency of board meetings, board size, CEO duality, board tenure
Insolvency of Significant Non-Financial Enterprises: Lessons from Bank Failures and Bank Resolution
Authors: Kokorin Ilya
Published: April 2022

In the aftermath of the global financial crisis the EU bank resolution regime went through fundamental changes that seek to preserve financial stability and ensure continuity of critical functions. The same cannot be said of insolvency rules applicable to non-financial enterprises. Unlike bank resolution with its macroprudential and proactive focus, insolvency law has largely remained microprudential and reactive. Admittedly, unlike bank failures, corporate insolvencies usually do not pose systemic risk. However, in practice this may not hold true for significant non-financial enterprises (SNFEs). Such enterprises oftentimes play a major role in national economies and serve important public functions. Their failure may trigger contagion and cause disruptive consequences. Insofar as insolvency of SNFEs raises concerns common to bank failures, the question arises whether certain strategies and tools embraced within the EU bank recovery and resolution framework should be extended to regulate SNFE insolvency. This article explores the feasibility of such an extension.

Bank resolution, insolvency, significant non-financial enterprises, enterprise groups, Carillion, early intervention, recovery and resolution planning, living wills, public interest, systemic risk, critical functions.
Credit in Agriculture: In the Perspective of Banking Law, Financial Market Law and Insurance Law
Authors: Landini Sara
Published: April 2022

The present paper aims to contribute to the solution of the problem of sustainable financing for agricultural enterprises. Farmers face new challenges: the bureaucratization of public and private funding, the risk of over-debt in case of natural adverse events. Intelligent use of blockchain in loan agreements with assistance from trade associations and insurance for pecuniary losses due to adverse events can be an answer.

Bank, Credit, Agriculture, Financial resilience
Sports Economy and Fight against Corruption: Which Limits to the Sporting Organisations Autonomy?
Authors: Di Marco Antonio
Published: April 2022

This research studies the impact of the growth of the sports economy on the limitation of the autonomy of sports organisations, taking into account the driving role of the sovereign power of public orders to fight against corruption. It illustrates the idea according to which the economic governance of sport is based on the specific governance of the International Sports Movement and it verifies how and to what extent the public orders are affecting the regulatory autonomy of sport’s transnational legal orders. The study analyses, firstly, the legal status of the sporting organisations, arguing that the fundamental operational and organisational requirements of sporting organisations have international sources and transnational effects. Secondly, it considers the economic competences of sporting organisations, detecting the limits of sport autonomy due to the exercise of economic activities. Thirdly, it points up the international convergences on managerial transparency and some examples of national and international monitoring of economic activities in sporting organisations, delineating the emergence of a specific international legal framework for economic sports governance. The analysis, finally, identifies the limits of the recent developments at international level, exposing the potential role of the European authorities and the legitimate ways to justify the international limitation of the autonomy of sport.

Autonomy of sport, Private International Law, Public-private Governance, Corruption, Transnational Legal Order, Sports Economy, Legal Status of Sporting Organisations, Audit, Managerial Transparency, Economic Monitoring, International Sporting Convention
Transposing European Union Law in the United Kingdom: Administrative Rule–Making, Scrutiny and Better Regulation
Authors: Thomas Robert
Published: April 2022

The obligation of the Member States of the European Union (EU) to transpose EU law, in particular directives, into their own national legal systems can present a challenge for national governments. By considering the transposition of EU legislation in the United Kingdom (UK), this article examines the constitutional, legal and administrative aspects of the transposition process. In recent years, there has been debate in the UK as to whether or not there is over–implementation of EU law. By situating this debate within the broader context of the better regulation agenda, which has developed at both the national and EU level, the article examines the evidence whether or not the UK over–implements EU law. In particular, the article considers the recent report of the UK Government’s Davidson review into the implementation of EU legislation and its implications.
Improving Human Rights through Non-judicial National Institutions: The Effectiveness of the Ombudsman Institution in Turkey
Authors: Saygin Engin
Published: April 2022

In the age of human rights, the value of human rights strategy lies in its effective implementation. Nonetheless, the gap between human rights rhetoric and (non-)action around the world, especially in Turkey, causes serious discussions over the effectiveness of international human rights law and even over its existence. The role of the national human rights institutions in narrowing such a compliance gap has been well understood by human rights practitioners and scholars because compliance with international human rights law is eventually a domestic law issue. However, this article suggests that among these institutions, the Ombudsman institution is an effective but neglected compliance mechanism due to the fact that it lacks the power to issue legally binding decisions not only in Turkey but also in the world. With respect to Turkey, as the Turkish Ombudsman Act has recently passed by Parliament, this article also analyzes the effectiveness of the new Turkish Ombudsman prior to the establishment of the office.
The Protection of EU Citizens Abroad: Accountability, Rule of Law, Role of Consular and Diplomatic Services
Authors: Saliceti Alessandro Ianniello
Published: April 2022

The concept of protection of distressed citizens abroad was born inside the mainstream of theories on ‘Law of Nations’ in the seventeen and eighteen centuries. For a long time, this concept has been based on the strict relation between State and ‘its’ subjects. Since 1992, the new legal order of European Union (EU) law has given zest to the novel concept of protection of European citizens abroad, so that any EU country can intervene to protect unrepresented Europeans in third countries. Rule of law and Member State accountability are two basic milestones in EU law and well-settled case law of the EU Court of Justice, so that the traditional theories on State immunity and on discretionary power of consular and diplomatic agents cannot reasonably be maintained. The present study will conduct an in-depth analysis on Article 23 of the Treaty on the Functioning of the European Union (TFEU), where the basic provision on protection of Europeans abroad is enshrined.
GREECE  In Search of a Modern Deus ex Machina: Towards an Orderly Bankruptcy of European Legal Orders
Authors: Pottakis Andreas
Published: April 2022

'O my father, here am I to do thy bidding; freely I offer this body of mine for my country and all Hellas, that ye may lead me to the altar of the goddess and sacrifice me, since this is Heaven's ordinance. Good luck be yours for any help that I afford! and may ye obtain the victor's gift and come again to the land of your fathers. So then let none of the Argives lay hands on me, for I will bravely yield my neck without a word.'

Iphigenia, in Euripides' Iphigenia at Aulis