bluuebunny/crossref_metadata_2025 huggingface dataset:
Legal Education Under Fire
Authors: Cassese Sabino
Published: April 2022

Abstract: Legal education has come under fire from all quarters, almost everywhere in the world. The crisis of legal education is not only an internal problem for universities and university scholarship, but also deeply affects public policies and the shaping of legal order.

The main features of legal education that have shaped the major legal systems of the European area, but that are now experiencing a process of obsolescence are: the influence of Roman law, both directly and through the Pandectists; legal positivism, formalism and value-free scholarship, dogmatics and constructionism; the separation of the study and teaching of law from the study and teaching of history and of social sciences; the idea that law is a product of the State exclusively.

To overcome these deficiencies, one should tear down the barriers between the fields, introduce new paradigms, a new grammar founded on the entire body of the law – not only on the field of civil law; open up the study and teaching of law to social sciences and history; place the study of transnational institutions and legal cultures alongside the study of local legal cultures, because legal science transcends national boundaries; reestablish links with public and private policies.
Fixing European Law Schools
Authors: Dyevre Arthur
Published: April 2022

Abstract: To prepare law students for a tougher, rapidly changing legal world, European law schools need to reinvent themselves. This article argues that European legal educators should focus on equipping students with a broader skillset enabling them to become successful advocacy experts, effective legal risk analysts and creative legal problem-solvers. As part of a new, thoroughly interdisciplinary curriculum, legal education should concentrate on the acquisition of rhetorical skills and social-scientific tools allowing students to apprehend legal rules as the product of social dynamics as well as as instrument of social organization. To preserve their commitment to free, mass legal education, European law schools should also embrace full-scale digitalization to free up time and scarce teaching resources for more interactive and more experiential forms of learning.
The Formation of Blockchain-based Smart Contracts in the Light of Contract Law
Authors: Janssen André , Djurovic Mateja
Published: April 2022

Abstract: This contribution examines the formation of (blockchain-based) smart contracts. The term smart contract is used to refer to software programmes which are often, but not necessarily, built on blockchain technology as a set of promises, specified in digital form, including protocols within which the parties perform on these promises. It is regularly said that smart contracts are neither legal contracts in the traditional sense nor they are smart and that the term is therefore a misnomer. The crucial question this article is trying to answer is whether the traditional common law concept of contract formation is seriously challenged by the rise of smart contracts. As such, are smart contracts marking the end of contract formation as we know it or is it just much ado about nothing?

Résumé: Cette contribution examine la formation de contrats intelligents (basés sur la blockchain). Le terme de contrat intelligent est utilisé pour faire référence aux programmes de software qui sont souvent, mais pas nécessairement, conçus sur la technologie de la blockchain comme un ensemble de promesses, spécifiées sous forme digitale, comprenant des protocoles au sein desquels les parties accomplissent ces promesses.On a souvent dit que les contrats intelligents ne sont ni des contrats juridiques au sens traditionnel ni intelligents et que le terme est donc inapproprié. La question cruciale à laquelle le présent article tente de répondre est de savoir si le concept traditionnel dans la common law de la formation du contrat est sérieusement mis au défi par l’arrivée des contrats intelligents. Comme tels, les contrats intelligents marquent-ils la fin de la formation des contrats telle que nous la connaissons ou ne s’agit-il finalement que de ‘beaucoup de bruit pour rien’?
Interpretation of Contracts and Smart Contracts: Smart Interpretation or Interpretation of Smart Contracts?
Authors: Cannarsa Michel
Published: April 2022

Abstract: The computer language (computer code) on the basis of which smart contracts are written is different from the natural (Human) language. Computer language is a ‘dry’ language, whereas natural language is ‘wet’. In other words, it means that computer language is deterministic (just one meaning and one result are conceivable), when natural language is open to more and potential different meanings. Natural language requires therefore in itself interpretation, at least more than computer language. Computer language in theory doesn’t require and possibly doesn’t leave room for interpretation. If this assumption is accurate, what are the consequences of it (on the intention of the parties, on contract drafting, on courts’ intervention…)? Building on that assumption, this article explores, from a comparative perspective, the impact of the blockchain-based smart contract technology, especially regarding contract drafting techniques. Contract drafting style in common law (long contracts, based on a ‘if …, then ….’ approach, quite similar to the coding approach) is in part based on the idea of preventing courts’ interpretation and intervention. In civil law countries instead, contracts are generally shorter, for several reasons but partly because drafters tend to rely on more general legal concepts, external to the contract, and know that courts will play an important role, through interpretation, in disclosing the ‘true meaning’ of a contract. Coding contracts and relying on computer-code language can hence have a significant impact on the civil law approach and bring the two legal systems closer as far as contract drafting and contract interpretation are concerned.
European Law and Evictions: Property, Proportionality and Vulnerable People
Authors: Vols Michel
Published: April 2022

An eviction is a most extreme form of interference with the right to respect for the home. European case law pushes towards more protection of (vulnerable) residents in housing law relationships, and limits property rights and the freedom of contract of property owners. This has resulted in intense debates about the horizontal effects of human rights law and the impact of human rights in landlord-tenant relationships. This article deepens our understanding of the meaning and the influence of human-rights based proportionality enquiries in eviction cases in the rental sector. It assesses how the right to advance a proportionality defence is implemented and whether any indications exists that human-rights based proportionality enquiries improve the legal position of tenants. Doctrinal research and comparative legal analysis show that this is not the case in a large share of the contracting states due to the unwillingness of national judges and lawmakers. Besides that, a quantitative case law analysis shows that there are no indications for a true paradigmatic shift. Although tenants do put forward proportionality defences, no significant differences are found between cases in which the tenant raise a proportionality defence and cases in which they do not advance such a defence. Yet, the European law’s push for more protection of vulnerable people might in the end lead to some systemic as well as practical changes. Proportionality enquiries may influence property owners’ litigation strategies, and as a result, have an impact in the stages before and after the court procedure too.
The Real (New) Deal: Levelling the Odds for Consumer-Litigants: On the Need for a Modernization, Part II
Authors: Leone Candida , Van Duin Joanna M.L.
Published: April 2022

With its New Deal proposals, the European Commission aimed to secure that all consumers ‘fully benefit from their rights under Union law’. We argue that such commitment requires taking a step back from an exclusive focus on enforcement, to tackle challenges to the justiciability of consumer rights. Consumers must be seen both in their role as claimants and when they act as defendants. By means of a case-study threading together the main developments in the case law of the Court of Justice of the European Union concerning procedural guarantees for consumers from the past year, we seek to highlight the shortcomings of the current reliance on ‘judicial harmonization’. The identified shortcomings, we claim, show that limited harmonization of civil procedure is required, with regard to establishing minimum protective standards in cases involving consumers. For interested readers, we also list a number of specific issues that we think such harmonization should engage with.

justiciability of EU consumer rights, procedural harmonization, consumer redress, ex officio application of EU consumer law, effective judicial protection, enforcement
Compensatory Collective Redress for Low Value Consumer Claims in the EU: A Reality Check
Authors: Ioannidou Maria
Published: April 2022

Taking stock of the developments in the field of collective redress at EU level, this article seeks first to identify the reasons impeding the adoption of compensatory collective redress for low value consumer claims. Second, it proposes an exploratory hypothesis, which can aid in reaching agreement on effective collective redress instruments. With respect to the impeding reasons, the article argues that past policy discussions have largely disregarded the enforcement dimension and the potential of such actions to not only cater for the effective enforcement of individual rights but also – and most importantly – contribute to the effective enforcement of EU law. In addition, past debates have been guided by a misplaced preoccupation against abusive litigation. In order, to overcome these impeding factors, the article discusses ‘regulatory honesty’ as an instrument that can help in achieving agreement and guide Member States to adopt effective mechanisms.

collective redress, low value consumer claims, effective enforcement
The Directives on Digital Contracts: First Steps Towards the Private Law of the Digital Economy
Authors: Staudenmayer Dirk
Published: April 2022

On 20 May 2019 the European legislator adopted two Directives, each a milestone on the road to development of European contract law: The Directives on Contracts for the Supply of Digital Content or Services and on the Sale of Goods. These Directives are the first steps in the adaptation of European private law to the requirements of the digital economy. The object of this article is firstly, to explain the importance of these Directives from this policy angle and then, to explain their content. It focuses on both the areas of commonalities and the areas of difference with regard to scope and the Directives’ central provisions on conformity and consumer remedies. This contribution pays special attention to the two areas of data as counter-performance and goods with digital elements which exemplify the adaptation of legislation to the digital economy. Throughout this contribution, we will consider where the legislator has maintained consistency with existing law and the sources from which any changes stem.
The Italian Class Action Reform: A Redesigned Tool beyond Consumer Law
Authors: Piletta Massaro Andrea
Published: April 2022

Given the globalized scale of the current economic system, effective collective redress mechanisms represent a fundamental tool for consumers and citizens. While in the United States collective actions constitute a common instrument, in the European context their development has been more complex. After a Recommendation issued by the European Commission in 2013, several models have been adopted or reformed across Europe. The regulatory competition approach has been preferred in respect of the simple harmonization of the several national rules. In particular, the French system adopted a completely new tool, the action de groupe, in 2014, while in the UK an option for opt-out collective actions has been recently introduced. The debate over reform of collective redress has also flourished in Italy, leading to the adoption of Law No. 31 of 2019, which will enter into force in November 2020 and will completely redesign the Italian collective action model. This reform has broadened the scope of such a remedy, which has also been made available outside the consumer law field. Moreover, the opt-in system has been strengthened, by allowing adherents to join the claim after the decision on the merits issued by the court. The latter solution embodies a transplant of the action de groupe. In the meantime, the European Union has reawakened its interest in the collective redress field and has drafted a directive proposal, which was approved by the Council of the EU in November 2019. This article will analyse the new Italian reform in a comparative perspective with the French model.

collective action; class action; collective redress; consumers; damages; tort law; Italy; Italian law; France; French law; reform; compensation; comparative law; European Union.
Judicial governance by unfair contract terms law in the EU: Proposal for a New Research Agenda for Policy and Doctrine
Authors: Józon Mónika
Published: April 2022

The paper provides an analytical and theoretical framework on the actors and factors framing multi-layer governance in the field of unfair contract terms law in the EU, with a focus on the increasing role of private law adjudication taking place via judicial dialogue between Member State judiciaries and the Court of Justice of the European Union. The paper approaches the developments in European unfair terms law alongside the study of the interplay between the topdown and bottom-up developments that frame consumer contract fairness in Europe. It also introduces into the research a third layer with increasing importance, the horizontal judicial dialogue at Member States’ level. These processes will be reflected upon under the following structure: section 1 sets the scene of developments in judicial law on unfair contract terms and discusses the changes in the function of consumer contract fairness law under the impact of European private law. Section 2 comments on the policy, regulatory approach, codification style of Directive 93/13/EEC and the judicial methodology and tools developed by the CJEU to bind the different levels of the multi-layer governance in unfair terms law. The paper concludes in section 3 by identifying some major research questions left unsolved by judicial law and identifies a new research agenda for doctrine and policy.
EU Law and Procedural Autonomy in International Commercial Arbitration
Authors: Brett Jack
Published: April 2022

This article examines the impact of EU law in international commercial arbitration. EU law has become increasingly relevant in the world of commercial arbitration and while this may not at first seem to be a problem, this article argues that EU law has a distinctive nature which makes it fundamentally incompatible with the arbitral legal order. In effect, the EU legal order has developed on the basis of a direct trilateral relationship between disputes involving EU law, national courts and the European Court. When we are concerned with ordinary judicial proceedings, this relationship is classically supported by the ‘principle of effectiveness’ identified in the case-law of the European Court, which requires national procedures to enable individuals to bring claims based on EU law. Crucially, however, the procedural demands that could be made by the EU legal order are limited by the twin ‘principle of national procedural autonomy’, meaning the Court refrains from directly prescribing modalities for access to national courts and leaves discretion for States to set procedures. Contrasting with this analytical framework, it is here argued that once claims based on EU law fall within the sphere of arbitration, the principle of national procedural autonomy is inoperative and the EU legal order can dictate the terms of review. It is submitted that the effectiveness of EU law is assured not by the standard principle of effectiveness but by the principle of effective judicial protection, thus securing the procedural primacy of EU law in the arbitral legal order.
Survey of State Aid in the Lending Sector: A Comprehensive Review of Main State Aid Cases
Authors: Sansonetti Valentina , Rossi-Maccanico Pierpaolo
Published: April 2022

This paper reviews a considerable number of cases concerning the application of State aid rules to the EU banking sector. The relevance of the financial crisis which hit the lending industry in the ?90s determined the Commission to a significant number of State aid reviews of national measures in support of the sector. Following the deep restructuring of the lending industry in the EU and the complete liberalisation of the financial services market, State aid to support the banking sector has become less frequent. However, State intervention has not disappeared but takes more complex forms. The Commission tackles now State intervention both in the form of capital injections and guarantees granted to restructure individual banks or an entire banking sector. The Commission also investigates fiscal advantages, guarantees and tax preferences conferred on a limited number of banks for distributing savings products. EU Member States appear engaged in a new regulatory race to the bottom in the form of preferential tax regimes for financial holdings compared to more "traditional" and direct forms of State aid to national banks and financial intermediaries involving rescue and restructuring assistance to ailing national champions, or granting of State guarantees to the national banks. We expect that in the near future the Commission will increasingly monitor the existing preferential tax regimes to eliminate possible competition distortions resulting from State aid and will also ensure that capital injections and other forms of public support to public financial institutions are immune from State intervention.
Arbitration and the Modernisation of EC Competition Law
Authors: De Groot Diederik
Published: April 2022

Do arbitrators have the power to apply Article 81(3) EC and grant an individual exemption in the event they find an agreement to come within Article 81(1) EC? Before Modernisation, the answer was clearly negative. Under the old regime of EC competition law this particular power was the exclusive domain of the European Commission. The Modernisation Regulation and the accompanying Modernisation Package – consisting of a Commission Regulation, four Notices and two Guidelines – came into force on 1 May 2004. One of the key changes of Modernisation was that the national courts of the Member States were given the power to apply Article 81(3) EC and grant individual exemptions from the prohibition of Article 81(1) EC. But do arbitrators have this power as well? The Modernisation Regulation only mentions the national courts. It is silent on arbitration. This conspicuous silence has caused varying reactions. In this contribution I will discuss the consequences of the Modernisation Regulation for the practice of international commercial arbitration.
The Case Against Reform of the Takeover Bids Directive
Authors: McCahery Joseph A.
Published: April 2022

Does the Takeover Bids Directive need revision? The answer to this question will most likely affect the Commission's assessment of the Directive in 2011 and could initiate its revision. Proponents of such a revision urge the Commission to redress the shortcomings of the Directive's implementation in two ways: 1) revising the mandatory provisions of the Directive making them less easily avoidable; and 2) creating new provisions that would weaken incumbent managers' lock on control that would make corporate control more contestable. In this short essay, however, we show that the Commission's opt-out strategy has proved, in practice, to be remarkably popular with Member States and does not need any further discussion.
The Italian Banking and Financial Arbitrator between iurisdictio and Strengthening of the Supervisory Function
Authors: Miglionico Andrea , Capriglione Francesco
Published: April 2022

Starting out from the current crisis which has affected the intermediaries-clients relationship and caused a massive litigation in the banking and financial sector, particularly in the Italian judicial system, this paper sets out to examine the normative framework of the Banking and Financial Arbitrator (A.B.F.). Specifically, the A.B.F. should pursue the aims of fair and impartial dispute resolution in line with the judicial character ascribable to decision-making by that body. However, the Bank of Italy is given the task of defining the composition and organisation of the organs of the Banking and Financial Arbitrator; a closer examination of the rules suggests that there are plenty of room for intervention by the Supervisory Authority with regard to the A.B.F. investigation procedure. It is evident as a result that there is a plausible risk of functionalisation of the activity carried out by the A.B.F. for purposes other that and different from those referable to aims of justice.
A European Private Company and Share Transfer Restrictions
Authors: Humphreys Edward , Andersson Jan , Sund Lars-Göran
Published: April 2022

Restrictions on the transfer of shares, in the articles of association and shareholders' agreement are of crucial importance for SMEs. Associates running a business together are dependent on a fragile balance in ownership positions, as well as the expertise of each shareholder and manager of the business. We criticize the EU approach to transfer restrictions, as presented in the Commission's proposal for a "Statute for a European private company" (2008). Not all of the suggested restrictions are suitable under all circumstances in the articles of association. One example is a prohibitive clause, which must be limited both in time and to transfers (not transmission) of shares. Further, other options, such as a mandatory buy-sell agreement, are not considered. Such a clause can be of the utmost importance in the case of some transmissions, e.g. upon intestate succession.
Comparing Legal Professional Privilege in EU and Lithuanian Law
Authors: Beikauskas Edvinas , Kamblevicius Tomas
Published: April 2022

Despite of its limited contextual setting, the findings of the Court of Justice of the European Union in Akzo Nobel case on the issue of protection of confidentiality of communications between lawyers and their clients provide a good understanding of how the concept of legal professional privilege (LPP) is viewed or wants to be viewed by the European Union (EU) courts in general. At the same time, it invites for a comparative analysis of the concepts of LPP as they are being understood under EU law on the one hand and national laws of individual EU Member States on the other hand. While such exercises were conducted in respect of some EU Member States, no comparative analysis exists in respect of Lithuania. This article aims to fill-in this gap.
The Economic Constitution of the EU Treaty and the Limits between Economic and Non-economic Activities
Authors: Hatzopoulos Vassilis
Published: April 2022

In an era where the limits between state (public) and non-state (private) activities become increasingly blurred, the demarcation between the concept of economic and non-economic is forcibly put under strain. Such demarcation, has a special 'constitutional' function within the EU, since it operates as a 'vertical' competence moderator between Member States and the EU. The contribution in hand first discusses whether it is a good idea to have the same concept of 'economic' throughout the Treaty rules (internal market and competition) and finds to the affirmative. Then it goes on to discuss the various concepts and criteria put forward in the political debate, essentially animated by the Commission, in order to distinguish between economic, noneconomic and other types of services (social in particular). Considering that these concepts do not allow for a coherent judicial application, the article turns to the actual practice of the CJEU and finds that the Court very rarely engages into the slippery slope of the nature of the activity, but typically uses other, more technical criteria: the nature of the entity involved, the object of the measure, the existence of mitigating factors and the applicability of exceptions. This finding is substantiated through a comparative examination of the Court's case law in cases involving free movement, public procurement, anti-trust and state aid rules.
Cooperative Identity and the Law
Authors: Fici Antonio
Published: April 2022

This article deals with the legal identity of cooperatives. It is divided into three parts. The first part discusses the role and function of law and of comparative legal research on the topic of cooperative identity (sec. 2). The second part focuses on cooperative identity within the International Cooperative Alliance (ICA) Principles and the ICA Statement on the Cooperative Identity at large (sec. 3). The third part compares the ICA Statement on cooperative identity with the legal identity that several European jurisdictions assign to cooperatives (sec. 4). Conclusions follow.
The Danish CSR Reporting Requirement as Reflexive Law: Employing CSR as a Modality to Promote Public Policy Objectives through Law
Authors: Buhmann Karin
Published: April 2022

With effect for financial years beginning January 2009 or later, the Danish Financial Statements Act and related governmental regulations require large Danish companies and institutional investors to submit an annual Corporate Social Responsibility (CSR) report. Through application of reflexive law theory and an analysis of the preparatory works and guidelines for the CSR-reporting requirement, this article demonstrates that the reporting requirement aims to obtain public policy objectives through stimulating companies to self-regulate based on reflection on their impact on society. The legislative history and reporting guidelines indicate a definite objective of drawing on the CSR paradigm to complement national substantive law, engaging company practice in the implementation of national public policy goals and in the extraterritorial implementation of public policy goals related to conditions beyond the reach of national law. The article argues that the Danish model for CSR-reporting exemplifies application of reflexive law as a regulatory strategy applied to push company self-regulation in a direction defined by public law standards and policy objectives, in casu particularly human rights, labour rights, environment, climate change mitigation and anti-corruption.
Abuse of a Dominant Position and Public Policy Justifications: A Question of Attribution
Authors: Brisimi Vasiliki
Published: April 2022

It is an optimal way of analysis not to permit public policy justifications under Article 102 TFEU advanced by dominant undertakings. The reason is that there is always the potential for state involvement in the public interest to occur, triggered, in part, by the incitement of dominant undertakings as part of the democratic processes.

Claims based on public policy justifications have never been shown to be genuine, as an evidential matter, but, rather, have been strategically used in litigation, whereas there is exceptionally little case law that finds incitement to public authorities to act as an abuse of rights. In addition, there is added-cost in terms of legal analysis if one permits, in principle, public policy justifications under Article 102 TFEU, since competition law analysis may potentially be distorted in the majority of cases, as has already happened in the case of margin squeeze abuse.

Genuine public policy justifications are more mythical than real, and given the potential for state involvement, academic debate and reasoned Court judgments should, instead, elaborate on the issue of attribution of the market-distorting effect to the undertaking or the state.
Globalisation of Renminbi and Renminbi Settlement in Cross-border Investment, Trade and Fundraising Businesses: Rules, Operations and Problems
Authors: Shen Wei
Published: April 2022

Given the fact that the Chinese currency, Renminbi or yuan, is not freely convertible in the international foreign exchange market, capital flow either in foreign exchange or in Renminbi is still heavily controlled in China even though major reforms swept the Chinese foreign exchange control regime in 1994. Amid the financial crisis and its foreign exchange rate reform, China has taken more substantial steps to internationalize Renminbi since the break-out of the recent financial crisis. The mid-term policy strategy is to make inflow and outflow of Renminbi easier, and to boost the use of Renminbi in international trade and finance so as to reduce its reliance on the US dollar. Against this background, this article mainly focuses on three ways of flowing Renminbi between China and offshore, that is, cross-border investment in Renminbi, trade settlement in Renminbi, and Renminbi businesses in Hong Kong. In the later part, this article would briefly discuss some latest steps taken by the Chinese government to further internationalize Renminbi.
The Place of Mediation in England & Wales in 2014
Authors: Allen Tony
Published: April 2022

With both the increasing significance of mediation in civil justice systems and the continuing need to articulate and validate a process conducted confidentially, this article summarises how a typical commercial mediation is conducted, and what has made mediation attractive for resolving commercial disputes; it reviews official support for its development, discussing the degree to which use of mediation can be encouraged by judicial order and use of costs sanctions; it also examines the impact of the EU Mediation Directive on English civil practice, distinguishes mediation from arbitration, and speculates about future developments.
Material Adverse Effect Clause
Authors: Fomcenco Alex
Published: April 2022

Regardless of whether you are a buyer or a seller, and regardless what the object of the contract is, it is essentially important that you seek to protect your rights through various clauses that must aim to provide clearness to contractual obligations, definitions of breach, and consequences thereof. The article addresses a number of interest-protective legal mechanisms and necessity of their explicit incorporation in the contract. With emphasis on Material Adverse Effect clause the paper focuses on its exigency and applicability.
IOSCO and the Spreading of a US-Like Regulatory Philosophy around the World
Authors: Marcacci Antonio
Published: April 2022

The objective of this article is to describe the International Organization of Securities Commissions - IOSCO, its internal procedures, normative product and implementation process, and to test the role played by the US Securities and Exchange Commission - SEC since the Organization's birth. The pervasiveness of the US Securities Laws will be tested both on the most important document IOSCO has ever adopted, the Objectives and Principles of Securities Regulation, representing the regulatory philosophy of the Organization; and, as a more detailed case study, on the documents concerning the regulation of Credit Rating Agencies, a very hot topics for international finance. Moreover, it will be analyzed the position of the US in the crossborder enforcement cooperation process established under the auspices of IOSCO in the last twenty years and how this has recently changed. The results seem to suggest that IOSCO's has been deeply affected by the US Securities Laws even if, more recently, the emerging of new important markets is progressively turning the Organization into a multipolar forum where the US is no longer the only "regulatory" superpower.
The Best Interests of the Corporation, Procedural Questions of Enforcing Individual and Corporate Rights and Legal Actions against Board Members
Authors: Saenger Ingo
Published: April 2022

This paper examines the procedure by which individual and corporate rights are enforced to protect the best interests of the corporation. The crucial question of just what the best interests of the corporation are, is focussed on particularly. The unique German approach of the 'best interests of the enterprise' is contrasted with the 'best interests of the corporation'. The different treatment given to the 'best interests of the corporation' and the 'best interests of the enterprise' by various German laws are used to illuminate the tensions between stakeholder and shareholder interests. It is pointed out that in fact, members of management boards and members of supervisory boards must take into consideration the interests of all stakeholders as part of the 'best interests of the enterprise'. Recent developments regarding causes of action for minority shareholders under German law are explained in greater detail. These developments are analysed for the potential and actual influence on the protection in Germany of the interests of corporations and minority shareholder interests. It is also considered how the German statutory provisions compare with the rules in the US, particularly with regards to statutory derivative actions. The importance of cultural norms on questions of corporate best interests is also discussed. It is concluded that under the German statutory derivative action it is still difficult for shareholders, particularly minority shareholders, to enforce the corporation's best interests.
Gender Diversity on Boards: Beyond Quotas
Authors: Choudhury Barnali
Published: April 2022

Worldwide there is a growing interest in increasing the number of women on boards. Quotas have been proposed in many countries as a way to address this problem, but it is not universally accepted as the right approach. Nevertheless, it is apparent that change is needed as women continue to represent minorities on boards of some of the largest companies. Moreover, increasing the number of women on boards can be beneficial to firms. While it is not clear whether there is a positive relationship between increasing the number of women on boards and firm profitability, it is clearer that women make positive contributions to the board decision-making process. As a result, increasing the number of women on boards improves the quality of decisions made by the board. Given the benefits increased numbers of women on boards can produce for companies and countries' lacklustre interest in quotas, this paper canvasses methods by which boards can increase female representation without relying on quotas. As such, it looks to practices adopted by American football teams, Australian mentoring programs, and UK disclosure rules. It also examines existing workplace norms and practices which inhibit female labour participation. In doing so, it proposes alternative approaches by which countries can increase gender diversity on boards.
The EU Short Selling Regulation Revisited: New Evidence, Different Perspective?
Authors: Staikouras Panagiotis
Published: April 2022

EU Regulation 236/2012 lays down a common regulatory framework for short selling that is based on three fundamental principles: disclosure of short positions; settlement discipline; and supervisory discretion to intervene where market stability is threatened. Building on the most recent empirical and theoretical research, the article critically assesses the underlying rationales and regulatory philosophy of this novel EU short selling regime. This article concludes that the EU legislature has adopted a well-balanced, proportionate and flexible regulatory approach that addresses the risks of short selling without undermining its market efficiency benefits. In addition, the article makes specific proposals for refining and further improving the EU short selling regime that are expected to assist the relevant EU bodies in future revisions of EU Regulation 236/2012.
Investors and Market Particiants Over-Reliance on External Credit Ratings: To What Extent Does EU Law Carry This Risk?
Authors: De Pascalis Francesco
Published: April 2022

The risk of over-reliance on external credit ratings by investors and market participants was highlighted in the context of the recent post-crisis credit rating agencies’ reforms. This problem stems from the inclusion of credit ratings into legislation. Accordingly, regulators agreed upon an approach based on a review of the credit rating references found in legislation and regulatory frameworks. At the EU level, this approach has been set out in the European regulation of CRAs. This paper aims to investigate the hardwiring of credit ratings into the EU’s financial legislation in order to assess the extent to which this poses a significant risk of over-reliance. The present analysis relies on the outcomes of the recent joint report that the European supervisory authorities has issued with regard to the risk of over-reliance on credit ratings in their own recommendations, guidelines and draft technical standards. These can form the platform for a wider discussion on the degree of importance that European regulators gave to credit ratings in legislation and regulatory frameworks.
The Rise of Sovereign Wealth Funds (SWFs) and the Protection of Public Interest(s): The Need for a Greater External and Internal Action of the European Union
Authors: Gallo Daniele
Published: April 2022

This article focuses on the so-called ‘sovereign investors’ (i.e., sovereign wealth funds (SWFs) and state owned enterprises (SOEs)). It is based on the assumption that sovereign investment has become a major – albeit controversial – element in emerging patterns of global governance in this century. At the heart of the paper lies the need that sovereign investors shall be regulated by pursuing a fair balance between protection of general/public interests and attraction of foreign capital.

The essay deals with the main concerns related to the rise of SWFs. In this respect, the principal argument implied therein is that the quest for an equilibrium between economic benefits deriving from the entry of SWFs in the EU market and the protection of national as well as European strategic/sensitive sectors must be reached at the EU level rather than solely at the national level and that, in doing so, the EU must be more activist and bolder.

The EU should give law a central role, regarding the market as an inherently political, institutional and social construct, rather than a self-referential locus that depends on its internal laws and dynamics. This seems even more urgent when market actors that, at least on paper, should be politically unbiased market-oriented investors, tend to act also as the long arm of State capitalism, that is, of foreign governments wishing to invest abroad in crucial socio-economic sectors and often connected with countries where the rule of law, in its multiple dimensions, is neither sufficiently promoted nor respected.
Benefits to Employees by Way of Stock Options or Stock Purchase Schemes in India: Evaluating its Scope, Need and the Problems under the Extant Legal Regime
Authors: Aggarwal Pravesh
Published: April 2022

This paper attempts to analyse the scope and need of Employees’ Stock Option Schemes (ESOS) and Employees’ Stock Purchase Schemes (ESPS) along with the problems associated with their exercise in light of the extant legislative framework in India. Initially, the paper will delineate upon the meaning and scope of the term “employee” in order to determine who should actually entitled to benefits of the stock option or purchases schemes without any possible misuse of company’s resources. In process, it is seen whether the following categories of persons, named promoters, nominee directors, and ex-employees of the company or its erstwhile holding company, are covered within the meaning of the term “employee” or not. A further analysis on whether the “employee” is an insider within the meaning of the SEBI (Prohibition of Insider Trading) Regulations, 2015 is dealt later in the paper. Thereafter, the paper will highlight the problems faced by the employees in exercising of their stock options. Finally, the paper will conclude by critically evaluating the need for granting the stock option or purchases schemes in light of the problems associated therewith for both companies as well as their employees.
Jurisdiction, Enforcement and the Conflict of Laws in Cross-Border Commercial Disputes: What Are the Legal Consequences of Brexit?
Authors: Dinsmore Andrew , Aikens Richard
Published: April 2022

This article considers the impact of Brexit on the conflict of laws rules in England and Wales in relation to jurisdiction, enforcement of judgments, choice of law and the future role of the European courts and their judgments.
Regulating Fraud in Financial Markets: Can Behavioural Designs Prevent Future Criminal Offences?
Authors: Hornuf Lars , Haas Georg
Published: April 2022

This article explores the anatomy of three recent financial scandals and investigates how the legal system has responded to them. Furthermore, it analyses whether behavioural designs can prevent future criminal offenses. The article comes to the conclusion that the social as well as the physical environment can diminish the human propensity to commit a fraud. Moreover, misconduct was often made attractive to fraudsters by means of external rewards. Reforming performance incentives might therefore be an efficient measure to reduce deception in financial markets.

Reprint from the Journal of Risk Management in Financial Institutions, 7(2): 192–201. This version has been slightly updated and modified.
The Santiago Principles for Sovereign Wealth Funds: The Shortcomings and the Futility of Self-Regulation
Authors: Bismuth Régis
Published: April 2022

The risks associated with sovereign wealth funds (SWFs) transactions are essentially two-fold: political, to the extent that SWFs could be used as the armed wing of States’ foreign policy, and economic, since there is a risk of public subsidization or other types of market distortions through their investments. It is within this framework that the idea of international best practices aimed at a better regulation of SWFs was envisaged. This led to the adoption of the “Generally Accepted Principles and Practices” for SWFs, also labelled as the “Santiago Principles”. While the Santiago Principles may be useful for a better regulation of the relationship between fund managers and owners, they are nevertheless absolutely futile for considering and protecting the interests of the host States of sovereign investments. Thus, the Santiago Principles go against their founding objective. To this extent, the Santiago Principles shall not be regarded as a genuine form of international regulation, but rather as a veneer of respectability to improve the way recipient States perceive sovereign investors.
Constitutional Aspects of the EUs Global Actorness: Increased Exclusivity in Trade and Investment and the Role of the European Parliament
Authors: Takács Tamara
Published: April 2022

This article argues that ‘exclusive’ competences were instrumental in the development of the EU as a global actor. These competences were particularly helpful in building the EU’s trade and investment policy. The main question raised is to what extent the European Parliament has been able to ensure parliamentary control over these policy areas. It is argued that both new Treaty provisions and Parliament’s own activism have turned the EP into an important actor in relation to control over the Union’s Common Commercial Policy. At the same time, the question is whether the EU’s own constitutional system is sufficient to guarantee the legitimacy of the EU’s external (economic) activities.
The Relevance of Time in Framing the Sanctions Framework for Defective Disclosure
Authors: Sergakis Konstantinos
Published: April 2022

Sanctions imposed on listed companies in cases of breached disclosure obligations have steadily but rather slowly been moving towards a harmonized approach in EU corporate law. Without compromising the potential efficiency of these harmonisation measures, this article aims to propose an alternative method to increase the efficiency of sanctions. By focusing on the importance of time as an element that influences corporate decisions in relation to the breach of disclosure obligations, this article seeks to re-frame the importance of sanctions and to link their severity to time manipulation strategies that are potentially adopted by listed companies. This study argues that by linking sanctions and time, the legal framework would be likely to apply more severe sanctions, while adopting differentiated sanctions depending on which disclosure obligations are breached. This new approach aims to trigger a de facto harmonisation trend amongst regulators and judges at the national and EU levels.
European Union and National Referendums: Need for Change after the Brexit Vote?
Authors: Snell Jukka
Published: April 2022

This article compares the referendums in France and the Netherlands on the Constitutional Treaty and the Irish referendum on the Lisbon Treaty with the Brexit vote. It is argued that the results have hinged on two key factors: voters perceive the EU as an agent for economic internationalisation and increased competition, and there is a low level of understanding of the EU. The article then turns to solutions. The basic bargain where the EU took responsibility for bolstering economic growth while the distribution of the gains was left for the Member States may need revisiting. Further, Europeans need to be educated to become Union citizens, like the Member States educate their nationals for national citizenship. However, such a heightened role for the EU for redistribution and education, traditionally bastions of the Member States, raises uncomfortable questions about the competences and the nature of the Union.
The EFTA Courts Contribution to the Realisation of a Single Market
Authors: Baudenbacher Carl
Published: April 2022

President Baudenbacher set out the main features of the EEA Agreement and its two-pillar structure in this lecture delivered on the occasion of Mads Andenas’ 60th birthday. The President explained the role of surveillance and judicial control, and the importance of the independence of the EFTA College members and justices of the EFTA Court.

Some immerse themselves in issues of sovereignty but the “beef” of the EEA Agreement is single market law. Single market law is economic law. The EFTA Court in the majority of its cases has faced novel legal questions. Baudenbacher explained how ‘homogeneity’ between the ECJ’s and the EFTA Court’s case law must be reached through discourse, in a dialectic process. He explained different constellations with the ECJ going first or the EFTA Court going first. The EFTA Court’s judicial style is different from that of the ECJ. The symbiotic relationship of the two EEA courts is marked by mutual respect and dialogue fostering the flow of information in both directions, with the EFTA Court regularly cited by the ECJ when interpreting EU law.