bluuebunny/crossref_metadata_2025 huggingface dataset:
Comparing Directors Duties in the Financial Services Sector with Regulatory Duties under the Senior Persons Regime- Some Critical Observations
Authors: Chiu Iris H-Y
Published: April 2022

Directors in the financial services sector are accountable to regulators in respect of the discharge of these obligations and the history of enforcement by financial services regulators in the UK has shown that tough sanctions are meted out. Directors’ duties in general corporate law are however owed to the company as a whole, and are enforced by the company, shareholders through derivative litigation or liquidators at winding up. Civil enforcement against directors in company law has been quiet in the UK in spite of the revelation of senior level failures in banks in the global financial crisis of 2007–9.

Questions may be asked as to why the directors’ duties regime in company law seems ineffective to address senior level weaknesses in the banks embroiled in crisis in 2007–9, and continue to appear unable to hold senior figures to account in the more recent episodes of bank malpractice and mis-selling. Further, with the advent of the regulatory regime governing senior persons’ conduct in the financial services sector, it is queried whether the regulatory regime will become the main means of discipline for senior persons, making the directors’ duties regime irrelevant.

This article examines the relationship between the two legal regimes, and seeks to eludicate the role of regulatory governance of directors in the financial services sector alongside the directors’ duties regime in company law. This article argues that directors’ duties in company law serve different purposes from the regulatory regime for senior persons’ conduct in the financial services sector, and hence the approach taken to separately regulate directors’ conduct in financial services is a correct one. The regulatory regime is intended to encourage greater senior level internalisation of important public policy objectives that cannot be introduced in company law. It will be argued that the regulatory regime should be seen as a distinct mode of prudential and conduct regulation in financial services, and not as a form of governance that eclipses the enforcement of directors’ duties under company law. The interface between the two regimes should not result in the marginalisation of the company law regime and can indeed lead to better mitigation of information asymmetry for the purposes of civil enforcement of directors’ duties under company law. The article however provides some cautionary notes regarding the impact of the regulatory regime on directors’ conduct which will inevitably overlap with their accountability under the company law regime.
COMIng, and Here to Stay: The Review of the European Insolvency Regulation
Authors: van Calster Geert
Published: April 2022

In this contribution I summarily review the changes to the European Insolvency Regulation (‘EIR’). The new Regulation, 2015/848, will apply to insolvency proceedings opened after 26 June 2017. It repeals Regulation 1346/2000. I will use ‘EIR 2015’ for the new Regulation and ‘former EIR’ when I refer to Regulation 1346/2000. In reviewing the changes, I have given readers uninitiated with the Regulation some context to the core provisions and ambitions of the Regulation. However this article is not meant to provide general instruction into the EIR as a whole.

As a prelimina ry note, the Regulation’s official title is a bit of a misnomer. The title of the Regulation is simply ‘Regulation [number] on insolvency proceedings’. However the Regulation does not harmonise substantive insolvency law. It is an instrument of private international law, harmonising jurisdictional rules, applicable law and recognition and enforcement of judgments in insolvency matters.
Corporate Opportunities Doctrines Tested in the Light of the Theory of the Firm  a European (and US) Comparative Perspective
Authors: Corradi Marco Claudio
Published: April 2022

Corporate opportunities doctrines originated in Anglo-American law and were subsequently adopted by several continental European jurisdictions. The tests adopted for identifying corporate opportunities have important strategic consequences for a company, both from a law and finance and from an industrial perspective. This article analyses the connections between several versions of the theory of the firm and of corporate opportunities doctrines. It finds an increasing degree of convergence of different jurisdictions towards a test for identifying ‘corporate opportunities’ that is based either on a company’s ‘line of business ’ or on a company’s ‘interest’. Both tests seem to be inspired not only by the economic agency theory, as explained by law and finance scholars, but also by the objective of protecting a company’s specific investments, as described by Oliver Williamson. The objectives of containing both agency and hold-up costs seem to coexist in all the jurisdictions that are the objects of the present analysis, which foresees an intensification of the highlighted convergence.
No-Man is an Island: UK and EU Banking Engagement after Brexit
Authors: Brener Alan
Published: April 2022

Banking and its issues do not respect jurisdictional boundaries. Whatever form “brexit” eventually takes the most significant aspects of banking regulation are, and will remain, international. This paper considers the UK’s continuing need for crossborder engagement with the EU in the key operational areas of standard setting, supervision, crisis management, anti-money laundering and payments systems. In addition, it looks at how close coordination with the EU can help address the risk of “regulatory capture” and, separately, in improving culture, ethics and governance in banking.

Consequently, it is important that the UK and the other European states, together with other jurisdictions, continue to work to maintain and develop cross-border cooperation. Moreover, the UK, and the other states, will continue to need to conform to the highest global standards. This will extend to cross-border supervision and coordination set against a background of common standard setting.

At some point it is inevitable that there will be another serious banking crisis. The effects are likely to extend across borders. Consequently, even outside the EU, the eurozone and the scope of the European Central Bank, the UK will need to prepare and to engage closely with the EU’s developing financial crisis management arrangements.

This will include cross-border recovery and resolution planning.
Credible Sovereign Ratings: Beyond Statistics and Regulations
Authors: Gaillard Norbert J.
Published: April 2022

This article sheds new light on the credibility of sovereign ratings, and raises some doubts about their accuracy and impartiality. Although credit rating agencies (CRAs) are tasked with issuing accurate sovereign ratings, the stability of ratings suffers when CRAs inflate them owing to anticipated yet uncertain lender-of-last-resort intervention. The impartiality of sovereign ratings can be compromised also by regulators’ expectations and by the demands of investors and debt issuers. These problems were not addressed by Regulation (EU) No 462/2013 of the European Parliament and of the Council of 21 May 2013 amending Regulation (EC) No 1060/2009 on credit rating agencies. This article explains how to improve sovereign rating methodologies by revamping the standard through-the-cycle approach. Ratings criteria should place greater emphasis on the sustainability of both total debt and the exchange rate; they should account also for spillover effects and the central government’s cost of bank bailouts.
Staggered Boards, Banks and Public Companies: Quo vadis ?
Authors: Ginevri Andrea Sacco
Published: April 2022

This Article provides a legal overview and analysis of the benefits associated with the adoption of a staggered board of directors by Italian banks and public companies.

While there is a widespread opposition to staggered boards among U.S. scholars and investors – being such device a powerful antitakeover measure in the American legal system since directors belonging to a U.S. staggered board may be removed only “for cause” – this Article explains the reasons why staggered boards should be implemented by Italian banks and public companies considering the significant distinctions between the U.S. and the European legal frameworks in this area.

Taking into account the new banking governance principles recently introduced by CRD IV and by its implementing measures, this Article explains how the establishment of staggered boards by Italian credit institutions and listed companies may allow them (i) to exclude the risk of potential discontinuities in the management’s action, which are inappropriate in corporations of such complexity and systemic relevance, (ii) to facilitate the initial induction and training of the newly appointed directors and officers, who would benefit from the expertise of other members of the board with longer experience, (iii) to strengthen and foster the institutional dialogue between the board and the shareholders, aimed at achieving an adequate collective knowledge, skills and experience of the management body, and finally (iv) to attract more capital from professional investors, granting them the possibility to appoint their representatives in the board on an annual basis.
Big Data Regulatory Debates in the EU
Authors: Wang Faye Fangfei
Published: April 2022

In the phenomenon of big data intertwined with cloud services, the traditional way of collecting, processing and storing data has been changing. This new phenomenon challenges traditional legal principles and increases legal uncertainty of various rights protection in the information society. Such challenges have become greater and greater in response to the emerging technologies embedded with machine intelligence. This paper seeks to remove legal obstacles in the era of big data by defining big data from a legal perspective and finding solutions to the key legal challenges of big data such as data privacy and security; intellectual property protection and jurisdictional issues. It proposes a feasible interpretation and application of the traditional concepts to the new big data phenomenon. Overall, it intends to contribute to the review and reform of the current regulatory framework of the data-driven society in the EU and promote legal certainty and a healthy economic and societal growth across the globe.
The Societas Europaea (SE)  Time to Start Over? Capturing the Zeitgeist of the 21st Century
Authors: Graute Marta , Meiselles Michala
Published: April 2022

A topic of discourse for over half a century, the Societas Europaea (the European Company)1 has much to offer. Notwithstanding its merits, this supranational corporate form has attracted much criticism. One of the major issues that has emerged on a recurrent basis is the question of the functional worth of this structure. In this context a discourse has ensued about its advantages, and disadvantages from the perspective of its intended end-user.

This paper will discuss the pro-business aspects of this entity (Part 2) before giving due consideration to its structural and functional deficits (Part 3), ending with suggestions for reform (Part 4).
The Principle of Sovereignty, Jurisdiction and Irelands Relationship with Europe
Authors: Creamer Shane
Published: April 2022

This essay briefly examines the past, present and future of the principle of sovereignty from an Irish perspective. It explores the different forms of sovereignty, and how this principle has been challenged. It discusses how sovereignty has been interpreted and utilised in contemporary international law. To do so, the paper focuses on extraterritorial and universal jurisdiction and the right to self-determination. It attempts to understand the limits of the principle through the decisions of both Irish and international courts. The history of Ireland makes it a useful case study. After being linked to Britain for centuries, the Republic of Ireland became a sovereign state in the middle of the twentieth century. Only a few decades later, the sovereignty of the state was again altered as it entered the European Economic Community (EEC), now the European Union (EU) and this relationship will be discussed. Other international treaties have further altered its sovereign status. The paper also assesses a contemporary Irish problem; specifically the financial bailout, which also had an impact on its sovereignty. Potential implications from the United Kingdom’s vote to leave the European Union will also be examined. Finally it will consider the future of sovereignty and its interpretation in the Irish courts. Debate as to what the future holds for this principle, and how the courts many interpret it in forthcoming cases.
Trans-European Networks and the Effectiveness of National Permitting Procedures: A Practitioners View
Authors: Zleptnig Stefan
Published: April 2022

The law on trans-European networks (TEN) is a good example for the complex balancing between substantive EU law and national procedural autonomy. On the one hand, the EU legal provisions promote the implementation of infrastructure projects in the areas of transport, energy and telecommunications. On the other hand, the principle of national procedural autonomy leaves it to the Member States how they organise their permitting procedures dealing with those projects. The experience in the past has shown that many TEN-projects get stuck in the complex national permitting proceedings. This is the reason why the Regulation (EU) No 347/2013 on trans-European energy infrastructure includes several provisions dealing with permitting procedures. The Regulation is an interesting example of how EU law evolves from mainly substantive provisions into the regulation of national administrative procedures. It remains to be seen if the European Commission and the Member States will take this approach further.
Arbitrability of Competition Claims in Tort and the Principle of Effectiveness of EU Law
Authors: Nazzini Renato
Published: April 2022

This article discusses whether cartel damages claims are arbitrable under EU law. Although it is settled that most types of competition disputes are arbitrable in principle, the Opinion of the Advocate General and the ruling of the Court of Justice in Cartel Damage Claims (CDC) Hydrogen Peroxide SA v. Akzo Nobel NV (CDC) raise the question as to whether cartel damages claims fall within arbitration clauses entered into at a time when the claimant did not have knowledge of the cartel. This article argues that the CDC case does not compel national courts to interpret the scope of arbitration clauses as excluding cartel damages claims. The outcome of each case will depend on the law applicable to the arbitration agreement and the precise words in the agreement itself and it is not a matter governed by EU law. It cannot be excluded that the principle of effectiveness of EU law may require national courts to disapply arbitration agreements on the facts of a particular case but the threshold is a high one. It would not be sufficient for the claimant to persuade the court that it would have been more advantageous for him to make its claim in court or that the claimant was not aware of the cartel at the time of entering into the arbitration agreement. The claimant must prove that to arbitrate the claim would make the exercise of rights conferred by EU law impossible or excessively difficult. Given that arbitral tribunals are well equipped to deal with a wide range of disputes, including tortious claims and claims involving issues of a technical or economic nature, it is difficult to conceive of circumstances in which this threshold may be met.
The Directive on the Credit Agreements for Consumers relating to Residential Immovable Property (Directive 2014/17): A Regulatory Explanation and a Private Law Analysis
Authors: de Gioia-Carabellese Pierre
Published: April 2022

With the devastation wrought by the 2008 ‘property market bubble’ still fresh in the mind on one hand, and a spate of recent enthusiasm manifested in the ‘rush to the property ladder’ on the other, the newly enacted Directive 2014/17 seeks to strike a middle ground of reasonableness in the delicate and sensitive matter of the security granted by the buyer of a residential property.

 Against this background, the present contribution analyses, first and foremost, the norms of a regulatory nature introduced by the new EU piece of legislation and the attempt to shape a new category of consumer. Among these precepts, attention is particularly afforded to the principle, of a public nature, prescribing that the bank’s assessment to grant a mortgage shall be prevailingly based on the ability of the mortgagor to repay the debt, rather than on the expected (but undemonstrated) burgeoning future value of the property.

Furthermore, the discussion focuses on the private law principles introduced by the Directive. Among these is the onus lying on the bank to provide adequate information about the terms and conditions of the mortgage. More interestingly, the directive at stake derogates from, and goes beyond, the notion of prohibition of ‘agreement of forfeiture’ existing in some civil law jurisdictions. This novelty, the ancillary legal provisions of art 28 of Directive 2014/17 as well as their impact on the system of civil proceedings and foreclosure existing in each country, provide fertile ground for a legal and comparative analysis.
The Tax Treaty Implications of the Remuneration as Royalties of Intellectual Property and Intangibles
Authors: Garbarino Carlo
Published: April 2022

The transfer of intellectual property from a higher-tax country where R&D takes place to a lower-tax country facilitates the phenomenon denominated “base erosion and profit shifting” (BEPS) and this generates a flow of the remuneration of intangibles from high-tax countries to low-tax countries. These remunerations are defined as “royalties”, but they can assume different legal forms and denomination. These crossborder flows of royalties are regulated by a host of bilateral tax treaties between OECD and non-OECD. These treaties generally follow the OECD Model, but also a UN Model exist, while certain countries, such as the U.S., adopt their own model (which does not differ dramatically from the OECD Model). In this Article the provisions of the OECD Model are used as a proxy for the provisions of the numerous existing treaties. The paper analyzes payments that are not royalties, but business profits in so far they are generated in business-to-business transaction, as well the characterization of payments for know-how in different areas. Attention is also devoted to payments for computer software, by looking at the software-related payments that are royalties because they imply the use of the intangibles, but also at the software-related payments that are business profits because of the underlying contractual configuration. Finally the paper focuses on payments for mixed contracts which may have an hybrid legal and tax characterization.
The Concept of Shareholders Duties: Keeping a Grasp on a Paradigm Shift
Authors: Reynisson Kristinn
Published: April 2022

It has been observed, that a paradigm shift is taking place, from discussing shareholders’ relationship to companies in terms of rights, towards including their duties. This article provides a terminological foothold for the emerging discussion on shareholders’ duties, by analysing the concept of duty, and how it applies to shareholders.

 By application of moral philosophical theories, the concept of shareholders’ duties is subjected to classification which provides a framework for further discourse. Thereby, this article provides not only guidelines to what should be considered a shareholder’s duty, but furthermore what should be kept out of that group.
Changing Currency Under a Monetary Union: Some Remarks
Authors: Megliani Mauro
Published: April 2022

This paper analyses the problems related to the change of currency in the case of the withdrawal of a Euro country from the single currency. Following withdrawal, the withdrawing state recovers the sovereign power over its own currency and is entitled to depreciate or revaluate it. The rules of conversion between the new and the old currency are given by the lex monetae. However, when the two currencies co-exist it is dubious what lex monetae applies to the obligations incurred before the withdrawal. This problem may be resolved by having recourse to the criterion of the proper law of contract. Nevertheless, when the proper law is not that of the withdrawing country the rules of conversion may still come into play in the form of overriding mandatory rules of the withdrawing country.
Deconstruction and Reconstruction of a Relationship between the EU Precautionary Principle and Forward-Looking Information
Authors: Colarusso Eliana
Published: April 2022

This paper analyses the possible links between the precautionary principle – as interpreted by the European Commission and the European Court of Justice and broadly employed for health and environmental protection – and the listed companies duties of risk reporting and forward-looking information disclosure. Taking into consideration that the IAS/IFRS and the European frameworks are already strewn with rules concerning forward-looking information, the paper proposes to apply the precautionary principle to this information, analysing the possible issues arising from the proposal and the related solutions. Positive effects of a disclosure regime based on the precautionary principle emerge: an increase in transparency in the financial markets, a unique interpretation criterion in the doubtful cases, incentives to careful risk monitoring and timely intervention also in situations of persistent scientific uncertainties and encouragement of effective public and private enforcement.
The Autonomous Interpretation Standard of International Uniform Private Law: A Dialogue on Methods of Interpretation from the Perspectives of Comparative Private Law and International Public Law
Authors: Mola Lorenza , Poncibó Cristina
Published: April 2022

Our article is based on a fresh dialogue between two colleagues of public international law and comparative private law. We question whether the standard of interpretation of uniform private conventions is, or should be, identified and shaped under the two scholarships. In particular, we aim to answer three main research questions. The first question is whether the interpretation of uniform private law conventions is governed by the principles of public international law on the interpretation of treaties (as expressed by Articles 31-33 of the Vienna Convention on the Law of Treaties (VCLT)). In case of an affirmative answer, the second question follows by discussing whether the application of the rules at Articles 31-33 of the VCLT may be beneficial for the interpretation of the conventions of uniform private law. We argue that these articles may finally offer a ‘common interpretative framework’ to domestic courts. Third, the article questions whether, in applying uniform private law conventions, domestic courts are under a duty to apply the VCLT interpretative methods and consider foreign case law. Here our point is that such a duty exists, although domestic courts ‘tend to ignore it’ in adjudicating cases. We will address these questions through dialogue, where we both describe the state of the art in our respective scholarships and try to come to a reciprocal, and if possible even common, understanding on each issue. ‘It would be deplorable if the nations should, after protracted negotiations, reach agreement … and that their several courts should then disagree as to the meaning of what they appeared to agree upon'
CSR in EU Law: How Close to EU Fundamental Rights and Social Justice?
Authors: Andhov (Horváthová) Alexandra
Published: April 2022

This paper analyses what corp orate social responsibility (CSR) means in the European Union law context. It inquires whether this notion is similar to other already established legal concepts in EU law, and if so to what extent. This paper starts with an introduction to the European Union’s policy approach towards corporate social responsibility and compares the one from 1998 with the most recent one. This evolution shows the EU’s realization of the globally recognized shift of corporate values and the importance of CSR for the EU Internal Market. Aside of the corporate social responsibility notion, the EU has developed its own concepts emanating from the general principles and fundamental rights and values of EU law interpreted by the Court of Justice of the European Union. Furthermore, in the wake of the codification endeavour of the European contract law, the term of social justice has been established and often referred to in the context of contract and private law. Thus, it is the aim of this article to analyse the content and meaning of these terms as well as their proximity. It is the argument of this paper that these terms represent synonyms for one another, and as such could be used interchangeably. Such finding is extremely relevant given the recent frequent use of CSR contractual provisions. The real understanding of the meaning of CSR is necessary for future interpretation and application of CSR contractual clauses within the European Union and possibly outside, if parallels can be drawn. Ultimately, this article suggests direct applicability of the existing Court of Justice of the European Union’s case law on fundamental rights and social justice for future cases with a CSR aspect.
Are Cooperative Societies Transforming into Cooperative Companies? Reflections on the Finnish Cooperatives Act
Authors: Pönkä Ville
Published: April 2022

This article examines the so-called companization of cooperative law. Companization refers to the phenomenon of national cooperative laws adopting elements of efficiency- oriented company legislation; i.e., cooperative societies seem to be slowly transforming into cooperative companies. Companization is a widely recognized issue, but there is little research on the topic. This is unfortunate, since studying companization helps us understand the relationship between cooperative law and company law, and, furthermore, it serves as a gateway to the investigation of the essential nature of cooperatives and why we need them.

 

This article examines the companization of cooperative law using the Finnish Cooperatives Act (FCA) as a framework for analysis. The FCA is a good instrument for elaborating what companization means in practice, since cooperatives play a larger role in the Finnish economy than anywhere else in the world and since companization has been the conscious objective of Finnish legislators. This research was conducted by reflecting on the FCA in relation to the international cooperative law doctrine, using the ICA’s cooperative principles as a benchmark. The findings reveal many signs of companization, and this does not only concern Finland: Companization is a global trend which requires further attention.
Franchising in France: An Overview
Authors: Atwell Courtenay
Published: April 2022

As the franchise capital of Europe, the operation of the business model in this domestic market is of critical significance. This paper examines the business format franchise model in France with a focus on the regulatory environment. The growing judicial reliance on case law, albeit in an unofficial way and how this practice has evolved into the concept of jurisprudence constant is discussed. There is a trend for Ordinances to be enacted that codify developments in case law and supplement the existing Loi Doubin and these ordinances are impacting on the complexities involved with owning and operating a franchise outlet. To add to the complexities, there are unique characteristics of French law, including jurisprudence constant, delictual liability and intuitae personae. An overview of these concepts is provided alongside recommendations for improvements to the current regulatory approach to business format franchising.
Application of the CISG to Arbitration Agreements
Authors: Fillers Aleksandrs
Published: April 2022

The CISG is probably the most important example of unification of substantive private law in the world, creating a uniform set of substantive rules. Unlike a civil code, the CISG does not claim comprehensive scope. The Convention applies to one type of legal relations – sale of goods. However, in real life, sale contracts are often accompanied by additional clauses that require specific regulation. In particular, it is common practice for parties to insert arbitration clauses in their international sale contracts. The close connection between sale contracts and arbitration clauses poses a question of their unified or separated regulation.

Taking into account the role of arbitration as a natural forum for international merchants, it could have been expected that the CISG would clearly delimit its material scope regarding arbitration agreements. Unfortunately, the text of the CISG is surprisingly cryptic in this regard. The ambiguity of the Convention has supplied arguments both to those supporting its application to arbitration clauses inserted in sale contracts and those favoring application of international or domestic arbitration law to arbitration clauses. The practice of courts and tribunals is also inconclusive, although the majority seems to prefer separation of legal regimes.

The author of the article agrees that the text of the CISG can be construed in different ways. However, certain constructions are too complicated to be applied in practice. For that reason, it is difficult to accept the idea that arbitration clauses fall entirely outside the scope of the CISG. At the same time, the legislative history does not provide support for an assumption that the CISG was meant to apply to all aspects of arbitration agreements, in particularly, their formal validity. Therefore, the analysis of scholarly works and practice leads to the conclusion that while formal validity of arbitration agreements is not covered by the CISG, formation of a sale contract, including an arbitration clause, does fall within the scope of the CISG. While this solution will not satisfy purists in both camps, it attempts to solve the ambiguity in the most realistic manner.
State Aid Support to Financial Institutions and the Question of Systemic Importance in the 2008 Financial Crisis: Time for a New Approach?
Authors: O’Sullivan Patrick
Published: April 2022

What is or is not a systemic important bank in times of financial crisis? Such a question is not easy to answer when the demise of even peripheral financial institutions in one country may trigger financial turmoil in others via a domino effect. From a State aid perspective, the question of systemic importance was not adequately addressed during the 2008 financial crisis as the Commission and Member States sought a flexible solution to a complex problem. This solution manifested itself via the continued transfer of taxpayers’ money to insolvent financial institutions simply to maintain the financial stability of other financial institutions. Therefore, the aim of this Paper is to critically assess the Commission’s application of State aid rules to the banking sector and propose a new systemically important test for financial institutions that is rooted in the State aid law domain. As part of this process the level of aid that should be provided to a financial institution deemed systemically important will also be examined as will the need for new competition distortion safeguards to ensure that supporting an insolvent but systemically important bank does not undermine the market position of long-term viable competing financial institutions. The overarching objective of this research is to formulate a future State Aid Crisis Framework for the banking sector that strikes the correct balance between maintaining financial stability and protecting taxpayer resources. In conjunction to this the paper also seeks to examine how a new State Aid Crisis Framework will interact the Bank Resolution and Recovery Directive and whether a new approach could be designed to maintain financial stability in a financial crisis while also ensuring that Member State’s resources are not continually at the beck and call of recipient financial institutions.
Shareholder Identification and Transmission of Information  Imbalance between Shareholders Anonymity and Engagement?
Authors: Stiegler Sascha
Published: April 2022

The amendment of the shareholder rights directive in 2017 introduced a new chapter in the initial directive enacted in 2007. In particular, the new directive now regulates the identification of shareholders and the transmission of information from the company to the shareholder. This extends the scope of the directive and further raises the question of the relationship between the possible desire of shareholders of listed companies for anonymity on the one hand and an appropriate participation of all shareholders in the corporate governance of the company on the other. In this regard, the following article analyses this relationship and illustrates the new rules of the directive in detail.
Initial Coin Offerings and Regulation in Japan
Authors: Ueda Junko
Published: April 2022

This article examines the regulation of initial coin offerings (ICOs) from the Japanese perspective. An ICO may be provisionally defined as a method of raising capital in exchange for digital “coins” or “tokens” that entitle holders to certain rights. Investors who receive the digital tokens are normally provided with an opportunity for reinvestment by selling them on an exchange. Japanese state actors have been acutely aware of the risks associated with ICOs. However, it took some time before regulatory reforms were adopted aiming at enhancing protection of ICO investors on resale markets. As a result of a recent initiative by the Japanese Financial Services Agency, the first regulation of ICOs was implemented as an amendment to the Japanese Financial Instruments and Exchange Act on 31 May 2019.

This article discusses critically these recent legal developments in the realm of cryptocurrency exchange and ICO markets in Japan, as well as an earlier attempt to regulate cryptocurrencies in a 2016 amendment to the Japanese Payment Services Act. The article concludes that it is important to closely monitor how ICOs develop and to keep the issue on the regulatory agenda, in order to be prepared for alternative regulatory arrangements.

Japan, Initial Coin Offerings (ICOs), Cryptocurrencies/Crypto Assets, Regulatory Background, Investor Protection, Financial Services Agency, Payment Services Act, Financial Instruments and Exchange Act, Regulation on Cryptocurrencies, New Regulation on ICOs
Corporate Social Responsibility between Self-Regulation and Government Intervention: Monitoring, Enforcement and Transparency
Authors: Jentsch Valentin
Published: April 2022

The existing rules and standards on corporate social responsibility can best be described as a hybrid legal architecture, where various regulatory approaches maintain a friendly coexistence. This type of multilevel rule-making is sometimes perceived to be complicated and not very effective because it is often said to leave some areas of economic activity unregulated and, in any case, unenforced. Given this difficulty, it becomes evident that the interaction between the different regulatory strategies currently in place, ranging from self-regulation to government intervention, has to be analyzed in more detail. Scholars have often argued that there is a governance gap because public international law only provides for certain rights, but no obligations, for transnational companies. What scholars sometimes miss, however, is that the law, although indirectly, does in fact already regulate corporate behavior with regard to human rights, labor, the environment and anti-corruption.

In this article, I identify and describe various monitoring, enforcement and transparency mechanisms through which international soft law standards are backed up by national public and private law rules. The importance of this is that it will help us better understand what the role of the law is in the status quo with regard to corporate social responsibility.

Corporate social responsibility, regulatory theory, transnational governance, legal theory, business and human rights, business and the environment
Sovereign Investors as Trustees of Environmental Intergenerational Equity
Authors: Ghahramani Salar
Published: April 2022

Do governmental investors such as sovereign wealth funds (‘SWFs’) have a legal duty to protect the natural environment for future generations? After providing a background on SWFs, the paper examines the relevant international law paradigms, with a particular focus on the concept of intergenerational equity – the notion that the state must preserve access to environmental resources for future generations. The article asserts that SWFs, as state actors, have a legal responsibility under international treaties and customary international law, as well as the evolving rules on complicity in international jurisprudence and general principles of international human rights law (which the author posits form the basis for intergenerational equity and environmental rights), to adopt environmental intergenerational equity as an overarching investment policy and implement the principle through shareholder activism and ESG screening.

Sovereign Wealth Funds, intergenerational equity, international law, international environmental law, human rights law, shareholder activism, ESG screening
Responsible A.I.-based Credit Scoring – A Legal Framework
Authors: Langenbucher Katja
Published: April 2022

The paper proposes a legal framework to evaluate emerging FinTech methodology based on alternative data and machine learning to score borrowers. Instead of conventional variables, novel methods rely on information gathered from social networks, “digital footprints”, mobile phones or GPS data. Correlating these with repayment of loans is promoted as triggering precise predictions of probability of default. Borrowers profit if their profile falls outside of classic scoring checks but performs well under the new regime. Borrowers are disadvantaged if the new methods entail disparate impact for groups which are protected under anti-discrimination laws. Additionally, data may be collected without their consent or used in a way they don’t understand.

Two contributions to the debate are submitted. Firstly, a comparative assessment of EU and U.S. data protection and anti-discrimination laws suggests what might qualify as responsible A.I.-based scoring. Secondly, public and private enforcement mechanisms are explained

Artificial Intelligence, Credit Scoring, Biased A.I., GDPR, Discriminative Lending Practices, A.I. compliance, Scoring and Banking Regulation, ECOA, FCRA, FICO score
Damages for the Cost of Repair and the Seller’s Right to Cure under the UN Convention on Contracts for the International Sale of Goods
Authors: Kryla-Cudna Katarzyna
Published: April 2022

The article focuses on whether, in the case of a breach of a sales contract, the buyer can remedy the non-conformity of the goods independently and claim damages for the cost of repair without giving the seller an opportunity to cure his failure to perform. The analysis is based on the solutions adopted in the United Nations Convention on Contracts for the International Sale of Goods. The issue has recently given rise to divergent approaches in the literature. The article seeks to shed new light on the problem and offers a way of resolving the question of the interplay between the seller’s right to cure and the buyer’s right to claim damages for the cost of repair. The principal conclusion is that the buyer’s right to claim damages for the cost of repair and the seller’s right to cure do not stand on an equal footing. Rather, the seller’s right to cure has priority over the buyer’s damages claim. As long as the seller is entitled to remedy his failure to perform under the Convention, the buyer cannot cure the nonconformity independently. If he does so, he cannot claim compensation for the costs incurred as a result of the repair.

The right to cure; United Nations Convention on Contracts for the International Sale of Goods; CISG; damages; breach of contract; remedies; sales contract; repair; avoidance; favour contractus
Examining the Legal Hampers against Innovation in China
Authors: Zhang Lin
Published: April 2022

Innovation cannot be authentically achieved without the support of law. The existing research has demonstrated that venture capital is closely linked to innovation in society. Thus, a friendly legal environment for venture capital has the potential to enhance the innovative ability of a certain society. The current Chinese legal system has includes a series of hampers against the healthy development of venture capital. In order to promote innovation, Chinese authorities ought to take actions to remove these legal barriers.

Law, impediments, innovation, venture capital, cycle, fundraising, investment, exit, America, China
Share Classes in Investment Funds and Fair Treatment of All Investors
Authors: De Luca Nicola
Published: April 2022

Against the backdrop of the US and EU academic debate on share classes or preferential treatments in investment funds, the paper focuses on an Italian case study. In this jurisdiction, ‘reserved’ alternative investment funds (AIFs) issue Class A and Class B shares, where Class A are granted preferential rights in the form of nonexposure to risk of losses (seniority privilege) and/or a guaranteed minimum interest related to the nominal value of contributions (minimum interest privilege). In details, the seniority privilege entails that, if the net asset value (NAV) of the fund at T1 is lower than at T0, this will only impact on the aggregate value of Class B shares. Thanks to the minimum interest privilege, if the fund at T1 has yielded no returns (or a return lower than the minimum interest), the aggregate value of Class A shares will nevertheless increase by an amount equal to the minimum interest (e.g., 10% of the value of the contributions to the fund). In either case, the aggregate value of Class B shares is correspondingly (proportionately) reduced. The paper analyses such preferential rights under the ‘non-contagion’ principle, according to which, features specific to one share class shall not have a potentially adverse impact on other share classes of the same fund. According to the European Securities and Markets Authority (ESMA) (as well as the International Organization of Securities Commissions (IOSCO)), such a principle is an expression of the broader fairness standard. The outcome of the analysis is that preferential treatment shall be permitted as long as it has the effect of increasing the overall welfare of the relevant fund’s investors, whereas any preferential treatment resulting in a ‘wealth shift’ from one investor (or class) to another runs counter to the ‘non-contagion’ principle and is therefore unfair.

Investment funds, reserved AIFs, share classes, fair treatment, seniority privilege, minimum interest privilege, non-contagion principle, preferential treatment, shift of wealth
Private Pensions and EU Internal Market Law: Enhancing Retirement Provision through Harmonisation
Authors: Butler Graham
Published: April 2022

Pensions, pension policy, and retirement provision has been historically associated with Member States alone. However, this is not so any longer. For years, occupational pension schemes have been brought within the scope of the internal market of the European Union. Extensive judgments from the Court of Justice of the European Union, as well as harmonised legislation from the EU legislature have followed to improve the marketplace for work-related pensions. Today, the market freedoms are now being furthered to cover not just occupational pension schemes, but also, the private pension market. In light of such developments at EU level, including the development of pan-European Personal Pension (PEPP) products, what is evident is a significant shift in the establishment of an EU-wide private pension market, mirroring developments in the United States in what are known as ‘individual retirement accounts’ (IRAs). In light of these EU advances emanating from free movement case law and the PEPP Regulation, with effects for both individual Europeans as future retirees, and financial services undertakings as pension product providers; this article analyses the complementary aspects of both positive and negative integration in the private pension market. The article elaborately demonstrates the significant effect of legal progress, through slow-moving developments, that are collectively contributing to closing the deficit in the retirement provision of Europe’s retirees of the future.

EU internal market law, EU free movement law, pension law, private pensions, national personal pension products, PPP, Pan-European Personal Pension Products, PEPP, retirement, harmonisation
Walking the High-Wire: The UK's Draft Communications Bill
Authors: Feintuck Mike
Published: April 2022

The task of regulating the media in pursuit of diversity and pluralism remains essential for the maintenance of key democratic expectations. Faced with rapid technological development and convergence, and trends of corporate conglomeration and concentration of media ownership, governments must engage in an ongoing process of reappraisal and reform of regulation in this field. This article considers whether recent EU Directives and proposed legislation in the UK adequately protect fundamental democratic values.
Legitimating
Authors: Syrett Keith
Published: April 2022

The imposition of a 'fourth hurdle' of cost-effectiveness is becoming a common feature of the regulation of pharmaceuticals in several European countries. The National Institute for Clinical Excellence (NICE), which operates in England and Wales, is one of the most visible examples of this phenomenon and represents an influential model for reform elsewhere. This paper considers the lessons which may be drawn from NICE, focusing in particular upon the issue of legitimacy. It will be argued that regulatory legitimacy may be enhanced by giving institutional effect to procedural values which are of central importance to public law.
The Wind is in the North
Authors: Leino Päivi
Published: April 2022

Jacob Söderman was elected to the post of the European Ombudsman (EO) shortly after the establishment of the office by the Treaty of Maastricht. When Söderman took up his functions in 1995, he stepped into a largely undefined role. As the first European Ombudsman, he has enjoyed much discretion and had a unique opportunity to characterise the nature and functions of the office. According to the EC Treaty, the main task of the European Ombudsman is to consider complaints concerning 'instances of maladministration' in Community administration. But as the Treaty leaves 'maladministration' undefined, Söderman had relatively free hands in both defining and interpreting the concept. As a consequence, the undefined notion turned into a source of controversy concerning the correct functions of the EO. Söderman's approach met with mixed reactions: while he received several prizes for his achievements as the European Ombudsman, he almost failed to get re-elected for a second term in office in 1999.
International Treaties in Germany: The Legislative Competence of Parliament and the Interpretative Competence of the Courts
Authors: Campbell Angus
Published: April 2022

This article analyses certain issues concerning the implementation of international-treaty obligations in the German domestic legal order. Traditionally the German legislator has been understood as possessing competence to pass legislation inconsistent with international treaty obligations it had previously con-sented to. In addition, the degree to which decisions of the ECtHR are binding on the German judiciary is still unclear. The article aims to develop new answers to both problems, linking both levels of imple-mentation and finding the right balance between the integrity of international law and of the domestic legal order.