bluuebunny/crossref_metadata_2025 huggingface dataset:
How to Sanction a Breach of Information Duties of the Consumer Rights Directive?
Authors: Tigelaar Leonieke
Published: April 2022

Traders must provide information to consumers according to the Consumer, Rights Directive in case they conclude a distance contract, an off-premises contract, or a contract in another manner. It is the task of the Member States to sanction breaches of those information duties. This article classifies the information duties on basis of their objective, namely supporting decision-making, enabling storing information, and facilitating the exercise of rights. Subsequently, it addresses the question of how German, English, and Dutch law provide for sanctions in case traders breach those information duties. This article shows that the way breaches are being sanctioned in Germany, England, and the Netherlands, inter alia depends on choices that have been made regarding the legal consequences of unfair commercial practices and the enforcement of consumer law. It further shows that the actual use of sanctions depends on the question: ‘who can apply a sanction and what does this actor has to prove?’
Another Brick in the Wall: The Courts Judgment in KdG/ Susan Kuijpers, 17 May 2018 [C-147/16]
Authors: Werbrouck Jarich
Published: April 2022

In a relatively recent strand of case law, the European Court of Justice (ECJ) established the duty for national courts to apply EU consumer law ex officio, due to the weak position the consumer is deemed to hold vis-à-vis the seller or supplier. This development has to be seen in the context of the decentralized enforcement of EU (consumer) law and the procedural autonomy of the Member States. However commendable the outcome in this type of cases may be, the way the ECJ finds its decision is often not entirely logical. It is argued that this is also the case in the recent judgment in KdG/Kuijpers, which dealt with default proceedings before judicial courts. This article examines the reasoning in the Advocate General’s (AG) opinion and the ECJ’s judgment. It will become clear that there seem to be some loose ends in both. It is not the purpose of this contribution to provide for an overarching theoretical scheme that covers all of the Court’s case law concerning procedural autonomy or the ex officio application of EU (consumer) law. The sole aim is to pinpoint some oddities. This is necessary if we want to check whether the law in books and the law in action coincide with one another, and if so, to what extent that is the case.
Introduction: Regulating Private Regulators: Understanding the Role of Private Law
Authors: Verbruggen Paul
Published: April 2022

This article frames the analysis conducted by the authors in this Special Issue on the influence and control of private law over the ways in which private, nonstate actors pursue regulatory functions. It offers a dense and substantive introduction to the analysisa, and the key assumptions and concepts underlying it. Accordingly, the article’s purpose is to contextualize the research questions that are addressed by the authors, along with the forecasting of conclusions that follow from their contributions jointly.
Crépuscule des idoles: De la fragmentation du sujet à la fragmentation du contrat
Authors: Fornasari Riccardo
Published: April 2022

The development of European Union law plays a fundamental role in the transformation of contract law in civil law systems. This article assesses these transformations of continental legal systems through the notion of juridical subject. It is argued that the evolution of a different conception and regulation of the juridical subject derives from a new conception of competition and of the market order, which involves a major transformation of the function of contract law and of the founding notions of this legal field. The transformations brought forth by a new conception of the market order and the development of the European Union are assessed on the basis of examples taken by French, German and Italian law. Just as the unity of the juridical subject and of the contract stemmed from a specific philosophical and economic approach, the same is true for the present fragmentation, which stems from a new understanding which challenges the foundations and the functions of private law.
A Right to Repair? Towards Sustainable Remedies in Consumer Law
Authors: Terryn Evelyne
Published: April 2022

A future proof consumer law can no longer be solely focused on the economic interests of consumers, but should also endeavour sustainability in order to reconcile the aims of Article 11 TFEU (sustainable development) and 12 TFEU (consumer protection). This contribution analyses one particular way to contribute to a more sustainable consumer law: repair. Repair can contribute to a more circular economy but is currently not always the preferred option. A mix of policy measures could overcome obstacles to obtain repair from the seller under the legal and commercial guarantee as well as obstacles for do-it-yourself (‘DIY’) or independent repair.
Contractual Relationships in Collaborative Economy Platforms
Authors: Orti Vallejo Antonio
Published: April 2022

The collaborative economy platforms have become part of the lives of many citizens; their number is growing day by day and covers many sectors of the market. However, it is a deregulated sector because the existing regulations are very difficult to apply, due to the complexity of contractual relationships in three bands (platform, provider and user), which causes uncertainties about which of the parties involved should be subject to the rules. This paper seeks to clarify the respective relationships and contractual positions of each of the three parties and, especially, of the platforms, in order to determine what their rights, obligations and responsibilities are. First, the contract between provider and user (the underlying contract by which the goods or service are provided) is studied, whose most notable problem derives from being a contract between strangers, based on data that they themselves have published on the platform website. Next, the contractual relationships of the clients (provider and user) with the platforms are studied, distinguishing three types of platforms, according to the function they perform in the contract between the provider and the user (the underlying contract). The conclusion reached is that the legal position of the first type of platforms is very similar, although with nuances, to which the Internet Service Providers (ISPs) have data hosting. The position of those of the second group is similar to that of an agent. Finally, the position of the platforms of the third type is distinctive since it is obliged to provide a service, but uses a third party (auxiliary or subcontractor) to carry it out.
Das digitale Erbe im Spannungsfeld von Persönlichkeitsrechten, Fernmeldegeheimnis und Datenschutz in Deutschland
Authors: Indra Seifert Alexandra
Published: April 2022

The handling of the so-called digital estate, in particular user contracts for social platforms such as Facebook, Xing, etc., has led to discussions in Germany for some time about how these should be assessed under the law of succession. Legal problems arise from the various, sometimes controversial interests of the heirs, the decedent, the contracting partners and the communication partners, also with regards to secrecy of telecommunications and data protection. On the 12th of July 2018 the German Bundesgerichtshof (BGH), in its judgment not only decided specifically the question of the heritability of a Facebook account, but took the opportunity to clarify the fundamental questions raised in this regard. As a result, the ruling is taking on a pioneering role for German legal practice on digital heritage.
White Smoke, but Smoke Nonetheless: Some (Burning) Questions Regarding the Directives on Sale of Goods and Supply of Digital Content
Authors: Vanherpe Jozefien
Published: April 2022

The spring of 2019 saw the adoption of two EU directives concerning, respectively, the sale of goods (Directive 2019/771, ‘SGD’) and the supply of digital content (Directive 2019/770, ‘DCD’), which must be implemented into Member State law by 1 July 2021. The modified national rules must apply from 1 January 2022, the date on which the accompanying repeal of the 1999 consumer sales directive (Directive 1999/44, ‘CSD’) will take effect. The question arises whether the EU legislator has succeeded in drawing up a clear, consistent consumer protection framework. This article submits that this is not necessarily the case, focusing on ambiguities and interpretative issues in the scope of application of the two new directives (1) as well as the provisions regarding conformity (2). The paper concludes with a number of evaluative observations on the possible long-term effects of the new rules (3).
Relevance of Risk-benefit for Assessing Defectiveness of a Product: A Comparative Study of Thirteen European Legal Systems
Authors: dos Santos Silva Marta , Fairgrieve Duncan , Rajneri Eleonora , Keirse Anne , Machnikowski Piotr , Borghetti Jean-Sébastien , García Pedro , Schmon Christoph , Ulbeck Vibe , Vallone Vera , Zech Herbert
Published: April 2022

Under Council Directive 85/374/EEC, liability of a producer crucially depends upon the proof of a product’s defectiveness. This central notion of the Directive has however long been the source of debate regarding the extent to which it is grounded in a solely safetybased approach, or whether a risk-benefit approach may be admitted. The defectiveness concept is now subject to a growing body of case law. This article examines how the courts in a selection of Member States (MS) approach the notion of defect and take account of riskbenefit considerations in determining whether a product is defective. It aims, first, at lowering the level of complexity which was added to the definition of defect in theDirective by the discretion given to national courts on the applicable standard of liability. Second, it means to show the real level and scope of harmonization of the product liability law in the EU by revealing differences that still exist in the interpretation of seemingly harmonized laws. Third, it aims to contribute to the clarification of whether the risk-benefit test is compliant with the spirit of the Directive, and thereby informing policy makers at a time where the guidelines of interpretation of the Directive are being prepared.
Legal Ignorance in German Law: The Decline of a Once Stringent Standard
Authors: Wagner Gerhard , Körner Greta
Published: April 2022

In times of ever-increasing complexity of the legal system, legal errors are inevitable. While the German Criminal Code lays out that a legal error leads to impunity of the perpetrator if unavoidable, legal error in private law has always remained a vague concept. In principle, the Bundesgerichtshof (Federal Court of Justice) excuses a wrongdoer who acted under legal error only in exceptional cases. According to this stringent approach, a party must not only be aware of the existing legal framework, but also anticipate future changes in case law. If the legal situation is unclear, a party must not assume that her own position will ultimately be upheld by the court, but that she will be found liable for a wrong. Under this doctrine, the only circumstances where legal error will be excused are unanticipated and unforeseeable revisions of case law by the supreme court.

However, there is a general trend in all areas of private law to soften this stringent approach. In contract law, courts tend to be more lenient on the parties. In the context of contractual liability of the debtor, legal errors are more and more frequently excused under ‘special circumstances’. On the other hand, a creditor who sues for performance is not liable to the debtor for damages incurred in the course of proceedings if he carried out a ‘plausibility check’ regarding his own legal position before filing suit. In tort law, where courts are generally stricter when it comes to legal ignorance, individual judgments point to a more generous stance towards legal error and excuse tortfeasors more easily. In the area of prescription, courts hold that the limitation period only begins to run when the creditor can reasonably be expected to file an action in view of an uncertain legal situation.

German case law on legal ignorance in private law resembles a potpourri of different legal standards, all of which aim to govern the exoneration of legal errors. A bright and clear line is not discernible and, therefore, a return to a more stringent standard seems desirable. This does not rule out a balancing of interests in each individual case nor taking into account the idiosyncrasies of the parties involved. We should not strive for a ‘one-size-fits-all solution’ but seek to formulate nuanced liability standards that are able to distinguish, e.g. between consumers and businesses. However, the aim here must always be to develop clear and stringent criteria, thus providing for legal certainty.certainty
Legal Ignorance in Italian Private Law
Authors: Vardi Noah , Zeno-Zencovich Vincenzo
Published: April 2022

The paper examines legal ignorance and its interpretation in Italian private law. Moving from a problematic and interdisciplinary approach, it analyses the legal sources which refer to ‘ignorance of the law’ (mainly, but not only in private law) under various circumstances and the interpretation given to this notion by different branches of the judiciary. Scope of the report is to provide both an overview of the theoretical foundations for allowing or denying justification on grounds of legal ignorance and to highlight the most problematic aspects deriving from its current applications in contemporary digital societies.
Causation in Civil Law and the Problems of Transparency in AI
Authors: Wojtczak Sylwia , Księżak Paweł
Published: April 2022

Although a number of European Union legal documents require AI to be transparent, this is frequently not the case. Such opacity can be attributed to a diverse range of causes, ranging from so called ‘black box’ algorithms, trade secrets and patents, to the cognitive barriers of non-professionals. Transparency, in contrast, is, in many cases, indispensable for establishing generic or specific causation in deciding civil law cases, especially within the scope of contractual or tort liability. Therefore, the concept of causation applied in various parts of civil law should be rethought, and some remedies for this problem should be adopted.
The Management of Belgian Public Limited Liability Companies
Authors: Wooldridge Frank
Published: April 2022

The present article will be concerned principally with the board of directors of Belgian sociétés anonymes, but it will also mention persons responsible for the daily management of such companies, and also management committees set up by item. Where thought appropriate, some comparisons will be made with the corresponding rules governing Belgian private limited liability companies sociétés privées à responsabilité limitées).
Work Councils, Acquisitions and Corporate Governance in the Netherlands - Creating an Organisation within an Organisation
Authors: Letza Steve , Vehof Xander
Published: April 2022

Through legislation, the Dutch system of corporate governance has sought to provide a role for employees, as a stakeholder group, through the statutory rights given to works councils. This paper seeks to examine how that role and the rights of employees can be distorted in a merger and acquisition event. The Dutch system of Works Councils appears to have been developed within the context of a single firm, single jurisdiction environment where the complications of a parent-subsidiary group relationship involving crossing of boundaries of both culture and jurisdiction are not considered. The events at Delta Lloyd Group are provided as a case-study to illustrate the difficulties of Works Councils in a corporate group structure. This is placed within the context of corporatism as a transformation process and a changing framework for governance and worker participation at EU level.
The Implementation of the Takeovers Directive in Germany
Authors: Wooldridge Frank
Published: April 2022

An important law was enacted in Germany in 2006 implementing the requirement of the Takeovers Directive in Germany this should have been implemented by 20 May 2006, in accordance with Article 21 of the Directive, but full implementation in Germany did not take place until 1 January 2007. The new German provisions do not include the compulsory adoption of the breakthrough rule contained in Article 11 of the Takeovers Directive; the existing provisions of paragraph 33 of the German Takeovers Act of 2001 do not seem entirely in conformity with those contained in Article 9 of the Directive. Companies may adopt the new provisions of paragraph 33a (Europäisches Verhinderungs–verbot) and/or those of paragraph 33b (Europäische–Durchbrechungsregel) in their statutes, but are not bound to do so. Paragraph 33c, which like the aforementioned paragraph has been incorporated in the Takeovesr Act of 2001 by the amending statute of 2006, makes provision for the application of the reciprocity rule contained in Article 12(3) of the Takeovers Directive.

The 2006 Act makes a number of alterations to the 2001 Act; a brief account of some of the more important of them is attempted below.
On the Difficulties of Legally Regulating Multinational Enterprises
Authors: Kuschnik Bernhard
Published: April 2022

Whereas classical political and legal doctrine is grounded on the separation of national political power and economic interests and thus ideally creates a system of balance of power where one branch watchdogs the other, the structures and course of actions of MNEs has created new challenges for national legislation and enforcement. This essay gives an insight into the disequilibrium between nationalized legal regulation and MNE conduct and analyzes limits and chances for change.
ICC Draft Best Practice Note on the European Commission Acting as Amicus Curiae in International Arbitration Proceedings – The Text
Authors: Nisser Carl
Published: April 2022

The present note sets out best practices that the European Commission (the “Commission”) and the international arbitrator (the “Arbitrator” or the “Arbitral Tribunal”,as the case may be) are invited to apply by way of guidance in their mutual dealings within the course of international arbitral proceedings. A number of these best practices may, at first sight, seem controversial to the extent that they have not yet been tested in real practice.Accordingly, the present guidelines seek to set out what is deemed to be best practice in terms of the Commission’s involvement as amicus curiae in international arbitration proceedings from the viewpoint of the ICC Task Force. As the title of the document suggests, the best practices put forward do not bind either the Commission or the Arbitrator, and are hence to be understood as mere guidelines to facilitate and guarantee the successful employment of arbitration as a mechanism in EC–competition–law–related arbitral proceedings, such as specified below.
Bail Out Plans: Do They Really Envision State Exit and Bank Repayments? A View from a Competitive Assessment Perspective
Authors: Russo Costanza A.
Published: April 2022

Since October 2008 European member States have been implementing recapitalisation and guarantee plans to support the banking sector. Such plans, although different, are based on common principles agreed at EcoFin level, stating that they should be limited in scope and time, that State involvement must be confined to the minimum, that shareholders should bear the consequences of intervention and that Governments should protect competition. In light of the special circumstances due to the current serious disturbance in the economy and in the financial sector, European Commission has provided guidance as to the framework within which the compatibility of the bail out plans with EU state aid rules could be assessed. The Commission recognised as compatible with State aid rules those plans that were: temporary, non discriminatory and that had a significant contribution from the private sector. So far, all the national plans have been considered compatible with art. 87 of the EC Treaty. However, it appears that a proper analysis of the relevant EU decisions on this matter could only be conducted over a longer term perspective. Indeed, if we look at the main characteristics of the most important European Member States measures, we could argue that the role of the State appears to be more than “temporary” and less than “profitable” for the taxpayers. Moreover, serious moral hazard problems may arise. In fact, the main concerns regard the likelihood for the State to leave the banks’ capital and the existence of incentives for the beneficiary banks to repay the measure, given that there is no expiry date nor sanctions or mechanisms to force the bank to repay. Eventually, it seems that those “compatibility decisions” may instead lead to a new financial market structure where competition would be seriously hindered and where the involvement of the State in banks’ capital and governance may not end as soon as the Commission wishes.
The Concepts of the Scottish (and Italian) Unilateral Promise and the English Unilateral Contracts  Comparative Law Reflections on Call Options and Put Options in the light of the Jurisdictions of England, Scotland and Italy
Authors: de Gioia-Carabellese Pierre
Published: April 2022

On the backdrop of the "put options" and "call options" - two common contracts in the practice of the capital markets - lies this comparative law analysis concerning the approach taken by three jurisdictions to the concept of the unilateral promise.

The outcome of the discussion is a criticism toward the English jurisdiction where this concept is missing, the same being replaced, in a non-convincing way, by the similar concept of the "unilateral contract". In addition to this, the requisite of the consideration, peculiarly requested in that jurisdiction, could even result in putting at risk, in some circumstances, the same validity and enforceability of these typologies of transactions.

As to the Scottish jurisdiction, stranded between its ancient Roman roots and its "British ties", the work seeks to demonstrate that, although the "unilateral promise" is accepted in this jurisdiction (these making both "put options" and "call options" theoretically safe under this jurisdiction), there is still a non-perspicuous categorization of the concept and, particularly, a possible "blunder" in the way this jurisprudence seems to put together, in a sort of conceptual "melting pot", both the promise to the public (in incertam personam) and that aimed at the conclusion of the contract. However, this possible erroneous view - quite transparent in the light of the civilian jurisdiction adopted as comparator (the Italian one) - could find a potential "way-out", should the Scots legal system eventually adopt a code in the matter of the contracts more in line with its traditions and peculiarities.
Corporate Mobility under Article 49 TFEU: A Question of Means, not Ends
Authors: Khan Aaron
Published: April 2022

An often-contested subject in the EU is the question of whether Article 49 TFEU can, or should, facilitate corporate mobility - permitting companies based in one Member State to transfer themselves entirely to another. This essay seeks to revisit this debate in light of recent judicial and legislative developments. It will be contended that the EU Institutions have now introduced corporate mobility in varying forms and as a result the debate has been rendered redundant. The question is no longer if corporate mobility will be introduced, but instead when and how. To this end it is submitted that an over-reliance on judicial harmonisation is hindering developments in this area. The ECJ cannot create a positive right to corporate mobility due to its confined institutional remit. It therefore falls to the EU Legislature to enact this right along with any safeguards needed to protect those with rights against a transferring company.
Extraterritorial Application of U.S. Securities Law
Authors: Morgut Milosz
Published: April 2022

The globalization of securities industry resulted in many corporations deciding to cross-list on numerous exchanges and investors commonly trading on foreign markets. The multitude of overlapping regulatory regimes poses difficult questions not only for legal theorists but most importantly for the investors who seek remedies after suffering multibillion losses as a result of being deceived.

The paper discusses the U.S. Supreme Court decision in Morrison v. National Australia Bank which dramatically changed the way in which the US securities regulation applies to foreign claims. The analysis looks at the judgments of lower courts in order to establish the real scope of the decision. Bearing in mind the new landscape in international securities litigation, the available courses of action which can be still taken by injured investors are presented. Finally, the paper evaluates the overall decision and its effect, suggesting certain legislative changes.
Promotion of Financial Stability through Structural Regulatory Reforms: Revisiting the Separation of Retail and Investment Banking and Consequences for the Hedge Fund Industry
Authors: Korotana Mohammed Shabir
Published: April 2022

The independent Commission on Banking has submitted its Final Report. It contains recommendations for new financial regulation. Primarily these recommendations are for banking regulation within a broader financial sector. Essentially the report focuses on two aspects of banking; those are Financial Stability and competition. The financial stability deals with structural changes or in other words structural regulation. The Commission has recommended structural changes to the existing financial regulatory regime whereby it has proposed the separation of retail banking and investment banking, the purpose of which is to achieve financial stability. The Commission has recommended to ring-fence the retail banking which will include vital banking activities; these are identified as mandatory services which a retail bank must provide and on the other hand the report also specifies the prohibited activities for the ring fenced bank which it must not offer, this includes services to financial companies. Thus, a hedge fund company (HFC) being a financial company falls outside the ring-fence, therefore, it will not be provide vital banking services, because a ring-fenced bank is prohibited to provide these services in this context. It concludes that it is unfair to HFCs that being SMEs they are denied these services. There is no evidence that a HFC could be a threat to 'financial stability' of the system, rather it supports economy which would contribute to the 'financial stability' of the very system, which is the purpose of the recommendations. At the outset this discussion is supported by the discussion of the generic concepts financial stability, banking services, financial system and the separation of retail and investment banking.
Limitation of Personal Tort Liability of a Member of the Management Board of a Company - Perspective of Estonia
Authors: Lahe Janno , Tolstov Leonid
Published: April 2022

According to the organic theory acts done by a member of the management board of a company are regarded as acts done by the company itself and usually the corporate veil protects the board members from the claims of third persons. As exception there is still possible a direct tortious liability of a board member to others, as it will be analysed in the article below. Authors are searching in the current work for a reasonable limit of the tort liability of a board member, from the Estonian perspective. The main bases of the tort liability, analysed in the article, are violation of a protective provision, intentional behaviour contrary to good morals and providing incorrect information.
Some Realism about a Common European Sales Law
Authors: Dalhuisen Jan H.
Published: April 2022

In 2011 the European Commission came with a draft Regulation for a law covering (the largely contractual aspects of) sales of moveable assets within the EU (CESL). It is meant for cross-border sales to consumers but may also be used by professionals for cross border sales amongst themselves as long as one party is an SME. It is intended as an opt-in instrument. The present draft is a carve out from the Draft Common Frame on Reference (DCFR) earlier presented informally as a text for a codification of private law within the EU. CESL may well be seen as a first step in its adoptation. It raises first the issue of practical need and of the quality of the proposal as a response. A closely related question is whether the EU has sufficient formal authority to legislate in this field in which connection the project poses the further question whether traditional codification thinking in the civil law mould remains the proper way forward and whether statists initiatives of this nature that seek to monopolise the field and subjugate all other sources of law are the most appropriate method of law formation in international business dealings. These matters were never properly considered but affect fundamentally the credibility and prospects of CESL.
Unfair Dismissal of Agency Workers or Unfair Legislation in the UK for Businesses using Agency Workers?
Authors: de Gioia-Carabellese Pierre , Shuttleworth Mark
Published: April 2022

The contribution encapsulates a legal discussion on the controversial figure of the agency workers, from the judicial debate blossomed during the last decade in the British courts, as regards their legal characterization, until the most recent developments, particularly the legislative framework passed in Britain, the Agency Workers Regulations. On such footings, the investigation focuses on the main law provisions of the recent British legislation, including the most crucial limbs of the domestic statute.

Additionally and against the backdrop of a comparative analysis, where the Italian jurisdiction is adopted as the "comparator", criticism is expressed by the authors as regards the way the "harmonisation" of EU inspiration (the Temporary Agency Work Directive) has been brought about in this strategic and increasingly important sector of the job market. Particularly, it is adumbrated the view that Britain, with its rigorous and rigid implementation of the Directive, may be currently damaging its own businesses with its irrationality of harsh rules, whereas a country like Italy, where the pertinent EU piece of legislation is applied with an indirect technique - i.e. the tolerance towards the already existing legislation of the fornitura di servizi (provision of services) - may de facto be dodging the constraints of the legislator in Brussels. These findings, of comparative law flavour, with the prominent example of Italy highlighted as a tenuous background, may confirm the sceptical view that, since the beginning, some scholars had expressed towards the Directive and its nebulous teleology.
The Application of EU Law to Arbitration in the UK: A Study on Practice and Procedure
Authors: Blanke Gordon
Published: April 2022

The following study deals with the application of EU law to arbitration in the UK , and in particular with points of practice and procedure that arbitrators and arbitrating parties are required to take into account in the application of EU law in UK arbitration. The role played by EU law in arbitration is often overlooked given the prevailing confidential nature of arbitration as a private dispute resolution mechanism in its own right. Arbitration finds wide application in the resolution of disputes arising from licensing, franchising, supply and distribution and other commercial agreements across the European Union. The framework of EU law is inescapable in the implementation of those agreements due to their cross-border nature and/or the cross-border effects they may produce in relevant product markets throughout the internal market.

To date, to the best of this author's knowledge, there has been little (if any) systematic research on the application of EU law in any particular jurisdiction within the EU, exploring requirements of practice and procedure of relevance to the conduct of arbitration in light of EU law requirements bearing on that jurisdiction. The present study is an attempt to provide such research with respect to the application of EU law in arbitrations seated in the UK more specifically. It is reproduced here in the hope that it may inspire other research projects along similar lines in relation to the practice and procedure of the application of EU law in arbitrations seated elsewhere in the EU.
State Aids and Credit Institutions in Europe: What Way Forward?
Authors: Lo Schiavo Gianni
Published: April 2022

During the crisis, Member States have resorted to massive State aids to the financial sector with a view to avoiding a systemic failure of the European economy. This article provides an overview and a critical assessment of State aids to credit institutions in perspective.

The first part analyses the current framework on State aids to banks. It examines the notion and the compatibility of financial aids under Art. 107 paragraphs 1 and 3 TFEU while assessing the key policy principles in the sector. Special attention is paid to the new framework established under the Banking Communication as of August 2013.

The second part of the article addresses two critical aspects of State aids to banks in future. Firstly, it ascertains the adoption of the regulatory framework for the recovery and resolution of banks and how it impacts on State aid control. Secondly, it discusses the recent reform to create a direct recapitalisation instrument under the European Stability Mechanism.
Refining the System of Expert Evidence in English Civil Procedure
Authors: Leslie John
Published: April 2022

The civil procedure system in England requires the court to give permission for expert evidence to be used by a party. The expert owes an overriding duty to the interests of justice and to the court. This article considers the different forms of expert evidence (including the single, joint expert, who is shared by the parties) and the increasing degree of judicial management of such evidence.
An Unstoppable Force Rather Than an Illegitimate Farce: Exploring the Role of Offshore Financial Centres Amid Renewed Criticism
Authors: McConvill James
Published: April 2022

Offshore financial centres, or OFCs, are commonly labelled "tax havens" due to the general misconception that they are used solely to avoid or evade tax. The British Virgin Islands ("BVI") and Cyprus are two prominent OFCs, regularly used throughout Europe and the rest of the world, that have been subjected to criticism in recent times.

In 2013, there were numerous reports that Cyprus was being used mainly by rich Russians to launder dirty money in local banks, and in April 2013 the International Consortium of Investigative Journalists publicised results of an investigation which suggested that the rich and famous and prominent political individuals use offshore companies to hide their financial interest in lucrative projects and trading entities.

The author worked for over five years as a lawyer in the BVI, and also has visited Cyprus twice in the past two years to interview leading lawyers and members of the financial services industry. Accordingly, with particular attention being given to the BVI (which remains the leading centre for the incorporation of offshore companies) and Cyprus (which has an unparalleled network of double taxation treaties), this article aims to debunk recently pronounced myths about the offshore world by focusing on the practical reasons why OFCs are used in international business.
The Move from Private Enforcement to Public Enforcement and Now the Move to Litigation Funding of Shareholder Activism: Are We Entering a New Era of Access to Justice in Corporate Law?
Authors: Farrar John H.
Published: April 2022

The focus of this paper is on shareholder activism, concentrating on the UK and Australian experiences. The nature of shares, ownership and control are also addressed. The substance of the article examines the types of shareholder activism that exist. Two key questions are asked regarding shareholder activism: whether it gives rise to conflicts of interest and whether it adds value. The idea of value is an interesting one and gives rise to a discussion of when the activism of minority shareholders should be curbed, so as to prevent oppression through the use of legitimate forms of action for less-than-legitimate ends. The Australian and UK approaches to enforcement of shareholder rights through litigation are contrasted. The rise of class actions for shareholders in Australia, and the lack of equivalent actions in the UK, are discussed. Particular attention it paid to the reasons for the lack of enthusiasm for class actions in the UK. The differing positions and powers of powerful hedge-funds and superannuation investments in the relevant jurisdictions are noted. It is concluded that it is too soon to tell whether the new approach to enforcement of corporate interests through shareholder activism is an improvement over the old remedies which were available to shareholders.
Share Transfer Restrictions and Family Business: The Minority Shareholder Perspective
Authors: Haag Kajsa , Andersson Jan , Sund Lars-Göran
Published: April 2022

Small- and medium-sized enterprises (SMEs), of which most are family-owned businesses (FOBs), play a substantial part in any nation's economy. They are, in many ways, different from large companies with scattered ownership; therefore, further developments accounting for their special circumstances are needed. We study shareholder protection and aim to narrow the gap between theory and practice regarding commercial law in relation to the FOBs. An entrepreneurially friendly environment presupposes that owners can protect their ownership positions against unwanted acquisitions of shares, and not be unwillingly locked-in in a position as minority owners. This requires legal rules that are neither unnecessarily costly, nor time and energy consuming to comply with. Legislators should thus provide a set of rules that facilitates owners to effectively avoid both unwanted acquisitions of shares and locked-in positions. We conclude that default rules, such as a right of first refusal, should be included in the articles of association. We also find it important to allow clauses that enhance the possibility of avoiding locked-in positions, where most national legislations today permit only clauses that contribute to the protection of ownership positions.
Unsolved Conflict Issues Under Company Law Framework: A Comparative Analysis Between China and UK Law
Authors: Ng Ka Chun Carlton
Published: April 2022

China is a traditional civil law country which is adopting the continental law system. Many laws, including the general principles of civil law and contract law, are reproduced from European countries, namely Germany. The Chinese Company law is not the exception, the supervisory board system which is originated from Germany has also been incorporated into Chinese Company Law regime. Instead of simply relying on the German system, the Chinese authority has also made reference to the common law jurisdiction to extract some applicable concepts to enhance the corporate governance standard, different kinds of common law corporate governance measures such as the independent director system and the piercing of corporate veil system have been incorporated into the Chinese legal framework. Nevertheless, despite certain measures have been adopted by the authority, the writer is of the opinion that the aforementioned measures are not capable to address the conflict of interest. In particular, board of directors may be influenced, if not controlled, by controlling shareholders, especially when the company was originally a State Owned Enterprise, and also controlled by insider, for instance the key influential person of the company or the Chinese society. Therefore simply adopting the shareholder primacy approach would not be fruitful for development of the corporate governance standard in China. The writer is of the opinion that the stakeholder approach should be considered by the Chinese authority and the relevant rules should be incorporated into the law to facilitate its implementation. This would alleviate the problem of form over substance such as the supervisory organs simply become a decorative organ and would avoid the decision making organ from improper influence.
The Role of Preferred Shareholders in Fundamental Transactions: Preliminary Thoughts
Authors: Ginevri Andrea Sacco , Sbarbaro Ferruccio Maria
Published: April 2022

In public corporations, the claim of the preferred shareholders is typically limited to a fixed dividend and a fixed amount on liquidation, and this claim shall be satisfied before the common shareholders can receive anything. Their rights to a prior, but limited, dividend resemble the rights of creditors, who also must rely on their contractual rights and do not vote in the general shareholders’ meeting.

However, according to Italian corporate law, the preferred shareholders have a veto power against fundamental transactions such as, for example, certain mergers, demergers, charter amendments that jeopardize their preferred rights.

Therefore, notwithstanding their limited percentage of share capital, preferred shareholders i on the one hand have the power to prevent a corporation from transactions that may increase the common shareholders’ value, and ii on the other hand, are not subject to any redemption right neither by the common shareholders nor by the corporation itself.

In light of the above, this article argues that granting a redemption right ex lege to the common shareholders in case the preferred shareholders vote against certain fundamental transactions may be a tool for strengthening the best interest of the corporation because it allows at the same time aa directors and common shareholders representing the latter the majority of the share capital to achieve the corporate benefits arising from such fundamental transactions, and bb the dissenting preferred shareholders to withdraw from the corporation at a fair market value.
Lawful Distortion of Consumers Economic Behaviour  Collateral Damage Under the Unfair Commercial Practices Directive
Authors: Trzaskowski Jan
Published: April 2022

The Unfair Commercial Practices Directive prohibits unfair business-to-consumer commercial practices with a view to protect consumers’ economic interests. In a market economy such regulation cannot protect the economic interests of all consumers in all situations – there must inevitably be some ‘collateral damage’. In that vein this article discusses situations where consumers may have their economic behaviour distorted by commercial practices that are not unfair under the Directive. It is expected that many consumers will make relatively good decisions most of the time and that there will be a ‘long tail’ of more vulnerable consumers. The fact that the law allows certain forms of ‘economic distortion’ affects those who have general difficulties in making economic decisions (‘Long Tail Natives’) and all other consumers who, occasionally, are likely to make inferior decisions (‘Long Tail Visitors’). The article suggests how behavioural sciences may be applied to understand these situations in order to protect more consumers from having their economic behaviour distorted by commercial practices. It is suggested that per se prohibitions may be advantageous in some instances as long as traders are not deprived of effective means to inform consumers about themselves and their products.
Groups of Companies in the Case Law of the Court of Justice of the European Union
Authors: Engsig Sørensen Karsten
Published: April 2022

Despite the fact that there has only been limited harmonisation of the rules on groups of companies in the EU, the Court of Justice of the European Union has often had to rule on cases involving groups of companies. The Court must make such rulings when considering how to treat groups of companies under Union law, including whether to treat a group as a single enterprise or as several companies. This article analyses the Court’s approach to groups in various areas of Union law with a view to establishing when a group will be treated as a single enterprise. The Court has also had to consider whether national rules on groups of companies comply with the fundamental Treaty rules on freedom of movement. The latter part of this article analyses how the Court can be expected to examine whether national rules on groups discriminate against or impose restrictions on cross-border groups of companies.
Missives and Deposit in Scots Law: Diachronic and Comparative Reflections about the Concept of Arrha
Authors: Chessa Corrado , de Gioia-Carabellese Pierre
Published: April 2022

A jurisdiction such as the Scottish one, reputedly with solid Roman roots, is practically bereft of the fundamental concept of a deposit in the concluding passage of the missives. Conversely, the relevant ‘ancestor’ (Roman law) has been profoundly permeated, throughout the course of its history, by the notion of an arrha (the earnest) in the conclusion of a contract annexed to the transfer of heritable properties. Moreover, in contemporary times and outwith Scotland, a Continental jurisdiction (the Italian one) is resolutely lingering on the Roman caparra penitenziale while, ironically, the English system (comprehensively ‘un-Roman’ in its formation) has expressly adopted the ‘deposit’ as part of the closing particulars.

These asymmetries, brim-full with inviting legal ingredients, seem, in the present work, to conjure up an intriguing and captivating plot worthy of an Indiana Jones’ film, where the lost treasure can be deemed replaceable, for the distracted reader, by the ancient Roman notion of an arrha, so evidently not inherited by the contemporary Scottish jurisprudence. Ultimately, the contribution engenders the usual unsettling query: in the light of the phenomenology of the arrha so neglected in Scotland in contemporary times, is Scottish law still a mixed legal system or, conversely, a jurisdiction progressively getting closer to the English common law counterpart?