bluuebunny/crossref_metadata_2025_split huggingface dataset:
A Problematic Mismatch Between EU-Level Jurisprudence on Parental Liability and Principle
Authors: Whelan Peter 
Published: June 2024

Abstract
This chapter is the final one in the part of the book that determines whether, in seeking deterrence, the EU-level doctrine of parental antitrust liability respects the inherent principles of retribution theory, thus ensuring (substantive) fairness in enforcement. It is thus the chapter that presents the conclusion on whether, as currently formulated and operated, the said EU-level doctrine adheres to the third criterion in this monograph’s legitimacy framework (i.e. ‘fairness’). The previous chapter identified a misalignment between the EU Courts’ conception of the parent company’s responsibility and that evident from the retributivist perspective. This chapter examines whether the identified misalignment is problematic for legitimacy purposes. To do so, it employs a three-step approach. First, it uses the punishment-focused literature to create a spectrum that identifies the extent to which culpability should be mandated in principle in different legal contexts (herein termed the ‘culpability importance spectrum’). Second, it determines where EU-level competition proceedings fall within this spectrum due to their specific nature. Third, with reference to where EU-level proceedings lie on this spectrum, it articulates the extent to which a lack of culpability on behalf of the sanctioned parent company is problematic in principle. It argues that, due to the inherent nature of the European Commission’s antitrust proceedings, their use to impose punishment without a solid culpability requirement with respect to the infringer (as can occur with parental liability) is very problematic in principle, with resultant (fairness-related) negative implications.
Market Definition
Authors: Niels Gunnar , Jenkins Helen , Kavanagh James 
Published: June 2024

Abstract
This chapter covers the role that market definition plays in competition cases. It explains the hypothetical monopolist, or SSNIP (small but significant and non-transitory increase in price), test, and how this test is applied through critical loss analysis. The chapter addresses the cellophane fallacy, supply-side substitution, price discrimination markets, and chains of substitution. It also sets out how to define markets for complements, aftermarkets, bundles, two-sided platforms, and vertical layers of the supply chain. The discussion then turns to how markets may be defined by reference to features other than price, such as quality and innovation.
Market Power
Authors: Niels Gunnar , Jenkins Helen , Kavanagh James 
Published: June 2024

Abstract
This chapter explains that market power is a matter of degree, and reviews the thresholds commonly used, including dominance and essential facility (as well as thresholds outside competition law, such as economic dependence and gatekeeper status in digital markets). The main indicators of market power are market shares and entry barriers (economies of scale, sunk costs, product differentiation, data, and network effects). The chapter explores the role of profitability as an indicator of market power, and the concepts of buyer power and bidding markets. Finally, it discusses market power in dynamic, innovative markets.
The Private Enforcement of Competition Law
Authors: Caro de Sousa Pedro 
Published: June 2024

AbstractThis book provides a global overview of private competition enforcement. It provides an analysis of recent private competition enforcement decisions and developments up to 2023, focusing on: an international picture of private competition enforcement; an analytical breakdown of the main elements of private competition enforcement, with a focus on damage claims; and a comparison of how each of these elements is implemented across the world, focusing on the US and the EU but including other jurisdictions. The work is divided into two parts. The first contains an overview of private competition enforcement and the leading regimes around the world, including a discussion of the background and rationale for private enforcement, and general descriptions of some of the leading jurisdictions. It also discusses the interaction between public and private enforcement and the main areas of tension between them. The second, larger, part looks in more detail at the constitutive elements of private enforcement regimes and how they are applied across different jurisdictions. The chapters focus on judicial mechanisms for obtaining private redress for competition harms; out-of-court mechanisms; practical solutions to ensure the effectiveness of private enforcement, and particularly of damages claims; standing to bring competition claims; rules applicable to defendants of such claims; means to establish that a competition law infringement has taken place; mechanisms to determine where private enforcement claims will be decided and under which rules; rules of evidence, including how to establish causation of loss flowing from an infringement; quantification of damages; and the main economic methods used to calculate damages.
Introduction to the Private Enforcement of Competition Law
Authors: Caro de Sousa Pedro 
Published: June 2024

AbstractThis book provides a global overview of private competition enforcement. It provides an analysis of recent private competition enforcement decisions and developments up to 2023, focusing on: an international picture of private competition enforcement; an analytical breakdown of the main elements of private competition enforcement, with a focus on damage claims; and a comparison of how each of these elements is implemented across the world, focusing on the US and the EU but including other jurisdictions. The work is divided into two parts. The first contains an overview of private competition enforcement and the leading regimes around the world, including a discussion of the background and rationale for private enforcement, and general descriptions of some of the leading jurisdictions. It also discusses the interaction between public and private enforcement and the main areas of tension between them. The second, larger, part looks in more detail at the constitutive elements of private enforcement regimes and how they are applied across different jurisdictions. The chapters focus on judicial mechanisms for obtaining private redress for competition harms; out-of-court mechanisms; practical solutions to ensure the effectiveness of private enforcement, and particularly of damages claims; standing to bring competition claims; rules applicable to defendants of such claims; means to establish that a competition law infringement has taken place; mechanisms to determine where private enforcement claims will be decided and under which rules; rules of evidence, including how to establish causation of loss flowing from an infringement; quantification of damages; and the main economic methods used to calculate damages.
Out-of-Court Redress Schemes
Authors: Caro de Sousa Pedro 
Published: June 2024

AbstractThis chapter elaborates on the key concepts of out-of-court redress schemes. It focuses on alternative dispute resolution in competition cases, which are voluntary redress schemes, alternative-dispute resolution, settlement schemes, and arbitration. The aforementioned alternative dispute-resolution mechanisms allow victims to settle cases quickly and easily on a voluntary basis, therefore most systems try to promote the resolution of claims outside court. The rationale for encouraging voluntary redress schemes or consensual dispute-resolution systems correlates to the costs and uncertainty of litigation. The chapter looks into the question of the arbitrability of competition law within the US and some EU jurisdictions.
Defendants and Liability
Authors: Caro de Sousa Pedro 
Published: June 2024

AbstractThis chapter tackles the notion of who may be liable for competition damages. It discusses the rules that determine the extent of defendants’ liability. The general rules on liability usually require the defendant to have been at fault (by intention or through negligence) in order for it to be liable for the damages caused by its actions. Fault generally refers to intent or negligence regarding conduct, instead of the damages created by the conduct. The chapter also elaborates on the key concepts of individual, joint, and several liability in line with multiple tortfeasors who are jointly responsible for the loss.
Duty to Act Within Powers
Authors: Haywood Marcus 
Published: June 2024

Abstract
This chapter focuses on the director's duty to act within powers. It cites the director’s overriding duty of obedience to the constitution. Directors will breach their duty if they cause the company to do something beyond its powers or if he fails to comply with the company’s internal regulations. The Companies Act 2006 Act codifies the director’s duty to comply with the company’s constitution to the extent that if directors exceed their constitutional power in breach of s 171(a), they will be liable accordingly. The chapter clarifies the directors' duty to only exercise powers for the purposes for which they are conferred.
Directors’ Liabilities
Authors: Leahy KC Blair , Feld Andrew , Grafton Courtney 
Published: June 2024

Abstract
This chapter looks into the extent of shielding directors from liabilities that would otherwise be incurred in the discharge of their functions. The Companies Act 2006 establishes a general prohibition on the exemption and indemnification of a director from liability or against liability that would identify his breach of duty. The prohibition is subjected to three categories of exception as regards indemnifications: the maintenance of insurance by the company for the director, qualifying third-party indemnity provisions, and qualifying pension scheme indemnity provisions. The chapter also explores the two types of qualifying indemnity and ratification. It elaborates on the ratification of the conduct of directors.
Members’ Unfair Prejudice Claims and Winding-Up Petitions
Authors: Alexander KC David , Judd Daniel 
Published: June 2024

Abstract
This chapter covers the Companies Act 2006 provisions protecting members from unfair prejudice arising from the conduct of the affairs of the company. It looks into the recommendations of the Jenkins Committee. The availability of a statutory remedy for unfair prejudice is significant for directors, because their conduct of the affairs of the company or their acts or omissions may justify a member’s application for relief. The chapter also discusses the grounds to support an unfair prejudice petition subjected to an authoritative explanation. It references the Insolvency Act 1986 when concerned with members petitioning the court for the company to be wound up provided that they satisfy a statutory condition and a common law condition.
Choice of Law Rules
Authors: de Weijs Rolef , Welling-Steffens Lilian 
Published: June 2024

Abstract
This chapter begins by providing an overview of the uniform rules of choice of law which are applicable to all proceedings governed by the EU Insolvency Regulation Recast (RR). The RR has replaced the original EC Insolvency Regulation (OR) and is applicable to insolvency proceedings opened on or after 26 June 2017. The choice of law rules are contained in Articles 7–18 RR and are substantially the same as their equivalents in the OR. The chapter then sets out the general principles of the RR in relation to its choice of law provisions. It discusses the general workings of the RR as to its choice of law provision in Article 7 and its system of the lex concursus (the law of the court that has opened insolvency proceedings) as the general rule. The chapter also examines the exceptions to this system, which are codified in Articles 8–18 RR. Finally, it looks at the material scope of the choice of law rules as a result of the introduction of a new provision in Article 6 RR and analyses the more complicated relation between applicable law and competence as to topics not covered in Articles 7 and 8–18 RR.
Commentary on the Original Insolvency Proceedings Regulation and the Recast Insolvency Proceedings Regulation
Authors: Paulus Christoph , Smith Tom 
Published: June 2024

Abstract
This chapter offers commentary on the Original Insolvency Proceedings Regulation (OR), which applies to proceedings opened before 26 June 2017, and the Recast Insolvency Proceedings Regulation (RR). Despite the repeal of the OR, proceedings opened prior to 26 June 2017 will continue to be governed by the Original Regulation. The principal tools of interpretation used here are the Recitals to the OR and RR, printed respectively in Appendices 1 and 3, and the Virgos-Schmit Report. The Recitals note that insolvencies and cross-border insolvency proceedings are factors which can affect the proper functioning of the European internal market. Accordingly, it is desirable that cross-border insolvency proceedings should operate efficiently and effectively. In order to achieve this, there is a need for the co-ordination of the various measures which may be taken in relation to an insolvent debtor’s assets across the European Union. It is therefore stated that the purpose of the OR is to be a Community law measure, binding and directly applicable in Member States, containing provisions relating to jurisdiction, recognition, and applicable law in respect of insolvency proceedings. The re-worded Article 1 of RR brings the position up to date and covers both insolvency and pre-insolvency proceedings.
Introduction
Authors: Busch Danny , Lehmann Matthias 
Published: June 2024

Abstract
This introductory chapter sets the scene by discussing the special need for unfair terms control in banking and finance. This chapter points in particular to the strong imbalance of knowledge and negotiating power in this sector. It sheds light on the purpose of this book, which is essentially a stocktaking of the influence of the Unfair Terms Directive (UTD) in the European Union, the European Economic Area (EEA), and Europe as a whole. The chapter sets out our understanding of the notion ‘banking and financial contracts’, and explains our selection of covered jurisdictions. Finally, the structure of the book is presented.
The Netherlands
Authors: Busch Danny 
Published: June 2024

Abstract
This chapter notes that banks and other financial institutions in the Netherlands are having to make increasing allowance for consumer claims based on the Unfair Terms Directive (UTD). It notes that Dutch civil courts and the Financial Services Complaints Tribunal (KiFiD) dispute adjudicators act in compliance with the UTD and the application of the Court of Justice of the European Union (CJEU)’s case law. In response to criticism from the European Commission, the Dutch legislature made some amendments to the Dutch provisions on general conditions. The chapter looks into main examples of unfair and/or intransparent contractual terms in the financial sector. It also considers the legal consequences of unfair terms in the Netherlands.
Greece
Authors: Livada Christina 
Published: June 2024

Abstract
This chapter explores the use of unfair terms in banking and financial contracts in Greece. It explains that Greek case law on unfair terms in banking and financial contracts has expanded considerably since the liberalization of consumer credit in 2003. The Unfair Terms Directive (UTD) was transposed into Greek law in 1994 by means of Article 2 of Law 2251/1994, which is the main legal act on consumer protection in Greece. The chapter looks into the legal basis of the unfairness test and discusses notable examples of unfair or intransparent contract terms. It describes how Greek legislators have adopted stricter provisions to define ‘consumer’ compared to the provisions in the UTD.
Auctions and Tenders
Authors: Tolhurst G J , Peden Elisabeth , Mik Eliza 
Published: June 2024

Abstract
This chapter focuses on the process of making contracts by auction and by tender. Both auctions and tenders are an attempt to achieve the best price by competition without entering into negotiations. Auctions are typically used to sell valuable chattels, such as paintings or houses or other buildings. The assumption is that if the sale by auction is effectively advertised, a number of potential buyers will attend and that the process of bidding is likely to drive the price up to an acceptable level. Competitive tendering can also be used for selling but is more commonly used for the procurement of services, particularly in the construction industry. Here the assumption is that those who desire the work will bid the lowest price they can afford, thus ensuring a low price for the person procuring the service. The chapter also discusses reserve prices.
Tort Litigation against Transnational Corporations
Authors: Aristova Ekaterina 
Published: June 2024

Abstract
There is an emerging trend of private claims being brought against parent companies of transnational corporations for their alleged involvement in human rights and environmental abuses committed abroad. These cases form part of an international effort aimed at strengthening responsible business conduct, the success of which depends on the rules governing domestic courts’ power to adjudicate disputes. However, in an increasingly globalised environment, the territorial focus of the adjudicative jurisdiction is often contrary to the transnational nature of the business activities. To address this puzzle, this book seeks to answer three questions. Firstly, to what extent can English courts, under existing rules, exercise jurisdiction over English parent company and its foreign subsidiaries as co-defendants? Secondly, is England a suitable forum for deciding transnational human rights claims? And, finally, should the jurisdictional competence of the English courts be broadened through a new connecting factor derived from the ‘economic enterprise’ theory? While the book is written from the perspective of English law, it also draws on examples of similar claims in other jurisdictions to broaden the discussion. It offers a new angle to the business and human rights discourse by placing the discussion of parent company liability cases in the context of the topical debate about the changing role of private international law in a globalised world.
Introduction
Authors: Aristova Ekaterina 
Published: June 2024

Abstract
This introductory chapter provides an overview of the transnational corporations (TNCs) and the human rights impacts of cross-border business operations. It cites the challenge of establishing a satisfactory regulatory framework for TNCs in the international community. Meanwhile, foreign direct liability (FDL) claims have emerged as a solution to holding TNCs accountable for the adverse impacts of their operations.
Non-Contractual Obligations
Authors: Briggs Adrian 
Published: June 2024

Abstract
This chapter deals with the conflict of laws rules for non-contractual obligations and for issues associated with non-contractual obligations. It traces the development of the law from the common law rule requiring ‘double actionability’, with more recent exceptions, via the Private International Law (Miscellaneous Provisions) Act 1995, to the law established by the retained EU Regulation, known as Rome II, for non-contractual obligations in civil and commercial matters. It assesses the definitional complexity of ‘non-contractual obligation’ as a term of art in a retained EU Regulation and considers its relationship or overlap with contractual obligations, and its relevance to claims to recover property. It examines the conflicts rules established by the Rome II Regulation for general cases and specific contexts, the issues to which the lex delicti applies, and the circumstances in which it may be overridden by laws from systems which do not govern the obligation in question. It concludes by dealing with issues, and with the torts and other matters, for which the Rome II Regulation does not purport to identify the applicable law.
CCP Access Structures
Authors: Sell Christina 
Published: June 2024

Abstract
This chapter explains central counterparty (CCP) access structures. It describes clearing member types, client clearing models under European and US law, and the relatively new type of direct access models. The chapter does this by illustrating a concrete case study: the (over-the-counter, OTC) access structures of Eurex Clearing AG (Eurex Clearing). Eurex Clearing was authorized as a CCP under the European Market Infrastructure Regulation (EMIR) in 2014 and as a Derivatives Clearing Organization (DCO) for the clearing of swaps in relation to entities located in the United States by the US Commodity Futures Trading Commission (CFTC) in 2016. The in-depth explanation of Eurex Clearing’s access structures is followed by a reflection of their market take-up and related developments. The chapter also draws direct comparisons between OTC patterns and other market structures, such as those existing for Eurex Clearing’s listed derivates and repo markets as well as other CCPs.
OTC Derivatives Clearing and Collateral Management
Authors: Singh Manmohan 
Published: June 2024

Abstract
This chapter evaluates the role of collateral in the over-the-counter (OTC) derivatives market and the associated drawbacks in the regulatory initiatives that propose to move these contracts to central counterparties (CCPs). The financial crisis following Lehman Brothers’ demise and the bailout of the American International Group (AIG) provided the impetus to move the lightly regulated OTC derivative contracts from bilateral clearing to CCPs. Prior to this move, CCPs were viewed under the rubric of payment systems. The debate about the future of financial regulation has heated up as regulators in both the United States and the European Union seek legislative approval to mitigate systemic risk associated with systemically important financial institutions (SIFIs), which include large banks and non-banks. In order to mitigate systemic risk that is due to counterparty credit risks and failures, either the users of derivative contracts will have to hold more collateral (or equivalent capital) from bilateral counterparties or margin will have to be posted to CCPs.
OTC Derivatives Clearing Documentation
Authors: Dwyer Emma , Lancelott Emma 
Published: June 2024

Abstract
This chapter provides an introduction to over-the-counter (OTC) derivatives clearing documentation. It sets out an overview of the legal framework and key concepts underpinning OTC clearing and discusses the supporting documentation. These include the central counterparty (CCP) rules, the International Swaps and Derivatives Association/Futures Industry Association (ISDA/FIA) Cleared Derivatives Execution Agreement, the ISDA/FIA Client Cleared OTC Derivatives Addendum, the FIA Clearing Module, collateral documentation, and related legal opinions. The chapter also examines considerations arising from regulatory obligations and other developments, some of which may also give rise to documentation requirements. These include the European Market Infrastructure Regulation (EMIR) Art. 39(7) disclosure requirements; the Markets in Financial Instruments Directive II (MiFID II), and the Markets in Financial Instruments Regulation (MiFIR) Model Provisions for the Addendum; EMIR requirements to provide clearing services under fair, reasonable, non-discriminatory, and transparent (FRANDT) commercial terms; and changes to CCP rules.