bluuebunny/crossref_metadata_2025_split huggingface dataset:
France
Authors: Bonneau Thierry 
Published: June 2024

Abstract
This chapter explores the implementation of unfair terms control in France. The establishment of the law primarily focused on the protection of consumers against unfair terms in contracts. The French legislation was modified once the Directive on unfair terms in consumer contracts (Unfair Terms Directive) was adopted by the European Union (EU). The chapter examines the extensive legal basis of unfair terms control as it applies to all banking and financial contracts. It notes that the deadline for the implementation of national legal frameworks was 28 November 2021, and that the French Consumer Code has not yet been modified.
Italy
Authors: Valle Laura 
Published: June 2024

Abstract
This chapter tackles the unfair terms in banking and financial contracts in Italy. It notes how banking and financial contracts traditionally benefited from the lenient approach of both the legislator and the courts to the possible use of unfair contract clauses. The transposition into the Italian legal system of the Directive on unfair terms in contracts between professionals and consumers (UTD) leads to a new legal environment, even if the protection of the weaker party against unfair terms in banking and financial contracts is still in need of further improvements. The chapter notes the importance of unfair terms controls in the Italian legal system, especially in relation to the control of the content of contractual clauses. It acknowledges the opportunities for challenging unfair contract content to develop in the future, which is of special importance in banking and financial sectors.
Spain
Authors: de Elizalde Francisco , Sánchez Sara 
Published: June 2024

Abstract
This chapter discusses Spain’s unfair contract terms in financial and banking contracts. It notes the serious impact on Spain of the 2007–08 Global Financial Crisis before discussing how Spanish law has established a regime of control of standard terms in consumer contracts, which differs from the more generally applicable rules of the Spanish Civil Code (SCC). Even though Spanish law controls the incorporation of terms in standard form contracts for both business-to-business (B2B) and business-to-consumer (B2C) contracts, the unfairness assessment is restricted to B2C contracts. The chapter explores the implementation of the Unfair Terms Directive (UTD) under Spanish law.
Poland
Authors: Adamski Dariusz , Wiewiórowska-Domagalska Aneta 
Published: June 2024

Abstract
This chapter details the main issue regarding unfair terms in financial contracts in Poland. It starts with the unfairness of terms in foreign currency consumer mortgage loans, referencing the impact of the Global Financial Crisis. Provisions of the Unfair Terms Directive (UTD) are transposed in the Polish Civil Code (PCC) as part of the rules that regulate the operation of standard terms and conditions. Transposing the UTD’s provisions on the protection of certain consumer rights and liability for damage caused by dangerous products introduced the concept of unfairness control into the Polish legal system. The chapter considers the conceptual distinction between unfair and intransparent terms that exists in Polish law.
Romania
Authors: Jozon Monika 
Published: June 2024

Abstract
This chapter considers the significance of unfair terms control in Romania. It explains how Romania was one of the most affected European countries by consumer over-indebtedness after the 2008 Global Financial Crisis and the COVID-19 pandemic. In Romania, the general approach of unfairness control of contract terms in consumer loan agreements is that contract fairness is primarily an issue of private law. The chapter notes how consumer protection in the field of consumer loan agreements has become a complex social justice matter. The Unfair Terms Directive (UTD) and subsequent case law on it provide the tools on how to establish unfairness and develop rules on the consequences of the unfairness on the contractual relation between the parties and on damages.
Sweden
Authors: Ingvarsson Torbjörn 
Published: June 2024

Abstract
This chapter discusses the importance of unfair terms control in Sweden. The main rule of unfair terms control is amended by the Consumer Contracts Act, which is the main act implementing the Unfair Contract Terms Directive (UTD). Thus, the UTD itself has been considered a law of minor significance since it entered into Sweden’s laws in 1995. Despite rulings from the Court of Justice of the European Union (CJEU), the Swedish courts have mostly used other instruments to deal with and remedy unfair terms. The chapter explains that the strategy for protecting consumers in the Nordic countries is through the work of proactive ombudsmen.
Ireland
Authors: Seretakis Alexandros 
Published: June 2024

Abstract
This chapter covers the implementation of the Unfair Terms Directive (UTD) in Ireland. It notes that Ireland was one of Europe’s poorest countries characterized by protectionism, high rates of unemployment, and emigration, noting that the Irish economy was intertwined with the much larger UK economy. The absence of industrialization, emigration, and poverty resulted in the slow development of Irish consumer society and consumer protection. Unfair terms control in Ireland relates mostly to mortgage contracts. The chapter explains that Irish legislators have decided to significantly strengthen the protection of consumers against unfair terms after realizing the poor application of the Unfair Terms in Consumer Contracts Regulations.
Towards an Unfair Terms Regulation
Authors: Busch Danny , Lehmann Matthias 
Published: June 2024

Abstract
This chapter draws conclusions from the preceding analysis. In light of the significant divergences between national legal system in the administration of unfair terms control, this chapter suggests to replace the Unfair Terms Directive (UTD) with a Uniform Terms Regulation (UTR). All of the Regulation’s rules shall be directly applicable in the EU, thus avoiding any need for implementation by the Member States. In view of the chapter, such an instrument should cover not only consumer contracts, but also between business-to-business (B2B) contracts, at least when small and medium-sized enterprises (SMEs) are involved. The chapter opines that the UTR should provide clear definitions of key terms, such as ‘unfair’, ‘main performance’, or ‘price and remuneration’. It should include a binding Annex with a list of terms deemed to be unfair. The UTR should also set out the transparency test, clarifying its relation to the contra proferentem rule and the consequences of a lack of transparency. Furthermore, the UTR should include rules on the consequences of invalid terms, on limitation periods, and on procedural remedies. This chapter believes that the UTR will be instrumental for achieving the triple goals of consumer protection, the establishment of the Internal Market, and a competitive level playing field in the Union.
The regulation of financial services contracts in EU law
Authors: Della Negra Federico 
Published: June 2024

AbstractThis chapter discusses the regulation of financial services contracts in European Union (EU) law. It examines the economic rationales for regulating retail financial markets (market failures and behavioural) and their impact on EU financial services regulation. It outlines and reviews the main legal instruments adopted by the EU to protect consumers of financial services (i.e. ‘status’ regulation, ‘product’ regulation, regulatory requirements and private law). It shows that the Court of Justice of the European Union (‘CJEU’)’s functional interpretation of the Treaties’s rules on free movement and internal market was key to develop consumer and financial services regulation.
Consumer and mortgage loan contracts
Authors: Della Negra Federico 
Published: June 2024

AbstractThis chapter examines the case law of the Court of Justice of the European Union (CJEU) on consumer and mortgage loan contracts. It explains the preliminary ruling on Directive 2008/48/EC (Consumer Credit Directive, CCD) and on Directive 2014/17/EU (Mortgage Credit Directive, MCD). The case law establishes important principles on the requirements for precontractual information duties, creditworthiness obligation, content of contracts, and contract law remedies for breach of pre-contractual conduct-of-business rules. This chapter examines the advertising and pre-contractual information duties, the creditworthiness and advisory duties, the requirements on the form and content of contracts, and the consumer’s right to withdraw. It considers the ex officio application of the CCD and MCD by national courts and the out-of-court dispute resolution mechanisms.
Investment services contracts
Authors: Della Negra Federico 
Published: June 2024

AbstractThis chapter examines the case law of the Court of Justice of the European Union (CJEU) on investment services contracts focusing on Directive 2014/65/EU (Markets in Financial Instruments Directive II, MiFID II), the Regulation (EU) 2017/1129 on Prospectus (Prospectus Regulation) and sectorial legislation on specific investment products distributed to retail clients. The CJEU case law gave important guidance on the scope of civil liability of financial service providers (FSPs) for breach of their pre-contractual information duties and prospectus requirements. This chapter examines the scope of EU investment services regulation and the most important conduct of business rules imposed on FSPs.
The judge-made civil law principles on financial services contracts
Authors: Della Negra Federico 
Published: June 2024

AbstractThis chapter looks into the civil law principles for financial services contracts which emerge from the Court of Justice of the European Union (CJEU) case law. The CJEU case law gives important principles to guide the national courts’ interpretation of national and EU private law rules. These judge-made principles relate to pre-contractual duties and conduct of business rules, unfair and non-transparent contract terms and powers and duties of national courts in civil proceedings. It is argued that these principles may play an important role in ensuring greater consistency and predictability in the application of private law rules across different sectors of retail financial markets (credit, payment and investment services).
Conclusion
Authors: Della Negra Federico 
Published: June 2024

AbstractThis conclusive chapter summarizes the main themes of the book and puts them in the wider context of the development of financial regulation and private law in the European Union (EU). It highlights the role of general principles of EU law in the rulings of the Court of Justice of the European Union's (CJEU) case law, and outlines the principles of civil law which emerged from the CJEU’s case law to interpret EU and national private law rules for financial services contracts. The chapter considers also the role and impact of the preliminary reference procedure in the development of this judge-made principles of civil law. Finally, the chapter argues that further legislation harmonization of private law rules for financial services contracts would ensure a higher level of consistency and certainty in the application of EU law,
Offers and Invitations to Treat
Authors: Tolhurst G J , Peden Elisabeth , Mik Eliza 
Published: June 2024

Abstract
This chapter discusses the identification of an offer. The technique of analysing transactions in terms of offer and acceptance to determine whether there is an agreement appears to have been adopted by all developed legal systems. Indeed, it features in the universal systems which have appeared in recent years, such as the Unidroit Principles for International Commercial Contracts 2016. It is clear that whether a proposal constitutes an offer turns not on the actual intention in the proposer’s mind, but on the apparent intention which the addressee is justified in concluding from the proposer’s external manifestations. If the external manifestations do justify the addressee in judging a proposal to be an offer then the proposer cannot argue that it was not their intention to make an offer. The level of commitment is important, and language which expressly denies any commitment can be determinative. Moreover, an offer is not effective until it is communicated to the offeree. The formulation of this principle is identical in both the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) (the ‘Vienna Convention’) and the Unidroit Principles.
Contracts Formed Online and ‘by’ Computers
Authors: Tolhurst G J , Peden Elisabeth , Mik Eliza 
Published: June 2024

Abstract
This chapter assesses online contract formation. With the growth of the digital economy, it has become apparent that contracts govern not only ‘traditional’ e-commerce transactions, but also interactions that may prima facie not be considered commercial in nature. The chapter begins by looking at the difficulty of establishing intention and consideration in circumstances where the context of a particular online interaction is difficult to categorize as either commercial or social. It then examines the problems relating to the application of the offer and acceptance model in online transactions. The chapter poses some basic questions: is there an offer? If so, what are its contents? Is there an acceptance? If so, when does it become effective? Finally, it considers the automation of different aspects of the contract formation process by means of computer programs.
Certainty and Completeness
Authors: Tolhurst G J , Peden Elisabeth , Mik Eliza 
Published: June 2024

Abstract
This chapter studies the formation and relevance of certainty and completeness. Under the objective theory of contract, there can be no legal agreement unless the terms are certain and complete. The requirement of certainty dictates that it must be possible to attribute meaning to the agreed terms. The need for a contract to be complete dictates that there must be agreement on all the essential terms of the contract. Thus, an ‘offer’ that is uncertain or incomplete is not an offer at all under the objective theory. The chapter then looks at agreements to agree and agreements to negotiate. It also considers the methods by which the courts and the parties resolve uncertainty and incompleteness.
Tools and Techniques
Authors: Briggs Adrian 
Published: June 2024

Abstract
This chapter examines the common law principles of the conflict of laws which served and serve to guide the English court to the application of foreign law to issues which it has to decide. But the point of departure is to examine how foreign law is actually applied by an English judge, in order to understand the strengths and weaknesses of the way it is done. It then returns to the characterization of issues (ascertaining the nature of the question to be answered), and of renvoi (asking whether the law to be applied includes its own rules of private international law). The connecting factors, linking an issue to a law, are then summarized. The common law of domicile, the lex domicilii, is examined, and there is a more detailed probing of the operation of statues in the English conflict of laws. The distinctive treatment for issues of procedure, and for the limitation of actions, are examined. The treatment of issues which would appear to be governed by foreign penal laws, revenue laws, and other governmental laws, precedes an examination of the role of English public policy in preventing the application of a rule of foreign law which would otherwise be applicable. Finally, the chapter lists the rules of EU law which are revoked and retained, and for the latter, the principles which accommodate and refine their application by an English court after 31 December 2020.
Jurisdiction
Authors: Briggs Adrian 
Published: June 2024

Abstract
This chapter examines and explains the rules which determine whether a court in England and Wales has jurisdiction, may have jurisdiction yet not exercise it, or does not have jurisdiction. The point of departure is to examine the various meanings of jurisdiction. It explains that a defendant served within the jurisdiction may be sued in England unless the court lacks jurisdiction over the subject matter (foreign land and patents), or because an international convention removes the jurisdiction of the court; and even if the court has jurisdiction, the plea of forum non conveniens may be made by a defendant to request that the jurisdiction not be exercised. A defendant who is overseas may be served with process as a matter of right, but in most cases, service out will require the prior permission of the court which is, as to its existence and its exercise, governed by rules of great and regrettable complexity. Separate attention is given to the multi-faceted law on choice of court agreements, as a matter of common law as well as under the 2005 Hague Convention on Choice of Court Agreements.
Contractual Obligations
Authors: Briggs Adrian 
Published: June 2024

Abstract
This chapter deals with the conflict of laws rules for contractual obligations and for issues associated with contractual obligations. It traces the development of the law from the common law doctrine of the proper law of the contract, with its strengths and weaknesses, via the 1980 Rome Convention, to the law established by the retained EU Regulation, known as Rome I, for non-contractual obligations in civil and commercial matters. It assesses the definitional complexity of ‘contractual obligation’ as a term of art in a retained EU Regulation and considers its relationship with non-contractual obligations and with questions of title to property. It examines the conflicts rules established by the Rome I Regulation for contracts in general and for contracts concluded in specific circumstances, the issues to which the lex contractus does apply, and the circumstances in which the lex contractus may be overridden by laws from systems which do not govern the contract in question. It concludes by dealing with issues, and with contracts, to which the Rome I Regulation does not purport to identify the applicable law.
Adults
Authors: Briggs Adrian 
Published: June 2024

Abstract
This chapter deals with the private international law of adults and adult relations: as to both jurisdiction and the identification of the applicable law in matrimonial proceedings. The point of departure is to consider the extent to which status, as determined by the law of the domicile, the lex domicilii is still useful as a concept in private international law. The conflicts rules relating to the validity of marriage—formal validity, capacity, essential validity—are examined together with the enabling or disabling role of the law of the place of marriage, the lex loci celebrationis. The more difficult issues which would render a marriage voidable are then dealt with. Divorce and annulment are examined in the context of the jurisdictional powers of an English court, as are the circumstances in which a foreign divorce or annulment will be recognized in England; the proposition that there is no choice of law in English divorce proceedings, because the English court always applies English law, is questioned. Particular attention is paid to the problem which arises when the law that would determine the validity of a marriage does not agree with English law about the effect of a prior divorce. The power of an English court to order financial provision or maintenance in English matrimonial proceedings, or after a foreign divorce, is examined. An outline of the law of personal incapacity, and of personal bankruptcy, is also given.
Arbitration
Authors: Briggs Adrian 
Published: June 2024

Abstract
This chapter deals with the private international law of arbitration and arbitral proceedings. The point of departure is to note that the manner in which an arbitral tribunal goes about its business is something not governed the rules of private international law applicable to proceedings before a court, but by the rules which regulate the powers of the tribunal as such. But the rules of private international law which are applied when a court has to determine the existence, validity, and scope of an agreement to arbitrate are examined in this chapter, with a view to establishing the proper demarcation between the laws governing the substantive agreement, the arbitration agreement, and the arbitral procedure. The interpretation of various formulations of choice of law clause is examined, as is the relevance of the law of the seat. The effect of an arbitration agreement on the institution or continuation of judicial proceedings is examined, as is the power of an English court to prevent foreign proceedings which interfere with an arbitration or with a decision that the parties have no obligation to arbitrate a dispute. The effect of foreign awards is largely governed by the 1958 New York Convention, but the effect of foreign judgments decreeing the enforcement or non-enforcement of the award, or purporting to set aside the award, is shown to be less straightforward.
Brexit
Authors: Turing Dermot 
Published: June 2024

Abstract
This chapter illustrates the new legal framework for the regulation of non-European Union (EU) central counterparties (CCPs) operating in the EU, which came into force in 2020. The new legal framework divides recognized non-EU CCPs into categories according to systemic importance. Additionally, it is possible for the European Securities and Markets Authority (ESMA) to recommend relocation of systemically important CCPs to the EU. Brexit has also created a mirror-image framework of systemic classification by the UK authorities in respect of non-UK CCPs. The chapter attempts to trace a pathway through the new legal and regulatory environment. Along the way, various strategic landmarks stand out: the extent to which geography is relevant to the regulation of clearing of financial products which have no obvious geographical roots, the meaning of ‘systemic importance’ as applied to CCPs, the impact of Brexit on the industry’s most important CCPs for clearing of over-the-counter (OTC) derivatives, and the policy of the EU and the European Central Bank (ECB) with regard to the location of CCPs.
The Future of Centrally Cleared OTC Derivatives Markets
Authors: Callens Evariest , Löber Klaus 
Published: June 2024

Abstract
This chapter aims to formulate conjectures about the directions in which centrally cleared over-the-counter (OTC) derivatives markets may develop in the future. It begins by examining the potential effects for centrally cleared OTC derivatives markets of four emerging risks: cyber risk, environmental risk, new technologies, and legal risk. The assessment of these emerging risks serves as an anchor point to discuss the potential flipside of the respective risks, that is, possible future benefits for centrally cleared OTC derivatives markets that are connected to the fields in which the risks may materialize. The chapter then identifies certain challenges that come with the friction between a market for centrally cleared OTC derivatives that is increasingly cross-border in nature and a regulatory and supervisory approach towards central counterparties (CCPs) that has remained largely domestic or regional. It also reflects on potential future directions for CCP governance.