bluuebunny/crossref_metadata_2025_split huggingface dataset:
Fairness and Integrity in High-Frequency Markets – A Critical Assessment of the European Regulatory Approach
Authors: Myklebust Trude 
Published: April 2022

Over the past decades, financial markets have been fundamentally transformed by technological advances in combination with regulatory and institutional change. This has produced highly competitive and fragmented financial markets. It is in this market environment that the ultra-fast segment of high-frequency trading (HFT) has materialised. European regulators have addressed the potential adverse market impact of HFT in terms of increased systemic risk (e.g. ‘flash crashes’) and market abuse through provisions in MiFID II and in the MAR. But there is also an additional concern that so far has received less regulatory attention – the question of whether HFT is fair. This article explores whether and how HFT raises fairness-related concerns against the backdrop of the overarching policy goal of maintaining confidence in the financial markets. Finding that HFT does indeed raise such concerns, it then asks whether the newly instituted provisions on algorithmic trading and HFT in MiFID II and MAR do anything to alleviate this problem. The answer is to a certain extent yes. However, significant concerns remain unaddressed by the new regulatory context. The article suggests other provisions in MiFID II that in the author’s view should be assessed with a view to target fairness-related concerns raised by HFT.
High-frequency trading, algorithmic trading, fairness, market microstructure, MiFID II, unfair market practices, market confidence, market integrity, conflict of interest, systemic risk
Potentials and Limitations of Smart Contracts: A Primer from an Economic Point of View
Authors: Horsch Andreas , Seidel Enrico , Eickstädt Anja 
Published: April 2022

Smart contracts are an innovative contract type best described as digital and decentralized agreements which are stored on a blockchain. The automatisms included in blockchain-based smart contracts as well as their transparency and irreversibility contribute to their increasing popularity and made proponents of smart contracts suggest that they will replace traditional written contracts and become the (only) contract type in the long run. However, seminal problems prevail, including technical, legal, and also economic questions. This paper addresses the latter: Using theoretical approaches of New Institutional Economics, such as the theory of transaction cost or the theory of agency, it shows that smart contracts are no cure-all, but another (process) innovation of considerable, but not unlimited potential.
Smart Contract, Blockchain, Distributed Ledger Technology, New Institutional Economics, Principal Agent Theory, Transaction Cost, Property Rights, Positive Economics, Synchronous Interaction, Datatrusted Exchange
Data, Innovation and Competition in Finance: The Case of the Access to Account Rule
Authors: Borgogno Oscar , Colangelo Giuseppe 
Published: April 2022

Technological innovation can foster competition within the retail financial sector. However, in order to pave the way for the emergence of FinTech with the goal of promoting innovation and competition, policymakers need to address a data bottleneck problem. The access to account (XS2A) rule introduced by the revised EU Payment Service Directive (PSD2) is worth of attention as it mandates banks to provide access to customer account data to all authorized third payment service providers. If properly implemented, the XS2A rule may unlock competition in retail financial markets by mitigating consumer disengagement and information asymmetry problems that have traditionally affected retail financial markets. In this respect, as showed by the UK Open Banking experience, supervised application programming interfaces (APIs) standardization is crucial to deliver adequate levels of interoperability.
FinTech, PSD2, payment services, access to account rule, big data, open banking, API, competition law, BigTech, standardization
Personalized Pricing Using Payment Data: Legality and Limits under European Union and Luxembourg Law
Authors: Tjon Akon Melvin 
Published: April 2022

With the transposition of Directive (EU) 2015/2366 (PSD2) into Luxembourg law, payment service providers may have access to consumer payment data and share these data with third parties for the purposes of personalized pricing. In this article, the author analyses the legality and the limits of personalized pricing using payment data under European Union and Luxembourg law, focusing on consumer e-commerce markets. To this end, the author reviews economic studies on personalized pricing and consumer behavior and analyses the application of consumer protection, data protection, anti-discrimination and competition rules to the practice. Subsequently, the author investigates the limits imposed on personalized pricing in certain circumstances and proposes to adopt a data-driven approach to the regulation of the practice.
Pricing, payment services, data protection, personal data, discrimination, algorithms, consumer protection, personalization, profiling, economics
The Centralisation of Prudential Supervision in the Euroarea: The Emergence of a New ‘Conventional Wisdom’ and the Establishment of the SSM
Authors: Bassani Giovanni 
Published: April 2022

This article provides an account of how, after the Eurozone sovereign crisis, the centralisation of banking prudential supervision in the Euroarea became ‘conventional wisdom’. But it also contends that the transition to a new centralising conventional wisdom is still partial and incomplete. To this end, the article analyses the legal prudential obstacles still preventing the emergence of a truly single prudential jurisdiction, coincident with the single monetary jurisdiction. The article is divided into five sections. Section 1 briefly describes the “historical novelty” of a single currency area comprising many separate prudential supervisory jurisdictions and its “permanence” until the Eurozone sovereign crisis. Section 2 analyses the legal framework applicable to the new Single Supervisory Mechanism and the degrees of legal variance in the applicability of prudential requirements across participating Member States. Section 3 summarily analyses one specific aspect of this legal variance: “national powers”. Section 4 briefly deals with the exercise of Options and Discretions available in Union Law within the SSM. Section 5 concludes.
Centralised Prudential supervision, Single Supervisory Mechanism, European Central Bank, European Integration, National Competent Authorities, Capital Requirements Regulation, Legal Framework, Banking Union, Euroarea, Single Currency
The ECB and the Application of National Law in the SSM: New Yet Old…
Authors: Biondi Andrea , Spano Alessandro 
Published: April 2022

Art 4 (3) of the SSM Regulation allows, under certain conditions, the European Central Bank to directly apply national law in the exercise of its prerogatives. This article recaps the general framework of application of the SSM Regulation by looking in particular to the question of national law transposing relevant directives in the area and discusses the role of the ECB when interpreting and applying national law in the exercise of its prudential tasks and powers. Finally, it attempts to place the scope of application, the limitations and legislative instruments related to the application of national law by the ECB in a wider EU constitutional fram-ework.
European Union, European Central Bank, Banking Union, Banking Supervision, Single Supervisory Mechanism, Article 4(3), Application of National Law, Consistent Interpretation, EU Legal Order, Eurozone.
Origins, Evolution and Comparison of Moral Rights between Civil and Common Law Systems
Authors: Moscati Laura 
Published: April 2022

The protection of moral rights embraces the now widespread personal sphere of copyright and originated much later than the economic exploitation of the work itself. Some of its components can be found in the English and German thought between the 17th and 18th centuries and, starting from the early 19th century, would have a substantial development through the contribution of both the French legal scholarship and case law. The legal foundations, in any case, date back to some codifications of the German area and to the earliest international treaties, making it a discipline that did not take into consideration the extent of the national territory. The purpose of this study is to evaluate the relevance of the European models and their influence in Italy after the national Unification, in particular in the first decades of the 1900s. In fact, the international protection of moral rights takes root in Italy during the 1928 Rome Conference for the revision of the 1886 Berne Convention. The United States joined it only later, in 1989, with the Berne Convention Implementation Act (BCIA). Thirty years later, the Copyright Office published in April 2019 an extensive study about the American protection of moral rights. The document is studied in this paper in comparison with the European Directives and with the Copyright Directive definitively approved a few days before the Copyright Office document. While in the USA the interest in moral rights up to now rather limited seems to be increasing, in Europe the protection of moral rights risks being waned as it is handed down to individual countries with the explicit declaration that it is not the subject matter of the Directives.
Moral rights, origins, codification, Europe, Italy, Berne Convention, international treaties, USA, EU Directives, Canada
Blockchain Smart Contracts: A Socio-Legal Approach
Authors: Peixoto Barbosa Leonardo 
Published: April 2022

Smart contracts are computer protocols that self-enforce encoded terms. They arguably allow for individual freedom and increased sovereignty from inconveniences. The enthusiasm goes as far as foreseeing that smart contracts will make contractual legal oversight obsolete. However, whereas contract law theory evolved to acknowledge the importance of flexibility and relationality, smart contracts activists defend the opposite direction, arguing for contractual rigidness and denial of social norms supporting complex transactions. This paper departs from this paradox to argue that (i) smart contracts based on existing technology are unlikely to thrive in complex contractual settings, and (ii) contextual analysis is important for LawTech’s propositions.
Smart contracts, blockchain, system’s theory, social norms, transaction cost, flexibility, relationality, trust, co-operation, contractual governance
Reflexive Law and Section 172 Reporting: Evolution of Social Responsibility within Company Law Limits?
Authors: Okoye Adaeze 
Published: April 2022

This article examines whether the evolution of company narrative reporting based on section 172 UK Companies Act 2006 can be characterised as reflexive law, which preserves the balance between utilitarian company law shareholder value approach and the corporate responsibility demands by society; thereby mediating between semi-autonomous sub-systems of company law and social responsibility.
It discovers an evolving process in company law, which has some indications of reflexive law and governance within self-imposed limits of non-interference in ‘private’ spheres of governance. The result is progressive in scope but incapable of delivering radical normative shift in company law towards stakeholder responsibility.
Company law, company reporting, reflexive law, reflexive governance, social responsibility.
Globalization and the Growth of Islamic Banking: The Authorization Process in Italy
Authors: Gimigliano Gabriela 
Published: April 2022

This paper endeavours to ascertain how Islamic banking may operate within the Italian legal system, given that neither the Rome I regulation, and the incorporation approach cannot be applied. There are three main research questions: i) which is the mainstream Western approach to Islamic banking?; ii) if Sharia rules are considered as a system of social rules and Islamic banking is compared to ethical banking or socially responsible banking, to which extent the Italian banking law is applicable to?; iii) can we suggest building up Sharia rules as a system of normative prescriptions?
Globalization, Islamic banking, Sharia, Italian banking law, money, potential capital, usus, legal system, general clauses, lex mercatoria
The Lisbon Treaty and the Irish Referendum
Authors: Hogan Gerard 
Published: April 2022

The defeat of the Lisbon Treaty in the Irish referendum on 12 June 2008 has sent shock waves throughout the European Union (EU). It is still premature to attempt to evaluate the full consequences of this referendum defeat. Whatever the legal and political merits of the Treaty itself, it is clear that Ireland’s standing within the EU has been diminished. Nor, as a matter of political reality, is Ireland in the position of either France or the Netherlands following the defeat of the European Constitution in those jurisdictions in the summer of 2005. For a start, the Lisbon Treaty was a further compromise – even if it did contain much of what had hitherto been in the ill-fated European Constitution – and the appetite for a wearisome further round of institutional reflection on the part of the Member States had diminished further. Just as critically, even if many voters in Ireland were in denial on this point, there is a difference in terms of realpolitik between a negative decision on the part of two key founder Member States on the one hand and a rejection in a small, peripheral country such as Ireland on the other. Again, irrespective of what one thinks of the merits of the Lisbon Treaty, in practical terms, it is hard to see how one small Member State can refuse to ratify a Treaty deemed essential by the other twenty-six Member States, at least without jeopardizing huge reserves of goodwill.
Ireland has, of course, been in this situation before following the first (negative) referendum vote on the Nice Treaty in June 2001. That defeat was highly embarrassing for both the Government and the country. We were the only country to hold a referendum on an innocuous treaty designed to facilitate the accession of new entrants, most of whom had suffered the yoke of communism and Soviet domination. The referendum did not engage the public; the quality of debate was poor and the turnout – 34% – unimpressive. A combination of domestic and EU pressures saw a successful second referendum in the Autumn of 2002. On that occasion, the Government campaign was much better, as was the quality of the political debate. The second referendum passed comfortably with a significantly higher turnout.
So far as the Lisbon referendum was concerned, many were of the view that that turnout would prove to be the key. On this occasion, the turnout at 54% was sufficiently high so as to remove the question of turnout as a factor in the defeat of the referendum. And yet despite an active – if at times uninspiring – campaign on the part of the Government and the main opposition parties, the referendum was defeated by 53% to 47%.
The Implementation of the Aarhus Convention in Spain: Progresses and Paradoxes
Authors: González Jorge Agudo 
Published: April 2022

Spanish Administrative Law has evolved under foreign influences and, in contrast with those States with a strong tradition of Administrative Law, Spanish Law is in a better position to receive further influences due to its own idiosyncrasy. The implementation of the Aarhus Convention (AC) is clearly a further example of new inputs, but in this case from international/European Law. This Article will focus on the three pillars of the AC making contrast between the pre- and the post-implementation phase, trying to emphasize progresses and paradoxical steps backward. The principles underlying the Spanish legal order concerning the three pillars of the AC have a different depth in the Spanish legal system. Access to information has traditionally been limited to a defensive perspective related to the audit alteram partem principle and progress is evidently related to a top-down influence. Regarding participation, there exists an old tradition not only linked to the right to be heard, but to public participation in and of itself. Finally, with regard to access to justice, the Spanish legal order underwent major development after the Constitution of 1978 was enacted. A broad legal standing had been recognized by case law before the new Administrative Justice of 1998 was passed.
Judicial Independence & National Judges in the Recent Case Law of the Court of Justice
Authors: Zinonos Panagiotis 
Published: April 2022

Judicial independence did not only become more visible in the recent case law of the Court of justice but has also been analysed as a systemic parameter of the Union. This article discusses a sample of three cases, Associação Sindical dos Juízes Portugueses, Achmea, and L.M., to assess the notion of judicial independence as applying regarding the national judges in the judicial system of the Union. Judicial independence, as a notion of EU law, is primarily a constitutional requirement presumably deferent to Member States’ standards and pursuing the proper functioning of the Union’s judicial system, namely its effectiveness. However, the recent case law testifies the emergence of a common EU standard of judicial independence, which does not only apply as a minimum standard throughout the Union but also affects the national legal orders. Ultimately, the analyses of the paper point out a curious harmony regarding judicial independence between the principles of effectiveness of Union law and of effective judicial protection under that law without clarifying their articulation.
Judicial Independence, Effective Judicial Protection, Rule of law, Structural Requirement, effectiveness, common standard, Judicial System of the Union, Constitutionalization of the EU.
Interoperable Information Sharing and the Five Novel Frontiers of EU Governance: A Special Issue
Authors: Curtin Deirdre M. , Bastos Filipe Brito 
Published: April 2022

Information exchanges between authorities located at different levels of administration, and in different Member States, have always constituted a central feature of European Union governance. Nevertheless, the increasingly pervasive phenomenon of interoperable information-sharing, where information systems pertaining to different policy fields are joined up to facilitate exchanges of (personal) data, generates new structural challenges to the European Union from a political, legal, and indeed constitutional perspective.
In this introduction, besides offering a brief overview of the contributions to the special issue, we argue that interoperability shifts the frontiers of EU governance in at least five distinct respects. It shifts existing boundaries in the divisions of power within the EU; in the reach of its data protection laws; in the tensions between the EU’s commitment to fundamental rights and the principle of mutual trust between the Member States; in the relations between EU, third state, and international authorities; and lastly, between the technicalities of information technologies and critical ethical and constitutional imperatives.
interoperability, information-sharing, European administrative governance, data protection, accountability
European Principles of Good Administration and UK Administrative Justice
Authors: Nason Sarah 
Published: April 2022

Recent interest in the harmonizing potential of European administrative law stems in part from the view that administrative states are facing a ‘legitimacy crisis’ and that administrative law must evolve to survive. Emergent ‘new administrative law’ no longer recognizes the state as a centralized leviathan, but rather as promoter, facilitator, regulator, and helmsman of domestic social and economic progress.
In this article I argue that articulating shared ‘European’ principles of good administration and administrative law only goes part of the way to understanding this re-positioned administrative state, and that a better approach also focuses on the architecture of administrative justice. I outline various UK conceptions administrative justice and European conceptions of good administration and examine, for the first time, the impact that European principles of good administration have had on UK administrative justice.
I argue that UK approaches to administrative justice help to meet the challenges of new administrative law by focusing on incorporating principles of good administration and human rights into the design architecture of institutions, as well as into administrative law itself. I conclude that there is potential to develop, through further comparative analysis, European conceptions of administrative justice, overlapping with and complementary to, European principles of good administration.
Good administration, administrative justice, Council of Europe, European administrative law, right to good administration
Threats to the Rule of Law: The Pitfalls of the Cooperation and Verification Mechanism
Authors: Vassileva Radosveta 
Published: April 2022

The Juncker Commission has recently indicated that the experienced gained from the Cooperation and Verification Mechanism (CVM) is relevant when addressing rule of law challenges in all Member States. It has also proposed to monitor the rule of law in all Member States. Bulgaria and Romania are the only EU members which are subjected to the CVM because they did not fully fulfill the accession criteria on the rule of law when they acceded to the Union in 2007. In 2018, the Juncker Commission identified important progress in Bulgaria and promised to lift the mechanism for the country before the end of its term. Yet, has the CVM helped Bulgaria strengthen its rule of law? By using Bulgaria’s CVM as a case study, this article showcases some of the pitfalls of this mechanism, including the quality of the Commission’s monitoring – namely, that Bulgaria’s rule of law declined despite the CVM. Dissecting this phenomenon is important not just in light of the Commission’s own call to study the experience gained from the CVM, but also in view of growing concerns about dual standards in enforcing EU values in the Union.
Rule of law, EU values, European Convention on Human Rights, Cooperation and Verification Mechanism (CVM), Romania, Bulgaria, Law reform, Judicial independence, Political judicial council, Political Prosecutor’s Office