bluuebunny/crossref_metadata_2025_split huggingface dataset:
‘I Know that I Know Nothing’: Extraordinary Circumstances in Air Passenger Rights Regulation
Authors: Pantazi Tania 
Published: April 2022

According to European Passengers Rights Regulation (EU 261/2004), passengers are entitled to standardized compensation for flight cancellation and delays, unless the disruption was caused by ‘extraordinary circumstances’. Despite themajor legal and financial implications of this provision, its exact content remains uncertain, causing a constant debate between passengers, air carriers and national authorities. The European Court of Justice has clarified many of the disputed cases, but in some occasions its decisions have caused further confusion. In the last two years, new decisions of the European Court of Justice, such as on the matter of wildcat strikes, and relevant reports of European instruments show that the problems intensify. This article will investigate the current state of affairs with regard to the application of the ‘extraordinary circumstances’ exception and address some of the issues that remain uncertain, in an attempt to demonstrate the importance of the matter in the general context of European law. Deficiencies in the interpretation and enforcement of the Regulation will have to be addressed, in order to promote a more coherent application to the benefit of passengers and airlines.
air transport, Regulation 261/2004, passenger rights
Ole Lando Memorial Lecture: Contract Law and Human Dignity. Second Ole Lando Memorial Lecture, Vienna 2020
Authors: von Bar Christian 
Published: April 2022

The second Ole Lando Memorial Lecture is about the influence of theconstitutional protection of human dignity on private contract law. The paper argues that where violations of human dignity occur, it is no longer possible to distinguish between the vertical and horizontal effects of fundamental and human rights. The article demonstrates this using the example of contracts that violate dignity, in particular within the law on assisted dying.
Human dignity, Contracts violating human dignity, Assisted dying Motsclés: Dignité humaine, Contrats portant atteinte à la dignité, Mort assistée Schlüsselwörter: Menschenwürde, Würdeverletzende Verträge, Sterbehilfe
Sales Contracts and the Circular Economy
Authors: Kryla-Cudna Katarzyna 
Published: April 2022

The aim of this paper is to investigate the ways in which the law of sales can contribute to the circular economy. The paper focuses on the exercise of the remedies for non-conformity of the goods with the contract. In particular, the paper examines the remedy of repair and the remedy of replacement with a refurbished rather than a new good. A broader availability of these remedies may clearly support sustainability goals. At the same time, however, it may limit the protection of the contractual interest of the buyer. This paper offers a novel approach which allows for a broader applicability of repair and replacement with a refurbished good while at the same time ensuring an adequate protection of the buyer’s performance interest. Furthermore, the paper investigates other instruments within sales law, beyond repair and refurbishment, which can support the circular economy. In this respect, the paper examines the role of the length of legal guarantee periods, the burden of proof of the non-conformity and the regulation of sales of second-hand goods.
Repair, refurbishment, replacement, remedies for non-conformity, sustainability, circular economy Motsclés: Réparation, Remise à neuf, Remplacement, Recours pour non-conformité, Durabilité, Economie circulaire Schlüsselwörter: Reparatur, Aufarbeitung, Ersatz, Rechtsmittel bei Vertragswidrigkeit, Nachhaltigkeit, Kreislaufwirtschaft
Legal Ignorance in the Netherlands
Authors: Verheij Albert J. , F. Verheul Emil , T. De Jong Grietje 
Published: April 2022

This contribution considers the role of legal ignorance in Dutch private law. After a short description of the debate on legal ignorance by Dutch scholars, the article focuses on three areas: contract law, tort law and limitation periods.
With respect to contract law, this article shows that courts allow for the nullification of a contract due to mistake of law in special circumstances: when the mistaken party was a foreigner or illiterate or when the other party was an expert who gave misinformation about relevant legal provisions.
In the field of tort law, the article first examines case law in which public bodies were held liable for unforeseeable case law by the highest administrative court. It is argued that these decisions should be viewed as a manifestation of the fact that court decisions on liability have retroactive effect. Second, in relation to survival of claims for non-pecuniary losses, it is submitted that the Supreme Court seems to interpret notifications by relatives of the deceased victim generously in order to protect them against their legal ignorance.
The article then examines case law by the Supreme Court that holds that legal ignorance does not preclude the commencement of prescription periods. However, when wrongful (legal) advice results in a loss, the Supreme Court ruled that the prescription period governing the client’s claim does not start running immediately because he will initially rely on the correctness of the advice. Regarding expiration periods and legal ignorance, the Supreme Courts seems to make a distinction between contractual and statutory expiration periods.
The article concludes by considering the prospects for legal development in this area. It is argued the question who should bear the costs of legal ignorance is a matter of risk distribution. Where the risk lies, should depend on the weighing of various factors by the courts, notably the nature of the respective parties and of the interests involved and whether or not the legally ignorant person can claim compensation from a third party such as an attorney or an insurer.
Regulation and the Role of Law in Economic Crisis
Authors: Glinavos Ioannis 
Published: April 2022

This paper contributes to the current debate on responses to the financial crisis and the role of law in paving a way out of recession, by highlighting the persistence of market-centred theories that defined the state-market relationship before the crisis. The paper begins by discussing the concept of regulation itself and discusses the extent to which the ‘credit crunch’ has shaken belief in modern capitalism. The paper then offers a discussion on the relationship of deregulation to financial crisis, arguing that there is a direct link between the receding reach of the state and market instability, drawing analogies with previous instances of market failure, like the Great Depression. On the basis of this connection, a theoretical portrayal of perceptions of the role of law in modern capitalism is attempted, where the main message is that dominant, modern perceptions of the state-market relationship allow a role for regulation but still do not recognise the state as the legitimate author of such regulation, showing a preference for market-led solutions. The paper then tests these findings against state actions in response to the ‘credit crunch’ and concludes by offering the suggestion that while the current financial crisis has shown the limitations of modern capitalism, and while it is possible that a fundamental rethink of the role of the state in the market may take place as a consequence, this rethink has yet to materialise in policy proclamations and government aspirations on a global scale.
“This financial system is no more! It has ceased to be! ‘It’s expired and gone to meet its maker! ‘It’s a stiff! Bereft of life, it rests in peace! If you hadn’t nailed ‘it to the tax payer’s perch it’d be pushing up the daisies! ‘Its metabolic processes are now ‘istory! ‘It’s off the twig! It’s kicked the bucket, it’s shuffled off its mortal coil, run down the curtain and joined the bleedin’ choir invisible!! THIS IS AN EX-FINANCIAL SYSTEM!!”
(Willem Buiter, 26 November 2008)
European Bank Recovery and Resolution Directive: Recovery Proceedings for Cross-Border Banking Groups
Authors: Babis Valia SG 
Published: April 2022

The EU bank recovery and resolution directive includes mechanisms for recovery (or "early intervention") for groups. These are: group recovery plans, intra-group financial assistance and coordination of early intervention measures regarding groups.
But do these group provisions ensure a consistent recovery procedure for the entire banking group across borders? While recovery tools applicable to more than one group affiliate are part of the EU regulatory framework, use of such tools across borders depends on the discretion of supervisors of group affiliates. Recovery tools can only apply across group affiliates if supervisors reach joint decisions and make use of recovery tools in a consistent, cooperative and coordinated manner across the group. This means that the effectiveness of group recovery depends greatly on the institutional architecture of supervision in the EU, and in particular, the relationships between supervisors within and beyond the SSM.
Equity Release, Reverse Mortgage and Home Equity Conversion: Perspectives in Different Law Systems and Questions for Harmonization at EU Level
Authors: Settanni Giuseppe 
Published: April 2022

In developed countries, elderly are often homeowners, but sometimes they face with problems of liquidity since their pension incomes do not always provide them with adequate revenues. For this reason, some solutions have been studied in different law systems to grant such people the necessary income for their needs by using their householders’ rights.
For the purposes of this analysis, the reference is to home equity conversion mechanisms, among which equity release instruments are probably the most common ones. Using such instruments, householders’ rights can become liquid and be of great benefit for both homeowners and the market in general.
Reverse mortgage is one of the equity release instruments which are popular in the market. However, reverse mortgage is regulated in different ways in many law systems. This paper analyses how EU (with the addition of some extra-EU) law systems regulate reverse mortgage, highlighting the main legal differences among them, peculiarities and problems. A specific analysis is carried out with regard to new legislation recently adopted in Italy about reverse mortgage (c.d. prestito vitalizio ipotecario).
The final reflections will regard the possibility – or, better, the need – of a wide harmonization at EU level in relation to legal provisions regarding reverse mortgage. This would create a clearer framework for all Member States, in which homeowners of different law countries could easily profit of an instrument regulated at high level and take advantage – with no doubt and uncertainty for them – of their householders’ rights in order to make them liquid, with the final objective of giving a practical answer to the crisis we are facing with.
Zone of Insolvency, Directors Duties and Creditors Protection in U.S.
Authors: Scarlino Danilo 
Published: April 2022

When a company is navigating in the “zone of insolvency” – usually defined as the extent of the risk that creditors will not be paid – its directors face the dilemma related to their managerial decisions in the light of the foreseeable effects and risks for shareholders and for creditors. It is a generally accepted principle in U.S. that when a company is approaching such “zone of insolvency” or is in the “vicinity of insolvency” no fiduciary duties are owned to the creditors as expression of the shareholder primacy rule.
The aim of this article is to demonstrate the existence of provisions of law together with important policy reasons that impose the duties shifting to creditors in the zone of insolvency and that allow to create a presumption of directors’ knowledge of when their duties shift, which means when the company is getting closer to insolvency. Accordingly, this article seeks to demonstrate that directors’ duties toward creditors should shift on the ground of two reasons: Firstly, the directors’ and shareholders’ opportunistic behavior – together with the opportunistic behavior of well-informed creditors–. Secondly, the need to preserve value for creditors. By comparing U.S. principles with UK insolvency system the conclusion is in the sense that in the zone of insolvency directors should have a clear duty to take every reasonable step in order to minimize the risk of potential losses for creditors.
Moreover, this article shows that in U.S. from the interconnection of the MD&A provisions with the law of avoidable preferences, a general principle accordingly can be inferred. It brings that directors have the duty to know when the company is in trouble and therefore that insolvency is looming at the horizon, with a presumption that covers the period of time starting from the last financial statements release until the day of the bankruptcy filing. Specifically, the law of preferences as section 547 of the Bankruptcy Code – by striking down last-minute grabs – conceptually admits the principle that directors together with control shareholders and strong creditors know longer time in advance that the company will face a liquidation proceeding than other creditors and outsiders. As a consequence, the Delaware approach of allowing full discretion to the board of directors even at the “end game” stage with its actual risk of opportunistic behavior (asset dilution, asset substitution, debt dilution, conflicts among creditors) is incongruent with the retrospective approach of both state creditors’ remedies and federal bankruptcy law that after insolvency challenges distributions to shareholders and favors creditors and seeks recoupment. Therefore, this article argues for a pre-insolvency, “end stage” rule of constraint by demonstrating that the UK wrongful trading liability of directors is more coherent and congruent with majority legal systems’ post-bankruptcy recapture approaches than the U.S. one found in the Delaware jurisprudence.
Supervision and Audit of the Greek Agricultural Cooperatives: A Critical Approach on Legislation
Authors: Douvitsa Ifigeneia 
Published: April 2022

The supervision and audit of agricultural cooperatives in Greece are neither defined nor used with a clear content in the Greek legal texts. Nevertheless, it has been argued that supervision is mainly associated with broad monitoring duties, including advice and guidance, whereas audit is usually limited to a financial and legal control of the enterprise.
The aforementioned institutions have not been adequately prescribed by law and effectively applied in practice, in order to address the cooperatives’ needs and protect the members’, the minority’s and the public interest. The recent legal reforms, since the outbreak of the crisis, brought to the fore the topic of cooperative supervision and audit. Thus, a question is posed of whether they have been a positive step forward.
The present article, therefore, aiming to analyze relevant past and recent laws, concluded that despite minor innovations the shortcoming of the above institutions are yet to be resolved. Thus, a politically independent supervisory authority, a cooperative- oriented audit examining the cooperative’s impact to its members, the environment and the local community, as well as the formation of a scientific committee to monitor the cooperative laws’ implementation are suggested as necessary changes for the improvement of the existing regime.
General Remarks on Civil Liability in the European Context
Authors: Alpa Guido 
Published: April 2022

When contemplating the evolution of the civil liability system in the European context, we should consider at least three different perspectives: (i) the establishment and application of rules governing civil liability laid down directly by the Treaty on the Functioning the European Union (TFEU ) for harm caused by its institutions or by its agents in the exercise of their functions (Art. 340); (ii) the establishment and application of rules regarding Member States’ liability for infringement of EU rules, in accordance with the general rules of the Treaty (Art. 4) and the principles developed by the Court of Justice; (iii) the establishment and application of rules deriving from European sources that define special type of torts.

The rules may be provided either by regulations or directives. However, rules, in these cases, are not always “complete”: in other words, neither the EU rules nor the principles developed by the Court of Justice always identify all the necessary components of the tortious act, namely the criterion of imputation (wilfulness, fault, risk), the interest harmed, the link of causation between the act and the harmful effect, the injury.
How Single is the Single Resolution Mechanism?
Authors: Busch Danny , Louisse Marije , van Rijn Mirik B.J. 
Published: April 2022

Since the first of January 2016, the Single Resolution Mechanism (SRM) has become fully operational. For the Member States of the European Banking Union the new regime entails a transferral of the decision-making on failing banks to the European level, specifically the Single Resolution Board (SRB). The political sensitivity hereof is illustrated by the European and Italian reaction to the mounting troubles in some parts of the Italian banking sector. The new European regime raises the question if, and if so to what degree, Member States participating in the European Banking Union (EBU Member States) retain discretion in determining the course of action for, and future of, a troubled bank. This question is explored along three lines of inquiry. First, we analyse the degree of harmonisation provided for by the BBRD and SRM. The second line of inquiry analyses EBU Member States’ influence in the SRB’s decisionmaking process. The third line of inquiry considers the possibilities (if any) for a public recapitalisation of troubled banks without applying the new general bail-in standard.
Our first line of inquiry leads us to conclude that the EBU Member States have surrendered the decision-making on bank resolution to the EBU level, specifically to the SRB. The SRM regulation, consequently, provides for maximum harmonisation, leaving no room for national resolution tools. National resolution powers which operate and compete in the same area as the SRM, such as the Dutch nationalisation law, must thus be held as inapplicable.
In the second line of inquiry we found that the SRM has both a supranational and an intergovernmental dimension. While the SRB in its executive session has a strong supranational character Member State influence in bank resolution decision remains present through the involvement of the Council and the SRB in plenary session in key decisions.
In the third line we conclude that the rules imposed by the BRRD and SRM Regulation in combination with the State aid regime have rendered public recapitalisation without a bail-in virtually impossible.
Assessing Conduct Risk: A New Challenge for Sustainable Corporate Governance
Authors: Manes Paola 
Published: April 2022

This paper addresses the topic of the assessment and management of conduct risk within financial institutions. The research also focuses on some of the new major governance topics on the board’s agenda, stressing the value of corporate reputation within the company’s culture. Attention is also drawn to the need to introduce a new dynamic, system-wide perspective on culture within financial organizations, attempting to align formal and informal aspects and to focus on individuals. The topic of conduct is thus explored from the point of view of individuals within the organization, analysing different factors which might influence their behaviour, such as incentives, peer influence and other psychological factors. The attention is then focused on the importance for people at any level of the organizational structure to spread the values set from the top. Finally, possible solutions are suggested, such as the introduction of internal models tailored to assess the organizational conduct.
Conduct risk, financial institutions, company’s culture, individuals, board’s agenda, behaviour, incentives, values, internal models, organization.
Who Pays When Things Go Wrong? Online Financial Fraud and Consumer Protection in Scandinavia and Europe
Authors: Kjørven Marte Eidsand 
Published: April 2022

Online financial fraud targeted at consumers through phishing attacks and identity theft, for example, is a growing problem. Because it can be difficult to recover losses from the person who committed the fraud, the loss will often remain with either the financial institution or the consumer. This paper’s research question relates to how losses following online financial fraud are and should be allocated between these two parties according to relevant Scandinavian and European law. For payment-transaction fraud, questions of loss allocation are regulated by national rules implementing the liability regime for unauthorised payment transactions under the payment services directive. For other financial services, these questions are resolved according to general rules on contract and tort. The analysis shows that consumers are often left to deal with the losses caused by online financial fraud. It is argued that the digitalisation of the financial services industry has in practice led to a shift in who bears the risk for attacks against financial institutions. This conflicts with the EU’s stated policy goals to provide strong consumer protection in the field of cybercrime. The paper concludes that a larger portion of the losses incurred from online financial fraud should be allocated to financial institutions.
financial services, digitalisation, fraud, consumer protection, payment services, liability, unauthorised payment transactions, electronic signatures, cyber security
Legal Challenges in the Realm of InsurTech
Authors: Manes Paola 
Published: April 2022

The paper addresses the topic of digital innovation in the insurance field and the challenges it poses for both companies and regulators. The paper starts with showing how data-driven technologies represent a priceless resource for insurers, allowing new and revolutionary methods to classify policyholders in different merit categories according to risk. The paper then turns to the analysis of new tools at the centre of the recent technological development (i.e. Blockchain and smart contracts) and focuses on the role of Big Data in the insurance sector. The paper thus concludes with some considerations on why access to more types of personal data should be allowed to insurers by regulators, presenting potential advantages not only for the companies themselves, but also for customers and the financial system in general.
FinTech, InsurTech, Innovation, BigData, Blockchain, Technology, Personal Data, Insurance, Credit Scoring, Risk.