bluuebunny/crossref_metadata_2025_split huggingface dataset:
Judicial Interpretation of Commercial Contracts in English and French Law: A Comparative Perspective
Authors: Pedamon Catherine 
Published: May 2022

In this paper, I consider whether the recent overhaul of French contract law via ordonnance No 2016-131 of 10 February 2016 has changed the principles of judicial interpretation of commercial contracts, and how these compare with the principles in English law. One of the questions I ask is whether the traditional dichotomy between the French subjective approach and the English objective one has been altered now that the objective principle of interpretation has been incorporated in the Code civil. I explore how both jurisdictions deal with the main aspects of judicial interpretation, such as the nature of the interpretative question and the purpose and scope of contractual interpretation. Similarities emerge that show a rapprochement between these judicial approaches. Naturally, differences persist, which reflect distinct contract law values embedded in each legal order. Even if the ordonnance No 2016-131 has only introduced in appearance small changes to the provisions relating to interpretation, French courts now have the interpretative tools to follow in the footsteps of English courts when interpreting professionally drafted commercial contracts. An emerging coalescence around an objective literal interpretation in a sophisticated business setting is to be welcomed as it enhances commercial certainty across borders.
Contractual interpretation, commercial contracts, principles of interpretation, subjective interpretation, objective interpretation, contextualism, textualism, English contract law, French contract law
Legislation Comment: Opt-In to Coordination Proceeding According to the Czech Insolvency Law
Authors: Moravec Tomáš , Valenta Petr 
Published: May 2022

The European Insolvency Regulation enables to coordinate recovery procedures of the group of companies within the EU member states on voluntary basis. In the matter of approval of coordinated proceeding the national rules for approval of recovery proceedings are referred. The authors therefore deal with the question whether and how it is possible to apply national legislation on decision to opt-in to coordination proceeding in the frame of Czech law. The paper also focuses on question who gives approval to opt-in and what kind of majority is needed. Furthermore there is a question raised whether the conditions for approval according to national rules should have been passed to European level of legislation.
Contractual interpretation, commercial contracts, principles of interpretation, subjective interpretation, objective interpretation, contextualism, textualism, English contract law, French contract law
The Plight of the UK Private Company Minority Shareholder
Authors: Hardman Jonathan 
Published: May 2022

Agency cost analysis is a fundamental aspect of Anglo-American company law theory. Within the company three types are said to exist: director/shareholder, majority/ minority and firm/outside world. Whilst law is, doctrinally, consistent at mitigating the first of these (the paradigmatic corporate agency cost), it fails to mitigate the second. Several features of UK company law exacerbate this agency cost, which is felt most acutely in private companies. Ostensible protections for the minority fail to mitigate these issues. This raises questions for company law theory: should law provide additional minority protections, or do fundamental differences exist between categories of agency costs identified within the company?
Company Law, Corporate Law, Agency Costs, Private Companies, Minority Shareholders, Minority Remedies, Doctrinal Analysis, Economic Analysis of the Law
Challenges Ahead for the EU Banking System
Authors: V. Gortsos Christos 
Published: May 2022

The present paper discusses some recent and current challenges for the banking system in the European Union (EU). While Section 1 develops on its overall robustness before the onset of the pandemic crisis and briefly overviews the regulatory and supervisory responses to preserve its stability amidst that crisis, Section 2 focuses on two challenges relating to potential threats to banking stability in the EU: non-performing loans and negative central bank interest rates. Section 3 addresses then the challenges linked to EU regulatory developments in the fields of sustainable and digital finance. Finally, Section 4 contains a final assessment and the concluding remarks.
Global Financial Crisis (GFC), pandemic crisis, financial stability, “Basel III impact”, non-performing loans (NPLs), negative interest rates, Sustainable Finance Strategy, management and supervision of ESG risks, Digital Finance Package, regulation of crypto-assets
Informational Obsession, Opinion Control and Freedom of Expression in Financial Regulation – Some Critical Perspectives
Authors: Bismuth Régis 
Published: May 2022

The theoretical underpinnings of financial regulation have led to an obsessive quest for transparency. This has not only led to a gradual increase in disclosure requirements, but has also generated some other unintended consequences, such as structural conflicts of interests, which affect the modes of information (and opinion) production of influential actors. Credit rating agencies, for example, have also in their own right raised new regulatory concerns. Within this wider context, this article explores whether regulatory initiatives to stringently discipline credit rating agencies’ activities (particularly with a view to issuing sovereign ratings), or other initiatives which reflect an increasing willingness to control speech in financial markets (for instance those targeting activist shareholder strategies), are in line with relevant principles guaranteeing the freedom of expression which have seemingly remained a blind spot of financial regulators.
Financial regulation, transparency, disclosure, information, opinion, freedom of expression, financial disintermediation, credit rating agencies, shareholder activism, financial evaluation
The Journey to Open Finance: Learning from the Open Banking Movement
Authors: De Pascalis Francesco 
Published: May 2022

The creation of an open financial data ecosystem is a new frontier to be explored within a financial services industry characterized by the presence of new players, along with traditional financial intermediaries. Spurred by datafication and digitisation, open finance is considered an extension of the open banking foundation launched in Europe through targeted regulation. The open finance journey is just beginning. By taking stock of the open banking experience across jurisdictions, this article examines the future shift from open banking to open finance. Selected critical issues within the open banking context give valuable indications for the development of open finance.
Open finance, datafication, digitisation, open banking, APIs, PSD2, Consumer Data Right, reciprocity, consumer education
Climate-related Financial Risks: Considering an Emerging Framework for Assessment and Disclosure in a Regulatory Perspective
Authors: Myklebust Trude 
Published: May 2022

Climate-related financial risks have become a crucial concern in financial policymaking. This recent development is propelled by concerns that financial markets have underestimated, and are unprepared for, the costs and losses that will follow as the effects of climate change escalate. It is also driven by the enormous scale of investments required to facilitate the transition to a low-emission society. The Recommendations of the Task Force on Climate-related Financial Disclosures (TCFD) are one example of a response to these developments in the realm of financial policymaking. They aim to encourage disclosure of climate-related risks, by introducing new categories of risk – namely, physical risk and transition risk. This article examines the new categorization of risks and discusses both its integration into non-binding reporting guidelines in the European context and its potential for broader adoption.
Climate-related financial risk, Action Plan on Financing Sustainable Growth, ESG, TCFD, physical risk, transition risk, non-financial reporting, responsible investment
Administrative Independence Under EU Law: Stuck Between a Rock and Costanzo?
Authors: Enqvist Lena , Naarttijärvi Markus 
Published: May 2022

EU law places a number of requirements on administrative authorities that puts them in potentially invidious positions; while EU law today does not require institutionally independent administrative authorities or provide protection for the independence of authorities beyond the field of data protection, it does require administrative authorities to act independently through the loyal and effective enforcement of EU law. This requirement of acting independently without institutional independence raises certain implications for the role of administrative authorities acting within the hierarchical administrative orders of Member States. Using the case of Sweden – a Member State where administrative authorities enjoy significant constitutionally protected independence in the application of law and decision of cases – this article argues that the effect of EU law obligations of effectiveness and loyalty is a weakening of the hierarchical influence of the government over its own authorities, with a resulting shift of influence towards the legal arena through the provision of politically expedient interpretations of EU law. The invidious position of administrative authorities within the scope of EU law is likely to make them vulnerable to such influence, which may ultimately interfere with the effective administration of EU law.
Administrative independence, EU-law, principle of effectiveness, national institutional and procedural autonomy, distributed administration, national administrative authorities, constitutional law, Costanzo, Tele2/Watson
Digital Humanism: The Constitutional Message of the GDPR
Authors: Celeste Edoardo , De Gregorio Giovanni 
Published: May 2022

This article aims to analyse the constitutional message of the General Data Protection Regulation (GDPR) in the age of artificial intelligence. Although the GDPR does not formally have any constitutional character, it can be said to play a para-constitutional role from a functional point of view: it translates and implements core constitutional principles in the context of the algorithmic society. This article traces the legislative origin of the GDPR’s framework on automated decision-making showing that it aims to enhance a series of key constitutional values, preserving human autonomy, increasing legal certainty, and providing procedural safeguards. The article finally highlights how the GDPR is promoting a constitutional message deeply rooted in a new form of ‘digital humanism’: a conception of the digital society where the human being and her dignity should resolutely outrank machines, technology and, ultimately, economic efficiency.
artificial intelligence, GDPR, digital humanism, rule of law, human dignity, constitutionalism
Proposal for a Carbon Border Adjustment Mechanism
Authors: Schippers M.L. , Wit W. De 
Published: May 2022

On 14 July 2021 the European Commission published a proposal for a Carbon Border Adjustment Mechanism (CBAM). The authors discuss the background and legal structure of what the Commission has presented as a climate measure. They also provide detailed commentary on the provisions in the current proposal, including discussion of the interaction between customs law and the proposed CBAM. Lastly they consider the international reactions to the CBAM, as well as CBAM initiatives elsewhere in the world.
Carbon border adjustment measures, climate change, customs, European Union
Specific Features of Transboundary Movement of Intellectual Property Items in the EAEU
Authors: O. Shokhin Sergey , Volkova Anna A. 
Published: May 2022

The article studies a problem, which has not previously been explored in the Russian legal science and it relates to the specific features of legal protection of intellectual property items in transboundary movement in the Eurasian Economic Union (EAEU). It evaluates the process and prospects for the development of a common intellectual property market within the EAEU, highlights the features and problems arising in the process of declaring and controlling intellectual property items in export and import operations, and the difficulty of determining the amount of customs payment. The conclusions define promising trends of legislative development in the field of intellectual property protection in transboundary movement.
Protection of intellectual property rights, civil and customs law, tax and non-tax payments, counterfeit, parallel import, customs register
The Logistics Service Providers’ Pre-tax Deduction of Import VAT Is Still a Pipe Dream and the Recent ECJ Decision Hasn’t Changed That: Or Has It?
Authors: Gesinn Jöran 
Published: May 2022

According to general opinion in Germany and further EU Member States, all questions regarding pre-tax deduction of import VAT by a logistics service provider (‘LSP’) have been settled: there is no right to deduction without power of disposition at the time of the import. As LSPs typically become debtor of the import VAT, but do not dispose of the imported goods, they have been excluded from pre-tax deduction in the past. Besides causing costs for involved companies in millions of Euro, this clearly violates the principle of neutrality as one of the core principles of the EU VAT directive, still no steps have been taken to rectify the situation. The requirement of power of disposition is mainly derived from the cost formula test the Court of Justice of the European Union ECJ has been traditionally applying to VAT cases. In its recent Weindel-order of 10 October 2020, C- 621/19, the ECJ has – for the first time – amended the cost formula with regard to import VAT specific aspects. This article investigates whether in the light of Weindel, power of disposition can still be made an obligatory requirement of the right to pre-tax deduction of import VAT.
Value added tax, VAT, pre-tax deduction, indirect representative, logistics service provider, cost-formula test, principle of neutrality of VAT, Council Directive 2006/112/EC, VAT-directive, upstream import cost, power of disposition
An Overview of the WTO’s Plurilateral Agreement on Services Domestic Regulation
Authors: Bangura Kadijatu Zainab , Kromah Abraham Zaqi 
Published: May 2022

TheWTO’s General Agreement on Trade in Services (GATS), which has been in effect since 1995, has been used byWTO Members to facilitate increased growth in trade in services by regulating global transactions on trade in services in line with the specific commitments undertaken by everyWTO Member in the GATS. However, growth in trade in services has been clouded by significant barriers to trade in services that continue to exist in many countries in the form of unintended trade-restrictive measures across most services sectors, obscure regulations, and burdensome regulatory procedures. The successful conclusion of the Reference Paper on services domestic regulation is an effort to reduce these barriers and further stimulate trade in services.
WTO, GATS, Services Domestic Regulation, Joint Initiative, Plurilateral Declaration, Negotiated Disciplines, regulatory processes, Reference Paper, barriers to services trade, predictability and transparency
The Science of Witness Memory: Implications for Practice and Procedure in International Arbitration
Authors: Cartwright-Finch Ula , A. Wade Kimberley 
Published: May 2022

Witness evidence plays a lead role in international arbitrations, yet the reliability of witness evidence in arbitral contexts has received little attention from legal practitioners. Hundreds of scientific studies have highlighted the fragile nature of witness memory and the ease with which memories can become unwittingly corrupted. In this article, we explain why the psychological research on witness memory is relevant to international arbitration and outline some of the key findings that have important implications for procedure and practice. Alongside the large body of science illustrating the malleability of witness memory, there exists a substantial amount of research outlining how best to preserve or maximize the quantity and quality of witness evidence. Indeed, many simple measures can be adopted by arbitrators and counsel, when eliciting and presenting witness evidence. When educated on the psychological science concerning the factors that can render even the most meticulous and honest witness prone to error, fact-finders will be in a far better position to assess witness evidence in international arbitrations.
Witness memory, witness statement, witness evidence, testimony, misinformation, cognitive bias, psychology, probative value, reliability
W(h)ither Institutional Terms of Reference?
Authors: Sc V. K. Rajah 
Published: May 2022

Although Terms of Reference (‘ToR’) have been a longstanding and distinctive feature of the International Chamber of Commerce (ICC) Rules of Arbitration for almost a century, their continuing relevance and necessity warrant scrutiny, considering the radical evolution of international arbitration in recent years. The introduction of sophisticated procedural tools and frameworks, together with most states and courts exhibiting ‘pro-arbitration’ attitudes, lead one to question whether ToR remain a necessary procedural tool. In answering this question, the article first assesses the historical context in which the ToR were introduced to serve as a submission agreement and questions whether ToR continue to serve their historical role. The article thereafter closely scrutinizes the ToR’s current features and functions and considers whether the ToR have outlived their usefulness by analysing whether they are needed to fulfil those functions. The fact that ToR are no longer required as necessary evidence of consent and/ or to assist in the enforceability of an award, together with the advent of new procedural tools and practices, have rendered the ToR all but superfluous in today’s context. The article proposes that the ToR’s mandatory nature be dispensed with in the interest of efficiency, making way for dynamic procedural alternatives.
International Arbitration, Terms of Reference, ICC, Arbitration Procedure
A Requirement, A Factor, or A Figure of Speech? Role of Prejudice When Challenging Awards Under the Model Law
Authors: Chan Darius , Koh Zhi Jia 
Published: May 2022

Both parties and courts routinely invoke the term ‘prejudice’ in applications to set aside an arbitral award or refuse its enforcement. This suggests that the use of the term is more than just a figure of speech. It is generally understood that prejudice, in the sense of impact or effect on the outcome of the arbitration, is relevant for procedural challenges but not jurisdictional challenges. However, questions remain as to whether prejudice is legally relevant for challenges that are neither strictly procedural or jurisdictional in nature, whether prejudice is relevant as a factor for consideration or as a legal requirement when challenging an award, and the meaning of prejudice. This article shows that the usage of the term ‘prejudice’ in case law is inconsistent and far from straightforward. This article attempts to elucidate a clear and structured way of understanding the role prejudice plays for each ground for challenging an award under the Model Law.
Model Law, Article 34, Article 36, Setting Aside, Refusing Enforcement, Procedural Challenge, Jurisdictional Challenge, Residual Discretion, Materiality, Prejudice, Causative Link
Non-recognition of Dissenting Opinions in CAS as a Controversial and Unresolved Matter
Authors: Goryacheva Anastasia , Kisliakova Natalia 
Published: May 2022

In this article the authors cover the problem of expressly established non-recognition of dissenting opinions (separate opinions) in the Court of Arbitration for Sport (CAS) being uncommon for arbitration institutes. In particular, the authors analyse approaches to dissenting opinions in various national legal systems and arbitration institutes (as well as other dispute resolution bodies) which mainly allow dissenting opinions (as described below).
The main focus and goal of this article is to explore possible considerations that might have led to non-recognition of dissenting opinions in CAS proceedings and whether this is common in arbitration and international justice. Having researched this question, the authors conclude that the origins of such a substantive influence on the existing regulation could be: (1) the CAS’s precedent role; and (2) the influence of Swiss law as lex arbitri. The authors also conduct substantial analysis of existing views, asking whether the lack of dissenting opinion is a positive or a negative feature and conclude that the dissenting opinion is still very controversial regarding its impact.
The chosen topic is important because the approach of various dispute resolution bodies seems not to be unanimous and there is no global tendency in this respect. The topic is especially timely, considering the recent decision of a Frankfurt Court of Appeal which refused to enforce an International Chamber of Commerce (ICC) award due (among other reasons) to the existing dissent which in the opinion of the court violated public policy.
dissenting opinions, separate opinions, concurring opinions, arbitral awards, the Court of Arbitration for Sport (CAS), sports arbitration, international arbitration, decision, award, alternative dispute resolution, arbitrators, deliberation, joint or individual opinions
Regulating Composite Platform Economy Services: Examining the Applicable Legal Framework in Light of Recent Judicial Developments
Authors: Chapuis-Doppler Augustin , Delhomme Vincent 
Published: May 2022

Numerous platform operators provide composite services comprising electronic and non-electronic elements, whose legal classification has been highly debated. This is partly explained by the fact that theEU law regime applicable to information society services (ISS) is far more favourable to businesses than that applicable to other types of services. The most recent case-law, however, has noticeably strengthened Member State regulatory prerogatives regarding ISS by, inter alia, giving a whole new meaning to the provisions of the E-commerce Directive. This twenty-year old legal act certainly needed reshuffling, but the Court’s approach has created a high degree of uncertainty forMember States wishing to regulate ISS in compliance with their notification obligations. Further, the applicable legal framework fails to guarantee the freedom to provide composite platform economy services that classify as two independent services of offline and online nature. The present article presents the main takeaways from recent judgments and highlights the structural differences between the legal regime applicable to ISS and that applicable to other kind of services, as well as their shortcomings.
Digital Single Market – Regulation of the platform economy – Composite services – notification – online platform liability – e-commerce – Digital Services Act – Directive 2000/31 – Directive 2015/1535 – Directive 2006/123