bluuebunny/crossref_metadata_2025_split huggingface dataset:
Legal Ignorance in German Law: The Decline of a Once Stringent Standard
Authors: Wagner Gerhard , Körner Greta 
Published: April 2022

In times of ever-increasing complexity of the legal system, legal errors are inevitable. While the German Criminal Code lays out that a legal error leads to impunity of the perpetrator if unavoidable, legal error in private law has always remained a vague concept. In principle, the Bundesgerichtshof (Federal Court of Justice) excuses a wrongdoer who acted under legal error only in exceptional cases. According to this stringent approach, a party must not only be aware of the existing legal framework, but also anticipate future changes in case law. If the legal situation is unclear, a party must not assume that her own position will ultimately be upheld by the court, but that she will be found liable for a wrong. Under this doctrine, the only circumstances where legal error will be excused are unanticipated and unforeseeable revisions of case law by the supreme court.
However, there is a general trend in all areas of private law to soften this stringent approach. In contract law, courts tend to be more lenient on the parties. In the context of contractual liability of the debtor, legal errors are more and more frequently excused under ‘special circumstances’. On the other hand, a creditor who sues for performance is not liable to the debtor for damages incurred in the course of proceedings if he carried out a ‘plausibility check’ regarding his own legal position before filing suit. In tort law, where courts are generally stricter when it comes to legal ignorance, individual judgments point to a more generous stance towards legal error and excuse tortfeasors more easily. In the area of prescription, courts hold that the limitation period only begins to run when the creditor can reasonably be expected to file an action in view of an uncertain legal situation.
German case law on legal ignorance in private law resembles a potpourri of different legal standards, all of which aim to govern the exoneration of legal errors. A bright and clear line is not discernible and, therefore, a return to a more stringent standard seems desirable. This does not rule out a balancing of interests in each individual case nor taking into account the idiosyncrasies of the parties involved. We should not strive for a ‘one-size-fits-all solution’ but seek to formulate nuanced liability standards that are able to distinguish, e.g. between consumers and businesses. However, the aim here must always be to develop clear and stringent criteria, thus providing for legal certainty.certainty
The Implementation of the Takeovers Directive in Germany
Authors: Wooldridge Frank 
Published: April 2022

An important law was enacted in Germany in 2006 implementing the requirement of the Takeovers Directive in Germany this should have been implemented by 20 May 2006, in accordance with Article 21 of the Directive, but full implementation in Germany did not take place until 1 January 2007. The new German provisions do not include the compulsory adoption of the breakthrough rule contained in Article 11 of the Takeovers Directive; the existing provisions of paragraph 33 of the German Takeovers Act of 2001 do not seem entirely in conformity with those contained in Article 9 of the Directive. Companies may adopt the new provisions of paragraph 33a (Europäisches Verhinderungs–verbot) and/or those of paragraph 33b (Europäische–Durchbrechungsregel) in their statutes, but are not bound to do so. Paragraph 33c, which like the aforementioned paragraph has been incorporated in the Takeovesr Act of 2001 by the amending statute of 2006, makes provision for the application of the reciprocity rule contained in Article 12(3) of the Takeovers Directive.
The 2006 Act makes a number of alterations to the 2001 Act; a brief account of some of the more important of them is attempted below.
The Concepts of the Scottish (and Italian) Unilateral Promise and the English Unilateral Contracts  Comparative Law Reflections on Call Options and Put Options in the light of the Jurisdictions of England, Scotland and Italy
Authors: de Gioia-Carabellese Pierre 
Published: April 2022

On the backdrop of the "put options" and "call options" - two common contracts in the practice of the capital markets - lies this comparative law analysis concerning the approach taken by three jurisdictions to the concept of the unilateral promise.
The outcome of the discussion is a criticism toward the English jurisdiction where this concept is missing, the same being replaced, in a non-convincing way, by the similar concept of the "unilateral contract". In addition to this, the requisite of the consideration, peculiarly requested in that jurisdiction, could even result in putting at risk, in some circumstances, the same validity and enforceability of these typologies of transactions.
As to the Scottish jurisdiction, stranded between its ancient Roman roots and its "British ties", the work seeks to demonstrate that, although the "unilateral promise" is accepted in this jurisdiction (these making both "put options" and "call options" theoretically safe under this jurisdiction), there is still a non-perspicuous categorization of the concept and, particularly, a possible "blunder" in the way this jurisprudence seems to put together, in a sort of conceptual "melting pot", both the promise to the public (in incertam personam) and that aimed at the conclusion of the contract. However, this possible erroneous view - quite transparent in the light of the civilian jurisdiction adopted as comparator (the Italian one) - could find a potential "way-out", should the Scots legal system eventually adopt a code in the matter of the contracts more in line with its traditions and peculiarities.
Extraterritorial Application of U.S. Securities Law
Authors: Morgut Milosz 
Published: April 2022

The globalization of securities industry resulted in many corporations deciding to cross-list on numerous exchanges and investors commonly trading on foreign markets. The multitude of overlapping regulatory regimes poses difficult questions not only for legal theorists but most importantly for the investors who seek remedies after suffering multibillion losses as a result of being deceived.
The paper discusses the U.S. Supreme Court decision in Morrison v. National Australia Bank which dramatically changed the way in which the US securities regulation applies to foreign claims. The analysis looks at the judgments of lower courts in order to establish the real scope of the decision. Bearing in mind the new landscape in international securities litigation, the available courses of action which can be still taken by injured investors are presented. Finally, the paper evaluates the overall decision and its effect, suggesting certain legislative changes.
Unfair Dismissal of Agency Workers or Unfair Legislation in the UK for Businesses using Agency Workers?
Authors: de Gioia-Carabellese Pierre , Shuttleworth Mark 
Published: April 2022

The contribution encapsulates a legal discussion on the controversial figure of the agency workers, from the judicial debate blossomed during the last decade in the British courts, as regards their legal characterization, until the most recent developments, particularly the legislative framework passed in Britain, the Agency Workers Regulations. On such footings, the investigation focuses on the main law provisions of the recent British legislation, including the most crucial limbs of the domestic statute.
Additionally and against the backdrop of a comparative analysis, where the Italian jurisdiction is adopted as the "comparator", criticism is expressed by the authors as regards the way the "harmonisation" of EU inspiration (the Temporary Agency Work Directive) has been brought about in this strategic and increasingly important sector of the job market. Particularly, it is adumbrated the view that Britain, with its rigorous and rigid implementation of the Directive, may be currently damaging its own businesses with its irrationality of harsh rules, whereas a country like Italy, where the pertinent EU piece of legislation is applied with an indirect technique - i.e. the tolerance towards the already existing legislation of the fornitura di servizi (provision of services) - may de facto be dodging the constraints of the legislator in Brussels. These findings, of comparative law flavour, with the prominent example of Italy highlighted as a tenuous background, may confirm the sceptical view that, since the beginning, some scholars had expressed towards the Directive and its nebulous teleology.
The Application of EU Law to Arbitration in the UK: A Study on Practice and Procedure
Authors: Blanke Gordon 
Published: April 2022

The following study deals with the application of EU law to arbitration in the UK , and in particular with points of practice and procedure that arbitrators and arbitrating parties are required to take into account in the application of EU law in UK arbitration. The role played by EU law in arbitration is often overlooked given the prevailing confidential nature of arbitration as a private dispute resolution mechanism in its own right. Arbitration finds wide application in the resolution of disputes arising from licensing, franchising, supply and distribution and other commercial agreements across the European Union. The framework of EU law is inescapable in the implementation of those agreements due to their cross-border nature and/or the cross-border effects they may produce in relevant product markets throughout the internal market.
To date, to the best of this author's knowledge, there has been little (if any) systematic research on the application of EU law in any particular jurisdiction within the EU, exploring requirements of practice and procedure of relevance to the conduct of arbitration in light of EU law requirements bearing on that jurisdiction. The present study is an attempt to provide such research with respect to the application of EU law in arbitrations seated in the UK more specifically. It is reproduced here in the hope that it may inspire other research projects along similar lines in relation to the practice and procedure of the application of EU law in arbitrations seated elsewhere in the EU.
State Aids and Credit Institutions in Europe: What Way Forward?
Authors: Lo Schiavo Gianni 
Published: April 2022

During the crisis, Member States have resorted to massive State aids to the financial sector with a view to avoiding a systemic failure of the European economy. This article provides an overview and a critical assessment of State aids to credit institutions in perspective.
The first part analyses the current framework on State aids to banks. It examines the notion and the compatibility of financial aids under Art. 107 paragraphs 1 and 3 TFEU while assessing the key policy principles in the sector. Special attention is paid to the new framework established under the Banking Communication as of August 2013.
The second part of the article addresses two critical aspects of State aids to banks in future. Firstly, it ascertains the adoption of the regulatory framework for the recovery and resolution of banks and how it impacts on State aid control. Secondly, it discusses the recent reform to create a direct recapitalisation instrument under the European Stability Mechanism.
An Unstoppable Force Rather Than an Illegitimate Farce: Exploring the Role of Offshore Financial Centres Amid Renewed Criticism
Authors: McConvill James 
Published: April 2022

Offshore financial centres, or OFCs, are commonly labelled "tax havens" due to the general misconception that they are used solely to avoid or evade tax. The British Virgin Islands ("BVI") and Cyprus are two prominent OFCs, regularly used throughout Europe and the rest of the world, that have been subjected to criticism in recent times.
In 2013, there were numerous reports that Cyprus was being used mainly by rich Russians to launder dirty money in local banks, and in April 2013 the International Consortium of Investigative Journalists publicised results of an investigation which suggested that the rich and famous and prominent political individuals use offshore companies to hide their financial interest in lucrative projects and trading entities.
The author worked for over five years as a lawyer in the BVI, and also has visited Cyprus twice in the past two years to interview leading lawyers and members of the financial services industry. Accordingly, with particular attention being given to the BVI (which remains the leading centre for the incorporation of offshore companies) and Cyprus (which has an unparalleled network of double taxation treaties), this article aims to debunk recently pronounced myths about the offshore world by focusing on the practical reasons why OFCs are used in international business.
The Role of Preferred Shareholders in Fundamental Transactions: Preliminary Thoughts
Authors: Ginevri Andrea Sacco , Sbarbaro Ferruccio Maria 
Published: April 2022

In public corporations, the claim of the preferred shareholders is typically limited to a fixed dividend and a fixed amount on liquidation, and this claim shall be satisfied before the common shareholders can receive anything. Their rights to a prior, but limited, dividend resemble the rights of creditors, who also must rely on their contractual rights and do not vote in the general shareholders’ meeting.
However, according to Italian corporate law, the preferred shareholders have a veto power against fundamental transactions such as, for example, certain mergers, demergers, charter amendments that jeopardize their preferred rights.
Therefore, notwithstanding their limited percentage of share capital, preferred shareholders i on the one hand have the power to prevent a corporation from transactions that may increase the common shareholders’ value, and ii on the other hand, are not subject to any redemption right neither by the common shareholders nor by the corporation itself.
In light of the above, this article argues that granting a redemption right ex lege to the common shareholders in case the preferred shareholders vote against certain fundamental transactions may be a tool for strengthening the best interest of the corporation because it allows at the same time aa directors and common shareholders representing the latter the majority of the share capital to achieve the corporate benefits arising from such fundamental transactions, and bb the dissenting preferred shareholders to withdraw from the corporation at a fair market value.
Missives and Deposit in Scots Law: Diachronic and Comparative Reflections about the Concept of Arrha
Authors: Chessa Corrado , de Gioia-Carabellese Pierre 
Published: April 2022

A jurisdiction such as the Scottish one, reputedly with solid Roman roots, is practically bereft of the fundamental concept of a deposit in the concluding passage of the missives. Conversely, the relevant ‘ancestor’ (Roman law) has been profoundly permeated, throughout the course of its history, by the notion of an arrha (the earnest) in the conclusion of a contract annexed to the transfer of heritable properties. Moreover, in contemporary times and outwith Scotland, a Continental jurisdiction (the Italian one) is resolutely lingering on the Roman caparra penitenziale while, ironically, the English system (comprehensively ‘un-Roman’ in its formation) has expressly adopted the ‘deposit’ as part of the closing particulars.
These asymmetries, brim-full with inviting legal ingredients, seem, in the present work, to conjure up an intriguing and captivating plot worthy of an Indiana Jones’ film, where the lost treasure can be deemed replaceable, for the distracted reader, by the ancient Roman notion of an arrha, so evidently not inherited by the contemporary Scottish jurisprudence. Ultimately, the contribution engenders the usual unsettling query: in the light of the phenomenology of the arrha so neglected in Scotland in contemporary times, is Scottish law still a mixed legal system or, conversely, a jurisdiction progressively getting closer to the English common law counterpart?
Bail-in Tool and Bank Insolvency: Theoretical and Empirical Discourses around a New Legal (or Illegal) Concept
Authors: de Gioia-Carabellese Pierre , Zhang Daoning 
Published: April 2022

In 2014, half a decennium after the eruption of the financial crises, the bail-in mechanism was introduced as a new pan-European legal tool in order to avoid the financial inefficiencies of the public bail-out of banks and financial institutions. Yet the system is still not immune from criticism. The dilemma that the new EU legislation has left unsolved relates to the excessive level of discretion still left to the resolution authority regarding the way in which the rights of stakeholders of the bailed-in bank (shareholders and bondholders) can be sacrificed.

Against this background, the paper attempts to discuss and analyse, via a methodology which is both theoretical and empirical, the legal provisions encompassed by the Bank Recovery and Resolution Directive and its applications to credit institutions within the context of recent crises. From a more epistemological point of view, the contribution aims to shed light on whether the new resolution tools still lie within the macro-area of the insolvency or, by contrast, they represent a new genus of crisis. More philosophically and intriguingly, the research examines whether, in light of the extensive powers granted to the resolution authority by the recent EU legislation, banking activity may still be regarded in Europe as business of a private nature.
Exit Britain Enter the Stakeholders: Could Brexit End the Cultural Wars within the European Union Company Law and Give Birth to a Truly “European Company”?
Authors: Koutsias Marios 
Published: April 2022

The history of European Union company law is a very troubled one. It is a history of national conflicts and debates which resulted in the inability of the EU to create a common body of EU company law. The article will argue that national company laws are deeply rooted in national culture. Corporate governance in particular evolved into an arena where fierce corporate culture wars were fought for decades. This is why the European Company -the so-called Societas Europea- failed to evolve into a truly supranational corporate form. While all member states have their own distinctive systems of corporate governance, the failure in question has been mostly fuelled by the conflict between the two widely-opposed corporate governance systems of the UK and Germany. The UK endorses the so-called contractual model of corporate governance. Germany on the other hand employs the so-called stakeholder system of corporate governance. The rest of the member states of the EU lie between those two opposing poles. The conflict between the two European pillars of widely opposed corporate philosophies and consequently laws –the UK and Germany- has been so intense that it undermined any attempt to create a single European company. The article argues that Brexit can change that. The exit of one of the two main pillars of the conflict may pave the way for the dominance of the stakeholder model of corporate governance in the EU. A post-Brexit EU would lack the most vocal and influential supporter of contractualism. This should allow the remaining member states to converge into a standard that would be closer to the stakeholder model.
Company Law, Corporate Governance, UK, Germany, European Company, Societas Europea, Culture, Brexit, Stakeholder model, contractual model, European Union
Price Discrimination, Algorithmic Decision-Making, and European Non-Discrimination Law
Authors: Borgesius Frederik Zuiderveen 
Published: April 2022

Our society can benefit immensely from algorithmic decision-making and similar types of artificial intelligence. But algorithmic decision-making can also have discriminatory effects. This paper examines that problem, using online price differentiation as an example of algorithmic decision-making. With online price differentiation, a company charges different people different prices for identical products, based on information the company has about those people. The main question in this paper is: to what extent can non-discrimination law protect people against online price differentiation? The paper shows that online price differentiation and algorithmic decision-making could lead to indirect discrimination, for instance harming people with a certain ethnicity. Indirect discrimination occurs when a practice is neutral at first glance, but ends up discriminating against people with a protected characteristic, such as ethnicity. In principle, non-discrimination law prohibits indirect discrimination. The paper also shows, however, that non-discrimination law has flaws when applied to algorithmic decision-making. For instance, algorithmic discrimination can remain hidden: people may not realise that they are being discriminated against. And many types of unfair – some might say discriminatory – algorithmic decisions are outside the scope of current non-discrimination law.
price discrimination, price differentiation, personalised pricing, dynamic pricing, algorithmic decision-making, big data, artificial intelligence, fairness, law, equality, non-discrimination law, human rights, fundamental rights.
Artificial Intelligence and Transparency: A Blueprint for Improving the Regulation of AI Applications in the EU
Authors: J. Wulf Alexander , Seizov Ognyan 
Published: April 2022

The adoption of Artificial Intelligence is steadily increasing, but the underlying algorithms have become so complex that they are no longer transparent. The EU has introduced some modest AI transparency requirements as part of its General Data Protection Regulation. However, two years after their introduction, the effectiveness of these rules remains questionable. Our aim is to contribute towards the further development of a governance framework for AI. We begin by explaining how the algorithms that enable the speed and data processing power of AI also obscure its transparency. We review how major guidelines on AI ethics operationalize algorithmic transparency, following which we assess whether these principles are adequately covered by the GDPR. We then present the results of semi-structured interviews of a heterogeneous sample of stakeholders of consumer information online (N=75). Our data provide evidence that the current implementation of the EU’s informed consumer paradigm fails to establish a satisfactory level of consumer protection and information online. If simple technological applications such as cookies remain non-transparent to consumers, the current approaches are entirely incapable of addressing the problem of complex AI applications. We conclude by formulating a policy proposal as to how the transparency of AI applications could be improved from the perspective of end users.
artificial intelligence, explainable AI, automated individual decision-making, profiling, consumer protection, data protection, GDPR, information disclosures, transparency, AI ethics
Automated Regulation and Supervision: The Impact of RegTech on Banking Compliance
Authors: Miglionico Andrea 
Published: April 2022

Regulatory technologies (RegTech) are the new paradigm of supervision and compliance in the banking sector. However, the application of technological solutions to reduce compliance costs in supervising financial activities can interfere with the intervention of regulators. The extent to which compliance with the regulation can be automated by technologies raises the question whether the manual intervention is still required. This article examines the potential of RegTech solutions to automate rules and principles. Addressing the challenges of regulatory compliance with the use of technology allows bank regulators to embrace speed and agility, supported by cost savings, resource optimisation and value creation.
RegTech, banking compliance, automation, digitization, decentralization, disintermediation, financial technologies, data access, algorithmic decision-making, manual intervention.