bluuebunny/crossref_metadata_2025_split huggingface dataset:
Personalized Unfair Terms Control: EU Law Meets Innovative US Doctrines
Authors: Patti Francesco Paolo 
Published: April 2022

According to part of the US scholarship, the use of big data and prediction algorithms could entail a paradigmatic change in contract law: No longer would one have general and abstract legal norms, but rather granular and personalized ones, customized on the needs and features of the contracting parties. This shift to a law tailored to specific individuals could affect both default and mandatory rules and provide for a more efficient and just legal system. The argument goes that such a flexible and technology-driven regulation is also capable of addressing the issue of unfair personalized pricing schemes applied by businesses in online transactions. The present contribution adopts a futuristic approach and investigates whether these doctrinal proposals could possibly pave the way for an amendment of the Directive 93/13 on unfair terms in consumer contracts. In doing so, the main elements of the unfair terms control are highlighted, together with their link with national default rules, which serve both as a benchmark for the assessment of the unfair character of the clause and as gap-fillers. Based on a comparison with the findings of US scholars, it then explores how the unfair terms control may change in order to reduce cross-subsidies to a minimum and tackle discriminatory pricing schemes. Finally, this article elaborates further on how the modifications could be implemented within a new enforcement mechanism, using a technology that would also cover so-called smart contracts.
personalization, unfair terms control, big data, consumer contracts. Motsclés: Personnalisation, Contrôle de clauses abusives, Grandes bases de données, Contrats conclus avec les consommateurs Schlüsselwörter: Personalisierung, Kontrolle missbräuchlicher Klauseln, Big Data, Verbraucherverträge
The Concept of ‘Out of Sight — Offshore — Out of Mind’ under the International Financial Architecture: Do Tax Havens Impede Economic Growth and Development?
Authors: Leung Mei–Wah 
Published: April 2022

For a long time the sovereignty of offshore jurisdictions had never really been in question; tax havens (‘offshore’) had existed in a sphere of relative peace and solitude providing financial services of varying degrees of sophistication to onshore, whilst correspondingly supporting their own existence.
However, since the late 1990s tax havens have found themselves the target of an irrefutable movement by particular international financial organisations ‘Organisations’) within the International Financial Architecture (‘IFA’).
The Organisation of Economic Cooperation and Development (OECD) has been most critical contending that tax havens hinder economic growth and development the world over; apparently embodying behaviour and values that are the antipathy to fair and sustainable progress.
This paper investigates the veracity of the two main assertions of the OECD and the Financial Stability Forum (‘FSF’): first, tax havens perpetuate unhealthy tax competition which then erodes tax revenue bases; and secondly, deficient financial regulations in tax haven jurisdictions bring forth instability to the global financial market.
Whether offshore is indeed the origin of the distress is important because of the damage apparently done to offshore itself, by these Organisations in their counterattack to the perceived endangerment. That is to say, there maybe no justification for what is evidently a heavy coercive approach. This would appear particularly pertinent to the less sophisticated tax havens in the Pacific, but to what extent is it true that they face eventual extinction as a result?
Furthermore, due to the centrality of offshore in the process of financial globalisation, what would be the repercussions of this for the future development of the international financial market? To this end, is the overall result likely to be Pareto–superior or Pareto–inferior?
Legal Obstacles to Institutional Investor Activism in the EU and in the US
Authors: Santella Paolo , Baffi Enrico , Drago Carlo , Lattuca Dino 
Published: April 2022

Starting from the observation that at the multilateral level shareholder activism is considered as an important aspect of good corporate governance, this paper examines several legal and economic obstacles to institutional investor activism in the EU and in the US.
We find that investors in the US seem to have easier access to proxy voting than in the EU (although recent EU legislation should remove several of the present legal obstacles) even though the SEC allows only long-term relevant shareholders to include nominees on the corporate proxy; that conflicts of interest might limit the activism of several categories of institutional investors both in the US and in the EU; that some national legislations in the EU limit the ability of institutional investors to coordinate their voting policies; that recent EU legislation has introduced discriminatory requirements for some institutional investors when they acquire control of listed and non-listed companies; that recourse to stock lending and other forms of separation of financial risk from voting rights seems to be practiced more by controlling shareholders at the expense of institutional investors than the opposite, something which should be clearer in the near future with an upcoming EU legislation which should extend the transparency requirements for all shareholders to borrowed securities, cash-settled derivatives and other instruments that allow to exercise voting influence in a company; and that proposed EU legislation provides transparency requirements and permanent limitations to naked short selling largely in excess of the US regulatory framework.
No Gift and Inheritance Tax: No Problems Left for Succession of Family-Owned Businesses?
Authors: Bjuggren Per-Olof , Sund Lars-Göran 
Published: April 2022

Sweden abandoned the gift and inheritance tax in late 2004. One reason was that the government wished to enhance transfer of ownership of shares in family-owned businesses from the older to the younger generation and within the family. Anticipated outcomes of amendments in tax law are, however, not always fulfilled. This paper reports on a survey study of 143 Swedish small to medium-sized family businesses. The study is focused on companies and families that have carried out an intergenerational succession (some partly) during the lifetime of the older generation (127). Only in a few instances was the transfer of shares made in another way, i.e. six intestate inheritances and ten sales to an external person. According to the survey results abandoning the gift and inheritance tax is no quick .x. A succession within the family has still to be prepared and planned. Further, a transfer of the shares, for example to a daughter during the life time of the incumbent cannot always be made through a gift. The older generation may still require financial compensation in order to uphold their standard of living or compensate siblings who do not receive shares. A sale to a child at less than market value is still partly capital gains taxed. Even though having no gift and inheritance tax can be beneficial it nonetheless cannot produce miracles.
We conclude that more efforts should be made concerning taxation of intergenerational transfer of family-owned businesses, in order to smooth the process, which hopefully will also be recognized by the EU Commission in its recommendations.
The European Economic Interest Grouping  A Chance for Multinationals?
Authors: Meiselles M.K. 
Published: April 2022

Developed as a supranational corporate form intended to facilitate cross-border activity by natural and legal persons alike, the European Economic Interest Grouping (EEIG) arguably offers multinational enterprises looking to collaborate with other entities an efficient and effective corporate vehicle for their projects.
Though this form offers multinational enterprises many attractive features, certain drawbacks associated with this form may impede take-up by such entities. After a review of the development of the EEIG (part I), this paper will examine the features and purposes of this corporate form (part II), before looking at the benefits (part III) and the drawbacks associated with this form (part IV). In the conclusion, the author will review possible reforms to this corporate form.
Comparing Directors Duties in the Financial Services Sector with Regulatory Duties under the Senior Persons Regime- Some Critical Observations
Authors: Chiu Iris H-Y 
Published: April 2022

Directors in the financial services sector are accountable to regulators in respect of the discharge of these obligations and the history of enforcement by financial services regulators in the UK has shown that tough sanctions are meted out. Directors’ duties in general corporate law are however owed to the company as a whole, and are enforced by the company, shareholders through derivative litigation or liquidators at winding up. Civil enforcement against directors in company law has been quiet in the UK in spite of the revelation of senior level failures in banks in the global financial crisis of 2007–9.
Questions may be asked as to why the directors’ duties regime in company law seems ineffective to address senior level weaknesses in the banks embroiled in crisis in 2007–9, and continue to appear unable to hold senior figures to account in the more recent episodes of bank malpractice and mis-selling. Further, with the advent of the regulatory regime governing senior persons’ conduct in the financial services sector, it is queried whether the regulatory regime will become the main means of discipline for senior persons, making the directors’ duties regime irrelevant.
This article examines the relationship between the two legal regimes, and seeks to eludicate the role of regulatory governance of directors in the financial services sector alongside the directors’ duties regime in company law. This article argues that directors’ duties in company law serve different purposes from the regulatory regime for senior persons’ conduct in the financial services sector, and hence the approach taken to separately regulate directors’ conduct in financial services is a correct one. The regulatory regime is intended to encourage greater senior level internalisation of important public policy objectives that cannot be introduced in company law. It will be argued that the regulatory regime should be seen as a distinct mode of prudential and conduct regulation in financial services, and not as a form of governance that eclipses the enforcement of directors’ duties under company law. The interface between the two regimes should not result in the marginalisation of the company law regime and can indeed lead to better mitigation of information asymmetry for the purposes of civil enforcement of directors’ duties under company law. The article however provides some cautionary notes regarding the impact of the regulatory regime on directors’ conduct which will inevitably overlap with their accountability under the company law regime.
COMIng, and Here to Stay: The Review of the European Insolvency Regulation
Authors: van Calster Geert 
Published: April 2022

In this contribution I summarily review the changes to the European Insolvency Regulation (‘EIR’). The new Regulation, 2015/848, will apply to insolvency proceedings opened after 26 June 2017. It repeals Regulation 1346/2000. I will use ‘EIR 2015’ for the new Regulation and ‘former EIR’ when I refer to Regulation 1346/2000. In reviewing the changes, I have given readers uninitiated with the Regulation some context to the core provisions and ambitions of the Regulation. However this article is not meant to provide general instruction into the EIR as a whole.
As a prelimina ry note, the Regulation’s official title is a bit of a misnomer. The title of the Regulation is simply ‘Regulation [number] on insolvency proceedings’. However the Regulation does not harmonise substantive insolvency law. It is an instrument of private international law, harmonising jurisdictional rules, applicable law and recognition and enforcement of judgments in insolvency matters.
No-Man is an Island: UK and EU Banking Engagement after Brexit
Authors: Brener Alan 
Published: April 2022

Banking and its issues do not respect jurisdictional boundaries. Whatever form “brexit” eventually takes the most significant aspects of banking regulation are, and will remain, international. This paper considers the UK’s continuing need for crossborder engagement with the EU in the key operational areas of standard setting, supervision, crisis management, anti-money laundering and payments systems. In addition, it looks at how close coordination with the EU can help address the risk of “regulatory capture” and, separately, in improving culture, ethics and governance in banking.
Consequently, it is important that the UK and the other European states, together with other jurisdictions, continue to work to maintain and develop cross-border cooperation. Moreover, the UK, and the other states, will continue to need to conform to the highest global standards. This will extend to cross-border supervision and coordination set against a background of common standard setting.
At some point it is inevitable that there will be another serious banking crisis. The effects are likely to extend across borders. Consequently, even outside the EU, the eurozone and the scope of the European Central Bank, the UK will need to prepare and to engage closely with the EU’s developing financial crisis management arrangements.
This will include cross-border recovery and resolution planning.
Staggered Boards, Banks and Public Companies: Quo vadis ?
Authors: Ginevri Andrea Sacco 
Published: April 2022

This Article provides a legal overview and analysis of the benefits associated with the adoption of a staggered board of directors by Italian banks and public companies.
While there is a widespread opposition to staggered boards among U.S. scholars and investors – being such device a powerful antitakeover measure in the American legal system since directors belonging to a U.S. staggered board may be removed only “for cause” – this Article explains the reasons why staggered boards should be implemented by Italian banks and public companies considering the significant distinctions between the U.S. and the European legal frameworks in this area.
Taking into account the new banking governance principles recently introduced by CRD IV and by its implementing measures, this Article explains how the establishment of staggered boards by Italian credit institutions and listed companies may allow them (i) to exclude the risk of potential discontinuities in the management’s action, which are inappropriate in corporations of such complexity and systemic relevance, (ii) to facilitate the initial induction and training of the newly appointed directors and officers, who would benefit from the expertise of other members of the board with longer experience, (iii) to strengthen and foster the institutional dialogue between the board and the shareholders, aimed at achieving an adequate collective knowledge, skills and experience of the management body, and finally (iv) to attract more capital from professional investors, granting them the possibility to appoint their representatives in the board on an annual basis.
The Societas Europaea (SE)  Time to Start Over? Capturing the Zeitgeist of the 21st Century
Authors: Graute Marta , Meiselles Michala 
Published: April 2022

A topic of discourse for over half a century, the Societas Europaea (the European Company)1 has much to offer. Notwithstanding its merits, this supranational corporate form has attracted much criticism. One of the major issues that has emerged on a recurrent basis is the question of the functional worth of this structure. In this context a discourse has ensued about its advantages, and disadvantages from the perspective of its intended end-user.
This paper will discuss the pro-business aspects of this entity (Part 2) before giving due consideration to its structural and functional deficits (Part 3), ending with suggestions for reform (Part 4).
The Directive on the Credit Agreements for Consumers relating to Residential Immovable Property (Directive 2014/17): A Regulatory Explanation and a Private Law Analysis
Authors: de Gioia-Carabellese Pierre 
Published: April 2022

With the devastation wrought by the 2008 ‘property market bubble’ still fresh in the mind on one hand, and a spate of recent enthusiasm manifested in the ‘rush to the property ladder’ on the other, the newly enacted Directive 2014/17 seeks to strike a middle ground of reasonableness in the delicate and sensitive matter of the security granted by the buyer of a residential property.
Against this background, the present contribution analyses, first and foremost, the norms of a regulatory nature introduced by the new EU piece of legislation and the attempt to shape a new category of consumer. Among these precepts, attention is particularly afforded to the principle, of a public nature, prescribing that the bank’s assessment to grant a mortgage shall be prevailingly based on the ability of the mortgagor to repay the debt, rather than on the expected (but undemonstrated) burgeoning future value of the property.
Furthermore, the discussion focuses on the private law principles introduced by the Directive. Among these is the onus lying on the bank to provide adequate information about the terms and conditions of the mortgage. More interestingly, the directive at stake derogates from, and goes beyond, the notion of prohibition of ‘agreement of forfeiture’ existing in some civil law jurisdictions. This novelty, the ancillary legal provisions of art 28 of Directive 2014/17 as well as their impact on the system of civil proceedings and foreclosure existing in each country, provide fertile ground for a legal and comparative analysis.
The Concept of Shareholders Duties: Keeping a Grasp on a Paradigm Shift
Authors: Reynisson Kristinn 
Published: April 2022

It has been observed, that a paradigm shift is taking place, from discussing shareholders’ relationship to companies in terms of rights, towards including their duties. This article provides a terminological foothold for the emerging discussion on shareholders’ duties, by analysing the concept of duty, and how it applies to shareholders.
By application of moral philosophical theories, the concept of shareholders’ duties is subjected to classification which provides a framework for further discourse. Thereby, this article provides not only guidelines to what should be considered a shareholder’s duty, but furthermore what should be kept out of that group.
Are Cooperative Societies Transforming into Cooperative Companies? Reflections on the Finnish Cooperatives Act
Authors: Pönkä Ville 
Published: April 2022

This article examines the so-called companization of cooperative law. Companization refers to the phenomenon of national cooperative laws adopting elements of efficiency- oriented company legislation; i.e., cooperative societies seem to be slowly transforming into cooperative companies. Companization is a widely recognized issue, but there is little research on the topic. This is unfortunate, since studying companization helps us understand the relationship between cooperative law and company law, and, furthermore, it serves as a gateway to the investigation of the essential nature of cooperatives and why we need them.

This article examines the companization of cooperative law using the Finnish Cooperatives Act (FCA) as a framework for analysis. The FCA is a good instrument for elaborating what companization means in practice, since cooperatives play a larger role in the Finnish economy than anywhere else in the world and since companization has been the conscious objective of Finnish legislators. This research was conducted by reflecting on the FCA in relation to the international cooperative law doctrine, using the ICA’s cooperative principles as a benchmark. The findings reveal many signs of companization, and this does not only concern Finland: Companization is a global trend which requires further attention.
Application of the CISG to Arbitration Agreements
Authors: Fillers Aleksandrs 
Published: April 2022

The CISG is probably the most important example of unification of substantive private law in the world, creating a uniform set of substantive rules. Unlike a civil code, the CISG does not claim comprehensive scope. The Convention applies to one type of legal relations – sale of goods. However, in real life, sale contracts are often accompanied by additional clauses that require specific regulation. In particular, it is common practice for parties to insert arbitration clauses in their international sale contracts. The close connection between sale contracts and arbitration clauses poses a question of their unified or separated regulation.
Taking into account the role of arbitration as a natural forum for international merchants, it could have been expected that the CISG would clearly delimit its material scope regarding arbitration agreements. Unfortunately, the text of the CISG is surprisingly cryptic in this regard. The ambiguity of the Convention has supplied arguments both to those supporting its application to arbitration clauses inserted in sale contracts and those favoring application of international or domestic arbitration law to arbitration clauses. The practice of courts and tribunals is also inconclusive, although the majority seems to prefer separation of legal regimes.
The author of the article agrees that the text of the CISG can be construed in different ways. However, certain constructions are too complicated to be applied in practice. For that reason, it is difficult to accept the idea that arbitration clauses fall entirely outside the scope of the CISG. At the same time, the legislative history does not provide support for an assumption that the CISG was meant to apply to all aspects of arbitration agreements, in particularly, their formal validity. Therefore, the analysis of scholarly works and practice leads to the conclusion that while formal validity of arbitration agreements is not covered by the CISG, formation of a sale contract, including an arbitration clause, does fall within the scope of the CISG. While this solution will not satisfy purists in both camps, it attempts to solve the ambiguity in the most realistic manner.
Initial Coin Offerings and Regulation in Japan
Authors: Ueda Junko 
Published: April 2022

This article examines the regulation of initial coin offerings (ICOs) from the Japanese perspective. An ICO may be provisionally defined as a method of raising capital in exchange for digital “coins” or “tokens” that entitle holders to certain rights. Investors who receive the digital tokens are normally provided with an opportunity for reinvestment by selling them on an exchange. Japanese state actors have been acutely aware of the risks associated with ICOs. However, it took some time before regulatory reforms were adopted aiming at enhancing protection of ICO investors on resale markets. As a result of a recent initiative by the Japanese Financial Services Agency, the first regulation of ICOs was implemented as an amendment to the Japanese Financial Instruments and Exchange Act on 31 May 2019.
This article discusses critically these recent legal developments in the realm of cryptocurrency exchange and ICO markets in Japan, as well as an earlier attempt to regulate cryptocurrencies in a 2016 amendment to the Japanese Payment Services Act. The article concludes that it is important to closely monitor how ICOs develop and to keep the issue on the regulatory agenda, in order to be prepared for alternative regulatory arrangements.
Japan, Initial Coin Offerings (ICOs), Cryptocurrencies/Crypto Assets, Regulatory Background, Investor Protection, Financial Services Agency, Payment Services Act, Financial Instruments and Exchange Act, Regulation on Cryptocurrencies, New Regulation on ICOs