bluuebunny/crossref_metadata_2025_split huggingface dataset:
Contract Law and Smart Contracts: Property and Security Rights Issues
Authors: Tshibende Louis-Daniel Muka 
Published: April 2022

Abstract: Considering that the internationality of a contract as well as its national character opens up opportunities for the contracting parties, particularly in the domains of dispute settlement mechanisms and applicable Law that they can eventually opt for, the present contribution analyses legal issues resulting from the fact that parties are nevertheless submitted to an obligation to comply with mandatory provisions and public policy rules depending on the location of some key elements of their agreement. This applies, even though it is about smart contracts and blockchain technologies. This article focuses on property and security rights issues (: defective title, informational defects and viruses … ) in the context of the Civil Law tradition. Résumé: Considérant que le caractère international d’un contrat, aussi bien que son caractère national, ouvrent des opportunités pour les parties contractantes, particulièrement dans les domaines de mécanismes de résolution des litiges et de loi applicable qu’elles peuvent éventuellement choisir, la présente contribution analyse les questions juridiques résultant du fait que des parties sont néanmoins tenues de respecter des dispositions obligatoires et de règles de politique d’intérêt général dépendant du lieu de certains éléments-clés de leur contrat. Ceci s’applique même s’il s’agit de contrats intelligents et de technologies de la blockchain. Le présent article se concentre sur des questions de droits de propriété et de sécurité (: défectuosité, défauts informationnels et virus … ) dans le contexte du droit civil traditionnel.
Fighting European Copyright Tourism: Lessons from Defamation Laws
Authors: Novovic Miloš 
Published: April 2022

In the recent cases of Pinckney and Hejduk, the ECJ revised European rules on jurisdiction over online copyright infringement disputes – making it possible for claimants to bring their lawsuits in virtually any European country. Due to the application of lex loci protectionis, this choice of venue also affects the law applicable to disputes. This article shows that this results in a substantial forum shopping risk, despite safety mechanisms built into the ECJ judgments. It explains that forum shopping is not inherently bad, but that it creates major problems for copyright laws, given its potential to shift the balance between the authors and exploiters of the work. In an attempt to identify a possible solution, this article turns to the substantive implementation of de minimis principle in Principles on Conflict of Laws in Intellectual Property (CLIP) Principles. The success of this approach is illustrated through the field of media law, and specifically, the way in which United Kingdom solved the problem of libel tourism. Examining the substantive requirement of ‘serious harm’ found in the UK Defamation Act of 2013, the article proposes amending national copyright laws as to state that absent showing of the intention to target a certain Member State by the online infringing activity or, alternatively, a ‘serious harm’ suffered on its territory, no copyright infringement is to be found. This way, forum shopping in online copyright infringement cases may be stopped in its tracks, before it becomes a rampant practice in Europe.
The Breaking Off of Negotiations in M&A Operations: Comparative Approach
Authors: Couret Alain , Dondero Bruno 
Published: April 2022

The breaking off of negotiations does not affect only transfer of companies' ownership operations. Nevertheless, when the breaking off occurs in that particular case, it often implies dramatic consequences. The sudden withdraw from the table of negotiations of the only possible buyer - or at least the person seen as such - may cause a complete stop of the company's activity for a more or less long time.
The hereafter comparative study shows that, in the negotiation context, the duties that the parties must abide by have different sources according to countries. Therefore, the breaking off can be assessed either on tortious liability ground, on breach of contract ground, or even on the basis of an autonomous legal mechanism. The question is commonly addressed under European countries' law systems. However, the question also deserves to be discussed in Common Law countries: even if the latter system refuses to draw legal consequences from a situation which is not yet contractual, the truth is that the Common Law systems are not completely indifferent to the breaking off of negotiations.
When it comes to compensation, even if various legal basis are admitted, the results of damages claims remain modest. The judicial practices of the countries that admit the possibility of compensation actually reveal that the scope of such compensation is always limited. Thus, it appears that compensation for the loss of a chance to sign the contract is universally rejected, and that only damages which are certain, such as negotiation fees and harm to reputation, are taken into account. The loss of a chance to enter into a contract with a third party can occasionally be compensated.
The Effect of the Principle of Two Levels in Administrative Judgment: On the Principio Della Domanda and Principio Dispositivo
Authors: Esposito Gianluca Maria 
Published: April 2022

The main aim of this article is the mutual implication in the administrative process between the principle of the two levels of jurisdiction and the principio della domanda (the principle of the right to bring proceedings) and the principio dispositivo (the principle of the parties delimiting the scope of the case). The principio della domanda performs in the first instance all its legal significance, giving the parties the absolute rule on the issues that the Court should define. The principio dispositivo, on the contrary, presents it self in the administrative procedure in that particular form defined "principio dispositivo with an acquisitive method."
The principle of two levels of jurisdiction and, in particular, the interpretation the Code of Administrative Procedure provides through the discipline of the appeal affect principio della domanda and principio dispositivo. On appeal, the parties do not have the power to bring new evidence or to produce new documents in respect to the first instance. Hence, it can be asserted that the power of the parties is compressed compared to that exercised in the first instance, while the power of investigation of the Court of its own motion, does not know a similar limitation.
Potential Impact of the New Post-Crisis Regulatory Approach to Financial Derivatives
Authors: Laucius Gediminas 
Published: April 2022

In the aftermath of the global financial crisis efforts have been made by G-20 to address the drawbacks of the regulatory framework in which the financial system operates. As financial derivatives exacerbated the crisis, a significant emphasis in the working agenda has been put on the reframing the regulatory environment in which derivatives are traded. This article focuses on the regulatory measures adopted in the EU and the US.
Having observed that the regulatory reform is likely to have positive effects in such areas as counterparty credit risk exposure, market transparency, liquidity etc., as well as having identified some fields of concern as to regulatory arbitrage, increased transaction costs or accumulation of substantial credit risks by central counterparties, the article arrives at the conclusion that the most evident 'gap' of the reform is a failure to address the speculation with 'naked' derivatives. In the light of the cost-benefit analysis of the 'purely' speculative derivatives, it is argued that this gap of the global regulatory reform could be filled with the re-introduction of the common-law judicial rule against differences. In order for this rule to be effective in the 21st century the article comes out with specific suggestions on its improvement.
Experience of Internationalization of Chinese Corporate Law and Corporate Governance: How to Make the Hybrid of Civil Law and Common Law Work?
Authors: Junhai Liu 
Published: April 2022

This paper focusses on the Chinese approach to corporate governance. It begins with a survey of the historical foundations of the modern corporate law of China. The unique relationship which arose between Chinese markets and foreign suppliers from the consular judiciary power enjoyed by many nations in the early twentieth century and its impact on the development of Chinese corporate law is considered first. A specific focus is the circumstances surrounding the drafting of the first Chinese Corporate Law of 1904, enacted with the goal of making China a strong commercial power. The hybrid nature of the first Chinese corporate law, being drawn from Japanese and English structures, and its impact on modern legislative approaches to corporate law form the basis of the discussion of the relationship between the facets of the modern corporation in China. The position of shareholders as the corporate power centre, their relationship with the boards of directors and supervisors, and the powers of each are noted.
Another core focus is the method of enforcement of the corporate law in China. The proper plaintiff, defendant and the possibility of derivative actions under the Corporate Law of 2013 are discussed, with a particular focus on the ability of shareholders to bring actions to protect the interests of the corporation. These powers must be exercised so as to guard against possible abuses of restrictions on action by wrongdoing supervisors and directors acting in collusion. The article concludes with an analysis of the role of the Chinese Securities Regulatory Commission (CSRC) in improving corporate governance. Significantly, it is noted, that the possibility of class actions in China can be used to hold corporations, controlling shareholders, and management accountable for exercises of power which are against the public interest.
A Behavioural Analysis of Shareholders Meetings
Authors: Marchisio Emiliano 
Published: April 2022

The law relating to shareholders' meetings is almost invariably built on the assumptions of rational operators (shareholders, directors etc.), perfect information and no transaction costs. In such a model all operators select, within the alternatives available, the path of action that maximises their own utility; their decisions are based on stable, consistent and objective preferences; their choices are rational and based on all information available.
Under this hypothesis, the only requirement needed in order to reach an "efficient" outcome in a shareholders' meeting is to provide its participants with the highest degree of information available.
On the other hand, behavioural economics provides undisputable empirical evidence that all actors make their economic choices under the systematic - and, therefore, predictable - influence of errors in both reasoning and preferences, which leads them (sometimes far) away from the path of "rationality".
When applied to shareholders' meetings and more generally to group decisions, behavioural analysis show that the patterns governing such events are very likely to bring the output of any group discussion far away from the objective of more informed decisions and a better composition between the different interests represented therein.
In this paper we examine the most common errors at both the individual and group levels, providing some comments and highlighting how they may impact on shareholders' meetings.
After such a summary, we develop some provisional proposals that we claim would contribute to debiase group decisions and help shareholders' meetings in reaching their scopes, highlighting the need for further research and action in this field.
Public Awareness through Private Law Remedies: The Struggle for Information in the Samsung/Apple Case
Authors: Brutti Nicola 
Published: April 2022

Compelling a party to disseminate judicial orders through her Homepage implies a relevant discretionary power. The work discusses the extension of such a judicial power, pointing out some questions and raising some concerns.
What is the real function of such prominent advertising? Is it possible to repair a damage beared by a private plaintiff by restablishing a correct information of the public at large? Can injunctive reliefs transcend the immediate interests of the litigants in order to further social objectives? This paper does not provide definitive answers, rather it is a starting point for a discussion.
The survey recalls other questions like: the increasing use of moral arguments in Courts' reasoning in order to prevent violations or breach of duties, public information and commercial certainty as legal goals, the controversial shaming effect of the remedy at issue and the threats to personality rights and freedom of expression.
Societas Unius Personae (SUP)  The New Corporate Element in Company Groups
Authors: Jung Stefanie 
Published: April 2022

Due to a preliminary failure of the European Private Company (Societas Privata Europaea – SPE), the European Commission presented its proposal for a “Societas Unius Personae” (SUP) on 9 April 2014. The Commission aims at introducing and regulating harmonised single-member private limited liability companies (SUP). This shall allow medium and large-sized enterprises especially to organise their subsidiaries (abroad) with the help of this legal form.
The proposal of the European Commission has been discussed controversially in the Council. On 28 May 2015 Member States agreed on a general approach that significantly amended the provisions put forward by the Commission.
This contribution focuses on the substance of the SUP’s rules and in this regard compares the Commission’s proposal and the Council’s general approach.
Theory of the Firm and Organisational Contracts: The Remedial Aspects of Good Faith
Authors: Farina Marco , Maltese Demetrio 
Published: April 2022

The aim of this paper is to investigate which conceptual place long-term contracts have within the legal system and how the theory on relational contracts fits within a general theory of justice that has an objectification in a doctrine of good faith.
We present a definition of commercial long-term contracts and give examples as to understand how, within the wide range of contracts that can fall within this definition, some can have an organisational colour. After this, we examine the good faith doctrine as understood and employed in both common and civil law jurisdictions; the paper provides the analysis of a recent civil law case involving a distributorship agreement and the function of abuse of right. Nevertheless, the focus is mainly on good faith as a generally accepted clause in European jurisdictions, that is paving its way to general acceptance in common law jurisdictions too.
Lastly a brief explanation on how law and economics can help us in descriptively understanding the interplay between contract law and trust games is given, so as to have also a normative insight on why granting judges such a discretional power does not only achieve justice and fairness but also efficient outcomes for business players.
Is there Scope for Reforming the Emaciated Concept of Fiduciary Law in Finance? Critically Discussing the Potential Achievements of Reform
Authors: Chiu Iris H-Y 
Published: April 2022

This article is dedicated to Professor Mads Andenas on the occasion of his 60th birthday in 2017. Professor Andenas was my PhD supervisor, co-author and mentor, and this topic was very much inspired by discussions we had in the course of writing The Foundations and Future of Financial Regulation (Routledge 2014). I never cease to be amazed at the breadth of insight Professor Andenas has in many diverse areas of law. He is a scholar of many talents and remains a beacon of inspiration to me.
This article argues that the limited application of fiduciary law in finance, which has been both a persistent doctrinal trend, as well as a position supported by the financial services industry for its friendlier commercial effects, has played no small part in bringing about the modern financial sector and its negative externalities
However it is no panacea to embrace general fiduciary law in finance to address all of the contemporary problems, as such an embrace may be over-inclusive and disruptive to wholesale sector transactions. However we consider it timely to introduce a regulatory principle of a ‘thick’ fiduciary law to provide extended and more intensive consumer protection in certain areas of lacunae identified in the article. We do not regard the introduction of a ‘thick fiduciary’ principle as being able to supplant regulatory law in consumer protection. However we think it provides a complement for the existing regulatory framework and its reforms in progress.
Agency Agreement: From Innominate Contract to the Reference Model of Commercial Distribution Agreements
Authors: Bertino Lorenzo 
Published: April 2022

The purpose of this article is to demonstrate that some Italian rules in relation to the commercial agent also can be applied to the distributor. The few Italian judgements rendered on this matter state that rules governing the commercial agent are not applicable to the distribution contract: this innominate contract could be governed through applying by analogy the regulation of supply contract. This Italian Courts’ point of view could be revised.
This analysis is based on an historical approach and on the examination of case law in the German, English and Italian legal systems.
The historical analysis demonstrates that Italian legislator has regulated the commercial agent contract as a framework model for all distribution contracts.
An analysis of the case law demonstrates that in some legal systems the commercial agent’s regulation can sometimes be applied to the distribution contract.
Borrowing Beyond the European Stability Mechanism: Arranging Additional Facilities
Authors: Megliani Mauro 
Published: April 2022

Since its arrival in late spring 2018 the Italian Government has presented a series of measures capable of questioning the sustainability of the Italian public debt. The key point is that, in the absence of a steady economic growth, spending measures may involve an increase in interest rates and a downgrade of public debt. In this case, without a significant correction, market access can be lost and debt burden might become unsustainable. In order to avert this scenario, Italy would be obliged to require assistance to the ESM machinery. Nevertheless, such possibility has brought to light that the ESM machinery may be unavailable for some reasons: disagreement on conditionality, unsustainability of debt and insufficiency of resources. Additional resources may come from the OMT programme, but its operation is subject to some constraints, like the market access status of the requesting country.

In this context, it is useful to investigate whether and to what extent financial assistance may be sought elsewhere. A first route may be for the Euro countries to establish a borrowing facility within the ESM, but this must take into account the borrowing limits of the ESM. A second route may be for Euro countries to establish a parallel mechanism outside the ESM that may overcome some requirements of the ESM assistance. A third route may be for non-Euro countries to establish a lending facility, provided that conditionality is respected. A fourth route may be for Euro and non-Euro countries alike to establish a facility in the case of withdrawal from the monetary union with the purpose of preserving the stability of the EU.
The Standardisation of the Leasing Contract Under Italian Law and the Unidroit Principles
Authors: Bertino Lorenzo 
Published: April 2022

Despite its financial nature, for over forty years, Italian case law has classified the financial leasing contract as an atypical contractual form, often qualifying it as a sale or rental agreement. In this respect, various indexes were formulated, such as the amount of the rental fees and the existence of a redemption agreement.

In August 2017, the Italian legislator sought to standardise the leasing contract under the law, attempting to define its contractual form and to regulate certain aspects, such as the lessee’s breach and possible consequences deriving from its termination.
The comparison between the approach taken by case law prior to the legislative reform and the new regulatory framework shows that the legislator did not transpose the long-established jurisprudential outcomes into the reform. Instead, through comparing the legal reform with the UNIDROIT Principles (The Ottawa Convention and the Model Law), it would appear that the new legal framework closely resembles the solutions adopted therein. Conversely, it is clear that the legal reform does not incorporate the rules adopted by the Draft Common Frame of Reference.
Enhancing Whistleblower Protection: It’s all about the Culture
Authors: Andreadakis Stelios 
Published: April 2022

Whistleblowers and their role as accountability and fraud prevention mechanism have recently been in the centre of attention. Despite several initiatives to encourage and motivate whistleblowers internationally, there are numerous recorded instances of retaliation and harassment practices. As a result, potential whistleblowers do not feel adequately protected to step up and raise their concerns.
The improvement of the protection regime internationally and the establishment of a robust system of incentives requires going beyond the introduction of new rules. Emphasis needs to be given to corporate culture so that the existing culture of silence is replaced by a new culture of honesty, integrity and transparency.
Drawing inspiration from the UK Bribery Act 2010, an attempt will be made to offer practical recommendations for this much-anticipated change of corporate culture to be initiated and for companies to be actively involved in this process.
whistleblowers, culture, retaliation, speak-up, Bribery Act, accountability, transparency, incentives, harassment, rewards
Money Market Funds Reforms in the US and the EU: The Quest for Financial Stability
Authors: Alshaleel Mohammed K. 
Published: April 2022

This article considers the impact of money market funds (MMFs) reforms in the US and the EU on the money market fund industry and global financial stability. The 2008 financial crisis proved that MMFs are a source of considerable instability to the global financial system, and highlighted their susceptibility to runs. The shareholders’ incentive to redeem their shares before others do when there is a perception that the MMFs might suffer a loss makes MMFs vulnerable to runs. Given this reality, the article argues that the emphasis of the financial regulators on achieving the stability of the entire financial system after the 2008 financial crisis necessitates the strictness of the new reforms.
Divided into six parts, the article outlines the attributes and classification of MMFs, the definition of financial stability, and the run and systemic risk posed by MMFs during the financial crisis, before assessing the MMFs’ reforms in the US and the EU and the impacts of these reforms on the MMFs industry and global financial stability system. The major component of the US reform is the introduction of the floating net asset value (FNAV), where an MMF’s share price will fluctuate to reflect the daily market value of the fund assets. In the EU the new regulation provides investors with a high degree of optionality for investing by introducing Low Volatility Net Asset Value (LVNAV) MMFs. The article concludes that despite that, the reforms are likely to jeopardize the viability of some categories of MMFs, they enhance global financial stability, and the complexity of the reforms has made MMFs more appropriate products to financial institutions’ investors than retail investors.
Money market funds, financial stability, the UK, the US, macro-prudential policy