bluuebunny/crossref_metadata_2025_split huggingface dataset:
Fundamental Rights as a Part of Contract Law
Authors: Gentili Aurelio 
Published: April 2022

Fundamental Rights are now not only political ideals, but legal Concepts, based on the European Charters and the Constitutions. However, their meaning in concrete cases still depends on argumentation. They are not Rights in the same sense of civil Rights because they lack a specific content of claims and so they have no immediate practical meaning in a private relationship. They are rather Principles, applicable to Contract Law, directly when expressly involved in the case as the only possible remedy, otherwise indirectly, assessing which solution gives the greatest possible protection to the Fundamental Right with the least possible sacrifice of the opposed principle.
Human Rights, Inviolable Rights, Values, Fundamental Norms, Charters of Rights, Drittwirkung, Direct Application, Indirect Application, Principles, Balancing
The Tort Liability of CRAs in Europe and the Need for a Harmonized Proximity Requirement at the Union Level
Authors: Nästega°rd Emil 
Published: April 2022

The union-wide civil liability regime for credit rating agencies relies on the national private laws of the Member State to a large extent. To prevent credit rating agencies from shopping for the most restrictive national private laws it is important that the Member States find common ground with respect to the interpretation and application and of central liability elements, such as the proximity requirement. This article focuses on identifying proximity requirements in the national tort laws of England, France, Germany and Sweden and commonalities regarding their application and interpretation. Such commonalities can form the basis for a harmonized interpretation and application of the proximity requirement in CRA liability cases.
Pure economic loss, rating agencies, proximity requirement, tort liability, European private law, harmonization
Parent Company Liability and the European Convention on Human Rights – An Analysis from the Perspective of English Law
Authors: Liston Gerry 
Published: April 2022

The difficulties faced by individuals who seek to hold parent companies liable for the conduct of their subsidiaries are well-known. Much less discussed is the question whether international human rights law might require a state to make available a compensatory remedy against a parent company in such circumstances. Drawing on principles of European Convention on Human Rights (ECHR) law, this paper argues that the obligations, first, to create an effective deterrent against activities by private actors which infringe upon human rights and, second, to provide an effective remedy for such activities requires that parent companies be made liable for the conduct of their subsidiaries in certain circumstances. Recent developments in English law on parent company liability are also examined. While these developments bring English law further into line with these ECHR obligations, it is argued that it may still fall short of what the ECHR requires in this context.’
Parent company liability – effective remedy – effective deterrence – duty of care
Asset Segregation at CSDs: Protecting Investors with a Level Playing Field
Authors: Priem Randy 
Published: April 2022

This article provides an analysis of the various assets segregation requirements that central securities depositories (CSDs) need to adhere to. Omnibus segregation is likely to be preferred to individual client segregation in those jurisdictions where the legal rights of investors are equivalent regardless of the level of segregation. Individual client segregation could be chosen more often in jurisdictions where ultimate investor accounts are needed to determine the legal owner of the securities. Individual client segregation is expected to be costlier and CSDs are likely to reflect these costs in the settlement fees charged to their customers in order to stay profitable. Hence, CSDs located in Member States with a higher likelihood that individual client segregation is chosen are likely to face a competitive disadvantage vis-à-vis CSDs domiciled in a jurisdiction where omnibus segregation is deemed protective. This article further explains the level-playing-field issues regarding asset segregation between CSDs and global custodians. This paper describes the wish of CSDs to be exempted from certain asset segregation rules while global custodians require CSDs to be submitted to the same asset segregation rules to which they need to adhere to.
Central securities depositories, settlement, asset segregation, conflict-of-law rules, global custodians, investor protection, post trading, market infrastructures
Bail-in: Do Italians Do It Better (or Worse, or Not at All)?
Authors: de Gioia-Carabellese Pierre 
Published: April 2022

The bank insolvency, hinged upon the new resolutions tools, particularly the bail-in, with its controversial right, bestowed upon an administrative authority, to covert/ write off/reduce the creditor’s rights should the bank fail, has played havoc in some EU jurisdictions, such as Italy. In this country, where the banking system has been put under intense pressure in the last five years, the application of the new rules has been sui generis, in some cases with an apparent misapplication of the new legal framework. Additionally, the existence of some constitutional values in the Belpaese, where the savings are expressly protected, may suggest that the judicial authorities, particularly the Italian Constitutional Court, may in the future decide to be more courageous in the way some fundamental legal provisions should be interpreted in their relationship with the new framework.
Bank insolvency, Bail-in, resolution tools, constitutional values, Italy, savings’ protection
A Decade after the Global Financial Crisis: New Regulatory Challenges to Financial Stability
Authors: Khair alshaleel Mohammed , Hoekstra Johana 
Published: April 2022

Since the global financial crisis in 2008 regulatory measures have been taken to strengthen the international financial sector. There are however regulatory challenges that have the potential to destabilise the international financial sector. This article examines three of these challenges: Fintech, Brexit, and Emerging Markets Economies. There is currently no significant analysis of these issues in relation to their effect on global financial stability. This article addresses this gap and analyses why these issues form a threat to financial stability. Fintech is modest but growing exponentially and there is little regulation in place, Brexit is characterised by prolonged uncertainty and potentially significant negative effects on the economy, and Emerging Markets Economies now occupy a far larger part of the international financial sector than in 2008 and their potential effects on global financial stability are also significantly stronger. The analysis leads to the conclusion that the common threat emerging from these challenges is policy uncertainty which leads to increased wariness from investors, which in turn leads to sudden changes in capital flows. This can potentially affect international financial stability. To mitigate these effects a more internationally harmonised approach to policy and regulation is key.
Financial law, financial stability, systematic risk, financial regulation reforms, fintech, brexit, emerging markets, financial crisis, global financial market
The Relevance of Apologies in Non-pecuniary Damages: Between Remedies and Incentives
Authors: Brutti Nicola 
Published: April 2022

Legal systems and their sources have significantly evolved during globalization, bringing out new ways of conceiving regulation and remedies. We can recall several examples in which certain social phenomena are treated beyond a pure ‘command and control’ approach.Think about the growing impact of self-regulation in several areas, the increasing relevance of corporate codes of conduct, the use of reputational sanctions in social networks, the emergence of public apologies in tort law.
In the latter example, we may focus on many legal implications such as the opportunity to provide a safe harbour legislation in order to facilitate the settlement of disputes, the acknowledgment of mitigating effects on non-material damages, the idea of judge-ordered apologies.
According to Law and Economics thought, apologies can be deemed to fall within the category of “merit goods”. They allow people to reach the difficult goal of nonmaterial compensation giving voice to personal feelings without having to translate them into money. The article shows how behavioral incentives and mediation proceedings might be more appropriate than authoritative measures in order to gain benefits from apologies.
Financial law, financial stability, systematic risk, financial regulation reforms, fintech, brexit, emerging markets, financial crisis, global financial market
Corporate Governance and Accountability in an Evolving Political Environment
Authors: Ilmonen Klaus R. 
Published: April 2022

The political environment of corporations has been evolving rapidly. There has been increasing pressure to hold corporations accountable for social, environmental and political aspects of the business enterprise – even the very purpose of the corporation has been challenged. The salience of corporate matters has increased overall as a result of changes in the political environment and an increasing awareness of corporate externalities. With the growing economic and political significance of corporations, corporate governance has emerged as a relevant framework for political action. These developments have affected the relationships among corporate constituencies and the boundaries of the corporate enterprise. Based on a political approach to corporate governance, this paper considers the resulting implications for the legal premises of corporate governance in an EU context. The paper argues that current corporate structures may not reflect the requirements of the rapidly evolving political environment.
Corporate governance, corporate social responsibility, politicization of the corporation
Collective Action Problems in Chinese Takeover Rules: Deficiency and Difficulty in Protecting Target Shareholders in a Hybrid Regime
Authors: Shen Wei , Mengshan Xu Colin 
Published: April 2022

China is in a process of upgrading its corporate law and corporate governance regime. The reform involves a learning process of incorporating corporate governance norms from other jurisdictions. In the field of takeover rules, China’s hybrid regime is a combination of some elements from both the US model and the UK model, reflecting China’s pragmatic approach towards rule of law and legislative reform. Though flexible and pragmatic, this transplant approach without taking into account China’s own economic, social and even political scenarios is of little help to address the agency problem embedded in China’s concentrated shareholding model faced by its SOEs and family–controlled enterprises let alone the shareholder protection rules investors are keen to have. A comparative study is conducted in this article to investigate the collective action problems the Chinse takeover rules fail to address.
Autonomy of sport, Private International Law, Public-private Governance, Corruption, Transnational Legal Order, Sports Economy, Legal Status of Sporting Organisations, Audit, Managerial Transparency, Economic Monitoring, International Sporting Convention
What to Expect from the Directive on the Protection of Whistle-blowers?
Authors: Kafteranis Dimitrios 
Published: April 2022

Following several scandals, especially in the business sector, the European Union (EU) decided to adopt legislation on the protection of whistle-blowers. The Directive on the protection of persons who report breaches of Union law is an ambitious legal text complying with several international and European standards of whistle-blower protection. The fragmented legislative approaches of the EU member states will become more coherent as the Directive offers common minimum standards of protection. The Directive contains certain positive elements such as a clear definition for the whistle-blower or clear channels for disclosure. Nevertheless, the Directive does not address the issue of financial rewards and does not address clearly the issue of anonymity. The purpose of this contribution is to present the Directive and highlight its positive and negative elements. Due to the scarce legal literature upon this new EU legal act, this contribution is important and further research is needed.
Whistle-blower, EU law, protection, culture, financial rewards, financial scandals, financial law, enforcement, channels for disclosure, ECHR
From Administrative Cooperation in the Application of European Union Law to Administrative Cooperation in the Protection of European Rights and Liberties
Authors: Lottini Micaela 
Published: April 2022

European law scholars acknowledge that cooperation amongst public administrations in Europe has 'become the backbone of the EU's unique system of government and governance'. All in all, it has been pointed out that the principle of (administrative) cooperation is crucial for the correct application of European Union (EU) law. However, cooperation is also the very principle around that revolve several initiatives, launched to provide an alternative to the courts in protecting individuals against alleged misapplications of European law by national authorities. Hence, cooperation networks of national authorities (and European institutions) have been set up to provide a response to the needs of the European citizen who has to deal with a new 'European administration' and also to make administrative practices better and more consistent throughout Europe. This article is divided into two main sections. The first section deals with the principle of administrative cooperation in the application of EU law and with the legal problems (especially in terms of judicial review) that stem from 'cross-border' composite decision-making procedures. The second section focuses on the cooperation networks that during the last decade have been developed to resolve problems arising when EU rights are not respected by national public authorities: namely the SOLVIT network, the Public Procurement Network and the Network of Ombudsmen. Finally, a brief account is given of the Single Market Assistance Services initiative.
Truly Competitive Public Procurement as a Europe 2020 Lever: What Role for the Principle of Competition in Moderating Horizontal Policies?
Authors: Graells Albert Sanchez 
Published: April 2022

Public procurement is a pillar in the Europe 2020 strategy and one of the core policies derived from the Single Market Acts I and II. Majoritarian views advocate for an interventionist approach and instrumental utilization of procurement for the promotion of horizontal policies seen as deeply embedded in the Europe 2020 strategy. Conversely, public procurement can only make such a contribution by promoting the maximum degree of competition and being open to market-led innovation, instead of trying to mandate or ‘drive’ such innovation or ‘greening’ of procurement. This article takes the view that the principle of competition is the main tool in the post-2014 procurement toolkit and the moderating factor in the implementation of any horizontal (green, social, innovation) policies under the new rules. That is, that competition remains the main consideration in public procurement and that the pursuit any horizontal policies, including those aimed at delivering the Europe 2020 strategy, need to respect the requirements of undistorted competitive tendering. In other words, the article argues that competition considerations should take precedence over national non-economic policies whose effects impair or jeopardize the goals set at EU level. To substantiate that claim, the article focuses on the interpretation of Article 18(1) of Directive 2014/24, which consolidates the principle of competition, and proposes a strict proportionality test applicable to the promotion of horizontal procurement policies where such ‘strategic’ or ‘smart’ use of public procurement can generate market distortions.
The Binding Nature and Enforceability of Hybrid Global Administrative Bodies Norms Within the National Legal Order: The Case Study of WADA
Authors: Jenart Cedric 
Published: April 2022

There is growing attention in legal scholarship for global administrative law and the changing nature of public law in general. Still, few authors have bridged the gap between hybrid global administrative bodies, which often construe soft law norms, and nation states, which increasingly make these norms binding and enforceable in the national legal order. The question arises as to how soft law norms are made binding and enforceable within nation states after they were drafted by hybrid global administrative bodies. The manner in which the Flemish federated entity in Belgium incorporates the World Anti-Doping Agency’s norms represents an instructive case study to formulate a tentative response to this research question. The World Anti-Doping Agency is an example of a global hybrid actor that was founded and continues to exist through the partnership between governments and private (sports) organizations. The article first shows that national legislation may be a necessary method to transpose hybrid global norms in the national legal order. Second – out of at least three techniques to adopt legislation (reception, delegation and dynamic referral) – the latter technique could represent the compromise between efficiency and constitutionality. However, the dynamic referral technique is equally limited by constitutional law and the European Convention on Human Rights. The article concludes with a number of recommendations for national legislatures or executives when they refer dynamically to hybrid global norms as a technique of modern public lawmaking.
Managing Misconceptions about EU Citizens’ Access to Domestic Public Healthcare: An EU-Level Response?
Authors: De Mars Sylvia 
Published: April 2022

This article explores the interaction between EU movement of persons and the access to and financing of public healthcare in the UK, Ireland, Belgium, and the Netherlands. The article will show that particularly in a time of relative austerity and a seeming lack of cross-border solidarity, the non-discrimination obligations in the EU Treaties may encourage the Member States to cut back on tax-funded healthcare so as to not have to extend such care to nonnationals. It suggests that if the Member States cannot effectively rebut the persistent public concerns of ‘EU welfare tourism’ with statistics, it may be preferable for them to seek to address those fears at the EU level (by a re-coordination of responsibility for health care coverage) than to respond to them through domestic law (by increasing individual responsibility for health care costs).
Free Movement of Persons, Public Healthcare Organisation, Welfare Tourism, Social Security Coordination
Austerity-Based Labour Market Reforms in Greece v. Fundamental Rights in the Aftermath of the European Debt Crisis: An Analysis of Supranational and National Bodies’ Jurisprudence
Authors: Papadopoulos Nikolaos A. 
Published: April 2022

The recent debt crisis in Europe has resulted in a significant number of structural reforms implemented in EU Member States across various fields, including the labour market, either in the context of the bailout mechanisms or the EU Economic Governance framework. This development has provoked fundamental rights concerns and has consequently given rise to litigation strategies that put austerity reforms under the test of legality before supranational and national competent bodies and courts. However, the jurisprudence that has developed in that regard seems incoherent and shows real differences in approach. This study analyses the paths of judicial reasoning that supranational and Greek bodies have adopted in fundamental rights cases challenging austerity-based labour market reforms implemented in Greece during the European Debt Crisis. It concludes that different paths of reasoning have been adopted, which could even be regarded as conflicting at several instances. They are thus reflecting the well-known particularities and discrepancies of fundamental rights protection in Europe as well as the conflicting relationship of social rights with economic and fiscal considerations imposed by austerity in times of crisis and beyond.
Austerity, Greece, labour market reforms, fundamental rights, European Debt Crisis, social rights, labour law, ECHR, European Social Charter, Court of Justice of the European Union
The Bundesverfassungsgericht’s Glaring and Deliberate Breaches of EU Law Based on ‘Unintelligible’ and ‘Arbitrary’ Grounds
Authors: Ziller Jacques , Galetta Diana-Urania 
Published: April 2022

The authors believe that the judgment of the German Federal Constitutional Court contains serious breaches of EU law and is manifestly erroneous. The German judges refuse to apply the CJEU’s judgment and arrogate the power to assess the legality of European Central Bank (ECB) decisions and to review the reasoning of the CJEU, which they qualify as being ‘unintelligible and arbitrary’ for the sole purpose of declaring it ‘ultra vires’. They use the principle of proportionality in a legally incorrect way, ignoring the difference in scope between the latter and the principle of conferral. They make highly questionable use of the principle of democracy and of economic analysis to assess the merits of ECB decisions. A careful analysis of the judgment leads us to wish for the initiation of an infringement procedure.
Breach of EU law by the judiciary conferral, democratic principle, dialogue between courts, EU competences, infringement procedure, manifest error, primacy, proportionality, ultravires
Damages Liability of the EU for Harm Caused by Excessive Duration of Court Proceedings
Authors: Havu Katri , Kurki-Suonio Suvi 
Published: April 2022

In January 2017, the European Union was ordered to pay damages to two companies because of excessively long court proceedings before the General Court, the first time such an order had been made. At this point, a number of EU Courts’ judgments that address damages liability for excessively long court proceedings can be found. According to the European Court of Justice, a damages claim is an appropriate and effective remedy in a case of a failure to adjudicate within a reasonable time. This contribution systematizes and analyses recent EU level case law regarding the excessive duration of court proceedings with damages as a remedy. A particular emphasis is placed on examining the relevant case law against the backdrop of existing EU damages liability law. We particularly study how the conditions of harm and causation are interpreted and applied in the EU level ‘excessive duration cases’. We discuss and summarize the theoretical and practical implications of the excessive duration liability case law, as well as highlight particularly interesting details from recent judgments.
EU Courts, Right to trial within a reasonable time, Excessive duration of court proceedings, Effective remedies, Damages liability of the EU, Economic harm, Non-material harm, Conditions for liability, Requirements for establishing harm and causation, Significance for EU damages liability law