bluuebunny/crossref_metadata_2025_split huggingface dataset:
Corporate Social Responsibility between Self-Regulation and Government Intervention: Monitoring, Enforcement and Transparency
Authors: Jentsch Valentin 
Published: April 2022

The existing rules and standards on corporate social responsibility can best be described as a hybrid legal architecture, where various regulatory approaches maintain a friendly coexistence. This type of multilevel rule-making is sometimes perceived to be complicated and not very effective because it is often said to leave some areas of economic activity unregulated and, in any case, unenforced. Given this difficulty, it becomes evident that the interaction between the different regulatory strategies currently in place, ranging from self-regulation to government intervention, has to be analyzed in more detail. Scholars have often argued that there is a governance gap because public international law only provides for certain rights, but no obligations, for transnational companies. What scholars sometimes miss, however, is that the law, although indirectly, does in fact already regulate corporate behavior with regard to human rights, labor, the environment and anti-corruption.
In this article, I identify and describe various monitoring, enforcement and transparency mechanisms through which international soft law standards are backed up by national public and private law rules. The importance of this is that it will help us better understand what the role of the law is in the status quo with regard to corporate social responsibility.
Corporate social responsibility, regulatory theory, transnational governance, legal theory, business and human rights, business and the environment
Sovereign Investors as Trustees of Environmental Intergenerational Equity
Authors: Ghahramani Salar 
Published: April 2022

Do governmental investors such as sovereign wealth funds (‘SWFs’) have a legal duty to protect the natural environment for future generations? After providing a background on SWFs, the paper examines the relevant international law paradigms, with a particular focus on the concept of intergenerational equity – the notion that the state must preserve access to environmental resources for future generations. The article asserts that SWFs, as state actors, have a legal responsibility under international treaties and customary international law, as well as the evolving rules on complicity in international jurisprudence and general principles of international human rights law (which the author posits form the basis for intergenerational equity and environmental rights), to adopt environmental intergenerational equity as an overarching investment policy and implement the principle through shareholder activism and ESG screening.
Sovereign Wealth Funds, intergenerational equity, international law, international environmental law, human rights law, shareholder activism, ESG screening
Responsible A.I.-based Credit Scoring – A Legal Framework
Authors: Langenbucher Katja 
Published: April 2022

The paper proposes a legal framework to evaluate emerging FinTech methodology based on alternative data and machine learning to score borrowers. Instead of conventional variables, novel methods rely on information gathered from social networks, “digital footprints”, mobile phones or GPS data. Correlating these with repayment of loans is promoted as triggering precise predictions of probability of default. Borrowers profit if their profile falls outside of classic scoring checks but performs well under the new regime. Borrowers are disadvantaged if the new methods entail disparate impact for groups which are protected under anti-discrimination laws. Additionally, data may be collected without their consent or used in a way they don’t understand.
Two contributions to the debate are submitted. Firstly, a comparative assessment of EU and U.S. data protection and anti-discrimination laws suggests what might qualify as responsible A.I.-based scoring. Secondly, public and private enforcement mechanisms are explained
Artificial Intelligence, Credit Scoring, Biased A.I., GDPR, Discriminative Lending Practices, A.I. compliance, Scoring and Banking Regulation, ECOA, FCRA, FICO score
Damages for the Cost of Repair and the Seller’s Right to Cure under the UN Convention on Contracts for the International Sale of Goods
Authors: Kryla-Cudna Katarzyna 
Published: April 2022

The article focuses on whether, in the case of a breach of a sales contract, the buyer can remedy the non-conformity of the goods independently and claim damages for the cost of repair without giving the seller an opportunity to cure his failure to perform. The analysis is based on the solutions adopted in the United Nations Convention on Contracts for the International Sale of Goods. The issue has recently given rise to divergent approaches in the literature. The article seeks to shed new light on the problem and offers a way of resolving the question of the interplay between the seller’s right to cure and the buyer’s right to claim damages for the cost of repair. The principal conclusion is that the buyer’s right to claim damages for the cost of repair and the seller’s right to cure do not stand on an equal footing. Rather, the seller’s right to cure has priority over the buyer’s damages claim. As long as the seller is entitled to remedy his failure to perform under the Convention, the buyer cannot cure the nonconformity independently. If he does so, he cannot claim compensation for the costs incurred as a result of the repair.
The right to cure; United Nations Convention on Contracts for the International Sale of Goods; CISG; damages; breach of contract; remedies; sales contract; repair; avoidance; favour contractus
Examining the Legal Hampers against Innovation in China
Authors: Zhang Lin 
Published: April 2022

Innovation cannot be authentically achieved without the support of law. The existing research has demonstrated that venture capital is closely linked to innovation in society. Thus, a friendly legal environment for venture capital has the potential to enhance the innovative ability of a certain society. The current Chinese legal system has includes a series of hampers against the healthy development of venture capital. In order to promote innovation, Chinese authorities ought to take actions to remove these legal barriers.
Law, impediments, innovation, venture capital, cycle, fundraising, investment, exit, America, China
Share Classes in Investment Funds and Fair Treatment of All Investors
Authors: De Luca Nicola 
Published: April 2022

Against the backdrop of the US and EU academic debate on share classes or preferential treatments in investment funds, the paper focuses on an Italian case study. In this jurisdiction, ‘reserved’ alternative investment funds (AIFs) issue Class A and Class B shares, where Class A are granted preferential rights in the form of nonexposure to risk of losses (seniority privilege) and/or a guaranteed minimum interest related to the nominal value of contributions (minimum interest privilege). In details, the seniority privilege entails that, if the net asset value (NAV) of the fund at T1 is lower than at T0, this will only impact on the aggregate value of Class B shares. Thanks to the minimum interest privilege, if the fund at T1 has yielded no returns (or a return lower than the minimum interest), the aggregate value of Class A shares will nevertheless increase by an amount equal to the minimum interest (e.g., 10% of the value of the contributions to the fund). In either case, the aggregate value of Class B shares is correspondingly (proportionately) reduced. The paper analyses such preferential rights under the ‘non-contagion’ principle, according to which, features specific to one share class shall not have a potentially adverse impact on other share classes of the same fund. According to the European Securities and Markets Authority (ESMA) (as well as the International Organization of Securities Commissions (IOSCO)), such a principle is an expression of the broader fairness standard. The outcome of the analysis is that preferential treatment shall be permitted as long as it has the effect of increasing the overall welfare of the relevant fund’s investors, whereas any preferential treatment resulting in a ‘wealth shift’ from one investor (or class) to another runs counter to the ‘non-contagion’ principle and is therefore unfair.
Investment funds, reserved AIFs, share classes, fair treatment, seniority privilege, minimum interest privilege, non-contagion principle, preferential treatment, shift of wealth
Private Pensions and EU Internal Market Law: Enhancing Retirement Provision through Harmonisation
Authors: Butler Graham 
Published: April 2022

Pensions, pension policy, and retirement provision has been historically associated with Member States alone. However, this is not so any longer. For years, occupational pension schemes have been brought within the scope of the internal market of the European Union. Extensive judgments from the Court of Justice of the European Union, as well as harmonised legislation from the EU legislature have followed to improve the marketplace for work-related pensions. Today, the market freedoms are now being furthered to cover not just occupational pension schemes, but also, the private pension market. In light of such developments at EU level, including the development of pan-European Personal Pension (PEPP) products, what is evident is a significant shift in the establishment of an EU-wide private pension market, mirroring developments in the United States in what are known as ‘individual retirement accounts’ (IRAs). In light of these EU advances emanating from free movement case law and the PEPP Regulation, with effects for both individual Europeans as future retirees, and financial services undertakings as pension product providers; this article analyses the complementary aspects of both positive and negative integration in the private pension market. The article elaborately demonstrates the significant effect of legal progress, through slow-moving developments, that are collectively contributing to closing the deficit in the retirement provision of Europe’s retirees of the future.
EU internal market law, EU free movement law, pension law, private pensions, national personal pension products, PPP, Pan-European Personal Pension Products, PEPP, retirement, harmonisation
The Court of Justice, the Bundesverfassungsgericht and Legal Reasoning during the Euro Crisis: The Rule of Law as a Fair-Weather Phenomenon
Authors: Beck Gunnar 
Published: April 2022

Since 2010 the EU has been in an 'emergency' situation due to the euro crisis, where the crisis management by the EU institutions, notably the European Central Bank, and national governments has been increasingly out of step with the EU Treaties and the natural meaning of the provisions defining the mandate of the central bank and the EU's economic policy powers. This article examines the judicial response to the euro crisis. The discussion will focus on the Pringle decision of the Court of Justice of the EU and the ESM judgment of the German Federal Constitutional Court (hereafter 'FCC'), in which both courts had to consider the compatibility of the European Stability Mechanism (hereafter 'ESM') with the EU Treaties and, in the case of the German Constitutional Court, also with the German Constitution known as the Grundgesetz. Further but less detailed consideration will be given to other decisions handed down by both courts in connection with the euro crisis since 2011. In relation to the Pringle decision, the author will summarize the key aspects of the decision and analyse the Court's legal argumentation to justify its conclusions. It is argued that the Court's general approach exhibits features which afford the Court great flexibility to take underhand account of extra-legal factors of judicial decision-making, notably political goals and institutional self-interest. In Pringle, however, the Court exploits the vagueness and norm uncertainty in its general approach to the maximum, to a point where legal reasoning no longer imposes any meaningful constraints on judicial decision-making. The author further shows that the Court of Justice's pragmatic and politically compliant response to the euro crisis is mirrored by the approach of the German Federal Constitutional Court (hereafter 'FCC') which, in its judgments on the legality of the Greek financial aid measures, the eurozone's temporary and permanent rescue funds, and the ECB's so-called Outright Monetary Transactions ('OMT') unlimited bonds buys programme effectively abandoned most central tenets of its long-established and well-considered case law on the principles governing the relationship between EU and national constitutional law and the principles of national sovereignty and the EU's supra-national authority confined by the EU Treaties.
European Union Law in the Jurisprudence of Italian High Courts: Is the Counter- Limits Doctrine a Dog That Barks but Does Not Bite?
Authors: Galetta Diana-Urania 
Published: April 2022

In many Member States Community law has been accepted through the adoption of specific rules of a constitutional nature, in order to identify the specific position of European Union (EU) Law within the national legal system. This was not the case for Italy where, for a long period of time, no special rule of a constitutional nature has been adopted for this specific purpose. In this complex situation the Italian Constitutional Court has constantly stressed the need to protect the fundamental principles of our constitutional law and the inalienable rights afforded to human beings and had identified both as part of a nucleus of Italian constitutional norms resistant to Community norms (controlimiti). Even after the adoption of the Treaty of Lisbon – where, thanks to Article 4 paragraph 2 TUE and Article 53 of the Charter of Fundamental Rights, a ‘unionization’ of the counter-limits has taken place – the Italian Constitutional Court, in a recent judgment of October 2014, has referred again to its mantra-like counter-limits doctrine. Nevertheless, even if usually barking dogs do not bite, it is the author’s opinion that the counter-limits doctrine should be, once and for all, abandoned and replaced by another issue: the introduction of a specific provision about the European Union into our national Constitution. The real challenge, today, is not who or what prevails over who or what. The real challenge is to be able to create a workable and effective cooperative relationships ‘Verfassungsverbund’, replacing confrontation and fight for the last word with an ongoing, on mutual trust based dialogue between high Courts.
Breaking the Isolation? Italian Perspectives on the Dialogue Between the European Court of Justice and Constitutional Courts
Authors: Matteucci Stefano Civitarese 
Published: April 2022

This article focuses on the relationships between the Italian Constitutional Court (ICC) and the Court of Justice of the European Union (ECJ) when the necessity of managing policies affecting delicate constitutional issues is at stake. The mechanisms which govern the use by national courts and particularly constitutional courts of the preliminary reference are put under scrutiny. The author claims that for the dialogue between the two courts to work is important to review the legal premises on which the involvement of a constitutional court in matters of European Union (EU) law is based. In Italy in principle only when EU law lacks direct effect would there be room for the ICC to intervene in the process of adaptation of the domestic legal system to the European, irrespective of the matter at stake. In this way the role of a constitutional court is barely distinguishable from regular courts. The article purports that this situation is unsatisfactory from a normative point of view according to which constitutional courts should take part – using preliminary reference to the ECJ – in a broader European constitutional discourse and that a concept of ‘sensitive constitutional issues’ should instead inspire the mechanism by which constitutional courts deal with the area covered by Article 267 TFEU.
Judicial Activism or Constitutional Interpretation?: An Analysis of the Workings of the Constitutional Court of Kosovo
Authors: Tahiri Xhafer 
Published: April 2022

The article is an analysis of the workings of the Constitutional Court of Kosovo and investigates judicial activism of the Court. The Constitutional Court is established in the new Constitution of Kosovo; it is empowered with legal authority to review decisions and laws adopted by the Assembly of Kosovo regarding their constitutionality, and the constitutionality of laws or acts of the Government and institutions of public authority. The Court has broad legal authority to protect rights under the constitution, through broad ranging instruments for protecting those human rights guaranteed to all in Kosovo, including protection of ethnic minorities. The jurisdiction of the Constitutional Court of the Republic of Kosovo is wider, in scope than any other in the region of the Balkans: modeled upon the German Constitutional Court and it has a jurisdiction almost over every aspect of the actions of public authority. Therefore its study might be especially useful for comparative studies of the constitutional transformation and judicial empowerment in the countries in transition.
Austerity Measures at the European Court of Human Rights: Can the Court Establish a Minimum of Welfare Provisions?
Authors: Koufopoulos Dimitrios 
Published: April 2022

The European Court of Human Rights has, in specific circumstances, interpreted the Convention in a manner that extends the protection provided under civil and political rights into the socioeconomic sphere. Additionally, in obiter statements, the Court has alluded to the possibility that ‘a wholly insufficient amount of pensions and other benefits’ would ‘in principle’ violate the Convention, namely Articles 2, 3 and 1 Protocol 1 ECHR. This statement also appears in recent admissibility decisions where applicants unsuccessfully challenged austerity measures adopted to give effect to conditionality agreements in states facing a debt crisis. The article examines whether with this statement the Court is suggesting that states must adhere to a minimum threshold of welfare protection, thereby protecting all individuals in their jurisdiction from the destitution that may arise from austerity policies. The article concludes that the Court’s approach in cases where welfare reductions are under scrutiny points more towards a comparative or relative approach, an approach that compares the position of the applicant to others within the respondent state, rather than one that determines a welfare minimum in absolute and objective terms. Nonetheless, the article argues that this statement on insufficiency of benefits has the potential of contributing to a more substantively fair distribution of the cost of austerity in states facing a debt crisis.
European Convention on Human Rights, welfare state, destitution, austerity.
The Plea of Illegality as a Pillar of the Incidental Review
Authors: Karayigit Mustafa T. 
Published: April 2022

The plea of illegality as a limb of incidental review alongside the preliminary ruling procedure is examined in light of its raison d’être, nature, ratione materiae and personae scope and its interrelated characteristics with other remedies and procedures in the EU judicial system. This article considers the origin of anomalies in the inconsistent case law reaching different conclusions with regard to standing of different applicants on a selective basis in the transposition of national procedure of exception d’illegalité into the Rome Treaty with a general wording. It is argued that the broad interpretation of ratione personae scope of the procedure on the basis of the wording of Article 277 TFEU requires, in parallel, relaxation of the strict application of the admissibility requirements towards individual applications especially where irregularities might become apparent after the concrete application of the general act in order to prevent from carrying privileged or non-privileged status of applicants under the action for annulment to the plea of illegality.
Plea of Illegality, Incidental Review, Acts of General Application, Legal Certainty v Legality, Complementary or Alternative Remedy.
Interoperability of EU Information Systems: The Deathblow to the Rights to Privacy and Personal Data Protection of Third-Country Nationals?
Authors: Vavoula Niovi 
Published: April 2022

This article examines key privacy and data protection concerns raised by the Regulations that establish a framework for interoperability between EU-wide centralized information systems processing personal data of third-country nationals (Schengen Information System II, Visa Information System, Eurodac, Entry/Exit System, European Travel Information and Authorization System, European Criminal Records Information System for third-country nationals). After a concise outline of the complex landscape within which these databases have been set up, emphasis is placed on the novelties and challenges that interoperability brings forward. In that regard, the articles evaluates the setting up of new databases, particularly the Biometric Matching Service and the Common Identity Repository – viewed through the Panopticon lens – the maximization of uses for which personal data may be destined, the revised rules on consultation of databases for law enforcement purposes, the challenge of ensuring data quality and the exercise of individual rights.
Interoperability, Privacy, Data Protection, Databases, SIS II, VIS, Eurodac, EES, ETIAS, ECRIS-TCN
‘Full Jurisdiction’ Under Article 6 ECHR: Hans Kelsen v. the Principle of Separation of Powers
Authors: Allena Miriam , Goisis Francesco 
Published: April 2022

This article examines the ‘full jurisdiction’ requirement under Article 6 European Convention on Human Rights (ECHR) and its implementation within European Court of Human Rights (ECtHR) case law. It first analyses the theoretical foundations for ‘full jurisdiction’ which implies, in principle, a substitutive review of the merits of administrative decisions. It then focuses on the ECtHR case law, highlighting its ambivalence and inconsistencies: while the Court generally requires a substitutive review in criminal cases and in cases involving complex technical assessments, it tends to accept a less exacting standard of review in civil cases, especially when administrative discretionary choices or policy determinations are at issue. This article suggests that the ambivalence and inconsistencies within ECtHR case law can be explained in terms of the principle of separation of powers, which still underpins most legal systems of signatory states to the ECHR.
Art. 6 ECHR, fair trial, administrative procedures, full jurisdiction, principle of separation of powers.