Pub Date : 2016-08-05DOI: 10.6092/ISSN.2531-6133/6075
Tamar Frankel
How should banks be regulated to avoid their failure? Banks must control the risks they take with depositors' money. If depositors lose their trust in their banks, and demand their money, the banks will fail. This article describes three legal bank regulatory systems: Contract with depositors (U.S.); a mix of contract and trust law, but going towards trust (Japan) and a full trust-fiduciary law regulating banks (Israel). The article concludes that bank regulation, which limits the banks' risks and conflicts of interest, helps create trustworthy banks that serve their country best.
{"title":"A Story of Three Bank-Regulatory Legal Systems: Contract, Financial Management Regulation and Fiduciary Law","authors":"Tamar Frankel","doi":"10.6092/ISSN.2531-6133/6075","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/6075","url":null,"abstract":"How should banks be regulated to avoid their failure? Banks must control the risks they take with depositors' money. If depositors lose their trust in their banks, and demand their money, the banks will fail. This article describes three legal bank regulatory systems: Contract with depositors (U.S.); a mix of contract and trust law, but going towards trust (Japan) and a full trust-fiduciary law regulating banks (Israel). The article concludes that bank regulation, which limits the banks' risks and conflicts of interest, helps create trustworthy banks that serve their country best.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"1 1","pages":"91-105"},"PeriodicalIF":0.3,"publicationDate":"2016-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71265258","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-07-25DOI: 10.6092/issn.2531-6133/5499
Luigi Chiarella
One of the lessons learned from the 2008 financial crisis is that when a bank in Europe goes into trouble the ensuing effects can reach far beyond the immediate threat to its depositors and shareholders. In particular, the crisis has revealed the extent to which irresponsible behavior in the banking sector could undermine the foundations of the financial system and threaten the real economy, turning a banking crisis into a sovereign debt crisis as occurred in the eurozone in 2011. In response to this lesson, Member States first tried to address the systemic fragility of their banking systems through national policy tools, but countries that share a common currency and are more interdependent required more integrated responses. Therefore, at the euro area summit in June 2012, the European Council agreed to break the vicious circle between banks and sovereign debt and decided to create a banking union that would allow a centralized supervision for banks in the euro area through a newly established Single Supervisory Mechanism (SSM) and a centralized resolution scheme. The SSM became operational in November 2014 and represents the building pillar of the banking union. The purpose of this paper is then to provide, after a brief description of the background (Par. 1), an analysis of the Single Supervisory Mechanism, illustrating its functioning (Par. 2), then focusing on the position and the powers of the ECB within it (Par. 3) and finally pointing out some remarks on the potential weaknesses of the new regime (Par. 4).
{"title":"The Single Supervisory Mechanism: the Building Pillar of the European Banking Union","authors":"Luigi Chiarella","doi":"10.6092/issn.2531-6133/5499","DOIUrl":"https://doi.org/10.6092/issn.2531-6133/5499","url":null,"abstract":"One of the lessons learned from the 2008 financial crisis is that when a bank in Europe goes into trouble the ensuing effects can reach far beyond the immediate threat to its depositors and shareholders. In particular, the crisis has revealed the extent to which irresponsible behavior in the banking sector could undermine the foundations of the financial system and threaten the real economy, turning a banking crisis into a sovereign debt crisis as occurred in the eurozone in 2011. In response to this lesson, Member States first tried to address the systemic fragility of their banking systems through national policy tools, but countries that share a common currency and are more interdependent required more integrated responses. Therefore, at the euro area summit in June 2012, the European Council agreed to break the vicious circle between banks and sovereign debt and decided to create a banking union that would allow a centralized supervision for banks in the euro area through a newly established Single Supervisory Mechanism (SSM) and a centralized resolution scheme. The SSM became operational in November 2014 and represents the building pillar of the banking union. The purpose of this paper is then to provide, after a brief description of the background (Par. 1), an analysis of the Single Supervisory Mechanism, illustrating its functioning (Par. 2), then focusing on the position and the powers of the ECB within it (Par. 3) and finally pointing out some remarks on the potential weaknesses of the new regime (Par. 4).","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"1 1","pages":"34-90"},"PeriodicalIF":0.3,"publicationDate":"2016-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71265141","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-07-19DOI: 10.6092/ISSN.2531-6133/5583
L. Enriques, Matteo Gargantini
The World Bank’s Doing Business Report (DBR) ranks every year numerous jurisdictions across the globe according to their ability to facilitate business activities. Among the indexes contributing to the definition of the global competitiveness of the legislations, the “Protecting investors index” (PII) measures the protection of minority shareholders in listed companies. In this paper, we analyse the DBR’s assessment of the Italian regulatory framework on investor protection. We find that the PII falls short of properly evaluating the applicable rules. First, it underrates Italy because the DBR evaluation falls short of properly evaluating the role performed by independent directors under Italian rules on related party transactions. In particular, the DBR fails to properly account for independent directors’ power to veto unfair transactions before they are submitted to the board, a safeguard that ensures minority investors’ protection at least as well as mandatory abstention by conflicted directors. Second, past DBR overrated the PII, so that subsequent reforms that substantially improved investor protection have not been grasped by more recent assessments, giving the misleading impression that no relevant changes have occurred. Far from representing one of the multiple coding errors reported in the literature, these flaws aptly show that the DBR methodology, while correctly attempting to preserve consistency in the evaluation of different jurisdictions, adopts an excessively formalistic approach and disregards the function of the rules it scrutinizes. In light of the influence that the DBR exerts on national policymakers, this approach is detrimental because it might induce window-dressing reforms. Moreover, it may rule out experimentation, which is key to ensuring that the applicable rules keep pace with the variety of techniques adopted to expropriate minority shareholders.
{"title":"Form and Function in Doing Business Rankings: Is Investor Protection in Italy Still So Bad?’","authors":"L. Enriques, Matteo Gargantini","doi":"10.6092/ISSN.2531-6133/5583","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/5583","url":null,"abstract":"The World Bank’s Doing Business Report (DBR) ranks every year numerous jurisdictions across the globe according to their ability to facilitate business activities. Among the indexes contributing to the definition of the global competitiveness of the legislations, the “Protecting investors index” (PII) measures the protection of minority shareholders in listed companies. In this paper, we analyse the DBR’s assessment of the Italian regulatory framework on investor protection. We find that the PII falls short of properly evaluating the applicable rules. First, it underrates Italy because the DBR evaluation falls short of properly evaluating the role performed by independent directors under Italian rules on related party transactions. In particular, the DBR fails to properly account for independent directors’ power to veto unfair transactions before they are submitted to the board, a safeguard that ensures minority investors’ protection at least as well as mandatory abstention by conflicted directors. Second, past DBR overrated the PII, so that subsequent reforms that substantially improved investor protection have not been grasped by more recent assessments, giving the misleading impression that no relevant changes have occurred. Far from representing one of the multiple coding errors reported in the literature, these flaws aptly show that the DBR methodology, while correctly attempting to preserve consistency in the evaluation of different jurisdictions, adopts an excessively formalistic approach and disregards the function of the rules it scrutinizes. In light of the influence that the DBR exerts on national policymakers, this approach is detrimental because it might induce window-dressing reforms. Moreover, it may rule out experimentation, which is key to ensuring that the applicable rules keep pace with the variety of techniques adopted to expropriate minority shareholders.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"1 1","pages":"1-33"},"PeriodicalIF":0.3,"publicationDate":"2016-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71265216","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-01-01DOI: 10.6092/ISSN.2531-6133/6674
Kinga Hódor, A. Kosińska
The article addresses the issue of Poles’ attitude to the problem of the influx of migrants to Poland in the context of the migration crisis, which Europe has to face today. The issues discussed in the present paper are aimed to illustrate the characteristic features specific to Poles’ attitudes in favor of or against the process of influx of migrants to the E.U. Member States or Poland. The analysis covers both positive and negative aspects of migration to Poland, which have been most often indicated by Poles with respects to migrants. On the one hand, they include fears with regard to national security, potential conflicts of cultural and religious background, fear of the alleged loss of jobs to migrants and their preying on the country’s social security system. All of the above result in anti-migration demonstrations and the language of hatred. On the other hand, positive aspects of the migration influx are believed to consist in cultural enrichment, benefits for the labor market resulting from the inflow of both qualified professionals and laborers with lower pay expectations in comparison to Polish workers and believing that migrants might be the chance of minimize the negative effects of the demographic crisis. The supporters of helping migrants also point out the issue of solidarity and sympathy for the victims and the fact that in the past it was the Poles who received support from other countries in Poland’s difficult moments. Thus, extending such help to others may prove to be beneficial in the future. The present paper is based on academic articles, internet sources and statistical data, which all reveal a division into two camps: supporters and opponents of receiving migrants in Poland, which prevents determining Poland’s definitive stance on this issue. All the aspects of the problem discussed in the paper are undoubtedly a basis for further analysis.
{"title":"Polish Perceptions on the Immigration Influx: a Critical Analysis","authors":"Kinga Hódor, A. Kosińska","doi":"10.6092/ISSN.2531-6133/6674","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/6674","url":null,"abstract":"The article addresses the issue of Poles’ attitude to the problem of the influx of migrants to Poland in the context of the migration crisis, which Europe has to face today. The issues discussed in the present paper are aimed to illustrate the characteristic features specific to Poles’ attitudes in favor of or against the process of influx of migrants to the E.U. Member States or Poland. The analysis covers both positive and negative aspects of migration to Poland, which have been most often indicated by Poles with respects to migrants. On the one hand, they include fears with regard to national security, potential conflicts of cultural and religious background, fear of the alleged loss of jobs to migrants and their preying on the country’s social security system. All of the above result in anti-migration demonstrations and the language of hatred. On the other hand, positive aspects of the migration influx are believed to consist in cultural enrichment, benefits for the labor market resulting from the inflow of both qualified professionals and laborers with lower pay expectations in comparison to Polish workers and believing that migrants might be the chance of minimize the negative effects of the demographic crisis. The supporters of helping migrants also point out the issue of solidarity and sympathy for the victims and the fact that in the past it was the Poles who received support from other countries in Poland’s difficult moments. Thus, extending such help to others may prove to be beneficial in the future. The present paper is based on academic articles, internet sources and statistical data, which all reveal a division into two camps: supporters and opponents of receiving migrants in Poland, which prevents determining Poland’s definitive stance on this issue. All the aspects of the problem discussed in the paper are undoubtedly a basis for further analysis.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"3 1","pages":"242-270"},"PeriodicalIF":0.3,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71265366","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-06-30DOI: 10.6092/ISSN.2531-6133/8867
H. Arthurs
In this lecture, I’m going to explain how and why I came to write my article, The Law of Economic Subordination and Resistance. I hope that by doing so, I will be able to shed some light not only on my own field of labour law, but on the larger problem of how legal fields or domains of legal knowledge, come into existence, change or become obsolete, and in the end are either transformed or superseded altogether. I will be talking about labour law, but I hope you will be thinking about transnational law. I’m going to try to persuade you that the invention and transformation of these two fields have something in common. But I’m going to go further. I hope to convince you that their ultimate fate is determined by some of the very same forces. Transnational law, I am going to argue, can only survive if it learns from the short, sad history of labour law.
{"title":"Labour Law and Transnational Law: the Fate of Legal Fields & the Trajectory of Legal Scholarship","authors":"H. Arthurs","doi":"10.6092/ISSN.2531-6133/8867","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/8867","url":null,"abstract":"In this lecture, I’m going to explain how and why I came to write my article, The Law of Economic Subordination and Resistance. I hope that by doing so, I will be able to shed some light not only on my own field of labour law, but on the larger problem of how legal fields or domains of legal knowledge, come into existence, change or become obsolete, and in the end are either transformed or superseded altogether. I will be talking about labour law, but I hope you will be thinking about transnational law. I’m going to try to persuade you that the invention and transformation of these two fields have something in common. But I’m going to go further. I hope to convince you that their ultimate fate is determined by some of the very same forces. Transnational law, I am going to argue, can only survive if it learns from the short, sad history of labour law.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"3 1","pages":"232-246"},"PeriodicalIF":0.3,"publicationDate":"2015-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71265540","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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