This paper 1 examines the consumer protection regime under the Nigerian Cybercrimes Act with a view to assessing the extent to which it protects consumers from cybercrimes in the banking and financial sector. It finds that the regime is not adequate as it does not place sufficient obligations on banks and financial institutions to safeguard the personal information of their customers from unauthorized access. Additionally, the findings suggest the absence of an explicit regime for determining liability for unauthorized payment transactions in situations where a consumer’s electronic banking or payment information is compromised. The article also highlights examples of legal regimes in Europe and the United States that could be adopted in order to strengthen the consumer protection regime under the Act. Finally, some challenges impeding the protection of consumers from cybercrimes in the Nigerian banking and financial sector are pointed out along with proposed responses to address them.
{"title":"Protecting Consumers from Cybercrime in the Banking and Financial Sector: An Analysis of the Legal Response in Nigeria","authors":"U. Orji","doi":"10.5334/TILR.137","DOIUrl":"https://doi.org/10.5334/TILR.137","url":null,"abstract":"This paper 1 examines the consumer protection regime under the Nigerian Cybercrimes Act with a view to assessing the extent to which it protects consumers from cybercrimes in the banking and financial sector. It finds that the regime is not adequate as it does not place sufficient obligations on banks and financial institutions to safeguard the personal information of their customers from unauthorized access. Additionally, the findings suggest the absence of an explicit regime for determining liability for unauthorized payment transactions in situations where a consumer’s electronic banking or payment information is compromised. The article also highlights examples of legal regimes in Europe and the United States that could be adopted in order to strengthen the consumer protection regime under the Act. Finally, some challenges impeding the protection of consumers from cybercrimes in the Nigerian banking and financial sector are pointed out along with proposed responses to address them.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.7,"publicationDate":"2019-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45637280","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}
This paper 1 discusses the need for legal measures to ensure a higher degree of investor protection against closet indexing. ‘Closet indexing’ refers to practices where a fund claims to attempt to beat the market, despite following a passive investment strategy in practice. Such practices may harm investors, who might end up paying higher fees than necessary while not receiving the service they expect. The analyses herein are based on the European legal framework for fund management and examine how this framework is applied in Scandinavian countries. Practices from Scandinavian countries reveal the need for legal measures to improve investor protection against closet indexing practices. In particular, the paper concludes that there is a need for a coordinated approach to identifying closet indexing and to securing a better interplay between the European legal framework for fund management and national rules on contract and tort law.
{"title":"Closet Index Funds and Retail Investor Protection – A Scandinavian Perspective","authors":"Marte Eidsand Kjørven","doi":"10.5334/TILR.141","DOIUrl":"https://doi.org/10.5334/TILR.141","url":null,"abstract":"This paper 1 discusses the need for legal measures to ensure a higher degree of investor protection against closet indexing. ‘Closet indexing’ refers to practices where a fund claims to attempt to beat the market, despite following a passive investment strategy in practice. Such practices may harm investors, who might end up paying higher fees than necessary while not receiving the service they expect. The analyses herein are based on the European legal framework for fund management and examine how this framework is applied in Scandinavian countries. Practices from Scandinavian countries reveal the need for legal measures to improve investor protection against closet indexing practices. In particular, the paper concludes that there is a need for a coordinated approach to identifying closet indexing and to securing a better interplay between the European legal framework for fund management and national rules on contract and tort law.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.7,"publicationDate":"2019-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41785840","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}
The article 1 argues that the ‘information paradigm’, within which the concept of ‘average’ consumer operates, is unfit to provide adequate financial protection to consumers in the aftermath of the 2008 financial crisis and in the wake of the digital age. As the complexity of financial and digital financial services increases, consumers are expected to educate themselves and become financially literate, while traders’ liability and state intervention are reduced to a minimum. ‘Average’ consumers are turned into ‘responsible’ ones. Using as examples the Mortgage Directive and European Securities and Markets Authority (ESMA)’s position on Initial Coin Offerings (ICOs), the article shows that the former ‘paternalistic’ attitude towards consumer protection in both EU legislation and policy making was replaced with a ‘self-help’ approach and contests the general wisdom regarding consumers’ ability to participate in financial markets or understand the risks posed by novel products and services facilitated by technical innovation and digitization. The article calls for a reconsideration of the information paradigm and for a pro-active approach of the EU regulatory bodies to provide consumers with efficient protection.
{"title":"The Responsible Consumer in the Digital Age: On the Conceptual Shift from ‘Average’ to ‘Responsible’ Consumer and the Inadequacy of the ‘Information Paradigm’ in Consumer Financial Protection","authors":"C. Stănescu","doi":"10.5334/TILR.143","DOIUrl":"https://doi.org/10.5334/TILR.143","url":null,"abstract":"The article 1 argues that the ‘information paradigm’, within which the concept of ‘average’ consumer operates, is unfit to provide adequate financial protection to consumers in the aftermath of the 2008 financial crisis and in the wake of the digital age. As the complexity of financial and digital financial services increases, consumers are expected to educate themselves and become financially literate, while traders’ liability and state intervention are reduced to a minimum. ‘Average’ consumers are turned into ‘responsible’ ones. Using as examples the Mortgage Directive and European Securities and Markets Authority (ESMA)’s position on Initial Coin Offerings (ICOs), the article shows that the former ‘paternalistic’ attitude towards consumer protection in both EU legislation and policy making was replaced with a ‘self-help’ approach and contests the general wisdom regarding consumers’ ability to participate in financial markets or understand the risks posed by novel products and services facilitated by technical innovation and digitization. The article calls for a reconsideration of the information paradigm and for a pro-active approach of the EU regulatory bodies to provide consumers with efficient protection.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.7,"publicationDate":"2019-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46728808","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}
This paper considers how social justice influences EU financial consumer law. It provides a new way of looking at social justice in consumer law by showing that equality of status based social justice has increasingly come to the fore in modern EU financial consumer law. This emergent and complex set of private and regulatory rules on credit, insurance, investment and payment products has responded to the consequences of inequality between financial firms and consumers by engaging in product and rights regulation that balances the parties’ rights and duties and protects consumers from the consequences of status-based inequality. Looking forward the paper recommends that this social justice approach must be made transparent and become an express part of EU law and policy, both in order to raise consumer trust in the internal market and to more clearly set the future law and policy agenda.
{"title":"Social Justice in EU Financial Consumer Law","authors":"A. Fejős","doi":"10.5334/TILR.138","DOIUrl":"https://doi.org/10.5334/TILR.138","url":null,"abstract":"This paper considers how social justice influences EU financial consumer law. It provides a new way of looking at social justice in consumer law by showing that equality of status based social justice has increasingly come to the fore in modern EU financial consumer law. This emergent and complex set of private and regulatory rules on credit, insurance, investment and payment products has responded to the consequences of inequality between financial firms and consumers by engaging in product and rights regulation that balances the parties’ rights and duties and protects consumers from the consequences of status-based inequality. Looking forward the paper recommends that this social justice approach must be made transparent and become an express part of EU law and policy, both in order to raise consumer trust in the internal market and to more clearly set the future law and policy agenda.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.7,"publicationDate":"2019-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48441052","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}
In 2016, the Romanian Parliament voted on the final version of the datio in solutum law (Law No. 77/2016 on the datio in solutum of real estate in order to settle the obligations assumed by credits), allowing the borrowers to fully settle their liability by transferring to the banks the ownership right over mortgages used as collateral for loans. The final version of the law includes some important restrictions: the ‘First Home’ governmental program was excluded from the jurisdiction of the law, a ceiling amounting to the equivalent of 250,000 EUR on the size of the loan at time of origination was set and the law only applied for mortgages that qualify as dwellings and were contracted by ‘consumers’. However, the law would apply to all existing contracts (retroactive applicability). 1 This article analyzes datio in solutum from the Romanian perspective, a new approach in the national legal system that already made the object of the constitutional control by a number of decisions. We will also review the solutions of Spanish and French legal systems regarding these particular consumer protection problems.
{"title":"Highlights of the Romanian Perspective of Datio in Solutum for Consumer Borrowers","authors":"Codrin Macovei","doi":"10.5334/tilr.136","DOIUrl":"https://doi.org/10.5334/tilr.136","url":null,"abstract":"In 2016, the Romanian Parliament voted on the final version of the datio in solutum law (Law No. 77/2016 on the datio in solutum of real estate in order to settle the obligations assumed by credits), allowing the borrowers to fully settle their liability by transferring to the banks the ownership right over mortgages used as collateral for loans. The final version of the law includes some important restrictions: the ‘First Home’ governmental program was excluded from the jurisdiction of the law, a ceiling amounting to the equivalent of 250,000 EUR on the size of the loan at time of origination was set and the law only applied for mortgages that qualify as dwellings and were contracted by ‘consumers’. However, the law would apply to all existing contracts (retroactive applicability). 1 This article analyzes datio in solutum from the Romanian perspective, a new approach in the national legal system that already made the object of the constitutional control by a number of decisions. We will also review the solutions of Spanish and French legal systems regarding these particular consumer protection problems.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"1 1","pages":""},"PeriodicalIF":1.7,"publicationDate":"2019-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41452115","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}
{"title":"Unprotected Consumers in the Digital Age: The Consumer-creditors of Bankrupt, Abandoned, Defunct and of Zombie Companies","authors":"Tibor Tajti(Thaythy)","doi":"10.5334/tilr.139","DOIUrl":"https://doi.org/10.5334/tilr.139","url":null,"abstract":"","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"1 1","pages":""},"PeriodicalIF":1.7,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70722187","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}
This is a difficult task to perform. It is most often a good deal easier to offer a reflection on a paper with which one would beg to differ, than with one to which one’s own thinking is aligned. This is doubly so if the article in question is phrased as eloquently and insightfully as Professor Kennedy’s was. I might be well advised to merely state, “I concur”, and he said, “it is better than I will ever be able to” and leave it at that.
{"title":"A World of Struggle Meets the Faces of Injustice (Judith Shklar and Current Affairs)","authors":"A. Pemberton","doi":"10.5334/TILR.132","DOIUrl":"https://doi.org/10.5334/TILR.132","url":null,"abstract":"This is a difficult task to perform. It is most often a good deal easier to offer a reflection on a paper with which one would beg to differ, than with one to which one’s own thinking is aligned. This is doubly so if the article in question is phrased as eloquently and insightfully as Professor Kennedy’s was. I might be well advised to merely state, “I concur”, and he said, “it is better than I will ever be able to” and leave it at that.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"23 1","pages":"125-129"},"PeriodicalIF":1.7,"publicationDate":"2018-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42475291","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}
My response to this year’s Montesquieu lecture focuses on Professor Kennedy’s invitation to imagine the liberal institutional order as having been a dream-like experience, from which international elites have abruptly awoken. Yet, I engage that invitation by altering the framing somewhat. Perhaps the experience that was the liberal institutional order was a kind of theatre as opposed to merely a dreamscape. The ‘deliberate’ enactment of a geopolitical and geo-economic imaginary, 1 but where liberal actors forgot over time that this ruling imaginary required a convincing public performance. 2 Using my frame, the ensuing decay or collapse of the imaginary then invites a different kind of cautionary tale, where the scene of awakening is a prologue. The actual plot involves a settling of economic, political and legal debts incurred by liberal elites to sustain an imaginary that now confronts declining domestic and international purchase.
{"title":"International Law and the Ides of March : A Response to David Kennedy","authors":"Nikolas M. Rajkovic","doi":"10.5334/TILR.131","DOIUrl":"https://doi.org/10.5334/TILR.131","url":null,"abstract":"My response to this year’s Montesquieu lecture focuses on Professor Kennedy’s invitation to imagine the liberal institutional order as having been a dream-like experience, from which international elites have abruptly awoken. Yet, I engage that invitation by altering the framing somewhat. Perhaps the experience that was the liberal institutional order was a kind of theatre as opposed to merely a dreamscape. The ‘deliberate’ enactment of a geopolitical and geo-economic imaginary, 1 but where liberal actors forgot over time that this ruling imaginary required a convincing public performance. 2 Using my frame, the ensuing decay or collapse of the imaginary then invites a different kind of cautionary tale, where the scene of awakening is a prologue. The actual plot involves a settling of economic, political and legal debts incurred by liberal elites to sustain an imaginary that now confronts declining domestic and international purchase.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"23 1","pages":"121-124"},"PeriodicalIF":1.7,"publicationDate":"2018-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41473947","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}
Professor David Kennedy’s 2018 Montesquieu Lecture considers the role of expert legal knowledge in our political and economic life. As politicians, citizens, and experts engage one another on a technocratic terrain of irresolvable argument and uncertain knowledge, a world of astonishing inequality and injustice is born. Kennedy draws on his experience working with international lawyers, human rights advocates, policy professionals, economic development specialists, military lawyers, and humanitarian strategists to describe the conflicts, unexamined assumptions, and assertions of power and entitlement that lie at the center of expert rule. He explores how we can harness expert knowledge to remake an unjust world.
{"title":"Law, Expertise and Global Political Economy","authors":"D. Kennedy","doi":"10.5334/TILR.130","DOIUrl":"https://doi.org/10.5334/TILR.130","url":null,"abstract":"Professor David Kennedy’s 2018 Montesquieu Lecture considers the role of expert legal knowledge in our political and economic life. As politicians, citizens, and experts engage one another on a technocratic terrain of irresolvable argument and uncertain knowledge, a world of astonishing inequality and injustice is born. Kennedy draws on his experience working with international lawyers, human rights advocates, policy professionals, economic development specialists, military lawyers, and humanitarian strategists to describe the conflicts, unexamined assumptions, and assertions of power and entitlement that lie at the center of expert rule. He explores how we can harness expert knowledge to remake an unjust world.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"23 1","pages":"109-120"},"PeriodicalIF":1.7,"publicationDate":"2018-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46764359","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}
As President Trump reminds us every day, we live in the era of social media. While legal scholars are busy discussing, rethinking and opening fields of law to accommodate the societal changes triggered by the Internet, they have been rather slow in assessing its potential impact on their own communication and publishing practices. This is a blind spot, which this paper aims to explore. More precisely, this piece argues that blogs and social media are suitable communication means for legal scholarship and provides some pragmatic advice on how to use them. This paper first draws a general sketch of two key transformations in legal scholarship: the transnationalization of legal scholarship and the desacralization of the legal texts. It is argued that they are provoked by the rapid digitalization of our societies and are key drivers of a needed shift in scholarly communication. They constitute the wider backdrop for the analysis in the second and third sections of the function and practice of blogs and Twitter in legal scholarship.
{"title":"Publish (Tweets and Blogs) or Perish? Legal Academia in Times of Social\u0000 Media","authors":"A. Duval","doi":"10.5334/TILR.4","DOIUrl":"https://doi.org/10.5334/TILR.4","url":null,"abstract":"As President Trump reminds us every day, we live in the era of social media. While legal scholars are busy discussing, rethinking and opening fields of law to accommodate the societal changes triggered by the Internet, they have been rather slow in assessing its potential impact on their own communication and publishing practices. This is a blind spot, which this paper aims to explore. More precisely, this piece argues that blogs and social media are suitable communication means for legal scholarship and provides some pragmatic advice on how to use them. This paper first draws a general sketch of two key transformations in legal scholarship: the transnationalization of legal scholarship and the desacralization of the legal texts. It is argued that they are provoked by the rapid digitalization of our societies and are key drivers of a needed shift in scholarly communication. They constitute the wider backdrop for the analysis in the second and third sections of the function and practice of blogs and Twitter in legal scholarship.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.7,"publicationDate":"2018-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48553171","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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