The judgment of the Supreme Court of the Republic of Latvia in Boom Conveyor provides an interpretation of Articles 38 and 39 of the United Nations Convention on Contracts for the International Sale of Goods (CISG). As there have not been many cases in Latvia in which the Supreme Court applies the CISG, this judgment offers a rather rare chance to analyse how Latvia’s Supreme Court interprets and applies the Convention. This article provides an analysis of the Court’s judgment and concludes that, unfortunately, the Court misinterpreted the CISG and missed a good chance to establish a sound practice in the interpretation of the CISG in Latvia.
{"title":"Interpretation and application of the CISG by the Supreme Court of the Republic of Latvia: an analysis of the judgment in the Boom Conveyor case","authors":"Aleksandrs Fillers, Laura Ratniece","doi":"10.1093/ulr/unae028","DOIUrl":"https://doi.org/10.1093/ulr/unae028","url":null,"abstract":"The judgment of the Supreme Court of the Republic of Latvia in Boom Conveyor provides an interpretation of Articles 38 and 39 of the United Nations Convention on Contracts for the International Sale of Goods (CISG). As there have not been many cases in Latvia in which the Supreme Court applies the CISG, this judgment offers a rather rare chance to analyse how Latvia’s Supreme Court interprets and applies the Convention. This article provides an analysis of the Court’s judgment and concludes that, unfortunately, the Court misinterpreted the CISG and missed a good chance to establish a sound practice in the interpretation of the CISG in Latvia.","PeriodicalId":42756,"journal":{"name":"Uniform Law Review","volume":"36 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2024-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142209867","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 COVID-19 pandemic accelerated digital transformation, prompting businesses to expedite the digitization of customer interactions. However, enforcing digital obligations faces challenges in judicial systems, with courts hesitating due to public policy concerns and issues related to unconscionability. This article explores the landscape of enforcing digital obligations, providing an explanation of the types of enforcements that can be used to this purpose. The article questions the suitability of the judicial stage and explores alternative external mechanisms like online dispute resolution (ODR) systems and specifical cases of study. Lastly, the article analyses internal solutions for enforcement that can be encompassed into contractual, social, or State-sponsored solutions and delivers a practical example of these types of systems.
{"title":"Electronic enforcement in the digital era: Themis without a sword","authors":"Nicolás Lozada, Diana Talero","doi":"10.1093/ulr/unae030","DOIUrl":"https://doi.org/10.1093/ulr/unae030","url":null,"abstract":"The COVID-19 pandemic accelerated digital transformation, prompting businesses to expedite the digitization of customer interactions. However, enforcing digital obligations faces challenges in judicial systems, with courts hesitating due to public policy concerns and issues related to unconscionability. This article explores the landscape of enforcing digital obligations, providing an explanation of the types of enforcements that can be used to this purpose. The article questions the suitability of the judicial stage and explores alternative external mechanisms like online dispute resolution (ODR) systems and specifical cases of study. Lastly, the article analyses internal solutions for enforcement that can be encompassed into contractual, social, or State-sponsored solutions and delivers a practical example of these types of systems.","PeriodicalId":42756,"journal":{"name":"Uniform Law Review","volume":"170 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2024-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141948579","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 article presents potential cooperation between the Unidroit Principles of International Commercial Contracts (Unidroit Principles) and the Shari’ah Standards (SSs) issued by the Accounting and Auditing Organization for Islamic Financial Institutions. It starts from the new trend that considers the contribution of soft law to resolving disputes in international commercial contracts: the 2015 Hague Principles, the 2019 Guide, and the 2023 African Principles. The article evaluates the SS-making process by using the input-process-output model and proposes a legal basis and scenarios for cooperation between the Unidroit Principles and the SSs in international commercial dispute resolutions. It then explores some divergences that limit the scope of this cooperation. The article recommends the publication of SSs concerned with invalidity and the three defects of consent: mistake, fraud, and threat. It also emphasizes the need to set up model clauses for Islamic finance cross-border contracts, including cooperation with the Unidroit Principles and publishing online case law.
本文介绍了《统法协会国际商事合同通则》（《统法协会通则》）与伊斯兰金融机构会计与审计组织（Accounting and Auditing Organization for Islamic Financial Institutions）发布的伊斯兰教法标准（SSs）之间的潜在合作。文章从考虑软法律对解决国际商事合同纠纷的贡献的新趋势出发：2015 年《海牙原则》、2019 年《指南》和 2023 年《非洲原则》。文章利用投入-过程-产出模型评估了 SS 的制定过程，并提出了《统法协会通则》与 SS 在国际商事争议解决中合作的法律基础和方案。文章随后探讨了限制这种合作范围的一些分歧。文章建议公布与无效和同意的三个缺陷（错误、欺诈和威胁）有关的 SSs。文章还强调了为伊斯兰金融跨境合同制定示范条款的必要性，包括与《统法协会原则》合作和公布在线判例法。
{"title":"The Unidroit Principles and the Shari’ah Standards: any room for cooperation?","authors":"Badreddine Berrahlia","doi":"10.1093/ulr/unae033","DOIUrl":"https://doi.org/10.1093/ulr/unae033","url":null,"abstract":"This article presents potential cooperation between the Unidroit Principles of International Commercial Contracts (Unidroit Principles) and the Shari’ah Standards (SSs) issued by the Accounting and Auditing Organization for Islamic Financial Institutions. It starts from the new trend that considers the contribution of soft law to resolving disputes in international commercial contracts: the 2015 Hague Principles, the 2019 Guide, and the 2023 African Principles. The article evaluates the SS-making process by using the input-process-output model and proposes a legal basis and scenarios for cooperation between the Unidroit Principles and the SSs in international commercial dispute resolutions. It then explores some divergences that limit the scope of this cooperation. The article recommends the publication of SSs concerned with invalidity and the three defects of consent: mistake, fraud, and threat. It also emphasizes the need to set up model clauses for Islamic finance cross-border contracts, including cooperation with the Unidroit Principles and publishing online case law.","PeriodicalId":42756,"journal":{"name":"Uniform Law Review","volume":"17 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2024-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141882596","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 aircraft financing, dealing with jurisdiction and applicable law is of paramount importance. Given the global nature of the aviation industry, the parties involved in aircraft-financing transactions must carefully consider the jurisdiction in which disputes may arise as well as the relevant laws that govern such disputes. In aircraft financing, there are a great number of jurisdictions that may be selected by the parties. The existing international treaties in aircraft financing, such as the 1948 Geneva Convention and the 2001 Cape Town Convention with its Aircraft Equipment Protocol, unified international law considerably. Nevertheless, these treaties have not resulted in the elimination of the conflict of laws, and the choice of law in the agreements has limited effect. Despite the registration obligations of aircraft being unified enough due to the rigorous requirements of the 1944 Chicago Convention and its Annexes, further unification is necessary to manage the conflicts of laws. Such uniformity is still awaited, although the Cape Town Convention and its Aircraft Equipment Protocol provide a standardized legal regime for aircraft financing, transactions, and registrations. These international instruments and the registration requirement therein (International Registry) help establish uniformity and clarity in the rights and priorities of the parties involved. This article introduces the complexity of these areas of the aviation industry and focuses on the jurisdictional challenges regarding registration and contractual relations.
{"title":"Dealing with registrations and jurisdiction in aircraft financing","authors":"Attila Sipos","doi":"10.1093/ulr/unae025","DOIUrl":"https://doi.org/10.1093/ulr/unae025","url":null,"abstract":"In aircraft financing, dealing with jurisdiction and applicable law is of paramount importance. Given the global nature of the aviation industry, the parties involved in aircraft-financing transactions must carefully consider the jurisdiction in which disputes may arise as well as the relevant laws that govern such disputes. In aircraft financing, there are a great number of jurisdictions that may be selected by the parties. The existing international treaties in aircraft financing, such as the 1948 Geneva Convention and the 2001 Cape Town Convention with its Aircraft Equipment Protocol, unified international law considerably. Nevertheless, these treaties have not resulted in the elimination of the conflict of laws, and the choice of law in the agreements has limited effect. Despite the registration obligations of aircraft being unified enough due to the rigorous requirements of the 1944 Chicago Convention and its Annexes, further unification is necessary to manage the conflicts of laws. Such uniformity is still awaited, although the Cape Town Convention and its Aircraft Equipment Protocol provide a standardized legal regime for aircraft financing, transactions, and registrations. These international instruments and the registration requirement therein (International Registry) help establish uniformity and clarity in the rights and priorities of the parties involved. This article introduces the complexity of these areas of the aviation industry and focuses on the jurisdictional challenges regarding registration and contractual relations.","PeriodicalId":42756,"journal":{"name":"Uniform Law Review","volume":"40 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2024-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141610467","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 article examines the innovative combination of blockchain and artificial intelligence (AI) technologies in the field of electronic letters of credit and international trade finance. It explores how the combined effect of this convergence may greatly improve the security, effectiveness, and clarity of trade finance procedures. The article presents a suggested framework for combining various technologies, focusing on important design considerations including security, trust, interoperability, and adherence to international trade norms. The technological design blends blockchain’s decentralized ledger with AI’s analytical capabilities, highlighting the need of smart contracts, data management, and application programming interfaces for smooth interoperability. The implementation plan and stages are meticulously detailed, emphasizing the systematic approach necessary for effective integration. The article also discusses the problems and dangers related to this technology integration, such as technical obstacles, regulatory compliance, security threats, stakeholder acceptance, and cost factors. The conclusion outlines the impact of blockchain and AI on trade finance, discusses their larger implications for international commerce, and advocates for the adoption of these advanced technologies by collective action. This article seeks to provide significant insights to financial institutions, policy-makers, technologists, and stakeholders in the trade finance sector, promoting the modernization of trade finance via new technology.
{"title":"Revolutionizing trade finance: leveraging the power of blockchain and AI in electronic letters of credit","authors":"Moein Elahi Nezhad, Shima Rashidian, Consiglia Botta","doi":"10.1093/ulr/unae023","DOIUrl":"https://doi.org/10.1093/ulr/unae023","url":null,"abstract":"This article examines the innovative combination of blockchain and artificial intelligence (AI) technologies in the field of electronic letters of credit and international trade finance. It explores how the combined effect of this convergence may greatly improve the security, effectiveness, and clarity of trade finance procedures. The article presents a suggested framework for combining various technologies, focusing on important design considerations including security, trust, interoperability, and adherence to international trade norms. The technological design blends blockchain’s decentralized ledger with AI’s analytical capabilities, highlighting the need of smart contracts, data management, and application programming interfaces for smooth interoperability. The implementation plan and stages are meticulously detailed, emphasizing the systematic approach necessary for effective integration. The article also discusses the problems and dangers related to this technology integration, such as technical obstacles, regulatory compliance, security threats, stakeholder acceptance, and cost factors. The conclusion outlines the impact of blockchain and AI on trade finance, discusses their larger implications for international commerce, and advocates for the adoption of these advanced technologies by collective action. This article seeks to provide significant insights to financial institutions, policy-makers, technologists, and stakeholders in the trade finance sector, promoting the modernization of trade finance via new technology.","PeriodicalId":42756,"journal":{"name":"Uniform Law Review","volume":"56 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2024-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141586957","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 aviation industry has reached a strategic relevance for countries worldwide such that its impact on the global economy cannot be under-estimated. It might be surprising to hear that, notwithstanding such innate international character, generally, aviation disputes are still solved through national jurisdictional channels. Aircraft finance transactions and disputes not only are highly international in nature but also strongly depend on technical nature and specific financial aspects and are in need of a certain degree of expertise on the side of the adjudicatory body. In this light, there have been ever more instances of aviation-specific arbitration courts being established with the objective to ensure efficiency and time-sensitive and expert dispute settlement mechanisms for aviation finance disputes. This article not only addresses the elements of such aviation courts but also examines the current legal regime and challenges arising from the 2001 Cape Town Convention and national laws.
{"title":"Dispute resolution in aircraft finance: question and solutions within the international regulatory context","authors":"Andrea Trimarchi","doi":"10.1093/ulr/unae024","DOIUrl":"https://doi.org/10.1093/ulr/unae024","url":null,"abstract":"The aviation industry has reached a strategic relevance for countries worldwide such that its impact on the global economy cannot be under-estimated. It might be surprising to hear that, notwithstanding such innate international character, generally, aviation disputes are still solved through national jurisdictional channels. Aircraft finance transactions and disputes not only are highly international in nature but also strongly depend on technical nature and specific financial aspects and are in need of a certain degree of expertise on the side of the adjudicatory body. In this light, there have been ever more instances of aviation-specific arbitration courts being established with the objective to ensure efficiency and time-sensitive and expert dispute settlement mechanisms for aviation finance disputes. This article not only addresses the elements of such aviation courts but also examines the current legal regime and challenges arising from the 2001 Cape Town Convention and national laws.","PeriodicalId":42756,"journal":{"name":"Uniform Law Review","volume":"25 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2024-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141572192","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}
Theodora A Christou, Tedd Moya Mose, John L Taylor
History records that trade and trade finance, vital to economic advancement and prosperity, have benefited profoundly from technological evolution and accompanying supportive transnational law. Today, the blossoming of technology, most notably digitalization, has the potential to greatly facilitate both domestic and international trade and, just as importantly, to assist in fulfilling the environmental and social goals critical to meet the UN Sustainable Development Goals and the Paris Agreement. However, obstacles to digital trade arise from the existing legal and regulatory frameworks. Accordingly, legal reforms are overdue. Impetus is now needed to create a fully supportive transnational legal environment. There are several examples of where the technology exists, but the law frustrates its effective deployment. The laws of most jurisdictions require certain trade documents (like bills of lading, payment, and title instruments) to be recorded in a tangible form (paper). The International Chamber of Commerce (ICC) estimates that digitalizing trade documents could reduce transaction costs by 80 per cent and eliminate billions of paper documents in the trade system. A limited number of jurisdictions have reformed their laws to address this gap and innovative private sector actors have taken the initiative to benefit from these reforms. An example includes the development of the Distributed Ledger Payment Commitment by BAFT that relies on narrow but effective changes in Delaware law governing promissory notes; others chose to be governed by Singapore law, which recently amended to align with the Model Law on Electronic Transferable Records (MLETR). Law can be an enabler of digital trade. To this end, work has begun, including by the ICC and the International Institute for the Unification of Private Law. But the reform needs to be accelerated. This article considers the benefits of digital trade, key legal obstacles, and how transnational law can enable innovation and digitalization not only of the vast volumes of paper but of the entire trade and trade finance processes.
{"title":"Transnational law as an enabler of digital trade","authors":"Theodora A Christou, Tedd Moya Mose, John L Taylor","doi":"10.1093/ulr/unae017","DOIUrl":"https://doi.org/10.1093/ulr/unae017","url":null,"abstract":"History records that trade and trade finance, vital to economic advancement and prosperity, have benefited profoundly from technological evolution and accompanying supportive transnational law. Today, the blossoming of technology, most notably digitalization, has the potential to greatly facilitate both domestic and international trade and, just as importantly, to assist in fulfilling the environmental and social goals critical to meet the UN Sustainable Development Goals and the Paris Agreement. However, obstacles to digital trade arise from the existing legal and regulatory frameworks. Accordingly, legal reforms are overdue. Impetus is now needed to create a fully supportive transnational legal environment. There are several examples of where the technology exists, but the law frustrates its effective deployment. The laws of most jurisdictions require certain trade documents (like bills of lading, payment, and title instruments) to be recorded in a tangible form (paper). The International Chamber of Commerce (ICC) estimates that digitalizing trade documents could reduce transaction costs by 80 per cent and eliminate billions of paper documents in the trade system. A limited number of jurisdictions have reformed their laws to address this gap and innovative private sector actors have taken the initiative to benefit from these reforms. An example includes the development of the Distributed Ledger Payment Commitment by BAFT that relies on narrow but effective changes in Delaware law governing promissory notes; others chose to be governed by Singapore law, which recently amended to align with the Model Law on Electronic Transferable Records (MLETR). Law can be an enabler of digital trade. To this end, work has begun, including by the ICC and the International Institute for the Unification of Private Law. But the reform needs to be accelerated. This article considers the benefits of digital trade, key legal obstacles, and how transnational law can enable innovation and digitalization not only of the vast volumes of paper but of the entire trade and trade finance processes.","PeriodicalId":42756,"journal":{"name":"Uniform Law Review","volume":"98 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2024-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141510506","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 chapter focuses on the delivery of justice to victims of corporate conduct through privately driven transnational hybrid dispute resolution mechanisms. The advent of such mechanisms is now evident through the creation of Meta’s Oversight Board (‘OSB’). How to incorporate such privately driven justice mechanisms in more conventional forms of legal ordering is an important question constituting the central inquiry of this reflection. Via the example of the OSB, this chapter highlights how some content moderation disputes between Meta, one of the most powerful technology companies today, and its users is being resolved using innovative private adjudicative mechanisms. It is then argued that forums like the OSB should be deferred to. But only if the quality of justice provided is consistent with international standards. Where those standards are met, the broad circulation of decisions made by privately driven adjudicative mechanisms should be promoted. This requires proactive, outcome driven, and coordinated international institutional action.
本章的重点是通过私人驱动的跨国混合争端解决机制为公司行为受害者伸张正义。Meta 监督委员会（'OSB'）的成立表明了这种机制的出现。如何将这种私人驱动的司法机制纳入更为传统的法律秩序形式，是一个重要的问题，也是本次思考的核心问题。通过 OSB 的例子，本章重点介绍了当今最强大的科技公司之一 Meta 与其用户之间的一些内容管理纠纷是如何通过创新的私人裁决机制来解决的。本章认为，像 OSB 这样的论坛应该得到尊重。但前提是所提供的司法质量必须符合国际标准。在符合这些标准的情况下，应促进私人裁决机制所做裁决的广泛传播。这需要积极主动、以结果为导向、协调一致的国际机构行动。
{"title":"Access to justice and multinational corporations: promoting privately driven transnational hybrid adjudication","authors":"Rishi Gulati","doi":"10.1093/ulr/unae009","DOIUrl":"https://doi.org/10.1093/ulr/unae009","url":null,"abstract":"This chapter focuses on the delivery of justice to victims of corporate conduct through privately driven transnational hybrid dispute resolution mechanisms. The advent of such mechanisms is now evident through the creation of Meta’s Oversight Board (‘OSB’). How to incorporate such privately driven justice mechanisms in more conventional forms of legal ordering is an important question constituting the central inquiry of this reflection. Via the example of the OSB, this chapter highlights how some content moderation disputes between Meta, one of the most powerful technology companies today, and its users is being resolved using innovative private adjudicative mechanisms. It is then argued that forums like the OSB should be deferred to. But only if the quality of justice provided is consistent with international standards. Where those standards are met, the broad circulation of decisions made by privately driven adjudicative mechanisms should be promoted. This requires proactive, outcome driven, and coordinated international institutional action.","PeriodicalId":42756,"journal":{"name":"Uniform Law Review","volume":"21 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2024-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140201345","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}
It is widely accepted that directors’ duties encompass the duty to prepare and analyse information concerning the company’s business and affairs and market conditions and the duty to monitor and oversee the company’s actual and prospective economic and financial outlook. While exercising the so-called business judgment rule, directors shall question themselves as to whether the information reasonably available at the time a decision is to be made provides sufficient grounds to support it. They also must have in due regard the underlying business rationality of the decision concerned. The issue merits particular attention in the context of companies undergoing economic or financial distress in the vicinity of insolvency. Directors usually resort to assistance from internal staff and external advisors as well as to technological tools for performing managerial activities. There are a number of options of technologies that employ artificial intelligence (AI) and that have shown a high degree of certainty in predicting scenarios of economic or financial distress. However, directors are not exempted from potential accountability for actions taken in breach of their duties by simply employing AI technology. If, how, and to which extent the use of AI in corporate governance will affect the compliance of a director’s duties are questions yet to be addressed.
{"title":"Artificial Intelligence in corporate governance: a few inquiries on the (non-)compliance of directors’ duties from a Portuguese law perspective","authors":"Igor Silva de Lima","doi":"10.1093/ulr/unae010","DOIUrl":"https://doi.org/10.1093/ulr/unae010","url":null,"abstract":"It is widely accepted that directors’ duties encompass the duty to prepare and analyse information concerning the company’s business and affairs and market conditions and the duty to monitor and oversee the company’s actual and prospective economic and financial outlook. While exercising the so-called business judgment rule, directors shall question themselves as to whether the information reasonably available at the time a decision is to be made provides sufficient grounds to support it. They also must have in due regard the underlying business rationality of the decision concerned. The issue merits particular attention in the context of companies undergoing economic or financial distress in the vicinity of insolvency. Directors usually resort to assistance from internal staff and external advisors as well as to technological tools for performing managerial activities. There are a number of options of technologies that employ artificial intelligence (AI) and that have shown a high degree of certainty in predicting scenarios of economic or financial distress. However, directors are not exempted from potential accountability for actions taken in breach of their duties by simply employing AI technology. If, how, and to which extent the use of AI in corporate governance will affect the compliance of a director’s duties are questions yet to be addressed.","PeriodicalId":42756,"journal":{"name":"Uniform Law Review","volume":"148 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2024-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140201340","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}
Global financial markets are among the most extensively regulated markets in the world economy. This poses significant challenges from a private law perspective when regulatory rules interfere with private rights and obligations. This article examines the potential of transnational commercial law (TCL) to provide for a private law framework suited to the regulatory reality in global financial markets. The article finds that, while regulatory aspects are generally excluded from TCL instruments, notable exceptions to this general rule occur. Based on an analysis of the approaches undertaken in the Unidroit Convention of Substantive Rules for Intermediated Securities (Geneva Convention), including the accompanying Legislative Guide, the Unidroit Principles on the Operation of Close-Out Netting Provisions and the UNCITRAL Model Law on Secured Transactions, the article maps out three methods that allow for a reconciliation of private and regulatory rules: (i) the adoption of a flexible private law system including default and conflict rules; (ii) the use of opening clauses to allow deviations from TCL rules in accordance with international regulatory standards; and (iii) a codificatory approach through the development of a comprehensive and systematic legal framework consisting of both private law and regulatory rules. Finally, the article addresses potential obstacles and objections that future TCL instruments will face when addressing regulatory aspects. Overall, the article argues that an efficient financial market requires a foreseeable set of private law rules that—considering the continuous expansion of regulatory law—must address the pressing issues deriving from the interrelation of regulation and private law. However, the adaption of TCL instruments should be limited to common-sense financial market regulation that, even if differing from State to State, generally follows globally shared regulatory goals.
{"title":"Financial market regulation and private law: a new frontier of transnational commercial law","authors":"Josef Wittmann","doi":"10.1093/ulr/unae003","DOIUrl":"https://doi.org/10.1093/ulr/unae003","url":null,"abstract":"Global financial markets are among the most extensively regulated markets in the world economy. This poses significant challenges from a private law perspective when regulatory rules interfere with private rights and obligations. This article examines the potential of transnational commercial law (TCL) to provide for a private law framework suited to the regulatory reality in global financial markets. The article finds that, while regulatory aspects are generally excluded from TCL instruments, notable exceptions to this general rule occur. Based on an analysis of the approaches undertaken in the Unidroit Convention of Substantive Rules for Intermediated Securities (Geneva Convention), including the accompanying Legislative Guide, the Unidroit Principles on the Operation of Close-Out Netting Provisions and the UNCITRAL Model Law on Secured Transactions, the article maps out three methods that allow for a reconciliation of private and regulatory rules: (i) the adoption of a flexible private law system including default and conflict rules; (ii) the use of opening clauses to allow deviations from TCL rules in accordance with international regulatory standards; and (iii) a codificatory approach through the development of a comprehensive and systematic legal framework consisting of both private law and regulatory rules. Finally, the article addresses potential obstacles and objections that future TCL instruments will face when addressing regulatory aspects. Overall, the article argues that an efficient financial market requires a foreseeable set of private law rules that—considering the continuous expansion of regulatory law—must address the pressing issues deriving from the interrelation of regulation and private law. However, the adaption of TCL instruments should be limited to common-sense financial market regulation that, even if differing from State to State, generally follows globally shared regulatory goals.","PeriodicalId":42756,"journal":{"name":"Uniform Law Review","volume":"35 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2024-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140098352","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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