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Groups of Companies in European Comparative Law 欧洲比较法中的公司群
Q2 Social Sciences Pub Date : 2021-04-01 DOI: 10.54648/eulr2021008
Rabai Bouderhem
Groups of companies are today key players in international trade through their crossborder activities. Their asset management – sometimes to the detriment of a subsidiary – or tax optimisation offered by a multitude of laws applicable to their subsidiaries make it essential to regulate groups more closely. It is unanimously accepted in France or the UK, for example, that the group of companies does not have its own nationality or a single lex societatis. However, this classic solution could be revisited and the group of companies could be apprehended as a single legal unit in specific cases. Today, few national laws deal with groups of companies as a legal unit. Very often, these are scattered provisions. In many European states, an economic unit of the group can sometimes be retained by certain legislative and regulatory provisions but also by the courts such as in competition law or in tax and social matters. The purpose of this article is to demonstrate that regulation of groups of companies deserves to be revived by the European authorities and that the economic, political and social challenges are considerable for all member states of the European Union and beyond. Indeed, the Court of Justice of the European Union has shown real normative power with regard to groups of companies, due to the absence of a directive or regulation applicable to groups. The German legislation on groups of companies is a prime example and the regulations relating to the European company remind us that a consensus is possible at the level of the European Union.
今天,公司集团通过其跨境活动成为国际贸易的关键参与者。它们的资产管理——有时会损害子公司的利益——或适用于子公司的众多法律提供的税收优化,使得对集团进行更严格的监管变得至关重要。例如,在法国或英国,人们一致认为,企业集团没有自己的国籍,也没有单一的企业法。然而,这种经典的解决方案可以重新审视,在特定情况下,这组公司可以被视为一个单一的法律单位。今天,很少有国家法律将公司集团作为一个法律单位来处理。通常,这些都是零散的规定。在许多欧洲国家,集团的一个经济单位有时可以通过某些立法和监管条款保留,但也可以通过法院保留,例如在竞争法或税收和社会问题上。本文的目的是为了证明,欧洲当局应该恢复对公司集团的监管,而经济、政治和社会挑战对欧盟及其他所有成员国来说都是相当大的。事实上,欧洲联盟法院对公司集团显示出真正的规范权力,因为没有适用于集团的指令或条例。德国关于公司集团的立法就是一个很好的例子,与欧洲公司有关的法规提醒我们,在欧盟层面上达成共识是可能的。
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引用次数: 0
Behavioural Economics in European Corporate Governance – Much Ado about Nudging? 欧洲公司治理中的行为经济学——对轻推小题大做?
Q2 Social Sciences Pub Date : 2021-04-01 DOI: 10.54648/eulr2021011
Marina B. Madsen
Shareholder engagement from institutional investors remains a topic on the agenda of both legislators and in the public debate. The recent amendment of the SRD can be seen as a token of a pan-European ‘hardening of shareholder norms’. The arising question is if this hardening is sufficient to change the behaviour of institutional investors. Using insights from behavioural economics, the article discusses if the European Union and national Member States can apply nudging or other insights from behavioural economics to increase shareholder engagement and argues that in order to follow a behaviourally informed strategy, a distinct justification of both the applied means and the pursued purposes is required.Corporate governance, European Union, shareholder engagement, active ownership, institutional investors, behavioural economics, choice architecture, nudging, biases, libertarian paternalism
机构投资者的股东参与仍然是立法者和公众辩论议程上的一个话题。最近对SRD的修订可以被视为泛欧“强化股东规范”的标志。出现的问题是,这种强硬态度是否足以改变机构投资者的行为。本文利用行为经济学的见解,讨论了欧盟和成员国是否可以应用行为经济学的推动或其他见解来增加股东参与,并认为为了遵循行为知情的战略,需要对应用手段和追求的目的进行明确的论证。公司治理、欧盟、股东参与、主动所有权、机构投资者、行为经济学、选择架构、轻推、偏见、自由主义家长式作风
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引用次数: 1
Partnership Law: Used, Misused or Abused? 合伙法:使用、滥用还是滥用?
Q2 Social Sciences Pub Date : 2021-04-01 DOI: 10.54648/eulr2021009
Elspeth Berry
This article analyses the increasing use of UK partnerships for criminal purposes, often in other jurisdictions, and argues that the regulatory responses are inadequate, and must be supplemented by a comprehensive ethical framework. I first argue that partnerships offer substantial benefits for a variety of businesses, but that they also have vulnerabilities which have led to their misuse and even abuse through criminal activities, which I also discuss. I then analyse the deficiencies of the regulatory measures designed to tackle the abuses, including requirements to disclose participant identity and accounts, and anti-money laundering and tax evasion measures. Finally, I evaluate the use of a supplementary ethical framework to reduce the abuses, and examine how such a framework could be created. My analysis provides an understanding of the causes and consequences of partnership abuses and of how they can be overcome. This advances the ongoing debate in the UK over the abuse of partnerships and the wider issue of business transparency, and has implications for the many other jurisdictions in which UK partnerships operate and in which the abuses take place, as well as for jurisdictions which have similar partnership vehicles to those in the UK.General partnerships, limited partnerships, LLPs, money laundering, tax evasion, tax avoidance, regulation, ethics, transparency, accounts
本文分析了英国越来越多地将合伙企业用于犯罪目的,通常在其他司法管辖区,并认为监管措施不够充分,必须辅以全面的道德框架。我首先认为,伙伴关系为各种企业提供了巨大的好处,但它们也存在漏洞,导致它们被滥用,甚至通过犯罪活动滥用,我也讨论了这一点。然后,我分析了旨在解决滥用行为的监管措施的不足之处,包括披露参与者身份和账户的要求,以及反洗钱和逃税措施。最后,我评估了使用补充道德框架来减少虐待行为的情况,并研究了如何创建这样一个框架。我的分析使我们了解了滥用伙伴关系的原因和后果,以及如何克服这些问题。这推动了英国正在进行的关于滥用合伙企业和更广泛的商业透明度问题的辩论,并对英国合伙企业运营和发生滥用行为的许多其他司法管辖区,以及与英国有类似合伙工具的司法管辖区产生了影响,逃税、避税、监管、道德、透明度、账目
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引用次数: 1
Mandatory CSR Disclosure: An Empirical Analysis of UK Modern Slavery Statements 强制性企业社会责任披露:英国现代奴隶制声明的实证分析
Q2 Social Sciences Pub Date : 2021-04-01 DOI: 10.54648/eulr2021012
Luke Blindell
The Modern Slavery Act 2015 requires large firms doing business in the UK to disclose their efforts to prevent modern slavery within their global supply chains. This paper considers the extent to which companies have complied with the Act and provides an insight into engagement with its underlying objectives. This is achieved through a content analysis of the modern slavery statements published by 934 companies in 2016. As the largest systematic review of UK modern slavery reporting, this paper has international implications due to the globalized nature of modern slavery and the sizeable international shareholder base in large UK companies.Transparency, disclosure, non-financial reporting, disclosure-based regulation, corporate governance, corporate social responsibility, stakeholder, modern slavery act, modern slavery statement, forced labour
《2015年现代奴隶制法案》要求在英国开展业务的大公司披露其在全球供应链中防止现代奴隶制的努力。本文考虑了公司遵守该法案的程度,并提供了对其潜在目标的参与的见解。这是通过对2016年934家公司发布的现代奴隶制声明的内容分析来实现的。作为对英国现代奴隶制报告的最大系统审查,由于现代奴隶制的全球化性质和大型英国公司中相当大的国际股东基础,本文具有国际意义。透明度、披露、非财务报告、基于披露的监管、公司治理、企业社会责任、利益相关者、现代奴隶制法案、现代奴隶制声明、强迫劳动
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引用次数: 1
Blockchain Smart Contracts: A Socio-Legal Approach 智能合约:一种社会-法律方法
Q2 Social Sciences Pub Date : 2021-04-01 DOI: 10.54648/eulr2021010
Leonardo Peixoto Barbosa
Smart contracts are computer protocols that self-enforce encoded terms. They arguably allow for individual freedom and increased sovereignty from inconveniences. The enthusiasm goes as far as foreseeing that smart contracts will make contractual legal oversight obsolete. However, whereas contract law theory evolved to acknowledge the importance of flexibility and relationality, smart contracts activists defend the opposite direction, arguing for contractual rigidness and denial of social norms supporting complex transactions. This paper departs from this paradox to argue that (i) smart contracts based on existing technology are unlikely to thrive in complex contractual settings, and (ii) contextual analysis is important for LawTech’s propositions.Smart contracts, blockchain, system’s theory, social norms, transaction cost, flexibility, relationality, trust, co-operation, contractual governance
智能合约是自我执行编码条款的计算机协议。可以说,它们允许个人自由,并从不便中增加主权。这种热情甚至预见到,智能合约将使合同法律监督过时。然而,尽管合同法理论发展到承认灵活性和关联性的重要性,智能合约活动家却捍卫相反的方向,主张合同的刚性和否认支持复杂交易的社会规范。本文从这一悖论出发,认为(i)基于现有技术的智能合约不太可能在复杂的合同环境中茁壮成长,(ii)上下文分析对LawTech的主张很重要。智能合约,区块链,系统理论,社会规范,交易成本,灵活性,关系,信任,合作,契约治理
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引用次数: 0
The ‘Rebirth’ of the EU as an Audit Legislator 欧盟作为审计立法机构的“重生”
Q2 Social Sciences Pub Date : 2021-04-01 DOI: 10.54648/eulr2021013
Jesper Seehausen
In April 2014, important new audit legislation was adopted by the European Parliament and the Council, i.e. the 2014 Auditing Directive and the PIE Regulation. In the author’s opinion, the role of the EU as an audit legislator has significantly changed over time. More specifically, the new audit legislation indicates the ‘rebirth’ of the EU as an audit legislator. The article focuses on the role of the EU as an audit legislator, even though the EU also has an important role to play as an accounting legislator. The most important legislative acts when it comes to EU audit legislation are discussed. A number of important trends in EU audit legislation are also identified and discussed. These include an increased legislative focus on Public-Interest Entities (PIEs), a change from a ‘directive only’ to a ‘directive and regulation’ legislative paradigm, a legislative change from the ‘periphery’ to the ’core’ of auditing, ‘codification’ of provisions from the International Standards on Auditing (ISAs) in EU legislation as well as a discussion on a possible EU adoption of the ISAs.Auditing, audit legislation, 8th directive, green paper, financial crisis, auditing directive, pie regulation, public-interest entities (pies), international standards on auditing (ISAs)
2014年4月,欧洲议会和理事会通过了重要的新审计立法,即《2014年审计指令》和《PIE条例》。作者认为,随着时间的推移,欧盟作为审计立法机构的角色发生了重大变化。更具体地说,新的审计立法标志着欧盟作为审计立法者的“重生”。本文重点讨论了欧盟作为审计立法者的作用,尽管欧盟作为会计立法者也可以发挥重要作用。讨论了欧盟审计立法中最重要的立法行为。还确定并讨论了欧盟审计立法的一些重要趋势。其中包括增加对公共利益实体的立法关注,从“仅指令”向“指令和监管”立法范式的转变,从审计的“外围”向“核心”的立法转变,在欧盟立法中“编纂”国际审计准则(ISAs)的规定,并讨论欧盟可能采用ISAs。审计、审计立法、第8号指令、绿皮书、金融危机、审计指令、馅饼监管、公共利益实体、国际审计标准
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引用次数: 0
Internal Investigations in Compliance Matters: What Role for Legal Professional Privilege in Europe? 合规事务内部调查:法律职业特权在欧洲扮演什么角色?
Q2 Social Sciences Pub Date : 2021-04-01 DOI: 10.54648/eulr2021014
Thomas Kruessmann
Information is key to understanding possible wrongdoing in corporations. When allegations of wrongdoing occur, management often invites external counsel to conduct internal investigations because legal professional privilege is seen as crucial in protecting information. In the post-Brexit EU, the objective scope of such privilege is under debate while there is little alignment with developments in the UK. This paper will explore what the deepening divide in the understanding of legal professional privilege may mean. It proposes a policy model, summarizes recent developments in England and Germany and comes to some refined conclusions to serve a broader comparative analysis of internal investigations.
信息是了解企业可能存在的不法行为的关键。当出现不当行为的指控时,管理层通常会邀请外部律师进行内部调查,因为法律专业特权被视为保护信息的关键。在英国脱欧后的欧盟,这种特权的客观范围正在辩论中,而与英国的发展几乎没有一致。本文将探讨对法律职业特权理解上日益加深的分歧可能意味着什么。它提出了一个政策模型,总结了英国和德国的最新发展,并得出了一些精炼的结论,以供对内部调查进行更广泛的比较分析。
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引用次数: 1
Bail-in: Do Italians Do It Better (or Worse, or Not at All)? 保释:意大利人做得更好(还是更糟,或者根本不做)?
Q2 Social Sciences Pub Date : 2021-02-01 DOI: 10.54648/eulr2021005
Pierre de Gioia-Carabellese
The bank insolvency, hinged upon the new resolutions tools, particularly the bail-in, with its controversial right, bestowed upon an administrative authority, to covert/ write off/reduce the creditor’s rights should the bank fail, has played havoc in some EU jurisdictions, such as Italy. In this country, where the banking system has been put under intense pressure in the last five years, the application of the new rules has been sui generis, in some cases with an apparent misapplication of the new legal framework. Additionally, the existence of some constitutional values in the Belpaese, where the savings are expressly protected, may suggest that the judicial authorities, particularly the Italian Constitutional Court, may in the future decide to be more courageous in the way some fundamental legal provisions should be interpreted in their relationship with the new framework.Bank insolvency, Bail-in, resolution tools, constitutional values, Italy, savings’ protection
银行破产在意大利等一些欧盟司法管辖区造成了严重破坏。银行破产取决于新的解决方案工具,尤其是内部纾困(bail-in),它赋予行政当局在银行破产时隐藏/注销/减少债权的有争议的权利。在这个国家,银行系统在过去五年中承受着巨大的压力,新规则的应用一直是自成体系的,在某些情况下,明显存在对新法律框架的误用。此外,在Belpaese中存在一些宪法价值,其中储蓄得到明确保护,这可能表明司法当局,特别是意大利宪法法院,将来可能决定在解释一些基本法律条款与新框架的关系方面更加勇敢。银行破产、内部纾困、决议工具、宪法价值、意大利、储蓄保护
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引用次数: 0
Origins, Evolution and Comparison of Moral Rights between Civil and Common Law Systems 民法与英美法系道德权利的起源、演变及比较
Q2 Social Sciences Pub Date : 2021-02-01 DOI: 10.54648/eulr2021002
Laura Moscati
The protection of moral rights embraces the now widespread personal sphere of copyright and originated much later than the economic exploitation of the work itself. Some of its components can be found in the English and German thought between the 17th and 18th centuries and, starting from the early 19th century, would have a substantial development through the contribution of both the French legal scholarship and case law. The legal foundations, in any case, date back to some codifications of the German area and to the earliest international treaties, making it a discipline that did not take into consideration the extent of the national territory. The purpose of this study is to evaluate the relevance of the European models and their influence in Italy after the national Unification, in particular in the first decades of the 1900s. In fact, the international protection of moral rights takes root in Italy during the 1928 Rome Conference for the revision of the 1886 Berne Convention. The United States joined it only later, in 1989, with the Berne Convention Implementation Act (BCIA). Thirty years later, the Copyright Office published in April 2019 an extensive study about the American protection of moral rights. The document is studied in this paper in comparison with the European Directives and with the Copyright Directive definitively approved a few days before the Copyright Office document. While in the USA the interest in moral rights up to now rather limited seems to be increasing, in Europe the protection of moral rights risks being waned as it is handed down to individual countries with the explicit declaration that it is not the subject matter of the Directives.Moral rights, origins, codification, Europe, Italy, Berne Convention, international treaties, USA, EU Directives, Canada
对精神权利的保护涵盖了现在广泛存在的版权个人领域,其产生时间远远晚于对作品本身的经济剥削。它的一些组成部分可以在17世纪至18世纪的英国和德国思想中找到,从19世纪初开始,通过法国法律学术和判例法的贡献,它将得到实质性的发展。无论如何,法律基础可以追溯到德国地区的一些法典和最早的国际条约,使其成为一门不考虑国家领土范围的学科。本研究的目的是评估欧洲模式的相关性及其在意大利国家统一后的影响,特别是在20世纪的前几十年。事实上,在1928年罗马会议修订1886年《伯尔尼公约》期间,对精神权利的国际保护在意大利生根发芽。美国后来才于1989年通过《伯尔尼公约执行法》加入。30年后,版权局于2019年4月发表了一份关于美国保护道德权利的广泛研究报告。本文将该文件与欧洲指令以及版权局文件发布前几天最终批准的版权指令进行了比较研究。虽然到目前为止,在美国,对道德权利的兴趣似乎越来越有限,但在欧洲,道德权利的保护有减弱的风险,因为它被传递给各个国家,并明确声明它不是指令的主题。道德权利、起源、编纂、欧洲、意大利、伯尔尼公约、国际条约、美国、欧盟指令,加拿大
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引用次数: 0
After the GDPR: Cybersecurity is the Elephant in the Artificial Intelligence Room GDPR之后:网络安全是人工智能室里的大象
Q2 Social Sciences Pub Date : 2021-02-01 DOI: 10.54648/eulr2021001
Sara Degli-Esposti, Ester Mocholí Ferrándiz
This article presents an analysis of data protection authorities’ (DPAs) enforcement actions undertaken since the implementation of the General Data Protection Regulation (GDPR) in May 2018. The analysis shows that corporations fail to adopt transparent data processing practices and appropriate technical and organisational measures to secure personal data. By focusing on two specific DPAs, the Spanish AEPD and the British ICO, we make practical suggestions on how to foster the healthy development of the European digital ecosystem and the deployment of trustworthy artificial intelligence in big data environments in the face of growing cybersecurity risks.Data protection law, cybersecurity, artificial intelligence, ICO, AEPD, DPA, big data, compliance, supervisory authority, sanctions
本文分析了自2018年5月实施《通用数据保护条例》(GDPR)以来,数据保护机构(dpa)采取的执法行动。分析显示,企业没有采用透明的资料处理方法,以及适当的技术和组织措施来保障个人资料的安全。本文以西班牙AEPD和英国ICO两个dpa为例,就如何在日益增长的网络安全风险下促进欧洲数字生态系统的健康发展和在大数据环境下部署可信赖的人工智能提出切实可行的建议。数据保护法、网络安全、人工智能、ICO、AEPD、DPA、大数据、合规、监管机构、制裁
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引用次数: 2
期刊
European Business Law Review
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