This article focuses on the industrial role of the State, including the European Union, in the specific field of payments, probably the single most important component of any advanced economic system. Taking the payment system as a case study, the aim is to highlight and explore the conceptual and functional link and analogy between the industrial role of the State, on the one hand, and digital platforms, on the other. Policy makers adopt the most important economic functions exercised by or through digital platforms as industrial measures. The State enables and spurs economic growth and innovation in the payment systems by enacting two industrial measures that represent an application of the platform ‘mechanism’. These measures consist, firstly, in providing a public platform for the private sector and, secondly, in promoting the ‘platformisation’ of the private sector. Digital platforms, payment system, industrial policy, open banking, PSD2, intermediation, money, central bank digital currency (CBDC), innovation, transaction cost
{"title":"The Functions of Law and of Digital Platforms in the Payment System","authors":"M. Ortino","doi":"10.54648/eulr2022047","DOIUrl":"https://doi.org/10.54648/eulr2022047","url":null,"abstract":"This article focuses on the industrial role of the State, including the European Union, in the specific field of payments, probably the single most important component of any advanced economic system. Taking the payment system as a case study, the aim is to highlight and explore the conceptual and functional link and analogy between the industrial role of the State, on the one hand, and digital platforms, on the other. Policy makers adopt the most important economic functions exercised by or through digital platforms as industrial measures. The State enables and spurs economic growth and innovation in the payment systems by enacting two industrial measures that represent an application of the platform ‘mechanism’. These measures consist, firstly, in providing a public platform for the private sector and, secondly, in promoting the ‘platformisation’ of the private sector.\u0000Digital platforms, payment system, industrial policy, open banking, PSD2, intermediation, money, central bank digital currency (CBDC), innovation, transaction cost","PeriodicalId":53431,"journal":{"name":"European Business Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48402341","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":"Book Reviwe: D’Alvia, D. (2021). Mergers, Acquisitions, and International Financial Regulation: Analyzing Special Purpose Acquisition Companies (1st ed.)","authors":"Yochanan Shachmurove, Jennifer V. Lavyen","doi":"10.54648/eulr2022042","DOIUrl":"https://doi.org/10.54648/eulr2022042","url":null,"abstract":"","PeriodicalId":53431,"journal":{"name":"European Business Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71061006","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 Comment discusses the new regulatory framework for securitisation operations in the European Union. In 2017, the EU adopted two Regulations to support the securitisation market: Regulation 2017/2402, also known as the ‘Securitisation Regulation’, and Regulation 2017/2401, also known as the ‘Securitisation Prudential Regulation’. These regulations introduced the so-called ‘STS-requirements’, being requirements for simple, transparent, and standardised securitisations that are considered of high quality in the securitisation market. The aim of this article is to assess whether the EU’s attempt for establishing a high-quality securitisation market has been successful and to identify which problems remain after said attempts for installing a more flexible regulatory framework. Securitisation, European Union, STS, Regulation 2017/2401, Regulation 2017/2402, simplicity, transparency, standardisation, high quality securitisations
{"title":"Legislation Comment: The EU’s Attempt for a High-Quality Securitisation Market: A Success Story?","authors":"K. Byttebier, Jolien De Troyer","doi":"10.54648/eulr2022041","DOIUrl":"https://doi.org/10.54648/eulr2022041","url":null,"abstract":"This Comment discusses the new regulatory framework for securitisation operations in the European Union. In 2017, the EU adopted two Regulations to support the securitisation market: Regulation 2017/2402, also known as the ‘Securitisation Regulation’, and Regulation 2017/2401, also known as the ‘Securitisation Prudential Regulation’. These regulations introduced the so-called ‘STS-requirements’, being requirements for simple, transparent, and standardised securitisations that are considered of high quality in the securitisation market.\u0000The aim of this article is to assess whether the EU’s attempt for establishing a high-quality securitisation market has been successful and to identify which problems remain after said attempts for installing a more flexible regulatory framework.\u0000Securitisation, European Union, STS, Regulation 2017/2401, Regulation 2017/2402, simplicity, transparency, standardisation, high quality securitisations","PeriodicalId":53431,"journal":{"name":"European Business Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44002031","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 paper aims at offering an understanding of Shari’a as an evolving legal system and the challenges that are posed to scholars by the choice of Shari’a as governing law. In particular, after having provided a critical overview of the UK case law concerning the enforceability of the reference to Shari’a in cross-border Islamic financial transactions, the Authors problematize the argument of the refusal to apply Shari’a on the assumption that non-State laws cannot be incorporated into an agreement as lex contractus by highlighting how it seems flawed by the lack of reliance upon a hermeneutical method able to promote the interpreting activity as a unitary procedure of joint interpretation of facts and legal principles in both an axiological and a systematic perspective. Islamic law, Islamic finance law, interpretation, standardization, enforceability, arbitration, Riba, Shari’a, public order, comparative law
{"title":"The Choice of the Shari’a as Governing Law in Arbitration Proceedings","authors":"Tommaso Vito Russo, Gianluca de Donno","doi":"10.54648/eulr2022037","DOIUrl":"https://doi.org/10.54648/eulr2022037","url":null,"abstract":"The paper aims at offering an understanding of Shari’a as an evolving legal system and the challenges that are posed to scholars by the choice of Shari’a as governing law. In particular, after having provided a critical overview of the UK case law concerning the enforceability of the reference to Shari’a in cross-border Islamic financial transactions, the Authors problematize the argument of the refusal to apply Shari’a on the assumption that non-State laws cannot be incorporated into an agreement as lex contractus by highlighting how it seems flawed by the lack of reliance upon a hermeneutical method able to promote the interpreting activity as a unitary procedure of joint interpretation of facts and legal principles in both an axiological and a systematic perspective.\u0000Islamic law, Islamic finance law, interpretation, standardization, enforceability, arbitration, Riba, Shari’a, public order, comparative law","PeriodicalId":53431,"journal":{"name":"European Business Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42724352","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}
After an introduction about the mobility of workers under the Covid crisis and its tax implications (section 1), the article begins by providing at section 2 a general overview of Art. 15 § 1 which attributes taxing power to the country where the activities are carried out as well as to the country of residence of the worker, creating a potential situation of double taxation. The article goes on at section 3 to provide an overview of the very relevant exception provided by Art. 15 § 2 which spells out the requirements under which the mobile worker is taxable only in the country of residence thereby preventing double taxation and simplifying tax compliance for the mobile worker. The article at section 4 develops a discussion of the so called ‘hiringout of labor’ which is pursued through aggressive tax structures that abuse the benefit of exclusive taxation provided by Art. 15 § 2. The paper after a digression about the wider concept of tax migration and exit taxes (section 5), concludes briefly discussing the impacts that the recent Covid crisis might have had on the system of tax treaty rules about the mobility of workers (section 6). Mobility of workers, migration, tax treaties, hiring-out of labor, aggressive tax strategies, exit taxes, Covid crisis, country of residence, double taxation, country of source
{"title":"Tax Treaties and the Mobility of Workers","authors":"C. Garbarino","doi":"10.54648/eulr2022039","DOIUrl":"https://doi.org/10.54648/eulr2022039","url":null,"abstract":"After an introduction about the mobility of workers under the Covid crisis and its tax implications (section 1), the article begins by providing at section 2 a general overview of Art. 15 § 1 which attributes taxing power to the country where the activities are carried out as well as to the country of residence of the worker, creating a potential situation of double taxation. The article goes on at section 3 to provide an overview of the very relevant exception provided by Art. 15 § 2 which spells out the requirements under which the mobile worker is taxable only in the country of residence thereby preventing double taxation and simplifying tax compliance for the mobile worker. The article at section 4 develops a discussion of the so called ‘hiringout of labor’ which is pursued through aggressive tax structures that abuse the benefit of exclusive taxation provided by Art. 15 § 2. The paper after a digression about the wider concept of tax migration and exit taxes (section 5), concludes briefly discussing the impacts that the recent Covid crisis might have had on the system of tax treaty rules about the mobility of workers (section 6).\u0000Mobility of workers, migration, tax treaties, hiring-out of labor, aggressive tax strategies, exit taxes, Covid crisis, country of residence, double taxation, country of source","PeriodicalId":53431,"journal":{"name":"European Business Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48577589","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}
Modern English and American corporate law was broadly fashioned in the nineteenth century. Oddly however, the courts of those two closely linked jurisdictions developed profoundly opposed views on a most basic matter. After some initial conflict in the cases, the English settled on the principle that directors are status fiduciaries only to their corporation. The Americans, with a comparable initial conflict in their cases, instead eventually settled on the notion that directors are status fiduciaries to shareholders. I track how that difference developed through the course of the nineteenth century. I also trace how fairness wrongly became an element of the American duty. Director fiduciary duty, director duty to shareholders, corporate personality, joint stock company, centralised management, entire fairness, director duty to creditors
{"title":"The American Misconstruction of Director Fiduciary Accountability","authors":"Robert Flannigan","doi":"10.54648/eulr2022035","DOIUrl":"https://doi.org/10.54648/eulr2022035","url":null,"abstract":"Modern English and American corporate law was broadly fashioned in the nineteenth century. Oddly however, the courts of those two closely linked jurisdictions developed profoundly opposed views on a most basic matter. After some initial conflict in the cases, the English settled on the principle that directors are status fiduciaries only to their corporation. The Americans, with a comparable initial conflict in their cases, instead eventually settled on the notion that directors are status fiduciaries to shareholders. I track how that difference developed through the course of the nineteenth century. I also trace how fairness wrongly became an element of the American duty.\u0000Director fiduciary duty, director duty to shareholders, corporate personality, joint stock company, centralised management, entire fairness, director duty to creditors","PeriodicalId":53431,"journal":{"name":"European Business Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44193104","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 concepts of obsolescing bargain and economic equilibrium in international energy investment contracts. Equilibrium means the balance of interests that the parties’ contract embodies. Part of the idea of equilibrium is to entrench a way to keep their interests in harmony. Equilibrium is the point that host governments and foreign investors reach at the time when they strike the bargain. The equilibrium is stable if it is resilient to events which challenge it and have the potential of disrupting the balance. The point to the obsolescing bargain model is that the equilibrium is inherently unstable and therefore, there is a need for a proper framework surrounding the investment contract in order to reinforce the stability of the equilibrium. This is the key point the obsolescing bargain model makes in relation to the instability of the contractual equilibrium. If we look at it such relationship as a one-off set of rights and duties, then it is unstable. But, instead if we look at the equilibrium as a relationship that is dynamic and evolves, then it can be stable. This article underscores the significance of maintaining equilibrium in the relation of foreign investor and host state to avoid obsolescing bargain and international investment disputes. Economic equilibrium, foreign investor, host state, international energy investment contracts, obsolescing bargain, risk of expropriation, international investment disputes, contractual flexibility, allocation of risk, contractual stability
{"title":"Obsolescing Bargain and Economic Equilibrium in International Energy Investment Contracts","authors":"Hamid Reza Younesi","doi":"10.54648/eulr2022038","DOIUrl":"https://doi.org/10.54648/eulr2022038","url":null,"abstract":"This article examines the concepts of obsolescing bargain and economic equilibrium in international energy investment contracts. Equilibrium means the balance of interests that the parties’ contract embodies. Part of the idea of equilibrium is to entrench a way to keep their interests in harmony. Equilibrium is the point that host governments and foreign investors reach at the time when they strike the bargain. The equilibrium is stable if it is resilient to events which challenge it and have the potential of disrupting the balance. The point to the obsolescing bargain model is that the equilibrium is inherently unstable and therefore, there is a need for a proper framework surrounding the investment contract in order to reinforce the stability of the equilibrium. This is the key point the obsolescing bargain model makes in relation to the instability of the contractual equilibrium. If we look at it such relationship as a one-off set of rights and duties, then it is unstable. But, instead if we look at the equilibrium as a relationship that is dynamic and evolves, then it can be stable. This article underscores the significance of maintaining equilibrium in the relation of foreign investor and host state to avoid obsolescing bargain and international investment disputes.\u0000Economic equilibrium, foreign investor, host state, international energy investment contracts, obsolescing bargain, risk of expropriation, international investment disputes, contractual flexibility, allocation of risk, contractual stability","PeriodicalId":53431,"journal":{"name":"European Business Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48892378","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}
Cross-border insolvency protocols are a practical phenomenon developed at the international level in the last 30 years. These protocols are agreements entered by the insolvency practitioners to facilitate cooperation and communication between insolvency practitioners and courts involved in cross-border insolvency proceedings. Protocols have been mentioned but not regulated by the European Insolvency Regulation Recast. This contribution seeks to analyse the aims, principles, and standard features of the protocols emerging in practice. Second, it aims to evaluate how this phenomenon fits with the duties of cooperation, coordination, and communication within the European Insolvency Regulation Recast to define the scope and role of protocols within the EU member states. Cross-border insolvency, protocols, transnational, cooperation, coordination, communication, European Insolvency Regulation
{"title":"Cross-border Insolvency Protocols: Cooperation, Coordination, and Communication Duties under the European Insolvency Regulation Recast","authors":"Stephan Madaus, Oriana Casasola","doi":"10.54648/eulr2022036","DOIUrl":"https://doi.org/10.54648/eulr2022036","url":null,"abstract":"Cross-border insolvency protocols are a practical phenomenon developed at the international level in the last 30 years. These protocols are agreements entered by the insolvency practitioners to facilitate cooperation and communication between insolvency practitioners and courts involved in cross-border insolvency proceedings. Protocols have been mentioned but not regulated by the European Insolvency Regulation Recast.\u0000This contribution seeks to analyse the aims, principles, and standard features of the protocols emerging in practice. Second, it aims to evaluate how this phenomenon fits with the duties of cooperation, coordination, and communication within the European Insolvency Regulation Recast to define the scope and role of protocols within the EU member states.\u0000Cross-border insolvency, protocols, transnational, cooperation, coordination, communication, European Insolvency Regulation","PeriodicalId":53431,"journal":{"name":"European Business Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49521489","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 risk retention rule was introduced in the US and the EU as a mechanism to curb the originate-to-distribute model, associated with securitisations and the financial crisis of 2008. This article argues that besides its original financial stability rationale, the rule has positive spillovers on debt governance and specifically on the incentives to monitor, the design of covenants and the lender’s stance during renegotiation and bankruptcy (the ‘empty creditor’ problem). Risk retention in true sale securitisations makes the strongest case for debt governance, although the existence of various options of retention appears to be associated with varying incentives. For cases where monitoring is performed by a party different than the originator, the introduction of retention by the servicer is a promising although partial solution. The mechanism and effects of risk retention on synthetic securitisations remain ambivalent, given the perverse incentives associated with over-insurance (negative economic ownership). However, the upcoming restriction of double hedging for synthetic STS transactions is a positive development. Law & Finance, Financial Regulation, Debt Governance, Securitisation, Risk Retention
{"title":"Risk Retention in Securitisation and Empty Creditors: When Financial Regulation (Positively) Spills Over Corporate Governance","authors":"Edoardo D. Martino, Evgenia Chouliara","doi":"10.54648/eulr2022029","DOIUrl":"https://doi.org/10.54648/eulr2022029","url":null,"abstract":"The risk retention rule was introduced in the US and the EU as a mechanism to curb the originate-to-distribute model, associated with securitisations and the financial crisis of 2008. This article argues that besides its original financial stability rationale, the rule has positive spillovers on debt governance and specifically on the incentives to monitor, the design of covenants and the lender’s stance during renegotiation and bankruptcy (the ‘empty creditor’ problem). Risk retention in true sale securitisations makes the strongest case for debt governance, although the existence of various options of retention appears to be associated with varying incentives. For cases where monitoring is performed by a party different than the originator, the introduction of retention by the servicer is a promising although partial solution. The mechanism and effects of risk retention on synthetic securitisations remain ambivalent, given the perverse incentives associated with over-insurance (negative economic ownership). However, the upcoming restriction of double hedging for synthetic STS transactions is a positive development.\u0000Law & Finance, Financial Regulation, Debt Governance, Securitisation, Risk Retention","PeriodicalId":53431,"journal":{"name":"European Business Law Review","volume":"61 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41289876","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}
FinTech has changed the way financial services are produced and delivered.1 As the Digital Finance Strategy for the EU put it: the future of finance is digital. Digital finance has also helped people and businesses tackle the unprecedented challenges caused by the COVID-19 pandemic. We increasingly rely on digital and remote technologies. The role of regulation is to make sure that these technologies are used in a responsible way.2 Robo-advising is one of the innovations relating to FinTech. This article addresses central challenges and risks in robo-advising, and the regulatory means to tackle them. When these challenges are resolved, robo-advising can provide customers with an easy-to-use, cost-effective and flexible service. FinTech, Investment advising, Robo-advising, MiFID II, Responsibility, Algorithm, Information security, Cybersecurity, Financial literacy, Legal Design
{"title":"Good or Bad Robots? Responsible Robo-Advising","authors":"Marika Salo-Lahti","doi":"10.54648/eulr2022030","DOIUrl":"https://doi.org/10.54648/eulr2022030","url":null,"abstract":"FinTech has changed the way financial services are produced and delivered.1 As the Digital Finance Strategy for the EU put it: the future of finance is digital. Digital finance has also helped people and businesses tackle the unprecedented challenges caused by the COVID-19 pandemic. We increasingly rely on digital and remote technologies. The role of regulation is to make sure that these technologies are used in a responsible way.2 Robo-advising is one of the innovations relating to FinTech. This article addresses central challenges and risks in robo-advising, and the regulatory means to tackle them. When these challenges are resolved, robo-advising can provide customers with an easy-to-use, cost-effective and flexible service.\u0000FinTech, Investment advising, Robo-advising, MiFID II, Responsibility, Algorithm, Information security, Cybersecurity, Financial literacy, Legal Design","PeriodicalId":53431,"journal":{"name":"European Business Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42929477","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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