European Business Law Review, Volume 27, Issue 4

European Business Law Review, The Rise of Sovereign Wealth Funds (SWFs) and the Protection of Public Interest(s): The Need for a Greater External and Internal Action of the European Union

Monday, August 1, 2016

This article focuses on the so-called ‘sovereign investors’ (i.e., sovereign wealth funds (SWFs) and state owned enterprises (SOEs)). It is based on the assumption that sovereign investment has become a major – albeit controversial – element in emerging patterns of global governance in this century. At the heart of the paper lies the need that sovereign investors shall be regulated by pursuing a fair balance between protection of general/public interests and attraction of foreign capital.

The essay deals with the main concerns related to the rise of SWFs. In this respect, the principal argument implied therein is that the quest for an equilibrium between economic benefits deriving from the entry of SWFs in the EU market and the protection of national as well as European strategic/sensitive sectors must be reached at the EU level rather than solely at the national level and that, in doing so, the EU must be more activist and bolder.

The EU should give law a central role, regarding the market as an inherently political, institutional and social construct, rather than a self-referential locus that depends on its internal laws and dynamics. This seems even more urgent when market actors that, at least on paper, should be politically unbiased market-oriented investors, tend to act also as the long arm of State capitalism, that is, of foreign governments wishing to invest abroad in crucial socio-economic sectors and often connected with countries where the rule of law, in its multiple dimensions, is neither sufficiently promoted nor respected.

  • Content Type Journal Article
  • Part of Volume 27, Issue 4
  • Authors
    • Daniele Gallo, Senior Lecturer/Associate Professor of International Law and EU Law, Law Department, Luiss University (Rome).
  • Journal European Business Law Review
  • Online ISSN 0959-6941
  • Print ISSN 0959-6941

European Business Law Review, Do Specialized Courts Make a Difference? Evidence from Brazilian State Supreme Courts

Monday, August 1, 2016

Specialized courts have been a panacea of legal reform in Europe in the last ten to twenty years. Few studies have studied their performance and alleged advantages. This paper considers a particularly interesting example. It explores possible variations in terms of constitutional review across Brazilian state supreme courts. We focus on possible differences between decisions made by a non-specialized court en banc or by a specialized court panel (órgão especial), the latter being frequent in the larger states. An original dataset was constructed by the authors to empirically explore this question. The dataset considered 630 cases of abstract review judged between January 1, 2006, and December 31, 2010, across twenty-five state supreme courts of the Brazilian federation. The main purpose of our inquiry is to determine whether or not there are significant variations in the outcome of the cases of abstract review as a function of a specialized panel. We find some evidence that the existence of specialized panels matters for the likelihood and rates of dissent as well as duration of procedures, but not for other variables. Implications for legal reform are also discussed.

  • Content Type Journal Article
  • Part of Volume 27, Issue 4
  • Authors
    • Carolina Arlota, University of Oklahoma School of Law.
    • Nuno Garoupa, Texas A&M University School of Law.
  • Journal European Business Law Review
  • Online ISSN 0959-6941
  • Print ISSN 0959-6941

European Business Law Review, Benefits to Employees by Way of Stock Options or Stock Purchase Schemes in India: Evaluating its Scope, Need and the Problems under the Extant Legal Regime

Monday, August 1, 2016

This paper attempts to analyse the scope and need of Employees’ Stock Option Schemes (ESOS) and Employees’ Stock Purchase Schemes (ESPS) along with the problems associated with their exercise in light of the extant legislative framework in India. Initially, the paper will delineate upon the meaning and scope of the term “employee” in order to determine who should actually entitled to benefits of the stock option or purchases schemes without any possible misuse of company’s resources. In process, it is seen whether the following categories of persons, named promoters, nominee directors, and ex-employees of the company or its erstwhile holding company, are covered within the meaning of the term “employee” or not. A further analysis on whether the “employee” is an insider within the meaning of the SEBI (Prohibition of Insider Trading) Regulations, 2015 is dealt later in the paper. Thereafter, the paper will highlight the problems faced by the employees in exercising of their stock options. Finally, the paper will conclude by critically evaluating the need for granting the stock option or purchases schemes in light of the problems associated therewith for both companies as well as their employees.

  • Content Type Journal Article
  • Part of Volume 27, Issue 4
  • Authors
    • Pravesh Aggarwal, Student, B.A. LLB(HONS.), Rajiv Gandhi National University of Law, Punjab, India.
  • Journal European Business Law Review
  • Online ISSN 0959-6941
  • Print ISSN 0959-6941

European Business Law Review, Investor Protection under Mifid: A Survey of Greek Case Law

Monday, August 1, 2016

There is a debate in the national and the European legal theory concerning the legal nature of Conduct of Business (CoB) rules and the organizational requirements provided for under MiFID. This paper deals with the impact of CoB rules and organizational requirements on private relationships and provides a survey of the relevant case law in Greece. It also analyses (a) the interrelation between CoB rules and organizational requirements and (b) aspects of contractual and non-contractual liability of an investment firm pursuant to Greek case law. Furthermore, we argue that the establishment of a single rulebook at the European level (MiFID II) will not impact on the current doctrinal analysis of CoB rules and organizational requirements in private relationships in Greece. Nevertheless, on a practical level, the new regulatory provisions are expected to strengthen civil law protection of investors.

  • Content Type Journal Article
  • Part of Volume 27, Issue 4
  • Authors
    • Vassilios Tountopoulos, Professor of Law, University of the Aegean.
  • Journal European Business Law Review
  • Online ISSN 0959-6941
  • Print ISSN 0959-6941

European Business Law Review, Software Assistance and Maintenance Contracts

Monday, August 1, 2016

The paper analyzes the legal issues related to software assistance and maintenance agreements. Contracts generally provide for highly diverse performances and are aimed at providing a global service. Since the assistance and maintenance agreement generally entails a long-term relationship, the regulations for long-term supply contract’s apply. Nevertheless, in specific circumstances, even the rules for service contracts may be applied. In Italy, like in other EU jurisdictions, the applicable regulatory framework depends on the content of the contract. The provider company naturally tends to restrict its liability in proportion to effectively commissioned activity. Exclusion clauses including intentional damage or gross negligence are void, while par. 2 of Article 1229 of the Italian Civil Code permits limitation of liability in cases of minor negligence. The impossibility of changing contractual terms disadvantages the weaker contracting party and the procedure imposed by par 2 of Art. 1341 c.c. has proved inadequate to protect the customer. Art. 9, of Law n 192 of 18 June 1998 (“Disciplina della subfornitura nelle attivita produttive”), which is now considered to be general principle allows exclusion clauses providing for minor negligence to be deemed void, if they oversimplify the debtor position, by defining the requirements of minor negligence. In addition, clauses regarding exclusion or limitation of liability towards third parties, beyond the limit set by Art. 1229, require an assessment based on the nature of the interest which is concretely protected.

  • Content Type Journal Article
  • Part of Volume 27, Issue 4
  • Authors
    • Daniela Valentino, Full Professor of Private Law, University of Salerno.
  • Journal European Business Law Review
  • Online ISSN 0959-6941
  • Print ISSN 0959-6941

European Business Law Review, Ethnographic Methods in the Study of Hybrid Processes in Arbitration: the Chinese and Western Perspectives

Monday, August 1, 2016

The paper seeks to explore what tools can help in capturing regional particularities in the hybrid proceedings (a departure from the strictly adversarial model, opposing the well-established trend of judicialization of arbitration), as well as the scope and character of this trend in the context of theory of growing autonomization of international commercial arbitration as a ‘transnational legal order’. The authors argue that unfolding all the aspects of the observable, growing interest in hybrid proceedings calls for a systematic, ethnographic study. The ethnographic approach combined with a research perspective of discourse theory would allow for an in-depth study and interpretation of the regional differences in use of hybrid processes.

  • Content Type Journal Article
  • Part of Volume 27, Issue 4
  • Authors
    • Kun Fan, Assistant Professor, Faculty of Law, Chinese University of Hong Kong.
    • Joanna Jemielniak, Associate Professor, Centre of Excellence for International Courts (iCourts), Faculty of Law, University of Copenhagen.
  • Journal European Business Law Review
  • Online ISSN 0959-6941
  • Print ISSN 0959-6941

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