European Company and Financial Law Review最新文献

{"title":"The Sanctions Principles-Based Regulation: A Blueprint for a New Approach for the EU Sanctions Policy (Part I)","authors":"Iuliia Khort","doi":"10.1515/ecfr-2024-0006","DOIUrl":"https://doi.org/10.1515/ecfr-2024-0006","url":null,"abstract":"<jats:target target-type=\"next-page\">192</jats:target> <jats:italic>Despite the tremendous number of studies devoted to the effectiveness of economic sanctions, the unprecedented number of sanctions applied and the recent European Union (EU) reforms on sanctions, sanctions effectiveness should be still a matter of debate. More than a year after Russia’s full-scale invasion of Ukraine, but G7-led sanctions have not materially hindered Russia’s war effort. This study intends to address this problem by focusing on how to make the use and application of EU sanctions against Russia more effective. In doing so, I argue that the main impediments to EU sanctions effectiveness are systemic in nature and inherent to the EU sanctions policy framework. The piecemeal changes of the EU sanctions regulatory framework undertaken so far have not solved these systemic flaws that undermine the effectiveness of EU sanctions. A fundamental revision of the entire system of the EU sanctions policy framework is needed. This study proposes implementing a comprehensive principles-based framework for EU sanctions policy, where harmonisation and the risk-based approach are its foundations, to make sanctions more effective. The proposed sanctions principles-based framework is broader in its scope than is currently the case; it covers a broader set of principles. The proposed frame includes all the stages of the sanctions process, is addressed to a broader number of actors and its foundations are developed. I recommend that this sanctions principles-based framework should be mandatory for use. This is the first part of a two-part article. Part I of the article discusses the need for the revision of the regulatory approach to the EU sanctions policy to increase the effectiveness of sanctions. It includes the analysis of the EU sanctions as a foreign policy instrument and a comprehensive overview of the EU regulatory framework on sanctions as well as the analysis of imposition of the EU sanctions against Russia. Part I also discusses policy proposals for the effectiveness of the EU sanctions, such as harmonisation of the EU sanction policy and the application of a sanctions risk-based approach.</jats:italic>","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2024-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142250808","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":"Tax Reforms and the Decline of the London Stock Market: The Untold Story","authors":"Suren Gomtsian, Edmund Schuster","doi":"10.1515/ecfr-2024-0008","DOIUrl":"https://doi.org/10.1515/ecfr-2024-0008","url":null,"abstract":"<jats:target target-type=\"next-page\">234</jats:target> <jats:italic>Various reasons have been put forward for the declining global relevance of the London equity market. Reform proposals and changes already implemented target some of the major problems identified as reasons for the stock market’s decline. Surprisingly, tax related explanations for the current state of the UK stock market are largely absent from the discourse. This paper argues that the preferential tax treatment of the dividend income of UK pension funds and insurance companies introduced in the early 1970s and repealed in the mid 1990s first contributed to the UK stock market’s growth by implicitly subsidising financing via equity and encouraging the flow of the funds of these investors into the market, and subsequently led to the market’s decline as a result of the outflow of the funds of the two major classes of institutional investors: UK pension funds and insurance companies. The key implication of this argument is that omitting tax as a major factor in the decline of the UK stock market risks ending up with reforms that can, at best, do little to change the current situation.</jats:italic>","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2024-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142250843","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":"From London to the Continent: Rethinking Corporate Governance Codes in Europe","authors":"Piergaetano Marchetti, Maria Lucia Passador","doi":"10.1515/ecfr-2024-0005","DOIUrl":"https://doi.org/10.1515/ecfr-2024-0005","url":null,"abstract":"This paper critically evaluates the arguments proposed by Cheffins and Reddy in their recent article, advocating for the abolition of the UK Corporate Governance Code with the promise of substantial benefits to the market. The exploration primarily delves into the potential ramifications of such a proposal on other European jurisdictions, where Codes of corporate governance hold significant sway in the corporate domain, reflecting a spectrum of legal and cultural traditions. While the article under scrutiny is geographically confined to the United Kingdom, the ramifications of such a proposal extend far beyond, resonating deeply with the pervasive influence of the UK Code of Corporate Governance even within continental Europe, urging a comprehensive examination.The analysis begins by revisiting the arguments advanced by the authors and scrutinizing them in light of the Continental European context. This examination reveals several concerns that necessitate attention. We contend that despite geographic limitations, the Code serves as a valuable and adaptable instrument for fostering accountability, transparency, and innovation in markets transcending borders and jurisdictions. Its continued relevance is underscored by its utility in addressing emergent issues and governance challenges, particularly in the realm of ESG and auditing. Consequently, the proposition of its abolition carries significant drawbacks for both companies and investors alike. In conclusion, we assert that European jurisdictions should not dismiss Codes of corporate governance outright, but rather advocate for their refinement and adaptation to the evolving imperatives of the globalized <jats:target target-type=\"next-page\">130</jats:target>economy. Such an approach is deemed imperative to maintain and enhance corporate governance standards, thereby ensuring the continued integrity and efficiency of European markets.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2024-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142250809","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":"Traditional and Digital Limits of Collective Investment Schemes","authors":"Julia Sinnig, Dirk A Zetzsche","doi":"10.1515/ecfr-2024-0007","DOIUrl":"https://doi.org/10.1515/ecfr-2024-0007","url":null,"abstract":"<jats:target target-type=\"next-page\">157</jats:target> <jats:italic>This article discusses the regulatory definition of collective investment undertakings (CIUs) as provided for by Article 4 (1) (a) AIFMD and Article 1 (1) UCITSD in the context of traditional family offices, holding companies, and joint ventures, and distinguishes them from more recently observed digital asset pools such as digitally managed accounts, crypto lending, crypto staking, and decentralized autonomous organizations.Testing the legal definition of CIUs in the context of traditional and digital pooled investments allows not only for the delineation of the scope of AIFMD (and to a lesser extent, UCITSD), but also provides insights on the desirable content of Level 2 regulation under MiCA. While ESMA guidance based on many years of supervisory experience sets the limits on traditional use cases, the digital boundaries of collective investment schemes are largely untested and to some extent uncertain, resulting in high costs for legal advice, as demonstrated by our brief look into MiCA set out in this article. To address these matters, we argue in favor of broad default rules on pooled finance, paired with exemptive powers from individual or all rules where a disparity exists between the purpose of regulation and the regulated activities. If paired with carve-outs for applications below EUR 5 million (where retail investors are present) and EUR 100 million (sophisticated clients only), these default rules would assist supervisory authorities in setting adequate boundaries for investment fund regulation of innovative financial products. After the introduction (Pt. I), Pt. II outlines the legal definition(s) of CIUs; Pt. III discusses the regulatory limits in the context of traditional use cases; Pt. IV analyzes the limits for digitally managed accounts, decentralized autonomous organizations (DAOs), and decentralized finance as a whole (referred to collectively as “digital limits”); Pt. V presents our policy considerations; and Pt. VI concludes. </jats:italic>","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2024-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142250810","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":"The Regulation of Corporate Governance in European Financial Market Infrastructures: A Critique","authors":"Eilís Ferran, Eleanore Hickman","doi":"10.1515/ecfr-2024-0001","DOIUrl":"https://doi.org/10.1515/ecfr-2024-0001","url":null,"abstract":"<jats:target target-type=\"next-page\">1</jats:target>This article is the first to consider the variations in governance requirements applicable to European financial market infrastructures. It charts the tangled combination of laws, codes and regulations that apply to the governance of the largest European central counterparties, central securities depositories, and international central securities depositories. Despite the similarity of these institutions in terms of their sector, criticality, complexity and purpose, there are substantive variations in what is required of their governance. Here we question whether this variance is an appropriate reflection of differing institutional needs or a by-product of piecemeal regulatory reform.Our research found no apparent need to regulate for consistency of board size or structure, nor in relation to specificities of committee requirements. However, there are convincing arguments that change is needed around the meaning and application of independence. The current approach to FMI directorial independence is a poor fit given the sectors highly technical nature, its interconnectedness, and the limited pool of available expertise. On top of this, expertise, diversity, and commitment can become trade-offs for adherence to the requirements of independence. We argue that regulation needs to be sensitively calibrated to ensure these important factors do not get squeezed out under the weight of formalized independence. It is our view that independence requirements can be structured to create better balanced boards where the needs of independence, expertise, diversity, and commitment can be weighed against each other in context.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2024-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141150121","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":"Duty of Loyalty: Corruption of Company Directors and Prohibition of External Remuneration","authors":"Irene Navarro Frías","doi":"10.1515/ecfr-2024-0002","DOIUrl":"https://doi.org/10.1515/ecfr-2024-0002","url":null,"abstract":"<jats:target target-type=\"next-page\">39</jats:target>While corruption in the public sphere has traditionally been socially and legally reproached, private corruption has not. In the private sphere, the violation by a decision-maker of his or her positional duties in exchange for receiving an extra-positional benefit has not always been seen as conduct that should be prosecuted by law. However, this has changed in recent times and within the field of company law the prohibition of receiving external remuneration has emerged as one of the manifestations of the directors’ duty of loyalty. This paper examines both the basis and the elements of the prohibition and questions how far it should extend. In this sense, although it shares the convenience of enshrining the prohibition in law, it also warns about the dangers of an excessive extension of the prohibition of receiving external remuneration.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2024-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141153759","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":"Cybersecurity and Online Formation of Companies in the Netherlands, Belgium, and Germany","authors":"Tom Salemink, Pieter Wolters, Hans De Wulf","doi":"10.1515/ecfr-2024-0003","DOIUrl":"https://doi.org/10.1515/ecfr-2024-0003","url":null,"abstract":"<jats:target target-type=\"next-page\">67</jats:target>Within the European Member States, it should now be possible to establish a limited liability company fully online. This study compares how the Directive which mandates online formation, has been implemented in the Netherlands, Belgium, and Germany. In particular, it examines whether and, if so, how these countries approach the various cybersecurity risks involved in online formation. The Directive considers these cybersecurity risks, however, the focus is mainly on the requirements regarding the availability of online formation and to a lesser extent the requirements pertaining to the authentication of the founders, as well as the authenticity and integrity of electronic documents. The primary emphasis of the Directive is strongly placed on achieving the objective of facilitating easier, quicker, and more time- and cost-effective company formation. The approach taken by the Netherlands, Belgium, and Germany in implementing the Directive and enabling online formation demonstrates a notable level of similarity. All have made sure to safeguard the traditional role of notaries in company formation in these countries. Despite the Directive’s emphasis on availability, the primary concern for these Member States lies in ensuring the security of online formation. All impose strict requirements regarding cybersecurity and opted for the highest standards regarding authentication (assurance level ‘high’) and authenticity (qualified electronic signatures).","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2024-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141150119","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":"The Strategic Importance of Public Recapitalisation in Banking Resolution, What Ireland Can Tell","authors":"Elise Lefeuvre","doi":"10.1515/ecfr-2024-0004","DOIUrl":"https://doi.org/10.1515/ecfr-2024-0004","url":null,"abstract":"<jats:target target-type=\"next-page\">104</jats:target> <jats:italic>Recapitalisation of banks, as well as the whole banking resolution process, was fully public during the 2008 financial crisis. The Single Resolution Mechanism shifted from this approach and created a public-private system, where private individuals and entities can be called in to fund recapitalisation (bail-in). This article argues that recapitalisation (and banking resolution as a whole) should be fully public so it can be rapid, negotiation-free, and in the best interest of the State. The 2008 Irish recapitalisation illustrates well the rewards of having public recapitalisation, while it also tells where improvements are needed to protect recapitalisation process and taxpayers. Currently, the Single Resolution Mechanism has different recapitalisation methods, which creates some complexity and overlaps. </jats:italic>","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2024-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141150098","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":"Proportionality in the European Banking Law.Lessons from Silicon Valley Bank","authors":"Matteo Arrigoni, Enrico Rino Restelli","doi":"10.1515/ecfr-2023-0031","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0031","url":null,"abstract":"<jats:target target-type=\"next-page\">936</jats:target>European prudential regulation imposes significant compliance costs on banks, justifying extensive use of proportionality. However, the failure of Silicon Valley Bank raised numerous objections to this approach. According to many scholars and practitioners, the crisis of SBV originated from a substantial loosening of the regulatory standards and the corresponding supervisory enforcement. In this context, the article discusses the intricate relations between proportionality and financial stability, reaching an articulated conclusion. While concerning prudential capital requirements it seems reasonable to adopt a uniform discipline, as to supervision (e. g., SREP), a proportional approach seems more appropriate. At the same time, the failure of SVB advocates in favor of a partly different approach toward corporate governance.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2024-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139977952","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":"The Polish Model of a Limited Joint-Stock Partnership in Comparison with Other European Legal Systems","authors":"Anna Moszyńska, Aleksandra Sikorska-Lewandowska, Mariusz T. Kłoda","doi":"10.1515/ecfr-2023-0036","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0036","url":null,"abstract":"<jats:target target-type=\"next-page\">866</jats:target>The Polish regulation concerning a limited joint-stock partnership has been in force since the date of entry into force of the Commercial Companies Code (CCC). The CCC divides commercial companies into “partnerships” and “capital companies”. Each of those two types of commercial companies is governed by separate rules. The completion of twenty years of Polish CCC in force prompts us to analyse the juridical model adopted by the legislature, according to which limited joint-stock partnership is classified as a partnership. During this period, there have been significant events making the verification of the validity of this model possible, including Poland’s accession to the European Union (EU), which has resulted in the need to adapt national regulations to EU law – both in the field of private law (including commercial law) and public law (including tax law). The need to amend the domestic law in connection with the implementation of Directive (EU) 2019/2121 of the European Parliament and of the Council of November 27, 2019 amending Directive (EU) 2017/1132 (as regards cross-border conversions, mergers, and divisions of companies) – is a direct motivation for undertaking research on a Polish limited joint-stock partnership.<jats:target target-type=\"next-page\">867</jats:target>","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2024-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139977893","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}