European Company and Financial Law Review最新文献

{"title":"The Management and the Advice of (Un)Explainable AI","authors":"Elena Dubovitskaya, Annika Buchholz","doi":"10.1515/ecfr-2023-0033","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0033","url":null,"abstract":"<jats:target target-type=\"next-page\">794</jats:target>The article addresses the issue that is widely discussed in Germany and other jurisdictions: can the management of a company use AI applications in its decision-making process without violating its fiduciary duties? The lack of transparency in conventional AI applications conflicts with the fiduciary duty to check the plausibility of external expert advice (in Germany known as the ISION principles). This tension can be partly resolved by using explainable AI (XAI). In this work, we review the basic principles of machine learning and XAI and discuss them in the legal context.","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":"139977882","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":"Does EU Regulation Adequately Address the Tension between CCPs Shareholders’ and Clearing Members’ Incentives?","authors":"Anastasia Sotiropoulou","doi":"10.1515/ecfr-2023-0038","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0038","url":null,"abstract":"<jats:target target-type=\"next-page\">964</jats:target>The current EU regulatory regime of Central Counterparties (CCPs) falls short of addressing adequately the potential misalignment of incentives of CCPs’ shareholders on the one hand and clearing members on the other hand.Thus, according to the European Market Infrastructure Regulation (EMIR), while clearing members contribute substantially to the default waterfall of a CCP, they do not enjoy substantial governance rights: they merely participate in the risk committee of the CCP, whose role is only advisory.By contrast, although shareholders are vested with substantial governance rights, such as the right to appoint the members of the board which sets the CCP’s risk profile, they do not bear final losses first, as in ordinary companies: the shareholders’ contribution to a CCP’s default waterfall is limited and, in case the CCP enters resolution, they only bear losses, in principle, after the clearing members.It is however clear that when the owners of a firm are not the ones bearing the risks first, the firm may be inclined to excessive risk-taking. The objective of this article is therefore to discuss a number of ways to improve the corporate governance of CCPs, in particular the incentive setting for shareholders.<jats:target target-type=\"next-page\">965</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":"139977883","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":"Implementation of the Provisions of Directive 2017/1132 on Openness and Reliability of Registers in Poland and Other Selected EU Countries","authors":"Konrad Garnowski","doi":"10.1515/ecfr-2023-0037","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0037","url":null,"abstract":"<jats:target target-type=\"next-page\">887</jats:target>The paper presents the issue of openness and reliability of business registers maintained by the Member States of the European Union on the basis of acts that implement EU directives. The first part of the article presents the historical evolution of the provisions of EU law, while the second part focuses on the assessment of regulations currently in force. On this basis, in the third part of the article, the author carries out an analysis of how EU regulations are implemented in national laws in the context of openness and reliability of registers, with a particular focus on Polish law and references to the implementation methods adopted in other selected Member States. Based on this comparative analysis, the author ultimately comes to the conclusion that the general direction adopted in EU law is correct, but Polish domestic law is burdened with flaws, indicating low efficiency of implementation of EU law. Thus, the author makes suggestions as to the possible directions of development of domestic law, and to some extent also in relation to EU law.","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":"139977894","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":"U. S. vs. EU Insider Trading Regulation: Risks and Challenges from a European Perspective","authors":"Cédric Remund, Paul Tuchmann","doi":"10.1515/ecfr-2023-0032","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0032","url":null,"abstract":"<jats:target target-type=\"next-page\">822</jats:target>In an ever more globalized financial market, investors are increasingly exposed to regulation and enforcement by multiple jurisdictions with varying rules, including different insider trading regimes. From a European perspective, potential exposure to the U. S. insider trading regime is particularly challenging. Especially for the non-U. S. practitioner, the U. S. insider prohibition is very complex and offers little legal certainty. And this uncertainty is all the more problematic for Europeans because the U. S. insider ban applies extraterritorially. Even more worrying, violations of the U. S. insider trading regime are often met with harsh consequences, ranging from stiff prison sentences to ruinous financial penalties. First, this article broadly outlines the contours of the U. S. insider trading regime as well as the current state of play for insider trading enforcement under U. S. law. Second, it outlines the fearsome (extra-) territorial reach of the U. S. insider trading ban, to allow a better assessment of a European’s potential exposure to the U. S. insider trading regime in different situations. Third, it highlights the main differences between the U. S. and the EU insider trading regulations, to identify the areas in which market participants on both sides of the Atlantic should be particularly cautious.","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":"139977663","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":"Soft Regulatory Capture and Supervisory Independence: A Case-Study on Wirecard","authors":"Christopher P Buttigieg, Lothar Gustav Witzel, Beatriz Brunelli Zimmermann","doi":"10.1515/ecfr-2023-0025","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0025","url":null,"abstract":"<jats:target target-type=\"next-page\">623</jats:target>The traditional view on regulatory capture focuses on capture as a distortion of public purpose through a malicious relationship, corruption and possible collusion between the regulator and the industry (hard capture). This paper argues that regulatory capture can arise from political and institutional conditions which do not allow or favour the supervisory independence of authorities from both the industry and the government (soft capture). This paper’s argument is illustrated through a case-study on the German Federal Financial Supervisory Authority’s (BaFin) handlining of the Wirecard AG case. The basis for the analysis are the findings from the Committee of Inquiry of the German Bundestag and the European Securities and Markets Authority (ESMA) Fast Track Peer Review (FTPR) through three lines of inquiry: (1) lack of balance sheet control; (2) the short selling ban; and (3) Wirecard AG’s stock trading by BaFin’s employees. This paper concludes that BaFin was not hard captured in the Wirecard AG case as de facto influence cannot be proven. Instead, its de jure dependency vis-à-vis the MoF (as implicitly endorsed by German law) might have contributed to a case of soft regulatory capture – especially in the aspect of the short selling ban. The paper then analyses the reforms enacted by Germany and promoted by Europe in post-Wirecard case.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2023-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138559911","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":"Insider Dealing by Outsiders in the U. S. and EU","authors":"Dörte Poelzig, Paul Dittrich","doi":"10.1515/ecfr-2023-0024","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0024","url":null,"abstract":"<jats:target target-type=\"next-page\">692</jats:target>The prohibition of insider dealing has its origins in U. S. law, the structural features of which have also influenced EU insider law. Today the dogmatic approaches of the two insider law systems differ diametrically. Particularly in dealing with investors outside the issuer, so-called outsiders, the two legal systems differ in terms of both the manner and the scope of covered transactions. According to our understanding outsiders are investors who, neither through their position within the issuer nor through the exercise of a profession for the issuer, have a relationship with the issuer that allows privileged access to inside information. We will lay out the differences between EU and U. S. law by reference to the recent decision of a U. S. Court in U. S. Securities and Exchange Commission (SEC) v. Panuwat, where the court approved the so-called shadow trading theory of the SEC. Whereas this decision has attracted a lot of attention in the U. S., we argue, that shadow trading is undoubtedly covered by EU insider law due to the broad principle of information parity. However, because of its broad scope EU insider law applies basically to all investors who possess inside information and hence may also prohibit transactions by outsiders which might be useful for capital markets, such as trading by financial analysts or whistle blowers. We will therefore scrutinize whether and how far financial analysts or whistleblowers are privileged by Recital 28 of the Market Abuse Regulation (MAR), which only applies to research based on publicly available data, but does not specify when information is publicly available.Whereas in regard to outsiders, the EU insider dealing law goes sometimes too far at the substantive level, in enforcement matters it is too restrictive on the other side. This becomes obvious when we look at politicians which are involved in legislation and hence have access to material information for many issuers. In the U. S., the SEC – acting as a driving force in the U. S. when it comes to the enforcement of the insider dealing prohibition – but also the legislator itself have already become active. Against this background, we examine what instruments EU insider law might provide to detect insider dealing by politicians and other outsiders and show that adapting and extending the existing rules may be a feasible way forward.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2023-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138564080","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":"Climate Change Stress Testing for the Banking System","authors":"Ebbe Rogge","doi":"10.1515/ecfr-2023-0026","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0026","url":null,"abstract":"<jats:target target-type=\"next-page\">717</jats:target>It is apparent that climate change is creating financial risks. These risks are of such a nature that they can be regarded as systemic: they are exogenous shocks which may simultaneously cause or contribute to the failure of multiple significant financial institutions. As a result, regulatory tools available to monitor and manage systemic risk have recently been deployed in the context of climate change risks. Such tools include stress testing and scenario analysis. This article examines international initiatives, such as those of the Network for Greening the Financial System, as well as specific central bank initiatives including those by the Bank of England. After some initial observations around climate data, stress test design, and central banks’ mandate, this paper continues to discuss further possible inclusion in the prudential regulatory framework. In particular, the question is raised if capital requirements should be adjusted and if changes should be made to the risk management and governance framework. This paper argues in favour of the latter, but is more cautious as regards the former.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2023-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138560022","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 Crisis Management of Smaller Banks: Perspectives of Reform","authors":"Irene Mecatti","doi":"10.1515/ecfr-2023-0029","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0029","url":null,"abstract":"<jats:target target-type=\"next-page\">660</jats:target>The current common framework for bank crisis management and national deposit guarantee schemes (CMDI) is tailored for banks which are considered too big (or too complex) to fail. Smaller banks are de facto excluded from the application of resolution, even though they are obliged to contribute to its functioning. In practice, not even the size element has been decisive and the crises of significant as well as less significant institutions have been managed at the national level instead of within the framework and conditions foreseen by the BRRD. The consequent and persistent fragmentation in the European financial market requires that the dichotomy between resolution and liquidation be overcome and that the scope of resolution also include smaller banks. The paper analyses the main reforms needed to achieve this goal, including the European Commission’s recent proposal to revise the CMDI.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2023-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138559909","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 Menagerie of Organizational Forms in German Company Law","authors":"Holger Fleischer","doi":"10.1515/ecfr-2023-0027","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0027","url":null,"abstract":"<jats:target target-type=\"next-page\">593</jats:target>Company law lives and breathes with its different forms of association. Consequently, the emergence and evolution of these forms is a central topic of research for company law scholars. This paper seeks to depict the panoramic landscape of German company and partnership law. Special attention is given to new and rediscovered forms of association as well as to the various regulatory techniques used to introduce novel types of business association. In addition, a comparison with the foreign repertoire of organizational vehicles shows in which respects there may still be room for the creation of new forms of association in Germany.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2023-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138560028","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":"Say on What’s Next?","authors":"M. van Olffen, E.J. Breukink","doi":"10.1515/ecfr-2023-0028","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0028","url":null,"abstract":"<jats:target target-type=\"next-page\">745</jats:target>There are several initiatives aimed at getting listed companies to involve their shareholders more in ESG issues. Calls for mandatory advisory voting on (the implementation of) (parts of) ESG strategy and/or policy by the general meeting should not be heeded, according to the authors. We discuss this topic in a Dutch context. It is better to leave it to the management board, under the supervision of the supervisory board, to assess on a case-by-case basis whether it is in the company’s interest to have the general meeting vote on (part of) the ESG strategy or policy (or its implementation). Shareholders who are entitled to put items on the agenda cannot force an advisory vote on (a part of) the ESG strategy or ESG policy (or its implementation). In principle, however, they can have the aforementioned topics put on the agenda for discussion. Questions on ESG topics can be asked at the meeting. The scope for asking questions and the obligation to respond these questions partly depend on the agenda.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2023-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138564120","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}