Often touted as the opposite of money and banks, crypto-assets and their ecosystem may gradually be coming to terms with the idea that their success will also depend on their issuers’ readiness to adhere to conventional financial practices, on their acceptance of the preponderant role that banks have to play in the financial system, and on their ability to access basic banking services. Some within

This paper asks whether the UK can maintain its insolvency and restructuring pre-eminence post Brexit i. e. after Britain’s departure from the European Union (EU). In the past 20 years or so, the UK is said to have become the insolvency and restructuring capital of Europe or in less politically correct terms, the bankruptcy brothel of Europe. In part, this is because of the European Insolvency Regulation

After Brexit, the United Kingdom will become a third State to all effects. As far as insolvency is related, this will imply substantial changes regarding the recognition and enforcement of the UK insolvency proceedings. This paper purports to analyze the consequences a Hard-Brexit will have on insolvency-related matters, by describing the effects that should be expected with regard to the recognition

Taking as a starting point Peter Hommelhoff’s argumentation that accounting law is, in many respects, linked to company law, the purpose of this article is to discuss one perspective of the links between accounting law and company law: accounting concepts in company law. After a brief outline of the existing EU legislation on accounting and a discussion on whether accounting law is part of company

On 5 October 2020, as part of the Capital Markets Union (CMU) project, the European Parliament adopted, in second reading, Regulation (EU) 2020 / 1503 on European crowdfunding service providers for business (‘ECSP Regulation’). This Regulation, which shall apply as of 10 November 2021, consists of rules which aim at improving access to crowdfunding for EU businesses in need of capital, particularly

This article studies the protection of retail and professional investors when financial products are sold or when investment advice is given. To this end, it clarifies the similarities and differences in the legal setting governing investment services firms in Germany and Japan, with a particular focus on a) the persons to be protected, b) information to be provided and c) private enforcement. Although

Article Editors’ Note: The First (and, hopefully, the last) Fully Digital ECFR Conference was published on April 1, 2021 in the journal European Company and Financial Law Review (volume 18, issue 2).

Many companies have recently been following the so-called corporate purpose concept that is recommended by leading management scholars. To this end, they identify a raison d’être for their enterprise that goes beyond mere profit making and they anchor it in the entire value chain. This paper puts the corporate purpose concept into perspective by linking it to the larger debate on corporate social responsibility

The world faces a complex convergence of social and ecological crises: climate change, biodiversity loss, resource scarcity, human rights violations, rising inequality and societal instability. The United Nations adopted Sustainable Development Goals (SDGs) for ‘the future of humanity and of our planet’, calling on business to contribute to solving these pressing challenges. Yet business in aggregate

This article looks at proposals to improve sustainable corporate governance of companies. These include: how to deal with shareholder primacy; a proposed requirement for companies to have an overarching purpose “to create sustainable value within planetary boundaries;” a directors’ duty to promote the undertaking’s interests to fulfil its overarching purpose; a directors’ duty to balance stakeholders’

Article Discussion Report was published on April 1, 2021 in the journal European Company and Financial Law Review (volume 18, issue 2).

Article Discussion Report was published on April 1, 2021 in the journal European Company and Financial Law Review (volume 18, issue 2).

The rise in ESG investing has been characterized as an “investor revolution” and a manifestation of “social change”. The current coronavirus pandemic will arguably intensify the impact of such social change, with the “S” and “G” components of ESG, in particular, having been brought into sharper focus during the crisis. The issue of the extent to which ESG factors are (currently) of considerable importance

The article focuses on corporate social bonds, which are commonly defined as debt securities whose proceeds are used to finance projects or ventures at favourable conditions, in order to achieve positive social outcomes or to address specific social issues. Social bonds belong to the family of sustainable finance currently developing on international financial markets, especially in the European Union

Article Editors’ Note: A Thousand Thanks to all our Peer Reviewers! was published on February 20, 2021 in the journal European Company and Financial Law Review (volume 18, issue 1).

This article deals with the self-insider, i. e. the possible creation of the inside information by a person and its (abusive) exploitation. It describes the situation in Germany and in Italy and provides a taxonomy of the several cases of self-insider. The article then analyzes the case law of the ECJ and the MAR regulatory provisions for justifying/neglecting the existence of the self-insider (Article

This study focuses on self-placement of complex financial instruments to retail clients which is often associated with mis-selling practices. Recent case law in Greece concerning distribution Of “Coco” bonds by a Cypriot bank to its clients reveals, on the one hand, the stand Of Greek Courts concerning the interpretation of certain ambiguous MiFID I Conduct of Business (COB) rules and, on the other

The aim of this article is to illustrate the importance of the EU principle of proportionality for the application of the rules governing the composition and qualifications of credit institutions’ Board of Directors. The view taken is that the principle of proportionality as enshrined in the EU legislation and the case law can safeguard both the private and the public interests in favour of the smooth

Europe is experiencing the rise of restructuring proceedings, which has recently culminated in the adoption of the Restructuring Directive. While being a major achievement in harmonising substantive (pre)insolvency law in the EU, it lacks rules targeting restructuring of multinational enterprise groups. As a result, effectiveness of group reorganisations may be undermined. Nevertheless, some jurisdictions

Sovereign wealth funds (SWF) are a type of fund which are established and operated by the state. They came into the limelight after the financial crises of 2007–08, when they saved the most emblematic listed companies in the USA and Europe. The aim of the article is to explore certain key issues related to sovereign wealth funds. The paper discusses the origins of the term and certain related economic

The appearance of the COVID-19 in Europe has prompted lawmakers to introduce public health measures that inevitably hurt the economy by reducing economic activity and business revenues. The foreseeable risk that the pandemic could be followed immediately by a bankruptcy epidemic led to the adoption of rules related to insolvency and restructuring laws in emergency legislation in most European countries

This paper explores corporate law rules adopted in some European states amidst the COVID-19 pandemic, in order to track the major reform trends and consider how corporate law in Europe has adjusted to the emergency. The analysis focuses primarily on the U.K., Germany, France, Italy and Spain; occasionally, depending also on the relevant rules actually introduced by the states, other systems are considered

This paper explores takeover bids in Europe in times of the COVID-19 pandemic. The search for a balance between maintaining the open market as a European achievement and the protection of national security and public order is not a new phenomenon. This search is not easy with the future FDI Regulation and will raise additional questions.

The initial evidence indicates that EU financial market governance has performed well in its response to the Covid-19 crisis. In the European Union (EU), the need for coordination and cooperation over this crisis has been a particular concern given that national competent authorities (NCAs) operate under the single rulebook and supervisory action must, accordingly, be consistent. The European Securities

id=3163849, last accessed 30 December 2019. 16 Nick Szabo, “The Idea of Smart Contracts”, (1997), available at http://www.fon.hum. uva.nl/rob/Courses/InformationInSpeech/CDROM/Literature/LOTwinterschool 2006/szabo.best.vwh.net/idea.html (last accessed 30 December 2019). On smart contracts see especially Adam J. Kolber, “Not-So-Smart Blockchain Contracts and Artificial Responsibility”, Stanford Technology

The European financial and sovereign debt crisis has fundamentally transformed the banking landscape in the European Union. In order to break the dependence between banks and sovereigns, the European legislator has created a Banking Union. The objective of these legislative measures is financial stability. How can this term be understood and what is the significance of financial stability for the Banking

As this issue of ECFR is going to press, we are all hunkering down at home, dealing with the enormous human, economic, social and political costs of the pandemic that has disrupted the world; coping with a new way of life; and wondering, with a mix of anguish and hope, when the health emergency will abate, what world we will find, and how we will work toward reconstruction. In many countries the virus

The aim of this paper is to describe a relatively new legal form of the simple joint stock company introduced into Slovak company law in 2017 and evaluate whether it may indeed be a suitable corporate vehicle for new companies with highly innovative potential (startups), or alternatively assess whether the legal form is suitable for other legal and business use cases; and explore and identify potential

In her lecture on ‘UK and EU Company Law After Brexit’, Vanessa Knapp focused on the impact of Brexit on the future of UK company law. She discussed the proposed modifications of British legislation and impending changes affecting the freedom of establishment, cross-border mergers and the Societas Europaea (SE). She concluded that priorities in the EU and in the UK are expected to differ on the short

This article looks at the effect of the United Kingdom withdrawal from the European Union (EU) (Brexit) on UK company law. In particular, it considers the general approach to EU-derived company law, the effect on takeovers, international accounting standards, accounting requirements, requirements for EEA companies with an establishment in the United Kingdom, cross-border mergers, Societas Europaea

The need to promote cross-border regulation and cooperation between supervisors of financial markets has become acute ten years after the 2008 global financial crisis. This is due to a rise in extra-territorial legislation and cross-border access to foreign markets conditioned on “equivalence” and “deference” among jurisdictions. Brexit has made the issue more critical in Europe because the United

This article considers the recent evolution of the EU’s third country regime for capital market access in light of Brexit, the important series of legislative reforms adopted in March 2019 as the 2014-2019 European Parliament/Commission term closed, and the emergence of the European Securities and Markets Authority (ESMA) as a material technocratic influence. The article suggests that while the capital

The global financial crisis highlighted the interconnectedness of international financial markets and the risk of contagion it posed. The crisis also emphasized the importance of supranational regulation and regulatory cooperation to address that risk. Yet, although capital flows are global, securities regulation is not. As a 2019 report by IOSCO notes, the regulatory challenges revealed during the

As from January 2018, MiFIR and the PRIIPs Regulation provide national supervisors with competences to adopt measures restricting or limiting financial activities or practices, or the marketing, distribution or sale of financial instruments, structured deposits and insurance-based investments. Moreover, these regulations give competences to the European Supervisory Authorities (ESMA, EBA and EIOPA)

According to economic literature, climate change is a financial factor: this is the logical premise of the European Directive N. 2014/95/EU requiring disclosure on the policies adopted by big corporations on climate change risks and opportunities. Through disclosure, climate change imprints the contents of directors’ duty of skill and care in Europe. On the contrary, in US there is no federal legislation

When the General Data Protection Regulation (henceforth: GDPR) came into force, it quickly became clear that the new data protection law would strongly influence many different areas of law. This article deals with the relationship between data protection law and insolvency law, which was hardly considered before the GDPR was adopted. This relationship is particularly relevant where personal data is

This study addresses the arbitrability of corporate law disputes and the validity of arbitration clauses stipulated in the articles of association (AoA) of joint stock companies, and compares Turkish law with German and Swiss jurisdictions in particular. While corporate law disputes are considered arbitrable, disputes concerning invalidity of corporate decisions and actions for dissolution are heavily

The limited liability company is a strange creature. It is recognised by law as a legal person on par with natural persons, effectively disproving the widespread belief that jurists lack imagination. But not only does it enjoy legal capacity to enter into contracts, appear in courts, face liability or, in many jurisdictions, even criminal sanctions for wrong doing, it is also an economic entity unto

Resolving regimes of non-performing loans (NPLs) have raised concerns among supervisory authorities and banking regulators. NPLs play a central role in the linkages between poor lending and credit risks. This has implications for the management of asset quality and for the stability of the firm and the financial sector. A high stock of NPLs is undesirable to investors which can lead a decrease in the

Robo-advisers are online financial adviser services that use algorithms to create investment recommendations without human input. They deliver advice at low costs and they are growing in popularity. However, the nature of the interaction between client and machine raises many legal questions under the applicable EU regulation. This article argues that robo-advisers provide investment advice within

In only one decade, cryptocurrencies have witnessed significant growth, with Bitcoin being the most dominant one. They are not efficient payment methods, although they bring some benefits linked to the underlying technology they use (Blockchain). In reality, they function more as investment assets than as payment instruments and pose various risks, which are very similar to those encountered on capital

Five countries became members of the Eurasian Economic Union – an international organization of regional economic integration. The Republic of Kazakhstan, the Russian Federation, and the Republic of Belarus signed the international Treaty in the city of Astana, Kazakhstan on May 29, 2014. The Republic of Armenia and the Kyrgyz Republic acceded to the Treaty later. Harmonized regulation of financial

In response to the global financial crisis, the European System of Financial Supervision (ESFS) was created in 2010. Supranational bodies were established for different financial sectors to act as supervisors of sorts for national-level supervisors in EU Member States. This article focuses on how the system was adapted to three EFTA States that are not part of the EU but form the internal market along

This study analyses the most important regulations for asset-backed securities and covered bonds devised after the global financial crisis in Europe. The study presents three perspectives of these regulations. It discusses the premises and context of these regulations and highlights the asymmetric treatment of these two instruments. The premises of the regulations are inspired by the market criticism

The topic of systemic risk in the Brexit hypothesis keeps many people on the alert. The situation is indeed particularly special: On the one hand, no one knows whether Brexit will take place, and if so when. Also, the conditions in which it will take place are largely unknown, whereby recently the perspective has quite radically changed with Theresa May having stepped down, her successor unknown, and

Usually connecting factors in company law play a decisive role with regard to the corporate governance model of a company and with regard to the level of protection of stakeholders. Their importance generated a long-lasting debate on which connecting factor is “better” and which one is compatible with internal market rules. However, technological developments and digitalisation shed a different light

This paper uses the current proceedings against Volkswagen Aktiengesellschaft for violations of its continuous disclosure obligation as a backdrop for addressing fundamental questions of European market abuse law. Specifically, we ask how the Market Abuse Directive and Regulation (MAD/R) and Member State corporate law together shape management’s disclosure policy vis-à-vis the stock market. Taking

In September, 2008, the meltdown of the investment bank Lehman Brothers accelerated the Global Financial Crisis, which affected economies and consumers worldwide. As soon as the Global Financial Crisis broke out, governments and legislators recognized the need for macroprudential reform in order to build a resilient financial system. Today, legislators in every major jurisdiction have finalized almost

The purpose of this paper is threefold. Firstly, it presents to the broader European audience the thesis of lawyers being the “transaction cost engineers”, with a particular focus on acquisition agreements. Secondly, it applies the terminology of value-creation and value-distribution to the operation of warranty clauses and contractual indemnities. These contractual clauses typically form a significant

What Tolstoy says about families also applies to banks: sound banks are all alike, but every failing bank fails in its own way. This is the reason why broad discretion is needed to manage banking crises. This paper studies the Bank Recovery and Resolution Directive to assess whether it grants the competent authorities enough discretionary powers to deal with banking crises in the most efficient way

We analyze a hand-collected dataset of 1682 executive compensation packages at 34 firms included in the main German stock market index (DAX) for the years 2009-2017 in order to investigate the impact of the 2009 say on pay-legislation. The findings provide important insights beyond the German case, not only for the impending implementation of the revised European Shareholder Rights Directive. First

Before deciding on operations involving share issuance or sale, companies or shareholders may seek to disclose information to selected investors, in order to gauge their opinion on the envisaged market operation. Despite such “market soundings” risk violating the prohibition of insider trading, selective disclosures have been partially accepted in several European jurisdictions. Market soundings have

In April 2018, the European Commission presented a proposal for a Directive amending Directive 2017/1132 as regards cross-border conversions, mergers and divisions. This article discusses the proposed provisions to protect the interests of employees in a cross-border operation. Their position would be strengthened since employee representatives are granted information and consultation rights. As to

The “Company Law Package” of April 2018 is probably one of the most ambitious projects ever seen in the history of European company law. At the time when this ECFR issue was printed, there were clear indications that the negotiations on the package could be completed before the next European elections. The Company Law Package contains two parts, one tackling the issue of digitalisation of company law

In April 2018, the EU Commission presented a Proposal of Directive -amending Directive 2017/1132- on cross-border conversions, mergers and divisions (“The Proposal”). The Proposal lays down common rules and procedures at the EU level on how a company can move from a Member State to another Member State, merge or divide into two or more new companies across borders. This paper addresses this Proposal

Currently, the Council of the European Union is negotiating the European Commission’s recent proposal on cross-border mobility. This paper provides an overall assessment based on the proposal’s central pillars: freedom of establishment and protection of the interests of creditors, shareholders, and employees. The proposed directive meets a real necessity for regulation on a European level and pursues

On 25 April 2015, the European Commission, as a part of its Company Law Package, presented a proposal for amending the Company Law Directive (CLD) as regards cross-border conversions, mergers and divisions (Mobility Directive Draft – MobilD-D). This article critically analyses the accomplishments and deficits of this proposal.

The Commission’s Proposal 2018/0113 aims to promote the use of digital tools and procedures in company law. To this effect it introduces a compulsory procedure for the online incorporation of companies. The key principle of the proposal is that the incorporation can be done without the physical presence or the presentation of original documents. Member states must admit electronic identification means

Digitalization revolutionizes all legal areas, including corporate law. The article deals with different impacts of digitalization on communication schemes in corporations, such as virtual general assemblies or communication patterns in board of directors, also encompassing communication with third parties, namely investors. The legal framework for these communication patterns refer not only to corporate

The Mobility Package currently under discussion in the Council will constitute a major breakthrough for cross-border transactions if finally adopted. Although its focus is on enabling companies to make use of the freedom of establishment, some of its core rules address the protection of creditors and minority shareholders. Both groups can be adversely affected by being transferred across borders; a