Ten years ago, the Single Supervisory Mechanism (SSM) was created, centralizing European banking supervision. In the SSM, the European Central Bank (ECB) cooperates closely with the National... Show moreTen years ago, the Single Supervisory Mechanism (SSM) was created, centralizing European banking supervision. In the SSM, the European Central Bank (ECB) cooperates closely with the National Competent Authorities (NCAs). The unprecedented degree of integration between NCAs and the ECB leads to supervision often being a joint exercise. SSM composite procedures are a specific type of such a joint exercise.Composite procedures culminate in a final ECB or NCA decision, yet are based on input from both. This integrated decision-making forms a paradox with the European system of judicial protection, which to an important extent remains to be organised dualistically. In short, national courts still review only national acts while the EU Courts, in principle, review only EU acts.This paradox raises concerns regarding effective judicial protection. This dissertation aims to investigate whether the EU principle of effective judicial protection is currently safeguarded within the SSM, particularly where it concerns composite procedures. It examines both the action for annulment and the action for damages, addressing the interplay between the EU and Dutch national legal framework. It is concluded that effective judicial protection is not always achieved. The dissertation therefore proposes several recommendations aimed at enhancing effective judicial protection within SSM composite procedures. Show less
A franchise relationship is usually an asymmetrical relationship because a franchisor exclusively possesses essential information about the franchisor and the franchise system and holds superior... Show moreA franchise relationship is usually an asymmetrical relationship because a franchisor exclusively possesses essential information about the franchisor and the franchise system and holds superior bargaining power over a franchisee. Accordingly, a franchisee is susceptible to franchisor opportunism that could inflict financial loss to the franchisee. This book aims to propose guidelines for formulating private law rules in comprehensive franchise legislation to protect a franchisee against the franchisor’s unfair conduct. This book compares the franchise legal framework of the European Draft Common Frame of Reference (DCFR), the United States of America (USA), and Australia. The main conclusions of the comparative study are as follows. First, comprehensive franchise law should contain rules requiring a franchisor to provide a prospective franchisee with complete, current, and accurate pre-contractual information. Second, the law should contain rules regulating the franchisor’s encroaching conduct and the franchisor’s duty to provide the franchisee with initial and ongoing assistance. Third, the law should contain rules regulating the franchisor’s unfair conduct concerning transfer, non-renewal, and termination of a franchise contract. Fourth, the law should establish a remedial system that provides an aggrieved franchisee with mechanisms to compel the franchisor’s performance of the duties, claim damages, and cancel a franchise agreement. Show less
At the crux of article 5 is an attempt to re-imagine the parent-child relationship. It recognises that all children have a right to be parented with respect and tenderness.THis collection of... Show moreAt the crux of article 5 is an attempt to re-imagine the parent-child relationship. It recognises that all children have a right to be parented with respect and tenderness.THis collection of published manuscripts sheds light on the scope and meaning of the right to parental guidance, and considers its implications for children's enjoyment of rights in medical research. Show less
There has been growing concern about the depredations of platform capitalism, ranging from the erosion of workplace protections to questionable corporate and data governance practices. This PhD... Show moreThere has been growing concern about the depredations of platform capitalism, ranging from the erosion of workplace protections to questionable corporate and data governance practices. This PhD research project investigates the emergence of ‘democratic’ firms, which confer important control and financial rights to the stakeholders that contribute intellectual, social, and use value to a platform. Interdisciplinary research methods were used for this project, combining doctrinal research with the use of a Delphi-study and case studies.This dissertation makes a three-fold contribution to the literature. First, it explores the extent to which democratic firms can ameliorate the socio-economic concerns raised by capital-managed online labour and social media platforms. Second, it unpacks the (socio-)legal obstacles that exist to their formation and governance. Third, it charts pathways towards making such democratic firms more viable. The dissertation found that while factors such as the shifting of risk onto workers and concern about corporate accountability drove interest in democratic firms, start-up costs (e.g., obtaining adequate financing) and governance costs (e.g., member apathy) have been barriers to formation. Potential solutions are tentatively offered to overcome these barriers, from the use of degradable reputation tools to the joint development of a platform’s intellectual property. Show less
With advancements in assisted reproductive technologies (ART), more and more individuals across the globe want access to these medical miracles, not only to realise their desire for offspring but... Show moreWith advancements in assisted reproductive technologies (ART), more and more individuals across the globe want access to these medical miracles, not only to realise their desire for offspring but also to realise their desires for specific offspring and/or healthy offspring. South Africans are no exception. The challenge posed by this situation is that there is no specific right to reproduce with assistance in this country. Instead, there are certain general constitutional rights which may be interpreted as affording recognition to this right. Moreover, while the current legislative framework permits certain forms of ART, it expressly prohibits others, or it fails to make provision for newer and emerging technologies entirely. As a result, prospective parents are uncertain about the reproductive options available to them. Increasingly individuals are approaching the courts for clarity regarding their rights. The results have however been conflicting. Additionally, divergent views on the applicability of children's rights to prospective offspring is a complicating factor, which has yet to be resolved in South Africa (SA).This thesis, therefore, attempts to contribute to the existing knowledge on the legal rights of prospective parents to make use of ART in SA. It does so, by firstly exploring the current legal framework for assisted reproduction (AR). It additionally explores the legal implications of AR for the various parties concerned, in particular the prospective parents and the future child; and how their interests are balanced, if at all. What emerges from this investigation is that tension exists between the interests of these parties.The study further considers the existence of a right to reproduce from a global perspective. Given that there is no such express right, the thesis considers how the right has been given effect to by applying other rights. In this regard five primary rights have been identified, namely the rights to reproductive autonomy, reproductive health care, dignity, equality and privacy. The thesis then examines how the rights identified above have been interpreted to recognise reproductive rights and whether these interpretations would be useful in recognising the right to reproduce with assistance in SA.The thesis concludes that while the right to reproductive autonomy offers the most recognition to prospective parents’ rights to make use of certain forms of ART, it too is inadequate. To address this shortcoming, the study calls for legislative reform as well as wider interpretations of rights to accommodate various family forms. The need to adopt an interconnected approach that considers both the rights of the prospective parents and the potential offspring is also proposed. This however requires a consistent approach to be applied in respect of the interests of prospective offspring, which is currently lacking. These recommendations would go a long way towards realising the right to reproduce with assistance in SA and it would undoubtedly provide clarity on the existence of this right. Show less
As illustrated by the Global Financial Crisis and the more recent Covid-19 pandemic, when asset prices fall, margin levels increase and highly leveraged financial institutions are forced to... Show moreAs illustrated by the Global Financial Crisis and the more recent Covid-19 pandemic, when asset prices fall, margin levels increase and highly leveraged financial institutions are forced to deleverage, causing market participants to ‘run’ in advance of other market participants motivated to do exactly the same thing. As a result, a vicious cycle can emerge where lenders raise margin levels thereby demanding more financial collateral, forcing de-leveraging and more asset fire sales, eventually generating a downward leverage and liquidity spiral. The source of this instability is a recurring phenomenon involving the build-up of leverage that makes the economy particularly vulnerable to financial crises.My dissertation investigates the use of collateral transactions in the shadow banking sector. In particular, it will argue for the introduction of more stringent margin measures to tame financial uncertainty by limiting leverage and dampen procyclicality. One plausible way to restrict leverage is to impose minimum margin regulation, which would ex-ante limit the amount of leverage a financial institution can obtain. This dissertation will therefore propose four complementary measures that would ultimately result in a harmonised legal and regulatory margin framework in the EU shadow banking sector. Show less
This dissertation provides a comparative study on the rationale of publicity in the law of corporeal movables and claims. It examines possession, notification, and documental recordation as a means... Show moreThis dissertation provides a comparative study on the rationale of publicity in the law of corporeal movables and claims. It examines possession, notification, and documental recordation as a means of publicity by paying attention to English law, German law, and Dutch law. In this dissertation, a system of registration is argued to be introduced in the transaction concerning corporeal movables and claims. In the end, some proposals are made for Chinese law. Show less
The credit rating industry called for many debates on its civil liability since the origin of the industry at the beginning of the twentieth century. In 2013, the Union legislature introduced a... Show moreThe credit rating industry called for many debates on its civil liability since the origin of the industry at the beginning of the twentieth century. In 2013, the Union legislature introduced a right to damages, which issuers and investors can directly enforce against credit rating agencies under Article 35a CRA Regulation. This provision has drawn attention because of its remarkable structure: Article 35a CRA Regulation introduced a legal ground for civil liability at the European level, while general tort law has not been harmonised at the European level. The thesis investigates Article 35a CRA Regulation from multiple legal perspectives. Combining EU law, Private International Law and Dutch, French, German and English national private law, this book answers the main question of whether Article 35a CRA Regulation achieves its post-crisis goal of being an adequate right of redress for issuers and investors whilst it has to be interpreted under various systems of national law. In answering this question, the book takes a broader European approach and also rates the usefulness of Article 35a CRA Regulation as a European template for civil liability to be used by the Union legislature. Show less
This research considers the development of the concept of insolvency close-out netting under the laws of England, France and the US, as representative of common law, civil law and eclectic systems... Show moreThis research considers the development of the concept of insolvency close-out netting under the laws of England, France and the US, as representative of common law, civil law and eclectic systems respectively. It concludes that the legal systems of these jurisdictions have influenced the recognition of insolvency close-out netting with varying degrees. English common law has exerted the most influence whilst the French regime is most ready to develop according to market practices notwithstanding the precepts of civil law. The US legal system exerts a more balanced influence. These conclusions are based on preliminary replies to three sub-questions, namely (i) whether the development of close-out netting in these jurisdictions has been influenced by national set-off rules, (ii) whether the recognition given to close-out netting provisions has been affected by the norms of national insolvency laws and state insolvency goals, and (iii) whether, following the global financial crisis of 2008 – 2009, a convergence can be noted in the restrictions imposed on the recognition of close-out netting provisions under their national resolution regimes. The choice of the research question serves to map the national netting regimes of England, France and the US in a global perspective. It seeks to examine from various perspectives the adaptability and amenability of their national law regimes to accommodate this important contractual provision and serves to demystify stereotypes which have come to be associated with certain jurisdictions in their approach and readiness to uphold creditors’ rights. Show less
This dissertation investigated what the legal framework for recognition of foreign bank resolution actions should be. It aims to fulfil the current gap in legislative actions and scholarly research... Show moreThis dissertation investigated what the legal framework for recognition of foreign bank resolution actions should be. It aims to fulfil the current gap in legislative actions and scholarly research on the issue of cross-border bank resolution and attempts to formulate rules that would facilitate resolution actions effective across borders so as to achieve the ultimate goal of a global orderly resolution for banks. This dissertation conducts both normative and positive analysis and compares three jurisdictions, namely, the European Union, the United States and China. Building on the traditional legal doctrines of private international law, financial law and insolvency law, this dissertation proposes ten principles that should apply in recognition of foreign bank resolution actions. Show less
With access to and usage of it increasing dramatically over the past 20 years, the Internet has become an emerging realm for human interaction. With children constituting one-third of Internet... Show moreWith access to and usage of it increasing dramatically over the past 20 years, the Internet has become an emerging realm for human interaction. With children constituting one-third of Internet users worldwide, this realm offers endless opportunities to learn, connect, and interact. At the same time, the Internet facilitates child sexual abuse on a large scale – through the production, dissemination, and accessing of child sexual abuse material.This study aims to critically analyse emerging aspects of the international and national regulation, investigation and prosecution of online child sexual abuse material from a child-rights and rule-of-law-based approach. It investigates emerging aspects of substantive and procedural law which have been little explored in the past, zooming in on complex constitutional aspects by applying a comparative legal analysis approach with a strong focus on the Global South as well as interdisciplinary legal research.In order to solve these complex legal issues, the answer lies in the identification and subsequent navigation of a variety of dichotomies that govern the discourse on online child sexual abuse material. The international and national regulation, investigation and prosecution of emerging aspects of online child sexual abuse material hence require constant identification, reflection and calibration of competing discourses, with a view to developing a cyber-specific yet victim-sensitive response that upholds the rule of law and takes a child-centred approach. Show less
The dissertation offers a comprehensive description of rules and regulations on Related Party Transactions (RPTs) and corporate groups in Ukrainian corporate law. Besides Ukraine, the following... Show moreThe dissertation offers a comprehensive description of rules and regulations on Related Party Transactions (RPTs) and corporate groups in Ukrainian corporate law. Besides Ukraine, the following jurisdictions were chosen for analysis: the Netherlands, Germany, Poland and the EU overall. The author investigates how and to what extent RPTs are covered by the existing legal requirements on capital protection and corporate group regulation, highlighting experiences and strategies adopted in the studied jurisdictions. Beyond his comparative analysis of the current status, the author offers recommendations for more effective handling of RPTs in Ukraine, investigating such aspects as the following: what constitutes a corporate group and how group issues are regulated in the various legal systems; what constitutes a conflict of interest originating in ownership and control and what types of such conflicts occur; whether RPTs within corporate groups should receive special treatment relative to transactions outside groups; combatting corporate raiding, most often carried out through illegal seizure of corporate assets; approval and disclosure requirements for RPTs; and how information about RPTs is disclosed publicly. Show less
This dissertation explores the ability of commercial parties to obtain the very thing they bargained for under the contract law of the Netherlands, Singapore and China. It does so by analysing the... Show moreThis dissertation explores the ability of commercial parties to obtain the very thing they bargained for under the contract law of the Netherlands, Singapore and China. It does so by analysing the extent to which respective contract law principles balance out the interests of parties to a commercial sales contract in the principles surrounding the enforceability of performance obligations. Attention is also paid to the approaches taken by global and regional sales and contract law instruments. Show less
This thesis explores the application of the United Nations Convention on the Rights of the Child, 1989 (‘the CRC’) by domestic courts, in the light of the formal domestic rules which govern the... Show moreThis thesis explores the application of the United Nations Convention on the Rights of the Child, 1989 (‘the CRC’) by domestic courts, in the light of the formal domestic rules which govern the relationship between international treaties and domestic law. The focus is on three legal systems – Australia, France and South Africa – purposefully selected to represent three different reception models: dualist, monist and hybrid respectively. The thesis demonstrates that the formal rules of reception are only a starting point for the courts, but do not always explain why, how and with what consequences the courts have given effect to the CRC. The courts have applied the CRC creatively, building on the strengths of their respective systems and sometimes compensating for potential vulnerabilities in the domestic reception framework. The thesis calls for, inter alia, a recognition of the complex position of the courts at the intersection between domestic and international law; and for a closer exploration of the added value of the Convention in relation to other legal instruments. It also encourages a dialogue between the CRC Committee and the courts in relation to the interpretation of the CRC. Show less
The establishment of harmonized bank resolution frameworks was a fundamental element of the reforms undertaken in the EU in response to bank failures during the latest financial crisis. The... Show moreThe establishment of harmonized bank resolution frameworks was a fundamental element of the reforms undertaken in the EU in response to bank failures during the latest financial crisis. The frameworks empower authorities to intervene in failing banks as an alternative to the opening of an insolvency procedure to protect financial stability and minimize the costs for taxpayers. The fact that national insolvency laws play an essential role in the bank resolution regimes but have not been fully harmonized in the EU, is likely to be a source of complexity and legal uncertainty in cross-border resolution procedures.This book investigates the bank resolution regimes in the Netherlands, Germany and the UK. It analyzes how the national frameworks interact with and have been embedded into Dutch, German and English private law, including insolvency law. The study shows that the frameworks deal with specific topics and objectives and contain rules and terminology that are different from those in existing national legislation. It also shows which differences may exist between the bank resolution procedures in the three jurisdictions. The study makes an important contribution to the existing debate about the further development of the EU bank insolvency framework. Show less
International Commercial Surrogacy (ICS) has emerged over the past decade as a modern method of family formation. ICS is unregulated internationally and domestic laws are struggling to keep pace... Show moreInternational Commercial Surrogacy (ICS) has emerged over the past decade as a modern method of family formation. ICS is unregulated internationally and domestic laws are struggling to keep pace with ICS. However, a child is at the centre of every ICS arrangement, and children conceived and born through ICS are at a heightened risk of their rights being infringed.Written over the course of time when ICS has rapidly developed, this book explores why and how the child's rights are at risk in ICS, and seeks to apply the standards and norms of the United Nations Convention on the Rights of the Child to the ICS context. This book proposes approaches for balancing the competing rights and interests of the child and other parties in ICS. It presents a framework for protecting the rights of children born through ICS, illustrating that this is achievable in practice, in the absence of international consensus on ICS as a phenomenon.This book is relevant for child rights practitioners and academics, and useful for policy-makers, legislators and national and international decision-makers grappling with the children’s and human rights issues presented by this 21st century human rights challenge. Show less
Performance requirements act as policy instruments for achieving broadly-defined economic and developmental objectives of States. A number of States have committed to prohibiting performance... Show morePerformance requirements act as policy instruments for achieving broadly-defined economic and developmental objectives of States. A number of States have committed to prohibiting performance requirements in international investment agreements (“IIAs.”). Performance requirement prohibitions (“PRPs”) are meant to eliminate trade-distorting performance requirements and performance requirements which replace investor decision-making by State decision-making.This dissertation focuses on providing answers to two research questions: first, how do States prohibit performance requirements in IIAs? And second, how should PRPs in IIAs be interpreted and applied?For the first time, this dissertation: proposes a unitary understanding of PRPs in IIAs; develops a detailed typology and analysis of PRPs in IIAs through the identification of systematically reproduced drafting patterns; conducts the first critical and in-depth analysis of all arbitral awards which have decided claims based on PRPs in IIAs; analyses interpretation and application issues related to provisions that exempt government procurement from PRPs and to reservations that shield sensitive non-conforming measures or strategically important sectors from PRPs; and anticipates the application of most-favoured nation (“MFN”) treatment clauses to PRPs in the future.Finally, this dissertation formulates proposals that can help interpret and apply existing PRPs and draft future PRPs in a more deliberate and informed way. Show less
Contractual Capacity in Private International Law contains a wide comparative study of reference rules in respect of the competence of a natural person to create rights and duties by... Show more Contractual Capacity in Private International Law contains a wide comparative study of reference rules in respect of the competence of a natural person to create rights and duties by concluding a contract with another (natural or juristic) person. In many common-law and mixed jurisdictions the legal position in this regard is remarkably unclear; it is nevertheless of significant practical importance. Sixty-five legal systems are investigated, from the civil-law, common-law and the mixed civil/common-law tradition, as located in Africa, Australasia, Europe, the Far East, the Middle East, North America and South America, together with all relevant regional, supranational and international instruments. The study leads to a detailed recommendation, which is presented in both a narrative and a codified form, in respect of the law that should govern contractual capacity. The proposed rules may be employed in the judicial interpretation, supplementation and development of the norm complex of private international law, particularly in common-law and mixed jurisdictions. They may also be considered for the purposes of future national, regional, supranational and international instruments. Show less
Supporters’ misconduct is an unfortunate phenomenon connected to the most popular sport in the world. Despite many legislative efforts, incidents keep occurring, often resulting in damage. The... Show moreSupporters’ misconduct is an unfortunate phenomenon connected to the most popular sport in the world. Despite many legislative efforts, incidents keep occurring, often resulting in damage. The difficulty in addressing the misbehaving individuals directly has led to the idea of addressing football clubs instead. The rules created by national and international football organisations hold clubs liable for their supporters' behaviour regardless of the question of culpable conduct. In addition to the disciplinary liability, there is the issue of the compensation for damage caused before, during and after football matches. Both forms of liability of football clubs for supporters’ misconduct – disciplinary liability and civil liability – have been the subject of a number of court cases across Europe. Are the judgments in these two types of cases in line with each other with respect to the appreciation of the applicable rules and sanctions? Can disciplinary standards be applied in civil law in order to define the duty of care of football clubs in regard to supporters' misconduct? On the whole this research is focused on the interaction between the disciplinary regulations of national and international football associations regarding the liability of clubs for supporters' misconduct and civil law. Show less
The expansion of the fund industry has been one of the most notable trends in the financial markets of recent years. Not only has the demand for funds among EU investors grown, but both the number... Show moreThe expansion of the fund industry has been one of the most notable trends in the financial markets of recent years. Not only has the demand for funds among EU investors grown, but both the number and types of investment funds also continue to increase. Since investment funds available in the EU can be established both inside and outside the EU, they may be subject to different investor protection regulations, depending on where the fund is located. Accordingly, different levels of investor protection may exist between investors investing in EU funds and investors investing in non-EU funds, including US funds. This book investigates whether there is a level playing field between EU investors investing in EU funds and EU investors investing in US funds and if not, if there is a legal basis in current EU law for the EU regulator to adopt additional investor protection rules applying to investment funds. The analysis considers the basic characteristics of investment funds, how they function in practice, and how they are regulated relating to investor protection issues. Show less
