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- A internet: um objecto para o direito administrativo global?Publication . Silva, Nuno Sousa eEste artigo analisa brevemente a utilidade dos quadros conceptuais do Direito Administrativo Global (DAG) para descrever a regulação da Internet. Para o efeito, começa por fazer um pequeno enquadramento do DAG e do respectivo propósito. De seguida, descreve o funcionamento e regulação da Internet, antes de concluir que apesar de o DAG ter alguma utilidade, o Direito da Internet é ainda uma realidade regulada fundamentalmente a nível nacional.
- Le droit portugais des groupes de sociétésPublication . Antunes, José EngráciaThe group of companies has become the prevailing organizational form of the modern large enterprise. After the pioneering German law, Portugal became the second country in Europe to enact a global and unitary legal regulation on groups in its “Code of Commercial Companies”. The aim of this paper is to analyse the major concepts and ideas of the Portuguese law on groups of companies, as well as to provide a brief final conclusion about its merits and shortcomings.
- On the historical origins of portuguese corporation lawPublication . Antunes, José Engrácia; Torres, NunoThe Portuguese East India Company, incorporated in 1628, is one the historical predecessors of the modern public corporations. In spite of its short life, its conception, organization and subsequent launch represented a milestone in the historical origins of Portuguese company law.
- The management of the bank crisis in Portugal: law and practicePublication . Antunes, José EngráciaThe Portuguese banking system was until very recently ignored. As happened with the banking systems of other small economies, it was a common belief of both politicians and regulators that it was just too small to matter to the outside world. Today, after the financial crisis on 2008, we know better. If there is something to be learnt with the globalisation of economic and financial markets, it is precisely the relevance of the “butterfly effect”, by reminding us that even a tiny event can start a chain reaction and have large and wide-reaching effects. This paper aims at briefly describing some recent crisis episodes of the Portuguese banking system, the existing regulatory framework for the management of a bank crisis, as well as the lessons to be drawn from its application.
- New avenues on intragroup liabilityPublication . Antunes, José EngráciaThe corporate group is the prevailing organizational form of the modern large enterprise. To deal with intragroup liability problems means to scrutinise the legitimacy of the extension of the “sacred cows” of classical corporation law, in particular the deep-seated institutions of the legal personality of corporations and of the limited liability of their shareholders, to this new form of enterprise organisation. The author analyses the major types of regulatory strategies in a worldwide comparative law, as well as enquires about about the possibility of adoption of new regulatory avenues on this topic.
- Banco Espírito Santo: the anatomy of a banking skandalPublication . Antunes, José EngráciaThe “Banco Espírito Santo” (BES) was the oldest and one of the largest Portuguese banks: it was created in 1869, precisely at the same year that Goldman Sachs was founded, and it was resolved in 2014.The present paper aims to briefly explain how a centenary bank, that survived to two World Wars, prevailed over different political regimes (Monarchy, Republic, a Revolution), and endured diverse economic regimes (nationalization, subsequent reprivatisation), has come to an abrupt end.
- ‘Law reform’ in Portugal. An overviewPublication . Marinho, Inês; Inverno, Inês; Abrantes, António Manuel
- Remuneration of content creation in the digital space: challenges, obstacles and a common language to foster economic sustainability and cultural diversityPublication . Mazziotti, GiuseppeWhat is the role of remuneration to ensure diversity of cultural creation at a time when access to knowledge, culture, news and entertainment occurs through a great variety of sources, media, technologies and devices? Diverse cultural expressions in musical, cinematographic and other audiovisual works as well as journalism, photography and video games presuppose economic sustainability, at least when it comes to professionally created works. Content creators would not be able to author new works without relying on adequate economic incentives and rewards. Copyright is the area of law and policy where these incentives and financial rewards have been built, traditionally. However, copyright protection is not, as such, sufficient to guarantee economic sustainability and support to diverse cultural creation. Firstly, copyright has become difficult to enforce and monetize, especially by individual creators, in the context of on-demand streaming services and content-sharing platforms and even more so in decentralised forms of content distribution such as peer to peer networking. Secondly, the rights granted under copyright law and the way these rights are exercised via contract tend to protect more corporate interests than individual creators’ remuneration opportunities. Cultural industries gather as many copyright interests as possible, taking advantage of freedom of contract and of their bargaining positions and market power. In addition to that, as the paper shows, the potential ineffectiveness of copyright for the purpose of guaranteeing remuneration to creators and enhancing cultural diversity is related to how today’s online platforms have been desig ned and to the transition from markets based on permanent acquisition of copies by customers to web-based services giving access to repertoires and/or vast collection of creative works for free (as content-sharing or social media platforms do) or a monthly flat fee basis (as in the case of streaming services). In particular, social media and user-generated content platforms have blurred the distinction between professional and nonprofessional works and have significantly weakened creators’ bargaining power.
- Business law in Europe after Brexit. The need for legal transnationalisation in the international market place. The example of international assignmentsPublication . Dalhuisen, Jan HendrikAfter Brexit, legislators, practitioners, and legal scholars in the EU have to reconsider what may be legally needed to support business increasingly conducted in or from the EU rather than from London. Practically, practitioners and legal scholars will have to ask whether and to what extent a contractual choice of English or alternatively New York law is or remains sufficiently effective and enforceable especially in proprietary and regulatory matters to overcome the basic conflicts of law approach still cutting up transactions in the international business flows into local parts depending on closest connections in the hope that these legal pieces together still present an adequate legal framework for the business as a whole. The true question is then to what extent common law can remain dominant through a party choice of law. More fundamentally, in all international commerce and finance, therefore in international professional dealings, not only this approach but substantive key building blocks of private law may need reconsideration, especially new financial structures and funding mechanisms, to operate and find more universal legal support. This goes well beyond the EU or a party choice of law and affects all national legal systems connected with the international market place and its operation, therefore also the U.S, South America, Japan, China, South Korea, Singapore, India, Indonesia, and many others. The question then is what the alternatives are. It is submitted that transnationalisation of private law is here the more ready and efficient tool and way forward especially in trans-border manufacturing, supply, and distribution chains by accepting, on the one hand, the legal unity of international business transactions and, on the other, the direct application of international fundamental and general principle, custom and market practices, and a strong form of party autonomy subject to transnational minimum standards of behaviour in the international market place. Although the common law is closer, which derives in contract and moveable property law from its origin in commerce, it needs to respect the rules of the international markets and its legal structures just as much to remain truly relevant and move forward. It means that these are issues no less relevant to international business when connected with or operating from the US, the UK, Canada, or Australia or made subject to a contractual choice of their laws. This article attempts to meet this challenge for international assignments of portfolios of monetary claims with assignees in other countries and debtors in many. It is a vital part of the international financial infrastructure. The solution is found in the approximation of monetary claims to, and treatment like, promissory notes, which developed similarly as negotiable instruments under the older law merchant, the applicable law and relevant sources to be found in the manner of public international law pursuant to Art. 38(1) of the Statute of the ICJ, as it was for all law before the 19th Century when nationalisation set in. Assuming globalisation holds, it is submitted that in international commercial and financial dealings we are returning to this earlier model which, in the Grotian manner, in terms of methodology reunites all law formation and application at the international level at least for professional participants.
- Opinion Statement ECJ-TF 2/2021 on the CJEU decision of 25 february 2021 in case C-403/19, société générale, on the calculation of the maximum amount of a foreign direct tax creditPublication . Prats, Francisco Alfredo Garcia; Haslehner, Werner C.; Heydt, Volker; Kemmeren, Eric; Kofler, Georg; Lang, Michael; Nogueira, João; Panayi, Christiana HJI; Blétière, Emmanuel Raingeard de la; Raventos-Calvo, Stella; Richelle, Isabelle; Rust, Alexander; Shiers, RupertThe Court’s judgment in Société Générale reinforces the established case law that EU law neither prohibits juridical double taxation as such nor does it put an obligation on the residence Member State to prevent the disadvantages which could arise from the exercise of competence thus attributed by the two Member States. The parallel existence of taxing jurisdiction, however, must be distinguished from the exercise of such jurisdiction by each Member State: While Member States are free to determine the connecting factors for the allocation of fiscal jurisdiction in tax treaties, “the exercise of the power of taxation, so allocated by bilateral conventions for the avoidance of double taxation, the Member States must comply with EU rules and, more particularly, observe the principle of equal treatment”. It is generally accepted in the Court’s case law that both the ordinary credit and exemption (also with progression) are permissible methods to avoid double taxation, and the Court in Société Générale has confirmed this position specifically with regard to the “maximum deduction” in the ordinary credit method in tax treaties, even though it can result in a disadvantage for cross-border income as compared with domestic income. As the disadvantage in Société Générale was due to the difference between gross-basis taxation of dividends in the source Member States (Italy, the Netherlands and the UK) and net-basis taxation of those foreign-source dividends in the residence State (France), it remains to be seen if future cases will bring clarity in light of the EFTA-Court’s Seabrokers judgment as to which expenses can be lawfully allocated to foreign income from the perspective of the residence Member State. The CFE Tax Advisers Europe stresses that in an Internal Market neither (unintended) double non-taxation nor double taxation is acceptable. It therefore calls on all EU institutions to analyze and address the remaining issues of juridical double taxation (including in the context of the upcoming actions amending current corporate tax directives).