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- An ocean apart: the mandatory takeover rule in Brazil and in EuropePublication . Pereira, Jorge BritoThe common statement that there are two different regulatory systems concerning the mandatory takeover rule – the market rule system and the equal opportunity system – is, in practice, overly simplistic: facing the choice between freedom and strict regulation on whether the control premium should be proportionally shared with all non-controlling shareholders, some jurisdictions have adopted a hybrid solution. The Brazilian mandatory takeover rule (re)approved in 2001 is a good example. This paper will comprehensively analyse the Brazilian and European rules on mandatory takeover bids, using empirical data about the Brazilian markets and details of various cases that tested the limits of the existing regulation.
- An updated look at the principle of common heritage of (Hu)MankindPublication . Ermida, Maria Pena
- Are EU Member States required to have a sense of humor?Publication . Rendas, TitoIn transposing the CDSM Directive, the EU Member States that presently lack a parody exception in their domestic copyright laws are faced with one fundamental choice: either they include a provision allowing for parodic uses only in the context of Article 17, or they implement a general parody defense, covering not only those online acts, but also others, online and offline alike, that are not related to Article 17. This paper argues that the former approach is not compatible with EU copyright law when interpreted in light of the Charter of Fundamental Rights. Instead, those Member States that have no parody exception and that are yet to transpose the Directive, like Cyprus, Greece and Portugal, would be well-advised to use the opportunity provided by the implementation to finally recognise a general parody defense.
- 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.
- 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.
- Climate governance: cities as global actorsPublication . Rocha, ArmandoDespite their lack of a formal status as subjects of international law, cities have been performing a relevant activity in the context of global climate governance. In fact, coping with climate change requires action from all levels of governance. The vulnerability of cities to climate change and its effects, hand in hand with their contribution to global GHG emissions, explain why cities have been particularly active in testing new rules, standards, and practices, which might be later codified as a treaty-based or a domestic statutory rule. Furthermore, cities have been pledging to comply with targets and deadlines of GHG emissions reduction, namely through local ordinances, if their Constitutions mandate cities to pursue environmental or climate goals. Cities’ pledges do not bind their States but sustain their States’ international commitments and help complying with the goals and obligations under the UNFCCC and the Paris Agreement. Finally, cities can participate as observers in the meetings of the Conference of the Parties to the UNFCCC and the Paris Agreement, where they can contribute to the shaping of treaty rules, and offer a decisive help in climate-related litigation before international bodies. The role of cities as global actors is short, but it has proved to be efficient and there is still potential for broadening their contribution to global climate governance.
- A constitutional judge at workPublication . Ribeiro, Gonçalo de AlmeidaThis is a short essay written for a collection of papers paying tribute to the work of Harvard Law School’s legal theorist Duncan Kennedy. It is a first-person or introspective interpretation of the double experience of freedom and constraint of a constitutional judge working on the relevant materials to craft a particular legal object – in this case, a defensible conception of constitutional democracy −, in the vein of Kennedy’s critical phenomenology of adjudication.
- Financing the costs of tackling climate change: the financial transaction tax at the COP 30Publication . Correia, MiguelAdapting to climate change and mitigating its effects will require a major global financial effort. One of the financial instruments that has been discussed over the past two decades to finance this effort, without ever achieving visible success, is the Financial Transaction Tax (FTT). More recently, at the COP 28, the tax was given new impetus with the creation of the Global Solidarity Levies Task Force, led by France, Kenya and Barbados and supported by several other countries and a wide range of international organisations (including the IMF, the World Bank, the UN, the OECD and the G20), with the aim of identifying sources of financing for the global effort. The Task Force has identified the FTT as one of the levies that merits further research. It is hoped that at the forthcoming COP 30, to be held in Brazil in November 2025, the Task Force will present final technical proposals for the introduction of new levies at the global level, including an FTT. The aim of this study is to contribute to this endeavour by evaluating the FTT proposal recently released by the Task Force for public consultation and, where relevant, making policy suggestions for consideration.
- 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.
- ‘Law reform’ in Portugal. An overviewPublication . Marinho, Inês; Inverno, Inês; Abrantes, António Manuel