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- 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.
- The constitutional right to an effective remedy in the digital age: a perspective from EuropePublication . Gregorio, Giovanni De; Demková, SimonaThe consolidation of the digital age has expanded the demand for justice. The challenges characterising digital relationships have led European policy makers to wonder about the opportunity to introduce new safeguards to ensure the right to effective remedies as enshrined in the EU Charter of Fundamental Rights. On the one hand, this approach has triggered the proliferation of new procedures, thus expanding potential remedies. On the other hand, the introduction of new remedies increases fragmentation and uncertainty about their access and functioning. This work examines the challenges for the right to an effective remedy raised by the proliferation of intertwined remedies in three key pieces of European digital regulation – the General Data Protection Regulation, the Digital Services Act, and the Artificial Intelligence Act. Particularly, we assess the three key avenues for remedies, namely internal complaints, independent supervision and judicial remedies. Based on this assessment, we underline the need for further clarity in the interplay between the remedial designs, central to which will be the focus on institutional collaboration across the emerging remedial frameworks.
- Legality of UEFA’s prior authorisation system in C-333/21 European Super LeaguePublication . Pijetlovic, KatarinaThe organisational market for cross-border football competitions is dominated by UEFA as a sole commercial operator. Because UEFA also occupies a regulatory monopoly on all European football matters enabling it to control the access to the organisational market via prior authorisation system, UEFA is in a conflict of interest situation. With reference to the Court of Justice decision in the European Super League (ESL) case, this article addresses the legality of the prior authorisation system ran by UEFA. In particular, the article makes a difference between the Court’s emphasis on the lack of formal procedural framework within which UEFA’s decision on prior authorisation of ESL took place, and the substance of UEFA’s decision had it been adopted within proper procedural framework. The article will also address the issues of both the new UEFA Authorisation Rules Governing International Club Competitions and a new proposed format for the ESL competition under the guidelines issued by the Court.
- 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.
- A revisit to Islamic inter-polity legal theoryPublication . Abbasi, SalarThis article delves into the jurisprudential and legal theory aspects of the religion of Islam in regard to inter-polity laws and relations. The conceptualisation of Islamic inter-polity commands and laws follows a bright line criterion, for it clearly defines non-Muslim polities and people, categorises them, and commands Islamic polity’s approach in regard to non-Muslims in unequivocal terms. The approach of this article is neither polemic nor protectionist; though it indeed is critical. To recognise veneration of an ideology is not tantamount to discrediting or hampering critical explorations about it, and Islam is not an exception. The concern of this article is to shed light on fundamental pillars upon which Islam’s inter-polity commands are formed and textually reinforced as being legally unquestionable and intrinsically legitimate. The discourses through which the Islamic inter-polity legal theory is scrutinised; in this piece, are the following: intrinsic legitimacy of the territorial and ideological expansionism of Islam, and Islam’s ‘group identity’ politics in its private and public laws under the notion of ‘Ummah’ or Islamic community.
- Opinion statement ECJ-TF 4/2022 on the ECJ decision of 22 September 2022 in case C-538/20, W AG, on the deductibility of foreign final lossesPublication . Nogueira, João Félix Pinto; Prats, Francisco Alfredo Garcia; Haslehner, Werner C.; Heydt, Volker; Kemmeren, Eric; Kofler, Georg; Lang, Michael; Panayi, Christiana HJI; Blétière, Emmanuel Raingeard de la; Raventos-Calvo, Stella; Richelle, Isabelle; Rust, Alexander; Shiers, RupertIn this CFE Opinion Statement, submitted to the EU Institutions in November 2022, the CFE ECJ Task Force comments on the ECJ decision of 22 September 2022 in W AG (Case C-538/20), on the deductibility of foreign final losses. The W AG decision makes it clear that comparability should be examined differently depending on whether the exemption is granted by domestic or tax treaty law. The CFE ECJ Task Force has reservations regarding this distinction. For the taxpayer, an exemption has the same economic effects regardless of whether it is adopted through domestic law or tax treaty law. Moreover, W AG departs from the Court’s reasoning and thinking in Lidl Belgium, which also concerned Germany and the same rules. Ideally, the Court should have made this explicit. Finally, it remains to be seen whether Marks and Spencer (Case C-446/03) is still “good law” or if W AG was one of the final nails in the coffin of the “final loss” doctrine.
- Opinion statement ECJ-TF 3/2022 on the EFTA court decision of 1 June 2022 in Case E-3/21, PRA Group Europe, on the discriminatory interaction between the "interest barrier" and group contributionsPublication . Kemmeren, Eric; Prats, Alfredo; Haslehner, Werner; Heydt, Volker; Kofler, Georg; Nogueira, João; Lang, Michael; Panayi, Christiana HJI; Blétière, Emmanuel Raingeard de la; Raventos-Calvo, Stella; Richelle, Isabelle; Rust, Alexander; Shiers, RupertThis is an Opinion Statement prepared by the CFE ECJ Task Force on the PRA Group Europe case, in which the EFTA Court delivered its decision on 1 June 2022. At issue in PRA Group Europe was the interaction of the Norwegian "interest barrier rule" ("interest limitation rule"), which generally limit the deductibility of interest payments to affiliated resident and non-resident entities to 30% of EBITDA, and the group contribution rules, which permit tax effective transfers between group members, but are limited to Norwegian entities. As group contributions also increase the EBITDA of the recipient Norwegian entity (and decrease it at the level of the paying Norwegian entity), companies in the Norwegian tax group can achieve interest deductions under the interest barrier rules where profits ("tax EBITDA") and interest expenses are distributed unevenly between the companies in the group, while a similar opportunity to escape (or lessen the impact of) the interest barrier rules is not available to cross-border groups. The EFTA Court took a combined perspective on the interaction of those rules and found them to constitute an unjustified restriction of the freedom of establishment under Articles 31 and 34 of the EEA Agreement. The EFTA Court's decision is particularly interesting from an EU law perspective, as the interest barrier rule of Article 4 of the Anti-Tax Avoidance Directive (ATAD) similarly foresees the option for Member States to introduce a domestically-limited "interest barrier group" to permit a calculation of exceeding borrowing costs and the EBITD at the local group level. The CFE ECJ Task Force welcomes the EFTA Court's progressive impetus on fundamental freedoms doctrine: PRA Group Europe AS makes it clear that for purposes of identifying a restriction, for establishing comparability and for justification, a combined perspective on the interaction of two sets of rules – here the interest barrier on the one hand and the group contribution regime on the other – is necessary. From that perspective, the interaction of the Norwegian rules on the "interest barrier" and on group contributions leads to unjustified discrimination in cross-border situations. However, if asked to decide on a similar case, the CJEU might take a different approach. First, the CJEU could take a different perspective on the available grounds of justifications and, e.g., accept the coherence of the tax system as such ground. Second, Article 4 ATAD gives the Member States the option to treat an "interest barrier group" as a single taxpayer and to limit the group perspective to domestic settings. Even if such an option in the ATAD is not viewed as "exhaustive harmonization", one could wonder if the mere existence of the ATAD and the value judgments made by the EU legislature therein could lead to a different outcome in the EU (CJEU) vis-à-vis the EEA (EFTA Court).
- 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.
- 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.
- 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.