Analysing European investment protection law, Matthias Leeb focuses on the resulting legal protection deficits for investors and provides concrete recommendations for dealing with them. In ...particular, he examines recent decisions of the ECJ on intra-EU investment protection agreements - Achmea, Komstroy, PL-Holdings and European Food SA, among others - and takes a critical look at them and their effects. Furthermore, the author addresses the EU's intended reform of investment protection in relation to third countries, taking into account current developments in the context of the Energy Charter Treaty (ECT).
This article examines the emergence of trade secrets law as a specific sub-branch of civil and industrial law which protects a trade secret regardless of whether or not it has been patented. In ...English law, this protection has been afforded by courts of equity since the judgment of Yovatt v. Winyard in 1820, whereas the development of French case law on trade secrets in the 19th and early 20th centuries was based upon Art. 418 of the Criminal Code of 1810, which pronounced the divulgation of a trade secret to be a misdemeanour. Thus, French case law was developed by correctional courts, as well as some cases that reached appellate courts and the Court of Cassation. The discussion of the history of trade secrets law will enable the institute of trade secrets to be more thoroughly understood, and will facilitate the examination of the legal grounds for courts affording protection to trade secrets.
The European Tort Law Yearbooks of the European Centre of Tort and Insurance Law (ECTIL) and the Institute for European Tort Law (ETL) provide some references to the impact of the PETL on European ...national legislation and case law, but, on the one hand, national reporters, carried away by enthusiasm, may make some comparisons with the PETL that legislators and courts did not even think of, and on the other, bored by sheer repetition, may oversee references to the PETL when they start to become usual or common.With all these caveats, this paper will refer first to some cases where the impact of the PETL on legislation seems clear and will deal afterwards with the impact of the PETL in the case law of the European Court of Human Rights (ECtHR) and national courts.
When drafting the Principles of European Tort Law (PETL), the members of the European Group on Tort Law decided to omit wrongfulness as a specific requirement for civil liability, considering it as a ...concept underlying the notions of interference with legally protected interests and the standard of conduct. This paper tends to demonstrate that this terminological and conceptual choice is still valid eighteen years after the publication of the PETL. On the basis of two case studies examined under German and French law, it is suggested that national traditions are too disparate to adopt a common understanding of what wrongfulness exactly means to a tort lawyer in Europe. The irreconcilability of the different interpretations becomes particularly apparent in mixed tort law systems, such as Japan or Belgium, where the French and the German approach struggle to coexist.
Abstract
It is rather trendy to talk about the ‘horizontal effect’ of fundamental rights in a society where the dividing line between public and private power is increasingly blurred. However, as ...soon as one tries to define the exact meaning of horizontal effect and its conditions, several issues swiftly arise. This article explores the past, the present, and the future of the horizontal direct effect in the European Union (EU) legal order, by focusing on the application of this doctrine to the fundamental labour rights today protected in the Charter of fundamental rights. Most notably, with the approaching of the fifth birthday of Bauer and Max-Planck, by looking at the case of the fundamental right to paid annual leave under Article 31(2) of the Charter, this article aims at unravelling the actual meaning of the conditions for the horizontal direct effect of the EU fundamental rights and the actual perimeter of this direct effect. Although the effectiveness of minimum labour rights mandatorily enhanced by this case law should be welcomed, it is argued that the doctrine of the horizontal direct effect of EU fundamental rights seems still stuck between being a proper constitutional doctrine and a mere type of direct effect. It is also claimed, first, that horizontal direct effect is not a unitary phenomenon in EU law. In spite of the continuity in the ECJ’s technical reasoning, there is indeed a striking contrast between the language of ‘perfect equalisation’ of the Charter to the treaties and its actual approach to the assessment of the horizontal direct effect of fundamental (labour) rights. The ECJ’s case law analysis on the fundamental right to paid annual leave will prove this point. Secondly, it is suggested that horizontal direct effect can be defined as a sui generis, on-call, subsidiary, corollary, and ‘amputee’ doctrine, and we will offer some considerations on each of these features by reference to the Court’s practice under investigation. Thirdly, we suggest that the horizontal direct effect of fundamental (labour) rights relies more on the history and trajectory of the EU regulation of that specific right in the EU legal order rather than on the wording of the Charter’s provision or other technicalities.
Discrimination by association is a concept that, while not expressly regulated by the European Union law, has been enshrined in the case law of the Court of Justice of the European Union. It allows ...the extension of the legal protection provided by the antidiscrimination legislation of the European Union to persons who, although they do not belong to the protected categories due to the reasons of discrimination envisaged (racial and ethnic origin, religion or belief, disability, age and sexual orientation), undergo less favorable treatment or certain disadvantages as a result of the links ("association") with a protected category. In Romania, discrimination by association is not consecrated at the legislative level, but in recent years two legislative initiatives (still unfinished) have been promoted in order to regulate it. In this context, the article aims to analyze the scope of discrimination by association, starting from the European legal framework in the field of non-discrimination and from the interpretative case law of the Court of Justice of the European Union. The main landmarks of the Court's case law and its possible implications at national level are identified. At the same time, by making a brief inroad into domestic law in combating discrimination, the paper concludes that, although there are certain obstacles, national law can be interpreted to include discrimination by association. Therefore, although a legislative consecration of discrimination by association is preferable, it should be done with a degree of caution given the possible implications and persistence of certain ambiguities in the relevant European case law.
The number of cases concerning the abusive clauses inserted in banking contracts, trialed in front of the national courts, is a considerable one. It seems like the compliance of the national ...regulations with the provisions of Directive 93/13 / EEC on 5 April 1993 on unfair terms in consumer contracts, is a difficult process. The purpose of the present study is to observe the current state of the alignment of the national legislation and jurisprudence to the European tendencies in the matter. In particular, we are interested in the admissibility of invoking abusive clauses in the process of a contestation of an execution, since the national case law is not unitary in this regard. Even in theory, opinions are divided. On June 26, 2019, the European Court of Justice expressed its opinion on this matter, in the cause C407/18, the case of Aleş Kuhar, Jožef Kuhar v Addiko Bank d.d. At the end of the study, we aim to point out the main directions set at European level that must be followed by the national legislation and case law of a Member State.
The Small Business Reorganization Act of 2019· has currently been in effect for more than four years. ...far, empirical data indicates that subchapter V is operating as intended: as a more affordable ...and effective reorganization tool for small businesses.2 Despite this, courts have yet to fully explore the ambiguities and gaps in subchapter V. One such area is the fate of the bankruptcy estate after confirmation, which has been a point of confusion in chapter 13 and, to a lesser extent, chapter 12. ...the triggering of § 1186(a) results in the preservation of the bankruptcy estate, augmented with post-petition property and earnings for administration throughout the plan commitment period.14 Under this theory, the vesting language contained in § 1141 (b) does not remove property from the estate. ...all property revests in the debtor "except property required to perform obligations under the plan. Assuming that a debtor converts to chapter 7, then analysis of what constitutes property of the new chapter 7 estate depends on what remained in the subchapter V estate postconfirmation but before conversion to chapter 7. ...a court's determination of which theory of property vesting post-confirmation under § 1141(b), and the effect of § 1186(a), is correct will determine the contents and value of the chapter 7 estate post-conversion.
La motivación de una sentencia contiene, habitualmente, referencias a diversas fuentes del derecho que se incorporan como discurso indirecto en el texto de la decisión judicial por medio de citas. ...Este trabajo postula la necesidad de evitar la incorporación de fuentes inútiles, impertinentes o poco fiables, así como el uso de citas erróneas, imprecisas o inexactas. En tal sentido, se estudia tanto el aspecto de fondo (la fuente utilizada) como de forma (la cita de esa fuente) y se proporcionan ejemplos concretos de las problemáticas identificadas -tomados, en su mayoría, de la jurisprudencia argentina-. Se presenta, además, una serie de criterios que conforman buenas prácticas en el uso de fuentes y citas en sentencias judiciales.
