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European Business Law Review
Number of Followers: 17

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ISSN (Print) 0959-6941
Published by Kluwer Law International

[21 journals]

Damages for the Cost of Repair and the Seller’s Right to Cure under the
UN Convention on Contracts for the International Sale of Goods
- Abstract: The article focuses on whether, in the case of a breach of a sales contract, the buyer can remedy the non-conformity of the goods independently and claim damages for the cost of repair without giving the seller an opportunity to cure his failure to perform. The analysis is based on the solutions adopted in the United Nations Convention on Contracts for the International Sale of Goods. The issue has recently given rise to divergent approaches in the literature. The article seeks to shed new light on the problem and offers a way of resolving the question of the interplay between the seller’s right to cure and the buyer’s right to claim damages for the cost of repair. The principal conclusion is that the buyer’s right to claim damages for the cost of repair and the seller’s right to cure do not stand on an equal footing. Rather, the seller’s right to cure has priority over the buyer’s damages claim. As long as the seller is entitled to remedy his failure to perform under the Convention, the buyer cannot cure the nonconformity independently. If he does so, he cannot claim compensation for the costs incurred as a result of the repair.
  Volume 31
  Online ISSN 0959-6941
  PubDate: Sat, 26 Sep 2020 00:01:06 GMT
  Issue No: Vol. 31 (2020)
The Impact of the OECD BEPs Project on Tax Treaties: Access, Entitlement
and Investment Protection
- Abstract: In recent years aggressive tax strategies lead to a new phenomenon denominated by the OECD as ‘base erosion and profit shifting’ (Beps). The OECD and G20 countries adopted in 2013-15 a 15-point Action Plan to address Beps (the ‘Beps Project’). In respect to tax treaties the OECD adopted in 2016 a Multilateral Instrument and in 2017 issued a new release the Commentary to the OECD Model Tax Convention on Income and on Capital. These changes were approved as part of the Beps Project in Actions 2, 6, 7 and 14. The article describes the Model/Commentary 2017 and looks at the impact of the OECD Beps Pproject on tax treaties in terms of PE access, entitlement and investment protection The article focuses on three main dimensions for a resident of a Contracting State of doing business in the other Contracting State: first, the tests required for doing business through PE (section 2); second, the new set of requirements that need to be met to have full entitlement to the tax treaty (section 3); third, the basic rules for doing business through a corporate vehicle, once the entitlement requirements have been met (section 4). The article concludes with the discussion of tax treaty dispute settlement and enforcement by looking at the mutual agreement procedure, transfer price allocations in tax treaties, and tax treaties and information (section 5).
  Volume 31
  Online ISSN 0959-6941
  PubDate: Sat, 26 Sep 2020 00:01:06 GMT
  Issue No: Vol. 31 (2020)
The Tort Liability of CRAs in Europe and the Need for a Harmonized
Proximity Requirement at the Union Level
- Abstract: The union-wide civil liability regime for credit rating agencies relies on the national private laws of the Member State to a large extent. To prevent credit rating agencies from shopping for the most restrictive national private laws it is important that the Member States find common ground with respect to the interpretation and application and of central liability elements, such as the proximity requirement. This article focuses on identifying proximity requirements in the national tort laws of England, France, Germany and Sweden and commonalities regarding their application and interpretation. Such commonalities can form the basis for a harmonized interpretation and application of the proximity requirement in CRA liability cases.
  Volume 31
  Online ISSN 0959-6941
  PubDate: Sat, 26 Sep 2020 00:01:06 GMT
  Issue No: Vol. 31 (2020)
Parent Company Liability and the European Convention on Human Rights –
An Analysis from the Perspective of English Law
- Abstract: The difficulties faced by individuals who seek to hold parent companies liable for the conduct of their subsidiaries are well-known. Much less discussed is the question whether international human rights law might require a state to make available a compensatory remedy against a parent company in such circumstances. Drawing on principles of European Convention on Human Rights (ECHR) law, this paper argues that the obligations, first, to create an effective deterrent against activities by private actors which infringe upon human rights and, second, to provide an effective remedy for such activities requires that parent companies be made liable for the conduct of their subsidiaries in certain circumstances. Recent developments in English law on parent company liability are also examined. While these developments bring English law further into line with these ECHR obligations, it is argued that it may still fall short of what the ECHR requires in this context.’
  Volume 31
  Online ISSN 0959-6941
  PubDate: Sat, 26 Sep 2020 00:01:06 GMT
  Issue No: Vol. 31 (2020)
Fine-tuning Bank Governance and Resolution: The Case for Remunerating
Bankers through Bail-Inable Debt
- Abstract: This paper proposes a radical change in the current remuneration practices, including bail-inable debt within the variable component of remuneration packages. In supporting such claim, the paper sets the economic rationale for remuneration and explains the quintessential role of debt in banking. Against such theoretical framework, the incumbent EU regulation reveals to be severely flawed. Consequently, the paper shows why including bail-inable debt in remuneration packages provides incentives towards optimal risk-taking and develops a detailed policy proposal that focuses both on the content of the regulation and on the possible implementation strategies.Volume 31
  Online ISSN 0959-6941
  PubDate: Sat, 26 Sep 2020 00:01:06 GMT
  Issue No: Vol. 31 (2020)
Asset Segregation at CSDs: Protecting Investors with a Level Playing Field
- Abstract: This article provides an analysis of the various assets segregation requirements that central securities depositories (CSDs) need to adhere to. Omnibus segregation is likely to be preferred to individual client segregation in those jurisdictions where the legal rights of investors are equivalent regardless of the level of segregation. Individual client segregation could be chosen more often in jurisdictions where ultimate investor accounts are needed to determine the legal owner of the securities. Individual client segregation is expected to be costlier and CSDs are likely to reflect these costs in the settlement fees charged to their customers in order to stay profitable. Hence, CSDs located in Member States with a higher likelihood that individual client segregation is chosen are likely to face a competitive disadvantage vis-à-vis CSDs domiciled in a jurisdiction where omnibus segregation is deemed protective. This article further explains the level-playing-field issues regarding asset segregation between CSDs and global custodians. This paper describes the wish of CSDs to be exempted from certain asset segregation rules while global custodians require CSDs to be submitted to the same asset segregation rules to which they need to adhere to.
  Volume 31
  Online ISSN 0959-6941
  PubDate: Sat, 26 Sep 2020 00:01:06 GMT
  Issue No: Vol. 31 (2020)
Personalized Pricing Using Payment Data: Legality and Limits under
European Union and Luxembourg Law
- Abstract: With the transposition of Directive (EU) 2015/2366 (PSD2) into Luxembourg law, payment service providers may have access to consumer payment data and share these data with third parties for the purposes of personalized pricing. In this article, the author analyses the legality and the limits of personalized pricing using payment data under European Union and Luxembourg law, focusing on consumer e-commerce markets. To this end, the author reviews economic studies on personalized pricing and consumer behavior and analyses the application of consumer protection, data protection, anti-discrimination and competition rules to the practice. Subsequently, the author investigates the limits imposed on personalized pricing in certain circumstances and proposes to adopt a data-driven approach to the regulation of the practice.
  Volume 31
  Online ISSN 0959-6941
  PubDate: Sat, 26 Sep 2020 00:01:06 GMT
  Issue No: Vol. 31 (2020)