Banking Law in the 21st Century
Banking Law in the 21st Century
Contributions to the 14th International Conference „Contemporary Approaches in Banking and Financial Law”. April 15, 2021, Bucharest
Contributor(s): Ianfred Silberstein (Editor), Thierry Bonneau (Editor), Cristina Elena Popa Tache (Editor), Lucía Piazza Dobarganes (Editor), Katharina Muscheler (Editor), Christopher Hunt (Editor)
Subject(s): International Law, Law and Transitional Justice, Law on Economics, Commercial Law, Comparative Law
Published by: Societatea de Stiinte Juridice si Administrative
Keywords: banking activity; banking law; financial law; contracts;
Summary/Abstract: This volume includes some of the scientific papers submitted at the 14th historical edition of the International Conference "Contemporary Approaches in Banking and Financial Law" that was held on 15 April, 2021 online on Zoom. The conference is organized every year by the European Association of Banking and Financial Law-Romania together with the Society of Juridicial and Administrative Sciences. More information about the conference can be found on the official website: www.bankingandfinanciallaw.adjuris.ro. The scientific studies included in this volume are grouped into edi-tor's note with presentation of keynote speakers panel remarks and two chapters: Exercise of banking activity, operations and contracts and Activity, organization and functioning of credit institutions. Financial law topics. This volume is aimed at practitioners, researchers, students and PhD candidates in banking law, who are interested in recent developments and prospects for development in this field at international and national level.
- E-ISBN-13: 978-606-94978-8-3
- Page Count: 204
- Publication Year: 2021
- Language: English
Editor's note about the 14th International Conference „Contemporary Approaches in Banking and Financial Law” took place in Bucharest, Romania, on 15 April 2021
Editor's note about the 14th International Conference „Contemporary Approaches in Banking and Financial Law” took place in Bucharest, Romania, on 15 April 2021
(Editor's note about the 14th International Conference „Contemporary Approaches in Banking and Financial Law” took place in Bucharest, Romania, on 15 April 2021)
- Author(s):Cristina Elena Popa Tache
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, International Law, Law on Economics, EU-Legislation, Commercial Law, Comparative Law
- Page Range:11-29
- No. of Pages:19
- Keywords:banking law; financial law; international law; international conference;
- Summary/Abstract:The 14th Banking and Financial Law Conference took place in Bucharest, Romania, on 15 April 2021, which I had the privilege of moderating. It seems that banking law has never faced such great challenges and all this can be done only with specialized lawyers very well trained in banking and financial field. A country that does not have banking guidance from its own team of elite specialists in banking law will not find the way to progress because it will not be able to identify the best solutions. For this purpose, a very important approach is the exchange of experience through conferences, working groups, research committees, the writing of studies, articles or the elaboration of re- search programs in this field.
Banking officer and criminal law
Banking officer and criminal law
(Banking officer and criminal law)
- Author(s):Constantin Duvac
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law
- Page Range:30-40
- No. of Pages:11
- Keywords:Criminal Code; criminal law; crime; punishment; civil servant; bank officer;
- Summary/Abstract:The study aims to examine the meaning of the notion of bank officer from the criminal law perspective and the criminal implications in case of crimes committed by them. The object of this analysis is both the banking employees of some banking units with full or majority state capital, as well as those of the private banking units. The author arguably criticizes the interpretation given by the supreme court by the preliminary de- cision no. 18/2017, formulating some genuine ideas that emerge from the analysis undertaken and even offer some suggestions for improvement of the examined texts. In this analysis, the technical-legal method was used as research method, which involved the study of exegetical, dogmatic and critical incidental criminal norms. Based on the literary, rational and teleological interpretation of the texts subject to analysis, the author tries to clarify this concept from the perspective of criminal law. Through this study, the author brings the necessary clarifications for a unitary interpretation and application of the criminal law to banking officials by criminal judicial bodies.
Remuneration of bankers: legal questions from the supervisory perspective
Remuneration of bankers: legal questions from the supervisory perspective
(Remuneration of bankers: legal questions from the supervisory perspective)
- Author(s):Esther Martinez de Bustos
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Comparative Law
- Page Range:41-52
- No. of Pages:12
- Keywords:bankers; credit institutions; remuneration; European Banking Authority; Capital Requirements Directive;
- Summary/Abstract:The remuneration perceived by the directors and senior managers of credit institutions became a topic of interest for regulators and supervisors in the aftermath of the financial crisis of 2007. By then, it became evident that some bankers were most focused on profits (and bonuses) on the short term, while exposing their institutions to higher risk in the long term. The Union legislator has progressively shaped a regime for remuneration under the Capital Requirements Directive (CRD), with the ultimate objective of aligning the remuneration with the long-term objectives of credit institutions. This is achieved with provisions requiring, among others, that part of the remuneration is paid in instruments, part of the remuneration is deferred for some years, retention obligations for the instruments awarded, and an ex-post risk adjustment in the form of malus or even clawback, i.e., the possibility for an institution to claim back the remuneration paid if the situation deteriorates further. The particularity for the ECB when ensuring the compliance of these rules is that, in accordance with its statutory provisions, it has to take into account the national legislation transposing the CRD, which obliges the ECB to be very mindful of the differences between jurisdictions. The supervision of the remuneration rules is conducted on an ongoing basis, in constant supervisory dialogue with credit in- stitutions.
The professionals’ duty to inform versus the duty to advise the consumers in the field of banking services: are the legal remedies adequately shaped?
The professionals’ duty to inform versus the duty to advise the consumers in the field of banking services: are the legal remedies adequately shaped?
(The professionals’ duty to inform versus the duty to advise the consumers in the field of banking services: are the legal remedies adequately shaped?)
- Author(s):Juanita Goicovici
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Commercial Law
- Page Range:53-71
- No. of Pages:19
- Keywords:duty to inform; duty to advise; financial services; consumer; informative formalities;
- Summary/Abstract:The study addresses the issue of the level of interweaving between the banking obligation to inform and the obligation to advise in relations with consumers in the field of banking services, while accentuating the roles played by the informative formalities in this specific domain. While the epitome of the professionals’ duty to inform the consumers is represented by the banking professionals’ mandatory legal obligation to present, in the precontractual phase, a set of neutral substantial information available to the consumer on the objective, technical contractual terms, oriented towards the formation of a valid, informed consent, the specific content of the pre-contractual duty to inform the consumers refers to: (a) the informing of the consumer on the essential characteristics of the finan- cial services; (b) the informing of the consumers on the security of a banking investment product the risks of which are superior to the average acceptable risks. The banking professionals’ duty to advise the consumers designates the obligation to orientate the consumer’s choice which regards the potential contractual terms, oriented towards the providing of value judgements fixing the pertinent references for the consumer’s option for the most adequate contractual terms, especially in terms of the evaluating of the opportunity to accept a particular configuration of the contractual terms. Particularised by its specific functions, consisting in the orienting of the client’s choice between different types of offers elaborated by the professionals, the duty to advise the consumers permits the calibrating of the contractual field as correlated to the consumer’s specific, concrete necessities. Implying the providing of subjectively calibrated advise, of individually con- figured value judgements or of personally adapted financial advice, the banking professional’s obligation to advise the consumers imbricates an effort to personalize the information, directly correlated with the individual necessities of the profane consumer, while distinguishing between two types of performance: (a) the expressly solicited financial or judicial advise; (b) the duty to advise the consumers in the hypotheses of accentuated judicial technicity of the contractual terms.
The development of the resolution framework and the establishment of the Corporation for Deposit Insurance in South Africa
The development of the resolution framework and the establishment of the Corporation for Deposit Insurance in South Africa
(The development of the resolution framework and the establishment of the Corporation for Deposit Insurance in South Africa)
- Author(s):Shenaaz Meer
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Commercial Law
- Page Range:72-78
- No. of Pages:7
- Keywords:financial institutions; South Africa; deposit insurance; financial system;
- Summary/Abstract:Financial institutions are regarded as too big to fail if they are so systemically important that if they do fail, they cannot be closed or liquidated without having a devastating impact on the financial system, the economy and consumers. Governments in the past, to avoid such outcome have been obliged to support such institutions using taxpayer funds. The consequence meant that shareholders and creditors shared in the good times of profits and risktaking, but taxpayers had to unfortunately bear the burden of such losses and the impact on governmental finances became a heavy burden to bear. The practical process for triggering a resolution and activating certain steps will need to be set out and determined. The mechanisms and operational elements will need to be embedded and integrated in existing systems and processes both at the Resolution Authority and in various financial institutions. All policy discussions and proposed legislative amendments will and has involved a robust public participation process as FSLAB steers its way through the Parliamentary process. Industry has been involved in prior consultation and multiple interventions will co-create this complex discipline and has contributed to the collective understanding to ensure the implementation of an effective regime in South Africa.
The escrow contract, a mechanism for guaranteeing and securing private and public contractual relations
The escrow contract, a mechanism for guaranteeing and securing private and public contractual relations
(The escrow contract, a mechanism for guaranteeing and securing private and public contractual relations)
- Author(s):George-Bogdan Ioniță
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Commercial Law
- Page Range:79-86
- No. of Pages:8
- Keywords:escrow contract; unnamed contracts; additional guarantee; privatization; securing contractual relations;
- Summary/Abstract:The present study aims to analyse the formation mechanism but also the effects that the use of the escrow contract produces in the contractual relations between the parties. The necessity and utility of the study results from the fact that the Romanian legislation does not expressly regulate the escrow contract, therefore falling within the scope of unnamed contracts. The thesis from which this research is founded is based on the purpose and role of the escrow contract, namely, to generate an "additional guaran- tee" to the parties already involved in a main contractual relationship, which will be ancillary grafted to the escrow contract. Thus, a first objective of the research will aim to analyse the formation method, the particularities but also its effects in the relations between the parties but also the relationship between the main contract and the accessory one. A second objective of the research will materialize through the careful study of legal texts that directly refer to and regulate the use in certain areas, such as privatization or insolvency, of escrow accounts in order to secure already existing contractual relations between the parties. In order to carry out this research, the aim will be to study the updated legislation that refers to the subject of the escrow account contract, the relevant jurisprudence but also the specialized doctrine in the field.
A contemporary overview of the factoring agreement
A contemporary overview of the factoring agreement
(A contemporary overview of the factoring agreement)
- Author(s):Sónia de Carvalho
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Commercial Law
- Page Range:87-115
- No. of Pages:29
- Keywords:factoring; financing; contract; Portugal;
- Summary/Abstract:Modern factoring resulted from the adaptation, in the 15th and 16th centuries, of the Atlantic trading posts to the commercial activity between England and the United States, in which, by virtue of their intensity, commercial warehouses took on a more financial than commercial feature. In the course of this evolution, these intermediaries, in addition to the distribution and consultancy tasks, began to guarantee the fulfilment of the transaction (del credere factors), often granting advances to European producers on the price of goods before sold. The factors thus became known as the 'financiers of European industry'. This sophistication of the intermediary conceived in European merchant schemes was at the origin, between the 16th and 19th centuries, of the colonial factoring, the predecessor of the modern factoring, in which the factor, in addition to distributing the products of European exporters, with special focusing on the textile field, in the New World markets, start collecting its credits, which in the meantime were assigned to it, and financing, through the provision of advances on sales. Later, colonial factoring gave way to old line factoring, which has assumed since the beginning a financial nature, providing a new range of services. In the old line classic scheme, the factor thus assumes four essential tasks: collection and management of assigned credits; provision of consultancy services; financing through the granting of advances on assigned credits and guarantee of the debtor's compliance and solvency. The financing role is undoubtedly one of the main reasons that motivate the use of this contract. Indeed, the need to attain financing, in addition to banking, with a greater incidence in times of credit restriction, is pointed out by many authors as one of the main justifications for the use of factoring in Europe. The crisis currently experienced worldwide following the Pandemic COVD 19 and the role that this contract can play in the economic recovery, through the financing the SMEs, justifies the analysis of the evolution of this contract, as well the legal framework in Portugal.
Corporate financing
Corporate financing
(Corporate financing)
- Author(s):Sebastian Bodu
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Commercial Law
- Page Range:116-128
- No. of Pages:13
- Keywords:acquisition of the own shares; contributions; company; corporate finance; currency; debt; financial assistance; leverage buyout; management buyout;
- Summary/Abstract:Two are the external sources of corporate financing: equity and debt. These are exclusive and can be combined in turn (other sources of external financing no longer exist, but only variants thereof). Capital with which a company is financed is its engine, no company being able to operate without capital regardless of the industry. Funding may be private or public. Private financing is provided through banking credit or equity contracted through direct negotiation with investors. Each mode of financing has advantages and disadvantages, not only in terms of financial costs (direct) but also indirect costs. Internal funding source is self-financing, i.e. reinvesting the company's profit in- stead of distributing it in the form of dividends. Balancing the use of internal and external financing sources, as well as the share of an external source in relation to another external source, primarily depending on the cost of financing (direct or opportunity) is a difficult, important and complex decision. The more the company is and/ or the more attractive for investors, the more varied the range of financing options and the cost structure that is heavily influenced by rating agencies. Conversely, a small company without too many development prospects will not have access to all available sources in the market and will have to confine itself to small bank loans. A specific form of finance is the financial assistance. This is crucial in performing Leverage Buyouts or Management Buyouts. Although it was prohibited by the first form of the Second Companies Directive, now it is fully permitted provided that the company complies with the acquisition of its own shares, this being protected both the creditors and the shareholders. Unfortunately, Romania did not transpose the last form of the former Second Companies Directive (2006), not even after the recast or codification by Directive 2017/1132.
Debt moratorium during the state of emergency and the state of alert
Debt moratorium during the state of emergency and the state of alert
(Debt moratorium during the state of emergency and the state of alert)
- Author(s):Ciprian Chiorean
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, EU-Legislation, Commercial Law
- Page Range:129-144
- No. of Pages:16
- Keywords:debt moratorium; bank; banking regulations; pandemic;
- Summary/Abstract:The regulation of the application of the debt moratorium was rolled out by adaptation and implementation at the level of the internal law, so that its effect is the one expected by the union of the European legislative framework with the internal legislative framework. Although there is a common goal, despite the guidelines set out by the E.B.A., there is no unitary vision at the level of European states regarding the moratoriums im- plemented, the solutions adopted by each EU Member State being diverse. Since the be- ginning of the SARS-CoV-2 coronavirus pandemic, credit institutions have come to the aid of customers who were financially vulnerable, by implementing appropriate, concrete and effective measures to enable them to continue to meet their payment obligations. For the elaboration of this study was used the comparative analysis of the whole regulatory framework and the exposition of the way in which it was implemented at the level of each state affected by the pandemic.
Intensification of the anti-money laundering (AML) regulation and its negative impacts on payments industry
Intensification of the anti-money laundering (AML) regulation and its negative impacts on payments industry
(Intensification of the anti-money laundering (AML) regulation and its negative impacts on payments industry)
- Author(s):Marek Bočánek
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, Law on Economics
- Page Range:145-161
- No. of Pages:17
- Keywords:Money laundering; compliance; AML/CFT; FATF; 5th AML Directive;
- Summary/Abstract:New regulatory approaches in relation to money laundering have come with significant changes to the payment environment and affected entities within the industry markedly. Albeit this approach found justification and was enriched by terrorism financing regulations since 2001, such extraordinary pressure placed on banks has now resulted in a highly conservative stance taken by credit institutions towards their existing or new clients, namely due to their stringent risk-based approach. The objective of this article is to point toward the options of banks working together with clients rated as high-risk, instead of discriminating against them. Methods applied in this article will consist of analysis and synthesis or comparison of information obtained with subsequent deduction. The result of this study is the demonstration of options that may be applied instead of purely sanction-like approach. Thus, a more motivating system for businesses or certain industries may be formed, supporting the development thereof.
Protection of the right to redemption of shares of banking company reorganized by merger – internal rules and European case law
Protection of the right to redemption of shares of banking company reorganized by merger – internal rules and European case law
(Protection of the right to redemption of shares of banking company reorganized by merger – internal rules and European case law)
- Author(s):Andreea Corina Tarsia
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, EU-Legislation, Commercial Law
- Page Range:162-170
- No. of Pages:9
- Keywords:shares; good; protection of assets; right of withdrawal; general interest of the bank; ECHR; CURIA;
- Summary/Abstract:The exercise of the right protected by art. 1 of Protocol no. 1 of the European Convention on Human Rights does not only depend on the obligation of the State not to interfere, but may require positive protective measures, especially when there is a direct link between the measures that the complainant can legitimately expect from authorities and the right to an effective observance of its "assets". Although art. 1 of Protocol no. 1 does not contain explicit procedural requirements, the Strasbourg Court has ruled that states have an obligation to provide judicial proceedings that can offer the necessary procedural guarantees and therefore allow local courts to rule effectively and equitably on any litigation between persons, both in cases involving state authorities and in cases involving only private parties. On the other hand, the European Court of justice has ruled that, in other circumstances, the right of withdrawal of shareholders in the event of a merger of the banking company may be limited on grounds of public interest, invoked in the context in which, banks or small groups of banks are not able to cope with, without excessive difficulties, for example in the case of financial deposits imposed by the newly established system of the European Banking Union. These situations highlight the serious shortcomings in resolving reimbursement of shares disputes, as they may raise the issue of reconciliation between shareholders' rights, based on Article 1 of the Protocol, and the general interest in consolidating the capital of the banking system and the need to maintain bank’s stability.
Jurisdiction of the Court of Justice of the European Union on implementing monetary policy. Case-law analysis
Jurisdiction of the Court of Justice of the European Union on implementing monetary policy. Case-law analysis
(Jurisdiction of the Court of Justice of the European Union on implementing monetary policy. Case-law analysis)
- Author(s):Mihaela Tofan
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, EU-Legislation, Commercial Law, Court case
- Page Range:171-189
- No. of Pages:19
- Keywords:monetary policy; European regulations; relevant case law; European Union;
- Summary/Abstract:The paper presents the arguments of the Court of Justice of the European Union (CJEU) in case Dietrich (C-422/19) and case Weiss (C-493/17), which concern the analysis on the compliance of the national law and regulations adopted by the European Central Bank (ECB) with the primary sources of European law (Treaty on the Functioning of the European Union - TFEU) and with the mandatory rules of the Statute of the European System of Central Banks (ESCB). Pending disputes, both in Germany, have reopened the subject previously discussed in the case Gauweiler (C-62/14), concerning the adoption of rules alleging that monetary policy limits have been exceeded and that the ban on monetary financing has been infringed (Article 123 TFEU). In the case Dietrich CJEU examined the concept of means of payment accepted in the euro area, in the case Weiss there is an analysis on the program of acquisition of the public sector in secondary markets, formally adopted and implemented for more than three years, while case Gauweiler verified the conformity of the program for the purchase of government securities issued by euro area Member States. The paper reveals the competence of the CJEU to verify the rules by which monetary policy measures are implemented and it proves the extension of the EU monetary policy effects outside the euro area, through the influence of the CJEU jurisprudence in the legal system of all Member States.
Registration of personal data in the record system of the Credit Bureau - an analysis of non-unitary case law
Registration of personal data in the record system of the Credit Bureau - an analysis of non-unitary case law
(Registration of personal data in the record system of the Credit Bureau - an analysis of non-unitary case law)
- Author(s):Loredana Costina
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Administrative Law
- Page Range:190-203
- No. of Pages:14
- Keywords:protection of personal data; credit bureau; GDPR; Decision no. 105/2007;
- Summary/Abstract:The paper analyzes the legal regime of registration of personal data of individuals, debtors of banking companies and NFIs within the Credit Bureau (Biroul de Credit) S.A. The paper analyzes the provisions of Decision no. 105/2007 on the processing of personal data in record-keeping systems such as credit bureaus and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to data processing of personal character and regarding the free movement of these data and the conflict in time between the two normative acts, as it has been interpreted in the non-unitary jurisprudence of the courts. The results of the study show that, in the majority jurisprudence at the level of the Bucharest Tribunal, Decision no. 105/2007 continues to apply for the registration of late payments from credit agreements signed before May 25, 2018, although this decision is no longer in force. The implications of this conclusion are major for the activity of banking and non-banking financial institutions, the present paper arguing that for these credit agreements the records made in the database of Credit Bureau S.A. under Regulation (EU) 2016/679, the majority practice in these institutions, are illegal.
