Challenges of Law in Business and Finance
Challenges of Law in Business and Finance
Conference proceedings. 13th International Scientific Conference "Law in Business of Selected Member States of the European Union". November 4-5, 2021, Prague, Czech Republic
Contributor(s): Jan Skrabka (Editor), Nicole Grmelová (Editor)
Subject(s): International Law, Law and Transitional Justice, Law on Economics, EU-Legislation, Commercial Law, Comparative Law
Published by: Societatea de Stiinte Juridice si Administrative
Keywords: business law; financial law; competition law; banking law; IT law; insolvency law;
Summary/Abstract: These conference proceedings constitute a selection of the best papers submitted to the 13th International Scientific Conference "Law in Business of Selected Member States of the European Union" which was organized by the Department of Business and European Law, Faculty of International Relations, Prague University of Economics and Business, Czech Republic. The conference was held in the University´s premises on 4 and 5 November 2021 and welcomed speakers and participants from both Europe (United Kingdom, Denmark, France, Ireland, Belgium, Lithuania, Sweden, Poland, Slovakia, and the Czech Republic) and overseas (Saudi Arabia, Turkey, and South Korea). Given the ongoing Covid-19 related travel restrictions the conference was held in a hybrid format, being streamed online for those who could not join the conference venue in person. Unlike the conference events held in the past years, this conference has grown much more international. The papers were submitted and presented in English. All the papers included in this volume passed a rigorous double-blind peer review successfully and were checked for their originality using the iThenticate software kindly provided by the University. The participants´ papers were presented in specialized sections which correspond to the subheadings of the present volume: 1. Section: Banking, Finance, and Insurance Law; 2. Section: Competition Law; 3. Section: Insolvency Law; 4. Section: European and International Legal Aspects of Doing Business; 5. Section: IT Law; 6. Section: Interference of Business and Constitutional Law. The conference has been supported by the Internal Grant Agency Project No. F2/74/2021 “Law in Business of Selected Member States of the European Union (13th annual conference)” of the Prague University of Economics and Business.
- E-ISBN-13: 978-606-95351-1-0
- Page Count: 247
- Publication Year: 2021
- Language: English
Crypto-asset services under the draft MiCA Regulation
Crypto-asset services under the draft MiCA Regulation
(Crypto-asset services under the draft MiCA Regulation)
- Author(s):Martin Hobza
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, EU-Legislation
- Page Range:13-21
- No. of Pages:10
- Keywords:Crypto-asset services; investment services; MiCAR; MiFID II;
- Summary/Abstract:The draft Markets in Crypto-assets Regulation (MiCAR) seeks to regulate crypto-asset services and service providers as an area, which was mainly built on the idea of independence from the current financial system and its regulatory framework. MiCAR, inspired by the Markets in Financial Instruments Directive (MiFID II) as a cornerstone of the EU financial services regulation, now aims to change the paradigm. The paper deploys cross-sectoral approach, focuses on examining the scope and categorising the relevant crypto-asset services compared with the “traditional” investment services catalogue under MiFID II. By analysing the definitions and content of individual services, it seeks to identify possible differences. It also examines the impacts MiCAR might have on how the scope of individual corresponding investment services under MiFID II is in- terpreted, and vice versa. As a result, the paper introduces three categories of crypto- asset services and emphasizes the relevant differences from the MiFID II list.
Regulating Crypto Assets under the Covid-19 pandemic veil: legislation in the EU and the Czech perspective
Regulating Crypto Assets under the Covid-19 pandemic veil: legislation in the EU and the Czech perspective
(Regulating Crypto Assets under the Covid-19 pandemic veil: legislation in the EU and the Czech perspective)
- Author(s):Petr Tomčiak
- Language:English
- Subject(s):Social Sciences, Law, Constitution, Jurisprudence, Sociology, Health and medicine and law, Law on Economics, EU-Legislation, Comparative Law
- Page Range:22-35
- No. of Pages:14
- Keywords:crypto-assets; digital finance; financial regulation; Covid-19;
- Summary/Abstract:This contribution aims to discuss recent regulatory initiatives concerning crypto-assets and to analyse the development on the market of crypto assets with reactions made by regulators. During the Covid-19 pandemic the financial markets, especially crypto assets experienced unprecedented volatility. The economic uncertainty and dynamic rise of crypto assets together with retail investors’ higher attention forced regulators to react. Based on the latest market development the contribution shall discuss key elements of the proposal for a regulation on market in crypto assets. After descriptive analysis of the legislative proposals, the weaknesses should be analyses aiming to identify key problematic issues and potential consequences of the proposal. The critical discussion should justify the need for regulations to draw attention to aspects that shall be revised during the legislative process. Special attention is paid to the regulation in the EU and implications for the Czech Republic.
Crowdfunding credit services (peer to peer lending) in the light of the Proposal for a Directive of the European Parliament and of the Council on consumer credits
Crowdfunding credit services (peer to peer lending) in the light of the Proposal for a Directive of the European Parliament and of the Council on consumer credits
(Crowdfunding credit services (peer to peer lending) in the light of the Proposal for a Directive of the European Parliament and of the Council on consumer credits)
- Author(s):Simona Heseková
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, EU-Legislation, Commercial Law
- Page Range:36-46
- No. of Pages:11
- Keywords:peer to peer lending; crowdfunding; consumer; lending;
- Summary/Abstract:The paper identifies the most significant problems associated with the absence of regulation of peer to peer lending, where debtors are consumers. The paper evaluates identified problems from the perspective of the Proposal for a Directive of the European Parliament and of the Council on consumer credits released on June 30th, 2021. The paper considers mainly the selected aspects of draft regulation as: definitions, the legal regime of crowdfunding credit service providers, the assessment of consumer creditworthiness, information asymmetry and registration of crowdfunding credit service providers. The paper considers the selected issues from the point of view of European Union law and takes into account the specifics of the Slovak legislation due to the absence of studies focused on peer to peer lending at national levels. Based on this approach, the paper makes de lege ferenda proposals.
Beneficial ownership regulation: Slovakia and selected countries
Beneficial ownership regulation: Slovakia and selected countries
(Beneficial ownership regulation: Slovakia and selected countries)
- Author(s):Daniel Zigo
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, EU-Legislation, Commercial Law
- Page Range:47-58
- No. of Pages:12
- Keywords:beneficial ownership; AML directives; register of beneficial owners; corporate structure transparency; company ownership;
- Summary/Abstract:In recent years, especially within the European Union, Anti-money Laundering (AML) legislation has intervened in business law and introduced significant regulatory obligations in the area of registration of beneficial owners of companies. Although this regulation in the EU member states is based on the EU directives law, there is a relatively wide scope for its implementation and individual member states use different mechanisms of its operation, verification of data or sanctions. Slovakia differs from other countries in that there is a double regulation of beneficial owners for two different purposes. In this paper, we analyse the legislation and practice in the regulation of beneficial ownership in selected countries and describe our findings regarding the similarities and differences of individual models. In our research, we also focus on the possibility of implementing innovative regulation models in the Slovak Republic, where two different legal regulations are not addressed in an effective manner.
Choice of law in insurance and liability for damage of the State
Choice of law in insurance and liability for damage of the State
(Choice of law in insurance and liability for damage of the State)
- Author(s):Alexander Kult
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Civil Law, Law on Economics, EU-Legislation, Comparative Law
- Page Range:59-71
- No. of Pages:13
- Keywords:choice of law; insurance; international private law; geoblocking;
- Summary/Abstract:This paper deals with the possibilities of choice of law in the field of personal insurance in a comparison of Czech and Slovak law, the question of the legitimacy of geoblocking in the distribution of insurance and with liability of the state for damages in the event that its national law is in conflict with EU law. The Rome I Regulation allows national legislatures to adopt looser rules in certain cases. Slovak law allows for greater flexibility but did not take the restrictions of Rome I Regulation into account. If an insurance company chooses the law under Slovak Act No. 97/1963 Coll. on Private International Law and Procedure, is such a choice valid and would the state be liable for damages?
The role and function of a bond security agent – problems and challenges
The role and function of a bond security agent – problems and challenges
(The role and function of a bond security agent – problems and challenges)
- Author(s):Martin Winkler
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Commercial Law, Comparative Law
- Page Range:72-84
- No. of Pages:13
- Keywords:bond security agent; bond trustee; pledge; conflict of interest; legal liability; security interest;
- Summary/Abstract:The legal regulation of the agent for securing receivables arising from issued bonds (bond security agent) in the Czech and Slovak legal system was inspired by common law, where the "bond trustee" is well established and brings long-term positive effects. However, since this is an institute derived from the legal regime of a trust, which has its roots in the common law legal system and the continental law did not initially know it at all, its application and legal regulation raises several legal problems (e.g. credit risk of the bond security agent, its conflict of interest, liability, termination of its position etc.). In this paper we analyze these problems and challenges, mostly derived from insufficient or unclear regulation and impact thereof on functioning of bond security agent in practice. We also propose several legislative changes of this legal institution.
Slovak national regime of the protection against anticompetitive interventions by public authorities
Slovak national regime of the protection against anticompetitive interventions by public authorities
(Slovak national regime of the protection against anticompetitive interventions by public authorities)
- Author(s):Lukáš Lapšanský
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, EU-Legislation, Commercial Law, Administrative Law
- Page Range:86-94
- No. of Pages:10
- Keywords:Act on the Protection of Competition; anticompetitive interventions by public authorities; the Antimonopoly Office of the Slovak Republic;
- Summary/Abstract:The Slovak Act on the Protection of Competition prohibits the public authorities from restricting competition by providing evident support giving advantage to certain entrepreneurs, or in any other manner. This national regime of protection against anticompetitive interventions by public authorities evolves alongside the European one. The issue of a normative administrative act, the issue of an individual administrative act (or failure to issue such act, where it should have been issued), adoption of decision by a representative body or conclusion of a contract were identified as vectors of unlawful intervention into competition. The creation of a situation of inequality of income, costs or obligations of undertakings (or tolerating such situation), the creation of barriers to the participation in the market or giving advantage to certain undertakings in their competitive or supplier/customer relations were declared as having anticompetitive effect.
‘Gun Jumping’ in the merger implementation in the EU in light of the Altice Case
‘Gun Jumping’ in the merger implementation in the EU in light of the Altice Case
(‘Gun Jumping’ in the merger implementation in the EU in light of the Altice Case)
- Author(s):Barbara Dufková
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, EU-Legislation, Commercial Law, Court case
- Page Range:95-106
- No. of Pages:12
- Keywords:competition law; gun jumping; M&A; EU Merger Regulation; information exchange;
- Summary/Abstract:The paper analyses the scope of the gun jumping prohibition in light of the judgment of the General Court in the Altice case (T-425/18). After introducing the facts of the case, it dives into the legal issues raised. It concentrates on the main areas of concern – the scope of Article 4(1) and 7(1) of the EU Merger Regulation, the pre-closing covenants in the transaction documentation and the exchange of information. The paper identifies four important implications of the Altice case. First, the case confirms that concurrent violation of notification and standstill obligation is possible. Second, it provides clearer guidance as to which pre-closing covenants may be regarded as granting the acquirer a possibility of exercising control over the target. Third, it confirms that a concentration may be implemented by pre-closing covenants regardless of their actual implementation. Finally, it makes clear that excessive information exchange may support the finding of decisive influence.
Pricing algorithms: are they threatening the competition?
Pricing algorithms: are they threatening the competition?
(Pricing algorithms: are they threatening the competition?)
- Author(s):Regina Yusupova
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Commercial Law, Court case, Comparative Law
- Page Range:107-118
- No. of Pages:12
- Keywords:pricing algorithms; artificial intelligence; competition law; tacit collusion;
- Summary/Abstract:The paper deals with pricing algorithms in the context of competition law. Antitrust authorities around the world are concerned about the fact that pricing algorithms with even relatively low level of sophistication tend to cooperate without specific instructions, what may lead to their tacit collusion challenging current antimonopoly regulation. Negative impact may be seen in prices set above the market level and suppressed competition which may bring damage to consumers. Current legislation is not prepared for such technological advancement. The paper provides an overview on possible solutions for taking autonomous pricing algorithms under control.
The legislative approaches to COVID legislation in the area of insolvency
The legislative approaches to COVID legislation in the area of insolvency
(The legislative approaches to COVID legislation in the area of insolvency)
- Author(s):Tomáš Moravec
- Language:English
- Subject(s):Social Sciences, Law, Constitution, Jurisprudence, Sociology, Health and medicine and law, Commercial Law, Comparative Law
- Page Range:119-132
- No. of Pages:14
- Keywords:COVID-19; Insolvency rules; bankruptcy; epidemic;
- Summary/Abstract:The COVID-19 has appeared in several waves in Europe. The lawmaker promptly introduced public health measures and reduced economic activities. After that, the rules focused on business law, insolvency law, enforcement law, and other areas of law were adopted. The article focuses on the nature of the rules concerning COVID-19 insolvency law and investigates the principles of prolonging these rules as the reaction to the next waves of COVID-19. The article explains and compares different legislative practices concerning prolonging the COVID-19 insolvency rules.
Remuneration of insolvency practitioners in reorganization proceedings as a possible inspiration for preventive restructuring?
Remuneration of insolvency practitioners in reorganization proceedings as a possible inspiration for preventive restructuring?
(Remuneration of insolvency practitioners in reorganization proceedings as a possible inspiration for preventive restructuring?)
- Author(s):Klára Vítková, Ondřej Zezulka
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Commercial Law
- Page Range:133-145
- No. of Pages:13
- Keywords:insolvency practitioner; restructuring administrator; remuneration; preventive restructuring; reorganization;
- Summary/Abstract:The draft law on preventive restructuring transposing Directive (EU) 2019/1023 envisages creating the profession of restructuring practitioner. The aim of the article is to offer recommendations for the forthcoming legislation, which is to regulate the calculation of remuneration for this new profession. The article deals with the procedural position and tasks of the restructuring practitioner in preventive restructuring and compares them with the activities of the insolvency practitioner within the reorganization. Based on the similarities and differences, the article examines whether the existing model of remuneration of insolvency practitioner in the reorganization (monthly fee) can be considered a suitable inspiration for the planned decree on the remuneration of the restructuring practitioner. The recommendations de lege ferenda are also based on the analysis of alternative remuneration models (including the German transposition norm).
Position and role of internal audit within the business group controlling mechanisms
Position and role of internal audit within the business group controlling mechanisms
(Position and role of internal audit within the business group controlling mechanisms)
- Author(s):Jiří Bálek
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Commercial Law
- Page Range:147-157
- No. of Pages:12
- Keywords:internal audit; control mechanism; business; group; corporate;
- Summary/Abstract:The aim of this paper is to define the position and the role of the internal audit within the controlling mechanisms of a business group as these are supplementary to supervisory functions. In some jurisdictions, internal audit forms an essential function with respect to the corporate governance. However, powers of the internal audit body or function are affected and vary due to its position in various legal structures. Within the EU (and Swiss) legislative framework, internal auditing provides independent assurance that governance and internal control processes are operating effectively. As a controlling mechanism, internal audit is in general more efficient if established under the powers of the statutory body than entrusted with the supervisory body. The supervisory powers of internal audit on the group level in the various possible legal structures set forth by the law are, however, mostly dependent on the recognition of the internal audit powers by the local group entities.
The question of criminal liability of commercial companies under international law
The question of criminal liability of commercial companies under international law
(The question of criminal liability of commercial companies under international law)
- Author(s):Sharique Ali Khan, Hamad Majed Alowaishiq
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, International Law, Commercial Law
- Page Range:158-173
- No. of Pages:16
- Keywords:criminal liability of companies; international law; Rome Statute of the International Criminal Court; legal persons; crimes of atrocity; Special Tribunal for Lebanon;
- Summary/Abstract:The absence of criminal liability of companies under international law has created a well-documented accountability gap. Some multinational companies, in their pursuit of profit motives, make decisions that lead to criminal conduct. The United Nations Framework of Analysis for Atrocity Crimes shows an increase in the involvement of mul- tinational companies in crimes of atrocity. The current international legal framework and the Rome Statute of the International Criminal Court pose a challenge in the prosecution of these companies as it does not recognise legal persons. However, the breakthrough comes from a decision to assert jurisdiction over legal persons by the Appeals Panel of the Special Tribunal for Lebanon. Even though the scope of this decision is limited, it is still a substantial shift in how the criminal liability of companies is perceived in international law. This paper analyses these recent developments and highlights possible solutions to end the accountability gap.
Covid-19 vaccination practices in the workplace and the comparison of data protection practices between the European Union and Turkey
Covid-19 vaccination practices in the workplace and the comparison of data protection practices between the European Union and Turkey
(Covid-19 vaccination practices in the workplace and the comparison of data protection practices between the European Union and Turkey)
- Author(s):Sena Karaduman İşlek
- Language:English
- Subject(s):Social Sciences, Law, Constitution, Jurisprudence, Sociology, Health and medicine and law, EU-Legislation, Comparative Law, Labour and Social Security Law
- Page Range:174-188
- No. of Pages:15
- Keywords:COVID-19; vaccination; health data; personal data;
- Summary/Abstract:The world has been dealing with a pandemic for almost two years. Since COVID-19 has been spreading rapidly, individuals have been asked to provide test results about not being infected. Test results and vaccination fall within the scope of personal data. To be more specific, these data are categorized as health data. The safety of health data throughout the pandemic needs to be ensured. There must be certain procedures to follow when people process health data. To secure the workplace, employers ask about the vaccination status of their employees. This paper focuses on the processing of vaccination status of employees in the workplace and whether employers can record the vaccination status of their employees and the terms under which they can do so. In this regard, processing vaccination data in the practices of United Kingdom, Belgium, Ireland, Czech Republic, Italy, and Turkey will be evaluated.
The future of net neutrality and zero rating in the EU after recent decisions
The future of net neutrality and zero rating in the EU after recent decisions
(The future of net neutrality and zero rating in the EU after recent decisions)
- Author(s):Martin Samek
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, International Law, EU-Legislation
- Page Range:189-199
- No. of Pages:11
- Keywords:Net Neutrality; EU; Regulation; Zero-Rating;
- Summary/Abstract:On 30 April 2016, entered into force Regulation (EU) 2015/2120 (also known as Open Internet Regulation), laying down the foundation for net neutrality rules in the EU and creating an ex-ante regulation for the telecommunication services market, ensuring no discrimination for the users of the internet based upon the type of traffic. The regulation put the weight of the balancing act on NRAs (national regulatory authorities) and subsequently courts. The author aims to comment on the significant rulings since the adoption of the regula- tion, mainly focusing on recent rulings from September 2020 and September 2021 of the CJEU to analyse the development the net neutrality underwent in mere five years since the adoption of Open Internet Regulation and where the regulation might head next after those rulings.
Third-party dispute settlement in online content moderation: a necessary compliance requirement for online platforms or a constitutional aberration?
Third-party dispute settlement in online content moderation: a necessary compliance requirement for online platforms or a constitutional aberration?
(Third-party dispute settlement in online content moderation: a necessary compliance requirement for online platforms or a constitutional aberration?)
- Author(s):Tomáš Ochodek
- Language:English
- Subject(s):Economy, Law, Constitution, Jurisprudence, Civil Law, Law on Economics, ICT Information and Communications Technologies, Commercial Law, Court case
- Page Range:200-208
- No. of Pages:9
- Keywords:Online platforms; Compliance; Digital Services Act; Online Courts; Content Moderation; Dispute Settlement;
- Summary/Abstract:Online platforms regulate and remove large amounts of illegal and harmful content (from content infringing IP rights to Covid-19 disinformation). Art. 18 of the proposed EU Digital Services Act Regulation (“DSA”), the most significant piece of regulation concerning online platforms, proposes a new system of “online courts” that would resolve any content-related disputes between platforms and their users. The paper discusses Art. 18 DSA (more precisely its version proposed by the European Commission, which is currently in the legislative process), the requirements it will place on dispute settlement bodies and the possible impact of these requirements on their operation and accessibility of such proceedings to users. It also briefly analyses the position of online platforms as defendants in content-related disputes and suggests changes to Art. 18 DSA that could be made to remove the identified shortcomings.
Consumer protection in contractual practice of supply of digital content and digital services
Consumer protection in contractual practice of supply of digital content and digital services
(Consumer protection in contractual practice of supply of digital content and digital services)
- Author(s):Štěpán Richter
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Civil Law, Law and Transitional Justice, Law on Economics, Commercial Law
- Page Range:209-218
- No. of Pages:10
- Keywords:digital content; digital service; Directive 2019/770; contractual practice; ADR;
- Summary/Abstract:The aim of this paper is to showcase the Czech and EU law that regulates supply of digital content and services and assess its general usefulness with regards to contractual practice and consumer protection. This is achieved primarily by analysing the present and upcoming law that regulates the said topic and its comparison with con- tractual practice on the market. The paper concludes, that in the digital market, consumers have little control over the contracts they can enter into. Many of these contracts are consumer-unfriendly or even illegal. The law offers several ways the consumer can de- fend their rights on the market, but these are not cost-effective.
Restriction of ownership rights as an interference with freedom of enterprise
Restriction of ownership rights as an interference with freedom of enterprise
(Restriction of ownership rights as an interference with freedom of enterprise)
- Author(s):Vladimír Šarapajev
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Commercial Law
- Page Range:220-230
- No. of Pages:12
- Keywords:ownership restriction; expropriation; freedom of enterprise; compensation for loss of business advantage; investment protection;
- Summary/Abstract:This paper is dedicated to business aspects of expropriation and further restrictions of ownership executed by state authorities. While strict proprietary implications of ownership restrictions seem to be self-explanatory and to arise from the very nature of such intervention, the business-oriented purpose of the affected estate is being taken into consideration rather exceptionally. Although such approach is partially based on the causal nexus limitations implemented during the establishment of value of the property as potential (and in many cases even hypothetical and speculative) use of the property cannot be perceived as a matter of course, in certain cases such use must be diligently considered in order to determine the actual extent of intervention into the constitutionally guaranteed rights. Using synthesis and analysis of current legal regulation, this paper aims to identify the implications of ownership restriction for business and suggest criteria for the assessment of the value of expropriated estate.
Comments on the jurisprudence of the Constitutional Court of the Czech Republic on copyright
Comments on the jurisprudence of the Constitutional Court of the Czech Republic on copyright
(Comments on the jurisprudence of the Constitutional Court of the Czech Republic on copyright)
- Author(s):Martin Boháček
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law, Court case
- Page Range:231-246
- No. of Pages:16
- Keywords:copyright; constitutional protection of copyright; case law of the Constitutional Court of the Czech Republic; concept of constitutional protection of copyright in the Czech Republic;
- Summary/Abstract:This paper focuses on the analysis of the application of the principles and provisions of constitutional law to the area of copyright in selected case law of the Constitutional Court of the Czech Republic and confirms their general importance, which manifested itself in the problems of legislation and case law during the Covid-19 pandemic. The starting point is to identify the principles and individual provisions of the constitutional law of the Czech Republic applicable to the protection of intangible objects of copyright, in particular the provisions of Art. 34, (1) Charter of Fundamental Rights and Freedoms of the Czech Republic on the protection of the results of creative intellectual activity. The aim is to find out how the Constitutional Court resolves conflicts between individual constitutional rights when they are infringed. Further goal is to consider the concept of constitutional protection of this field in the Czech Republic to compare with the concept of constitutional EU law and with international law. This will be done using the method of analysis and legal comparison.
