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Financial law and financial science: development and interaction

Author(s): Elena Chernikova / Language(s): English Issue: 3/2020

The study provides a brief overview of the issues that take place in Russian and foreign scientific theory about the problems of development and interaction of financial science and financial law. The problems are presented through the prism of the interdependencies of economics and law, financial science and the theory of financial law. The author expresses hypotheses about the development of financial science and financial and legal theory, highlights the connections and differences between the subject, the conceptual-categorical apparatus, and the institutions that predetermine close relationships and dependencies at the interdisciplinary level.

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PRAVNA REGULATIVA TRGOVINE OTC (OVER-THE-COUNTER) FINANSIJSKIM DERIVATIMA

Author(s): Marija Vićić / Language(s): Serbian Issue: 2/2021

Author explains legal regulation of OTC financial derivative trading on the leading financial markets (USA and EU) as well as shows uniform regulations developed in international legal environment, and separately explains legal framework of the said question in positive Serbian law. Author elaborates main current legal issues related to financial derivatives transactions on the OTC market to which domestic participants are exposed during the operations in Serbian territory but also in cross-border operations. Finally, the author provides concrete proposals for further improvement of disputable legal issues by amending the regulatory framework in line with comparative legal regulations and regulations developed by the international community. Purpose of this article is to bring the attention of legal experts in Serbia to certain inefficient solutions in currently applicable legal regulations related to financial derivatives on the OTC Market, as well as to serve to legal practice as guidance for practical solving the disputable legal issues in particular transactions which have become frequent also for domestic participants on the capital market.

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PRAVNA OBELEŽJA UPRAVLJANJA TRŽIŠNIM RIZICIMA U INVESTICIONIM DRUŠTVIMA

Author(s): Ranko P. Sovilj,Sanja Stojković-Zlatanović / Language(s): Serbian Issue: 2/2021

The issue of market risks management in investment companies is being updated and gaining importance in recent years, due to frequent crises and shocks in the financial markets. The application of the normative and comparative method in work analyzes the exposure of investment companies business to market risks. The paper points out the importance of determining market risks, as well as the types of market risks to which investment companies are exposed, and the importance of introducing new solutions adopted in the European legislation. The application of the proposed solutions based on qualitative and quantitative measures should enable both investment companies surviving on the capital market and providing adequate legal protection to investors. Therefore, the paper emphasizes the need for identifying and early recognition of market risks in investment companies, proposing appropriate measures, assessments and models for managing market risks in the investment companies.

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Szkic o patentach i łagodzeniu kar

Author(s): Adam Karbowski / Language(s): English Issue: 1/2020

The purpose of this note is to investigate the relationship between patents and market collusion. Specifically, by using game theory tools, it is shown that patents can act as a leniency mechanism, i.e., they can enable firms to leave a cartel without the risk of retaliation. However, the socially beneficial role of patents is limited because the Bertrand competition itself breaks the collusion via the existence of a prisoner’s dilemma between sufficiently myopic market rivals. In the prisoner’s dilemma, two social tensions, fear and greed, make firms deviate from collusion. Patenting breaks the collusion, but at the social cost of a temporary patent monopoly in the product market.

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QUELLES SONT LES MENACES SUR L’AVENIR DE L’OMC?

Author(s): Abida Montej,Gargouri Ilhem / Language(s): French Issue: 4 (53)/2021

Today we are witnessing a serious crisis that could lead to the collapse of theWorld Trade Organization (WTO). This crisis is the consequence of the uncooperativebehavior of the triad: the United States, the European Union and East Asia. When there is aconfrontation between these three most powerful regional blocs, there is inevitably a blockageand a destructive trade war similar to that of the 1930s. In these times of crisis, each countrytries to save its economy by relying on the strategy of protectionism. The negotiation andregulatory functions of the WTO are paralyzed: the Dispute Settlement Body is seriouslyaffected by the refusal of the United States, since 2016, to renew the members of the AppellateBody (AB) whose mandates were expiring. This jeopardizes international rules negotiatedsince 1947, when the General Agreement on Tariffs and Trade (GATT) was created. Theexistence of liberalization fatigue and a growing rejection of globalization raises questionsabout the future of the WTO

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Legitymacja czynna wspólników do zaskarżania uchwał zgromadzeń spółek kapitałowych

Author(s): Sylwia Łazarewicz / Language(s): Polish Issue: 47/2020

The Commercial Company Code provides the possibility of appealing the resolutions of shareholders meetings in capital companies. It also listing entities having the right to undertake such actions. However, certain requirements should be met. In the article legal problems related to the interpretation of the Article 250 and Article 422 § 2 CCC were discussed. Despite the clear wording of these provisions, there have been doubts regarding the requirements the shareholders are expected to meet to be able to appeal such resolutions and the list of authorized subjects, i.e. the possibility of adding former shareholders. The author assumed the latter do not have the right to challenge any of such resolutions, while undoubtedly have such a right regarding the resolutions affecting their rights.

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Creating a commercial company using the example of a limited liability company – about the role of an advocate

Author(s): Paweł Lewandowski / Language(s): English Issue: 53/2021

This publication discusses the stages of creating a commercial company while reviewing the necessary regulations. The purpose of this paper is to describe the problems and doubts that may arise, such as choosing the legal organizational form of the future business activity, preparing the company’s articles of association, and the registration process. The complexity of the forms used to register the company and the formalistic nature of the procedures required are highlighted. Presented comments indicate that the creation of a commercial company is a broad field for professional legal activity, basically not because of the formalized procedure, but mainly due to the momentous consequences of making mistakes. The considerations show that the participation of a professional representative is highly desirable. For this reason, it is worth postulating the imposition of legal coercion in the case of creating a commercial company, or at least an in-depth analysis of the need for such coercion.

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Aspekty procesowe sporu o wpis do rejestru akcjonariuszy

Author(s): Grzegorz Suliński / Language(s): Polish Issue: 53/2021

The amendment of Art. 328 of the Code of Commercial Partnerships and Companies introduced dematerialisation of shares in non-public companies. The documentary form was replaced by an entry in the register of shareholders. As a consequence, also the rules concerning the disposal of shares changed. Their transfer or the establishment of a limited right in rem thereon requires, apart from the obliging contract, making an entry in the register of shareholders. An entry is made by the entity keeping the register based on documents submitted by the party requesting the entry, including declarations of the will of the parties to an action obliging to dispose of shares or establish a limited right in rem thereon, unless it has reasonable doubts as to the admissibility of the entry. The purpose of the article is to identify the personal scope of disputes that may arise against the background of the entry and an attempt to provide an answer to the question about the type of legal measures that can be taken by a party, or parties, to a legal action, whose rights are violated by the refusal to make an entry or by the making of an entry against its/their position.

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Probleme teoretice și practice referitoare la aportarea într-o societate cu răspundere limitată de imobile afectate de existența unui drept de preempțiune

Author(s): Vasile Luha / Language(s): Romanian Issue: 10/2021

The study examines the possibility of bringing into a limited liability company as a social contribution a good subject to a conventional right of pre-emption. The right of pre-emption is linked – by its nature, as well as by the regulation of the Civil Code – to the contract of sale and gives a preference – at an equal price – to a certain buyer, designated by law or by contract. Failure to comply with the pre-emption cancels the contract made with the third party and the pre-emptor becomes the acquirer if he makes the price available to the seller. The bona fide third party is guaranteed for eviction by the seller. The contribution in a limited liability company does not make a sale although it produces a transfer of ownership from the contributing partner to the company, because the partner does not receive a price but a participation in the company where the contribution is made. Therefore, the contribution of a good affected by a right of pre-emption cannot be refused to the receiving company by the Trade Register Office, on the ground that against it (the company) – acquiring third party – a preference for acquisition can be invoked by the conventional pre-emptor; this, even when the right of pre-emption is accepted against an offer of alienation.

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Poate stabili procurorul obligaţii fiscale în materie de TVA?

Author(s): Cosmin Flavius Costaş,Lia Pricope / Language(s): Romanian Issue: 3/2021

A recent row of criminal cases involving possible VAT fraud cases raised a rather peculiar question: are prosecutors allowed to determine the existence and amount of unpaid taxes and contributions and particularly VAT without involving or consulting national competent tax authorities? Authors investigate this matter first from the point of view of the EU VAT legislation and second from the more general perspective of Romanian tax procedural rules. In the context, a few questions that might be raised before the VAT Committee or before the Court of Justice of the European Union are put forward.

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Conformitatea legislativă a deciziilor de afaceri ale administratorilor – o problemă de drept evidentă? (I)

Author(s): Vasile Soltan / Language(s): Romanian Issue: 11/2021

The increase of the volume of regulations influences the activity of the companies and of the administrators, implying the risk of the latter being liable to the company for legally non-compliant business decisions. Part I of the study examines the legal regime of the obligation of the administrators to comply with the law and the implications of intentionally making business decisions contrary to the law. The conclusion is that the obligation to comply with the law can be seen as an independent obligation or explained through the doctrine ultra vires, but it can also be associated to the obligations of loyalty, good faith and diligence. Part II of the study analyzes whether there are potential exceptions that may justify the making of some legally non-compliant decisions and whether the liability of the administrators could be excluded or limited in certain situations. In principle, the making of profit, the attainment of other interests for the company or the ratification of the decision by the shareholders are not able to justify and exclude the liability of the administrators for making decisions contrary to the law. These decisions also exclude the application of some guarantees against liability, such as business judgment rule, the liability clauses and liability insurance. However, the social, economic and technological transformations accompanied by the inefficient legislation and by the phenomenon of regulatory entrepreneurship can provide sufficiently convincing arguments to change the paradigm in respect of the obligation of compliance. Although the proposed problems and solutions seem obvious, the study raises for discussion some aspects not addressed in the local doctrine, but which do not lack theoretical and practical importance.

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THE PARADIGM SHIFT IN THE RELATIONSHIP BETWEEN THE CUSTOMER AND THE BANK IN THE NEW POST-CRISIS WORLD ECONOMY: DEMAND AND THE NATURE OF DEMAND

Author(s): Goiceanu Cristian Octavian / Language(s): English Issue: 1 (54)/2022

Looking back on the latest financial crises, especially in 2008, it can be seen that financial markets have reacted contrary to economic theories, and even for a while have been uncontrollable. The element of stability was, contrary to current economic models, the governments of countries that were forced to intervene arbitrarily in the financial markets and save companies from bankruptcy

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Arbitrajul internațional – audierile virtuale la un an după provocările pandemiei de coronavirus

Author(s): Cristina Ioana Florescu / Language(s): Romanian Issue: 3/2021

As a result of the coronavirus crisis, it seems inevitable that the number of commercial disputes will increase and, in this environment, arbitration has proved an agile, resilient and also flexible, adaptable mechanism to the challenging times to which it is subjected. However, arbitrations have continued during the crisis not just because of the scope for controversial situations arisen due to pandemic, but also because some court litigations have been postponed or stopped for a while and especially due to the extended court closure arising from the pandemic restrictions. Therefore, the viable solution remained arbitration. Arbitration growth its strength with parties selecting it over litigation for more different practical reasons, even from the negotiation stage, when parties expressed more inclination and interest towards arbitration. The impact of coronavirus has forced arbitral institutions, parties, their counsels and other participants to act and quickly adopt new modern means of electronic case management tools to convene virtual hearings. In this respect, protocols and relevant guidelines to remote procedure have been promulgated in order to offer the necessary flexibility, the tools and a steady mechanism required to resort to arbitration. The arbitral institutions contributed to the arbitration stability and foreseeability by cooperating and issuing guides for the use of the technology in the most effective and efficient possible way, to achieve a world prepared to face this new coronavirus era. That is why we consider that these virtual tools should be adopted also for the future, to benefit of them in the post pandemic era.

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Слободне зоне као инструмент привлачења страног капитала земаља у транзицији - пример Босне и Херцеговине

Author(s): Željana Vrućinić / Language(s): Serbian Issue: 63/2018

Free zones should be the basis for the faster economic development of BiH and its connection with the world, as well as to be a link to the development and improvement of foreign trade. As free customs zones have long experienced a boom in the world, they also got a form of mutual association, so this paper aims to highlight the advantages and benefits that developing countries can have from the integration and operation of free zones. The last few years were characterised by major changes in international political relations, but many of them are economical in its basis. The laws on free zones in BiH and countries in the region, as well as the Laws on Customs Policy, and the data of the methodology of attracting foreign capital through the formation of free zones and their sustainability are discussed. The development of the Free Zone Institute results in the reorganization of institutional relations in a legal, economic and political sense. A large number of countries that have long been trying to become a part of the centres of the power of the world economy started implementing the Free Zone Institute. Free zones have emerged as part of an industrial policy in a large number of developing countries, as well as in the countries that carry out major economic reforms. Dealing with the topic of free zones, we come to the conclusion that the economic growth and development depend on the level of its involvement in the world market. Yet, there is also the reverse influence since the level of inclusion of some countries in international exchange depends on the level of their economic development.

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Значај и функција жига у пословном и потрошачком сектору

Author(s): LJubiša Stefanoski,Milica Šutova / Language(s): Serbian Issue: 63/2018

The main goal of this paper is an analysis of the meaning and the functions of the trademark in the global business environment. In today’s global economic societies and open market systems, knowing the meaning and the functions of the trademark can help a company in optimising its management actions, create a useful marketing strategy and gain further financial benefits. In this regard, the subject of study is the theoretical and practical aspects of the importance of trademarks and their function (it identifies the product and its origin, it proposes to guarantee its quality, it advertises the product, it creates an image of the product in the minds of the consumers)in companies’ every day work. Particular attention is paid to the influence of the trademark functions on the consumers. In order to provide greater comprehensiveness of the issues that are the subject of elaboration in this paper, in addition to numerous theoretical considerations and the views of several authors, practical examples from the case law have been enclosed.

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Објективна одговорност за штету од производа са недостатком

Author(s): Samir Manić / Language(s): Serbian Issue: 61-62/2017

Through the German Products Liability Act of 1990, there has been an incorporation of regulations of the Directive 85/374/ЕЕC into the German legal system. By this Law, strict product liability has been introduced from products with deficiency, but with the regulations of this Law, it has not been excluded the application of regulations on non-contract and contract liability of the German Civil Law. The author in this scientific paper deals with: the issue of determining a lack of products from the aspect of the regulations of the Law on Production Liability; whether by this Law it is suppressed a traditional tripartite division of a product lack of the German Court practice; whether the regulations of this Law can be applied to the products dangerous by themselves. Also, we shall give attention to the German Pharmaceutical Products Act of 1976 for the fact that it has predicted strict liability before the Directive 85/374/EEC for the damage due to the lack of medicines, and it is interesting to determine whether its regulations can be still applied today. The author also deals with the issue of incorporation of Directive 85/374/EEC into the legal order of the Republic of Serbia. Certain specific issues of strict product liability have been analysed for damage caused by products with deficiency and also deviations of the Law on Consumers' Protection of the Republic of Serbia and Directive's regulations.

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Цена из уговора у међународној продаји

Author(s): Đorđe Pavlović / Language(s): Serbian Issue: 61-62/2017

In the paper is analysed the obligation of paying the purchase price in the contracts for the international sale of goods. The basic obligation of a buyer in the contracts for the international sale of goods is to pay the price and to take over the goods. The delivery of the goods is a subject of seller’s obligations. In the contracts for the international sale of goods the buyer also assumes other obligations such as, for example, the inspection of goods, the notification of non-performance to the seller, taking measures to preserve the goods in the case of contract termination when the buyer intends to return the goods to the seller, the possibility of requesting the replacement goods in the case of termination, and the like. Special attention in this work is dedicated to the EU Convention on Contract for the International Sale of goods relating to the obligation to undertake preparatory work by the customer in order to facilitate the execution of payment and business (legal) consequences in case of failure to meet these obligations. This issue applies also to the Serbia-EU accession negotiations under Chapter 30 of the negotiating framework.

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Страна улагања и јавно-приватно партнерство

Author(s): Cariša Bešić,Snežana Bešić / Language(s): Serbian Issue: 60/2017

The paper deals with the issue of combined public and private partnership as an alternative method of financing the infrastructural projects, which has been implemented more and more in the world. Also, the topics such as the principal characteristics and legal regulation of institute through a comparative law review are elaborated. The paper analyses, in particular, the situation in our law regarding this institute in the context of foreign investments. As alternative methods of funding infrastructure projects, the public-private partnerships are increasingly in use in the world. Its usefulness is primarily in the reallocation of risks and costs over traditional forms of financing. However, it has to establish an adequate superstructure in the form of the corresponding legal and other accompanying rules relating to the combined public and private partnership, which does not exist in Serbia at present, in order to activate this useful model on financing and place it in the function of attracting foreign investments to the highest possible extent. In that sense, the EU standards could be used as institution barriers. Considering the character of particular parties and the nature of the relationship that they establish via this type of partnership, special attention in regulating this matter should be dedicated to the reduction of risk and providing of legal certainty to the partners. By means of a synergy of the supreme qualities of the public and private sector, here with respect of “value for money” principle and value of public services and infrastructure facilities, the partnership between the public and private sector capitalizes on providing a wide range of public services and infrastructure.

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Елементи послова финансијског лизинга

Author(s): Dobrica Vesić / Language(s): Serbian Issue: 60/2017

In this paper are analysed different operations of financial leasing in the European Union and developing countries, whose model law is a good example of its exploitation in practice. In the total number of leasing business, the predominant type is financial leasing, and a large number of issues in this domain was regulated at the end of the last century. However, there remain a considerable number of countries, especially developing ones still in transition, which permanently lack capital. Those countries still experience some difficulties in harmonizing the growing needs in the area of financing on the basis of leasing operations. In the national legal systems, most of the legal aspects are not explained enough. Therefore, UNIDROT under whose auspices was adopted the Convention on financial leasing, launched a new initiative in the field of general unification of the leasing transaction. Back in 2007, this resulted in the conception of the text of the model law. This paper reviews the results of applying this model of financial leasing operations. The model law primarily refers to countries that have not developed a commercial practice of leasing operations.

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Регистровани и нерегистровани дизајн - компаративни преглед

Author(s): Nadežda Ljubojev,Marijana Dukić Mijatović,Ozren Uzelac / Language(s): Serbian Issue: 60/2017

Besides the protection of registered design, the protection of unregistered design within Industrial Design Law is characteristic of the European Union. Unregistered design can be acquired without a formal registration procedure by an appropriate revealing of design to the public on the European Union territory. Only by joining of the Republic of Serbia to the European Union a new right of intellectual property will be anticipated - unregistered Community design. The authors of this paper are presenting a comparative overview of registered and unregistered design in the EU, the Republic of Croatia and registered design in Serbian legislation. Moreover, it has been pointed at the harmonization process of Serbian legislation with the European legal attainment in this field, as well as with obligations arising from the ratified international documents and the Process of European Integration.

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