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Free movement of capital and payments in the European Union, the result of successive regulations

Author(s): Adriana Moţatu / Language(s): English Publication Year: 0

The first part of the paper presents the distinction between the concepts of "capital movement" and the circulation of payments. The principle of free movement of capital and payments does not require the adoption of additional regulations at national level and is therefore directly applicable in the member countries. The second part of the paper deals with the legislative framework of the two freedoms in its evolution, according to the Treaties of the European Union and the directives in field.

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ОСНОВНИ ПОЛОЖЕНИЯ В ПРАВНАТА УРЕДБА ОТНОСНО ЛИЧНИЯ ФАЛИТ

Author(s): Margarita Bachvarova / Language(s): Bulgarian Publication Year: 0

The subject of analysis in this article is the problem of consumer insolvency in Bulgaria, where the scientific interest is focused on the draft of the Personal Insolvency Act. Systematization is made of the legislative approaches adopted by the separate countries when regulating the problem of personal bankruptcy. Based on the scientific analysis it is determined that the most substantial significance in the special provisions related to the personal bankruptcy is the release of individuals from debts in future subject to specific legal preconditions. A critical scientific analysis of certain definitions in the draft is performed and suggestions are made for their improvement

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ПРОИЗВОДСТВАТА ПО НЕСЪСТОЯТЕЛНОСТ НА ТРАНСГРАНИЧНИ ГРУПИ – ЕВРОПЕЙСКИЯТ МОДЕЛ

Author(s): Neli Madanska / Language(s): Bulgarian Publication Year: 0

The research presents the legal framework of the insolvency proceedings of cross-border groups of companies under Regulation (EU) 2015/848 and examines how the European act fits into the national legal framework and affects the legal situation of the main actors in insolvency proceedings.

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СРАВНИТЕЛНОПРАВЕН АНАЛИЗ НА СТОПАНСКАТА НЕПОНОСИМОСТ И НЕПРЕОДОЛИМАТА СИЛА – СЪВРЕМЕНЕН ПОГЛЕД ВЪРХУ КЛАСИЧЕСКИ ПРОБЛЕМИ

Author(s): Violeta Vladova-Ivanova / Language(s): Bulgarian Publication Year: 0

The legal institutes of business frustration and force majeure are a corrective of one of the fundamental principles of contract law – the principle of binding force of the contract. The purpose of this report is to look at them for comparison. The comparative legal analysis is carried out at several levels: in retrospect, in comparison with foreign legislative decisions and from a point of view of the current legislation in the Commercial Act. On this basis conclusions are made regarding the need for corrective legislative intervention in their legislation.

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МЕЖДУНАРОДНИЯТ ПОДХОД В РЕГЛАМЕНТАЦИЯТА НА НЕПРЕОДОЛИМАТА СИЛА КАТО МОДЕЛ ЗА ЗАКОНОДАТЕЛНА ПРОМЯНА

Author(s): Violeta Vladova-Ivanova / Language(s): Bulgarian Publication Year: 0

The report examines the regulation of force majeure in certain international instruments, in the context of the judgement of this regulation as a possible model for a legislative change. A subject to analysis are the provisions of CISG, UNIDROIT Principles 2016, PECL and DCFR 2008 concerning the qualifying signs and the consequences of force majeure. The new trends in the regulation of the legal institute are explored and a conclusion is made about a possible way for overcoming the weaknesses in the Bulgarian regulation of force majeure.

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ВЪЗНИКВАНЕ И РАЗВИТИЕ НА СТОПАНСКАТА НЕПОНОСИМОСТ В ДРЕВНОСТТА

Author(s): Ivaylo Ikonomov / Language(s): Bulgarian Publication Year: 0

Analyzed in the report is the emergence of the philosophical and legal ideas that underpin the modern institute of impracticability. Their development in ancient times is followed, while compared with modern Bulgarian law. The aim of this study is to improve the understanding and refine the application of the institute of impracticability through an in-depth analysis of its roots.

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ИСТОРИЧЕСКИ АСПЕКТИ В ПРАВНАТА УРЕДБА НА УПРАВИТЕЛЯ НА ДРУЖЕСТВОТО С ОГРАНИЧЕНА ОТГОВОРНОСТ – СРАВНИТЕЛНОПРАВЕН АНАЛИЗ, ТЕНДЕНЦИИ И ПЕРСПЕКТИВИ

Author(s): Milena Tsvetkovska / Language(s): Bulgarian Publication Year: 0

The Limited Liability Company is one of the newer forms of a private equity business entity. Its foundations were laid in the beginning of 19 c., yet it still enjoys wide popularity to this day. The report examines the historical development of this particular type of companies and more specifically the matter of its management within the context of Bulgarian legislation and offers an analysis of the first Limited Liability Companies Act of 1924. Using the comparative method the author outlines some of the Act’s provisions that could be reflected in the currently applicable Commercial Code, to the purpose of supplementing and expanding the regulatory.

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ПРИЕМСТВЕНОСТ НА ИНСТИТУТА НА УПРАВИТЕЛЯ НА ДРУЖЕСТВОТО С ОГРАНИЧЕНА ОТГОВОРОНОСТ ОТ ЕВРОПЕЙСКИТЕ ЗАКОНОДАТЕЛСТВА

Author(s): Milena Tsvetkovska / Language(s): Bulgarian Publication Year: 0

The Limited Liability Company was originally the brainchild of German legal practitioners. Its initial regulation by the German LLC Act (GmbH Gesetz) dates back to 1892. Within the first fifty years following its adoption in Germany it was also regulated in the legislations of a number of European countries. However, Europe’s history in the 20 c. imposed multiple changes to the legal regulation of the LLC. This period sees the Law being constantly updated as to adequately meet the needs of society. The report focuses on some aspects of the management of the Limited Liability Company in Germany, France and Russia, with the intention to identify the necessary guidelines, as well as certain concrete proposals for improving the set of legal regulations in our domestic legislation.

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ПРАВНИ ПРОБЛЕМИ НА ТЪРГОВСКАТА ДЕЕСПОСОБНОСТ ПО ЧЛ. 56 ОТ ТЪРГОВСКИЯ ЗАКОН

Author(s): Mariya P. Petrova / Language(s): Bulgarian Publication Year: 0

Who has turned 16 and has got married, can be registered as a sole trader as long as the latter in not under judicial disability and has a domicile in this country. Alongside with this abstract legal possibility, however, there are a number of legal problems and consequences, which are not explicitly envisaged by our legislation, just as there are no acts in the judicial practice to solve the legal status of the underaged trader.

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Violation of Minority Shareholder Rights. Analysis on the Mandatory Takeover Bid

Author(s): Marius Cristian Miloş,Laura Raisa Miloş / Language(s): English Publication Year: 0

The mandatory takeover bid is seen by the legislator as a way of protection of minority shareholders, by making the intention of the shareholder who exceeds a certain holding threshold and wishes to take control of the company more transparent, makingin this way possible for the minority shareholders to exit the company, if this is seen as appropriate, and not remaining trapped in a company where they could no longer exerciseany influence. The objective of this paper is realizing a comparative analysis at the European level regarding the mandatory takeover bid, by outlining the legal provisions that apply, the similarities and differences between the EU member states. Not in theleast, on the basis of the Romanian jurisprudence, that is related with mandatory takeover bids, there are being questioned the pronounced sentences. According to the comparative study, we can observe the existence in the European national law (including Romania) of the provision regarding the mandatory takeover bid that has positive consequences from a legally point of view, by ensuring the protection of minority shareholders, contributing to the overall growth of the European stock markets.

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The Administrator - Representative or Employee of the Limited Liability Company. Aspects of Comparative Law

Author(s): Olga Andreea Urda / Language(s): English Publication Year: 0

It has been frequently analyzed, in the doctrine and practice of commercial law, whether it is opportune to conclude an individual employment contract between the administrator and the limited liability company or a mandate contract. In the context of the free movement of persons in the Member States of the European Union, we consider that it is necessary to have a comparative analysis of company law, especially in the particular matter of the administrator-society relationship. The present study proposes an analysis of compared law between the provisions of Romanian law and those of French law regarding the management of contracts that may intervene between the administrator and the company. Thus, the difficulties related to determining the possibility or not of the administrator to conclude an individual employment contract with the limited liability company can find their solution through a mirror analysis of another legislative model.

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Legal Conditions of Unusual Terms Institution

Author(s): Eugen Sârbu / Language(s): English Publication Year: 0

The institution of unusual clauses is a relatively new institution in the Romanian civil law, which has generated different interpretations in practice and in doctrine and which is aimed at preventing imbalances caused by the use of standard clauses. The standard terms serve the interests of the proposing party, setting out important aspects in the contractual relationship that is formed. They tend to change the contractual balance toward which each type of contract regulated by the legislator is approaching. This article analyses the legal conditions of unusual terms, which place one of the parties in a dominant position, shall entail. In particular, we will analyze (I) where the Romanian legislator was inspired to regulate the non-common clauses, (II) the conditions for a clause to be qualified as non-usual, (III) what penalty occurs in the event of non-compliance with the legal provisions on uncommon clauses, (IV) how we can derogate from the effect of the clauses, making them effective and holding the parties to perform that clause.

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Cross - Border Merger. Analysis of Comparative Law

Author(s): Silvia Cristea,Viorel Bănulescu / Language(s): English Publication Year: 0

The study presents some considerations regarding the merger of companies (section 1.1), then includes the union provisions in the matter of mergers (section 1.2), the Romanian regulation in the matter (section 1.3) and the comparative analysis of the Romanian regulation with the European Union one, with proposals de lege ferenda (section.2).

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Cooperation-Based Approaches in Competition Law – the Whistleblower Versus the Prisoner’s Dilemma

Author(s): Ana-Maria Iulia Şanta / Language(s): English Publication Year: 0

Cooperation-based approaches have shaped the trends in European Union Competition Law and in United States Antitrust Law. The present article assesses the latest developments in this area, emphasizing the positive effects of cooperation in competition law issues and proposing solutions in terms of dealing with international competition law cases. Cartels are analyzed using the model of the Prisoner’s Dilemma and the modern Game Theory. The Whistleblower, which gained increasing importance both in European Union Competition Law and in United States Antitrust Law, is assessed taking into consideration these models. A comparative view of European Union Competition Law and United States Antitrust Law on the importance of the Whistleblower is presented. The present article uses an interdisciplinary research method, appropriate to the debated issue, combing aspects of business law, European Union Law and economics in an international perspective. Relevant case law illustrates the presented approaches, trying tofind an answer to the research question to what extent can cooperation be seen as a possible solution for competition law issues and to what extent can settlements be acceptedas a time-saving solution in competition law cases.

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Ексклузивно право даваоца франшизе да прода производ (робу) примаоцу франшизе

Author(s): Dragan Vujisić,Siniša Varga,Strahinja Miljković / Language(s): Serbian Publication Year: 0

The need of capital for breaking into new markets through the minimum investment can be achieved through franchising as a specific method of contracting business. Franchising as a specific investment contract business method may be commonly described as a method of selling goods and services. In certain forms of business franchising franchisor appears as a supplier of goods. Franchisor has the exclusive right to sell goods to franchisee. Delivery contract is an integral part of franchise agreement. Delivery contract as a sub-contract must always be in conformity with the contract of franchising as the Principal contract. Franchisor as a supplier of goods has the discretion to unilaterally determine the price of goods supplied by franchisee. Discretion of the franchisor to unilaterally determine the price of goods has a legal basis in the clause of the unilateral determination of price. The clause on the unilateral determination of prices with other clauses contained in the agreement forms the specificum of franchise agreements.

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Institutional Arbitration in Romania: Legal Issues and Institutional Development

Author(s): Crenguţa Leaua,Ingrid A. Müller,Sofia Cozac / Language(s): English Publication Year: 0

The objective of this study is dual in nature. First, to analyse the provisions pertaining to institutional arbitration in Romania ― an aspect incorporated in the Romanian legislation with the enactment of the New Code of Civil Procedure ― while identifying certain particular characteristics of the administration and course of institutional arbitration proceedings. Secondly, to analyse institutional arbitration in Romania per se and to review the most relevant arbitral institutions in Romania, with the application of certain criteria relevant for arbitration. The research method used is analytical, but also comparative. To analyse the arbitral institutions in Romania the comparative method was applied, based on relevant criteria, such as: the availability of arbitration rules and options for expedited arbitration procedures, the availability of schedules of arbitral fees and expenses, the domestic or international experience of arbitrators, or whether or not there is a standard arbitration clause. The results of the study show that both the provisions concerning institutional arbitration in Romania, as well as the arbitration procedures and the regulations of the arbitral institutions analysed, enable the parties’ access to a modern and efficient way of settling their disputes.

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Online Arbitration - Solution for Commercial Disputes During and After the Crisis -

Author(s): Bazil Oglindă / Language(s): English Publication Year: 0

Adapting justice to the new global status quo is the challenge of the year for courts of law and arbitral institutions. But in such moments of crisis in which the entire judicial system (including private dispute resolution mechanisms) risks to collapse if they do not adapt fast and efficient, big steps in its evolution arise. The switch to online arbitration becomes almost natural in these times. Arbitration institutions and arbitrators face the challenge to rethink and reimagine themselves in this new digitalised era, while still complying with the requirements of the law for a due process and effective dispute resolution. The main objective of this paper is to present and analyse the legal instruments and framework that can be used by arbitrators, lawyers and arbitral institutions as tools to organising efficient online procedures without any prejudice to all the due process guarantees and other fundamental rights and principles of the parties. The result of the study is that the system is prepared to sustain online and digitalised proceedings, but the agreement and openness of the parties is essential in implementing and applying these tools to their dispute in arbitration.

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Use of the Order of Payment Procedure in Cases of Disputes between Professionals

Author(s): George-Bogdan Ionita / Language(s): English Publication Year: 0

The main objective of this study is to analyze the mechanism of operation of the special procedure of the payment order regulated by the Code of Civil Procedure. The specificity of the research aims to observe an important aspect of this procedure, namely the quality of "professionals" of the parties who can use this institution of civil procedural law in case of possible disputes arising between them. In order to be able to include in as much detail as possible the specific elements and legal theses on the basis of which the contracting parties, having the quality of “professionals” in the contracts concluded between them and under which they chose to go through this procedure, relevant Romanian and European laws in force with the current amendments and updates, then the specialized works that dealt with this issue will be taken into account and last, the relevant decisions pronounced by the Romanian courts will be analyzed.

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ПРИЛОЖИМОСТ НА ОБЩИТЕ ПРАВИЛА В ДОГОВОРНОТО ПРАВО ПРИ СКЛЮЧВАНЕ НА ДОГОВОРИТЕ ПО ЕЛЕКТРОНЕН ПЪТ

Author(s): Margarita Bachvarova / Language(s): Bulgarian Publication Year: 0

The process of digitalization in the economy necessitates the analysis of the legal regime regarding the conclusion of contracts by electronic means. In legal theory there is no specific theory for contracts concluded electronically. He following peculiarities in the conclusion of contracts by electronic means are analyzed: a) availability of special technical means for exchange of information; (b) use of specific terminology compared to commercial and civil law; (c) adaptation of the general provisions for the conclusion of the contract in the light of special laws; It is found that the most important feature is the availability of electronic means of communication and messaging that qualify as offer and acceptance.

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ПРАВНО ЗНАЧЕНИЕ НА МЕТОДИКАТА ЗА ОПРЕДЕЛЯНЕ НА ЛИХВЕНИЯ ПРОЦЕНТ ПРИ ПОТРЕБИТЕЛСКИТЕ КРЕДИТИ

Author(s): Petya Stoyanova / Language(s): Bulgarian Publication Year: 0

The legal meaning of the bank methods used for defining the interest rate value in the consumer credits is researched in the report. An attempt for comparing the different kinds of interest rates defined by the banks and their applicability in the cases of their change in the consumer credit contracts is made.

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