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SOME CONSIDERATION REGARDING THE JOINT-VENTURE AGREEMENT AS PER THE CURRENT REGULATION

Author(s): Cristina Cojocaru / Language(s): English Issue: III/2015

This article brings forward the joint venture agreement , as provided in the current Civil Code, without exhaustively analyzing it, and seeks to highlight the benefits of this association by capturing some of its major features, especially by reference to case laws.Therefore, how close is this contract to other contracts, could it be mistaken for a concession contract, and under what circumstances one side of the association may oppose the exception of non-performance, are some of the questions this article tries to answer.

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THE FRANCHISE AGREEMENT – COMPARATIVE ASPECTS BETWEEN DCFR REGULATION AND ROMANIAN LEGISLATION

Author(s): Anemari OPRIŢOIU / Language(s): English Issue: III/2015

Franchising is a system of marketing products or services, widely used in modern economic activity, being a technique that represents numerous advantages for the actors involved. In our country, the franchise has experienced a rapid growth as a mean by which large companies could easily enter the Romanian market but also due to the fact that it was an opportunity for local entrepreneurs to conduct low risk business activities by using business methods and techniques, brands or products already tested and recognized. Regarding the legal framework, the franchise is regulated by Government Ordinance no. 57/1997 on the legal regime of the franchise. From the perspective of European law, in the context of the trend to harmonize and standardize legislation, the franchise operations were subject to regulatory proposals (we consider PECL), strictly academic proposals, which could though compete with the already recognized UNIDORIT rules. The latest and the most extensive work to achieve a common regulatory framework at European level is the DCFR - Draft Common Frame of References, a legal instrument that fits in the notion of soft law. The special value of this work is that it manages to include principles and rules from almost all systems of law and existing regulations in the EU member states. The proposed regulation by DCFR for franchise operations has many practical advantages, covering most aspects involved by these complex legal operations. This article aims to make a presentation of franchise regulation in DCFR, highlighting the aspects that are missing from GO 57/1997, and could be an improvement in the internal regulatory framework regarding the franchise operations.

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A NEW APPROACH TO BUSINESS FAILURE AND INSOLVENCY ACCORDING TO THE EUROPEAN COMMISSION RECOMMENDATION

Author(s): Luiza Cristina Gavrilescu / Language(s): English Issue: III/2015

In the current economic climate, the regulation of insolvency has priority in the legislative calendar, aiming at setting up effective systems, which would allow rescuing viable businesses and prevent producing of the adverse consequences of inappropriate bankruptcies. From this perspective, we analyzed the regulatory proposals addressed to Member States by the European Commission on facilitating recovery of companies and resumption of entrepreneurial activities. Within the Commission Recommendation issued in March 2014, were formulated certain minimum standards for the preventive restructuring frameworks concerning companies in financial difficulty and for the discharge of debts of honest entrepreneurs who have failed in business.

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INSOLVENCY OF INDIVIDUALS IN EUROPEAN LEGISLATION – GREAT BRITAIN

Author(s): Cristian Drăghici / Language(s): English Issue: III/2015

Insolvency of individuals is a constant and major concern of most economic developed countries . US law allows individuals (consumers) to declare „bankruptcy” and to put their property under the control of a federal court order to get rid of the debt. The procedure is provided by Chapter VII of the US Commercial Code.Debtors indebted from countries such as Ireland and even Germany or Austrich - where procedures are more difficultt - come to England to declare personal bankruptcy. A personal bankruptcy in Ireland lasts for 12 years, and in Germany six years, during which the debtor’s rights are few and the law gives the creditor all the levers to extract as much money from the debtor as he can. Germans turn to French law, but especially to English law for a quickly and easily bankruptcy procedure.Once the insolvency code was declared unconstitutional last autumn, a new law of insolvency was approved, Law 85/20014, regarding insolvency and the procedures for preventing insolvency, which was published in the Official Gazette, Part I, no. 466 on 25th June 2014 and came into force on 28th June 2014.The legislative changes, brought by the new Law 85/2014, legally shape a part of the solutions that can be found in the procedure of the old Law 85/2006 of doctrine and practice.A further forgotten aspect of the new regulation is that of personal bankruptcy. Law 85/2014 applies to professionals, such as former commercial companies and current companies, to which the authorized natural persons can be added. However, Law 85/2014 applies neither to a person who practices a liberal profession nor to a person for whom special dispositions regarding insolvency are mentioned. The aim of this paper is an analysis of the legal situation of individual insolvency matters, through the provision of United Kingdom law . The reason I have chosen English law as a subject of interest is that the UK has one of the most elaborate procedures regarding personal bankruptcy institution. An additional argument in choosing the theme would be the alternative offered by English law with the I.V.A institution.

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THE MAIN LEGISLATIVE MODIFICATIONS BROUGHT ABOUT BY THE LAW 85/2014 CONCERNING THE INSOLVENCY PREVENTION AND INSOLVENCY PROCEDURES

Author(s): Florin Ludușan / Language(s): English Issue: III/2015

The legislative modifications brought about by the Law 85/2014 give a legal form to a part of the solutions found concerning the procedure of the former Law 85/2006 by the judicial doctrine and practice. The Law 85/2014 attempted to carry out a unification of the already existing institutions and concepts, keeping track of the way they must evolve practically, in the present day social and human reality, but maintaining at the same time a functional and concrete logic of these. Secondly, the Insolvency Code attempted the introduction at the level of the legal norm of a recommendable jurisprudence, which succeeded, along the application period of the Law no. 85/2006 to stabilize correct, just and equitable solutions. Thirdly, The Insolvency Code took over, adapted and implemented the “best practice” norms at the international level concerning insolvency, especially the recommendations of the World Bank, synthesized both in The Principles concerning the Effectiveness of the Insolvency and the Creditors’/Debtors’ Rights, as well as in “Report on the Observance of Standards and Codes”, also The Recommendations of the European Commission and the UNCITRAL Legislative Guide on insolvency.

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CONDITIONS OF LIABILITY FOR DEBTOR’S INSOLVENCY

Author(s): Mihaela Cristina Paul / Language(s): English Issue: III/2015

Not infrequently, the financial difficulty of undertaking becomes insolvent or insolvency. In the frame of the insolvency proceedings, to reinstate the debtor’s patrimony balance, two main instruments are implemented: cancellation of the deeds signed by the debtor to the detriment of the creditors’ rights before opening the proceedings, and liability of the persons causing the debtor’s state of insolvency. Thus, in this paper, we will focus on the conditions of liability that have contributed to the debtor’s insolvency, by engaging the liability of the persons who, by their activity, have produced the debtor’s patrimony imbalance.

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GENERAL CONSIDERATIONS REGARDING TORTS. TORT LIABILITY OF MEMBERS OF THE MANAGEMENT OF THE COMPANY INTO INSOLVENCY

Author(s): Alina Ştefania Mogoş / Language(s): English Issue: III/2015

In accordance with current statutory civil liability takes two main forms, namely tort and contractual liability. But any form of civil liability, obligation or compensation for damages caused occurs if the following conditions are met: damage, illegal act, fault, negligence and causation author of the act and the damage.The same conditions must be met when talking about tort liability of members of the management of companies in insolvency proceedings. However, given the special nature of this type of responsibility, must met another condition, namely the insolvency of the company.

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THE PRINCIPLE OF MAXIMIZING THE DEBTOR’S ASSETS IN INSOLVENCY PROCEDURES

Author(s): Anca-Roxana Adam / Language(s): English Issue: III/2015

Law no.85/2014 regarding the procedures to prevent insolvency and insolvency has determined that the purpose of this special law is to establish a collective procedure to cover the debtor’s liabilities. To achieve this purpose the legislator has adopted express provisions. In order to apply these legal dispositions in the Insolvency Code, principles have been regulated to govern this special procedure. Thus, the first principle giving efficiency to the purpose of the insolvency procedure is the maximization of asset yield and the recovery rate of receivables.

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SOME ASPECTS ON THE INSOLVENCY OF COMPANIES WITHIN THE CONTEXT OF THE NEW LEGAL FRAMEWORK

Author(s): Ana-Maria Lupulescu / Language(s): English Issue: III/2015

The Romanian legislation on collective proceedings has been amended again substantially in 2014, by adopting the Law no. 85/2014 on procedures of insolvency prevention and insolvency. The new law aims at greater consistency, simplification and standardization of legal framework on collective proceedings, both procedurally and in relation to its scope, while maintaining, with some amendments, the legal provisions of the previous legislation that have proved their viability in practice.Taking into account that the new legal regulation on insolvency indicates a change of approach regarding the difficulties of companies, while broadening the scope of the law, we believe that an analysis of certain aspects on the insolvency of companies, emphasizing some necessary connections with other normative acts of private law, may prove useful both theoretically and practically.

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LICIT COMPETITION AND ITS LEGAL IMPLICATIONS

Author(s): Anduena-Maria-Ilinca Mehedinţi-Şandru / Language(s): English Issue: III/2015

In market economy, the modern form of organization of the economic activity, the traders act freely, based on private property and in accordance with the law of supply and demand.Among the traders that produce the same goods or services there is a constant struggle to attract customers for goods and services on the market.Competition is defined as a confrontation between traders for winning and preserving that customer, to profitability of its activity[1].Given the positive role, stimulating, that competition has in economic activity, the law should establish the necessary legal framework for its manifestation[2]. In this sense, the Romanian Constitution provides that the State must ensure ,,free trade, protection of fair competition, creation of favorable framework for the use of all factors of production” (art. 135).By special laws are set the limits where free competition must manifest and the consequences of violations of these legal limits.

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PROBATIO DIABOLICA: REBUTTING THE SUBSTANTIVE PRESUMPTIONS IN THE ANTITRUST DAMAGES ACTIONS

Author(s): Anamaria Toma-Bianov / Language(s): English Issue: III/2015

This paper aims at providing a critical narrative of the rebuttable presumption that cartel infringements cause harm and the rebuttable presumption of parent companies liability for infringements of competition law committed by their subsidiaries. In using equity considerations, we aim to reveal the side effects of the rebuttable presumptions inherently envisaged by the Directive on Antitrust Damages Actions. The European Commission has widely applied legal presumption to ease its administrative burden in the field of public enforcement of competition law. The New Directive extends this controversial common practice to the mechanism of private enforcement of competition law. Although, the presumptions are rebuttable in theory, they weigh heavily on defendant companies that are facing probatio diabolica. The Directive does not address the question of what standard of proof is required for a defendant to put forward a successful rebuttal of these presumptions. In the absence of a requisite legal standard in rebutting the presumptions, their application interferes with the principle of equality of arms.

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NEW REGLEMENTATIONS ON CONTRAVENTION LIABILITY FOR UNFAIR COMPETITION PRACTICES

Author(s): Lucia Irinescu / Language(s): English Issue: III/2015

Addressing issues of unfair competition has complex implications, both legal and economic. Legal component of the competition is intended to provide a regulatory and institutional framework for the conduct of business in terms of competitiveness. This article is intended as a tool for all participants in the market.

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MODERNIZING THE INSURANCE LAW IN THE LIGHT OF THE NEW SUPERVISION SYSTEM SOLVENCY II

Author(s): Răducu Marian Petrescu / Language(s): English Issue: III/2015

The article presents the way in which the system Solvency II radically changes the philosophy of the supervision act by introducing a system based on the assessment of internal and external risks, to which insurance and/or re-insurance companies are exposed. Directive Solvency II represents the new European regulatory system which will govern insurance capital requirements of insurers or re-insurers, by introducing an economic risk-based approach. Solvency II is based on three pillars which relate to quantitative and quality requirements, as well as reporting requirements and dissemination of the information. The article presents the way in which the first so called Lamfalussy Directive in the insurance sector will be transposed into national legislation, by analyzing the 4 levels at which this will be implemented. The article also analyzes both the legislative and socio-economic impact of the new supervision system, as well as the impact on the consumers of insurance services.

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CLOUD COMPUTING CONTRACT: COMPETENT AUTHORITY FOR DISPUTES RESOLUTION

Author(s): Carmen Tamara Ungureanu / Language(s): English Issue: III/2015

Cloud computing contract is a form of an outsourcing contract. The concept of cloud computing is used to indicate virtual platforms or infrastructures, that allow, among other things, storage and processing of data, performance of applications and service delivery in various forms, via a network, the Internet [1]. The cloud provider imposes an adhesion contract to the cloud customer, in which, among other things, inserts a clause on choice of forum for settling disputes between provider and customer. The effectiveness of this clause is treated differently depending on the quality of cloud customer: consumer or professional. In order to analyse this, the Romanian Court is taken as a reference system.

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METHODS TO COMMIT UNFAIR COMPETITION BETWEEN TRADERS FROM THE PERSPECTIVE OF LABOR RELATIONS

Author(s): Andrei Airinei / Language(s): English Issue: III/2015

The dynamic of the economic environment from Romania, may lead sometimes lead to the development of competitive practices by traders which are easily found at the border of unlawful means, aiming to steal valuable information by any means of competing, with the sole purpose of gaining a profit increase and creating a possible prejudice of the work of other similar operators in the market.The human resource has become in times of economic crisis the most valuable asset of a company that aims to meet the market demands, so in a complementary manner, this „asset” of performing traders became the target competitors, which aim to steal information held by employees , know-how of a particular activity, respectively, the labor force represented by them.Any activities of unfair competition should be monitored, investigated and sanctioned by specialized bodies, trying to avoid negative outcomes for the victims of these practices, the loss of customers, the loss of human resources, lower turnover, the theft of business information etc. The legislation from Romania in the field of unfair competition (Competition Law no. 21/1996, Law no. 11/1991 regarding unfair competition) was not always made in accordance with the regulations of labor law, in such ways able to prevent cases of illicit activities by stealing customers through former employees of another trader, respectively, the use of confidential information.

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Despre asocierea în participaţie – de la Codul comercial la Codul civil

Author(s): Smaranda Angheni / Language(s): Romanian Issue: IV/2016

Before the repeal of the Romanian Commercial Code which had come into force in 1887, by Law no 287/2009 that aknowledges the new Civil Code, joint venture was regulated by the legislator in art. no 251-256 in the Commercial Code, which undoubtedly states the commercial nature of this legal operation. Thus, a professional trader or a trade company may offer to one or more persons or companies a share of the benefits or loss of one or more operations, or a share of the entire trade activity (art. no 251 Civil Code). Given the fact that joint venture received no legal personality, so it was not considered to be a separate subject of law, meaning separate from the partners, this legal operation was embraced by many traders and it was frequently used in their activity, taking the form of „business association agreement”, or „participation agreement” or even „collaboration agreement”. Needless to say, in cases where the contract was not named „joint venture/participation agreement” or the legal base was not clearly stated, the court, taking into consideration the content of the contract, established in each case the legal nature of the agreement.

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Creanţele salariale în situaţia deschiderii procedurii insolvenţei

Author(s): Andreea Miclea,Cezar Paraschiv / Language(s): Romanian Issue: IV/2016

A company’s insolvency situation has a negative impact on the work relationships established between the company and their employees, the latter being obviously affected by the company’s impossibility of meeting their financial obligations. As a result, for the protection of the employees, under the insolvency procedure, derogatory legal regulations have been established in favour of this category of debtors. These special regulations regard both the method of debt registration with the creditors’ group, and the exemption from the request to pay the stamp duty, along with the procedure of sharing the debtor’s assets and the priority of salary debts or the incorporation of a guarantee fund for payment of salary debts for this category of debts.

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Forma scrisă/nescrisă a convenţiei arbitrale. Dispoziţiile art. 7 din Legea Model UNCITRAL

Author(s): Carmen Pălăcean / Language(s): Romanian Issue: IV/2016

Arbitration is a form of private justice, in which the settlement of disputes is not subject to the common law courts. Arbitration is the institution through which arbitrators – individuals appointed by the parties –, solve the disputes which they have been entrusted by the parties’ agreement. Thus, the parties empower one or more individuals to resolve a legal dispute, not referring that dispute to the jurisdiction of the courts.Unlike courts, arbitration requires the prior consent of the parties, expressed in an agreement or an arbitration clause included in the main contract. As a result, while the applicant’s right to file the case derives from the law in case of arbitration, in the case of arbitration the arbitration request is based on the parties’ will.

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Limite legale ale dreptului administratorului de a încheia acte de dispoziţie în numele societăţii

Author(s): Carmen Todică / Language(s): Romanian Issue: IV/2016

The administrating power confers the administrator of the company the right to a „social signature”, the right to express the will of of the company, of concluding legal documents on its behalf and of engaging its liability in relationships with third parties. In other words , the administrator is authorized to conclude with third parties all the legal documents imposed by the administartion of the company , including documents of disposition. However , in respect of such documents, the law requires some restrictions that limit the administrator’s right to conclude documents on behalf of the company

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Obligaţia instituţiilor de credit de a furniza informaţii şi secretul profesional

Author(s): Adriana Ioana Pîrvu,Daniela Iancu / Language(s): Romanian Issue: IV/2016

Personal data protection is a field that has arisen the interest of both specialists and common people lately.The lack of interest of authorities and of individuals regarding protection of personal data generated some unpleasant, complex and often dangerous situations. Such situations led to a more serious and thorough approach of the problems in the field of personal data protection.It is obvious that the state authorities have the competence to use and process the personal data in performing their prerogatives. Performing such prerogatives should be made by complying with the professional secrecy, including maintaining confidentiality, using and processing personal data only pursuant to legal provisions.The professional secrecy can have several forms, this article proposing to deal only with the fiscal secrecy and the banking secrecy in approaching its topic.Our article wants to approach, as the title shows, the obligation of the credit institutions to supply information to tax-related authorities, obligation that can be better understood through its relation to the obligation of maintaining the professional secrecy, compulsory both for the banking institutions and for the tax-related authorities.

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