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Prohibition of Abuse of Law

Prohibition of Abuse of Law Author Rita de la Feria
ISBN-10 9781847317858
Release 2011-06-09
Pages 662
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The Court of Justice has been alluding to 'abuse and abusive practices' for more than thirty years, but for a long time the significance of these references has been unclear. Few lawyers examined the case law, and those who did doubted whether it had led to the development of a legal principle. Within the last few years there has been a radical change of attitude, largely due to the development by the Court of an abuse test and its application within the field of taxation. In this book, academics and practitioners from all over Europe discuss the development of the Court's approach to abuse of law across the whole spectrum of European Union law, analysing the case-law from the 1970s to the present day and exploring the consequences of the introduction of the newly designated 'principle of prohibition of abuse of law' for the development of the laws of the EU and those of the Member States.



Beyond the Code

Beyond the Code Author Noam Shemtov
ISBN-10 9780191026171
Release 2017-09-07
Pages 414
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Although the law of infringement is relatively straightforward on the copying of literal and textual elements of software, it is the copying of non-literal and functional elements that poses complex and topical questions in the context of intellectual property (IP) protection. In many cases, it is these non-literal and functional elements that contain the real value of a software product. This book concerns the copying of non-literal and functional elements of software in both the United States (US) and European Union (EU), using a holistic approach to address the most topical questions facing experts concerned with legal protection of software products across a range of technological platforms. The book focuses on four distinct but interrelated areas: contract, copyright, trade secrets, and trade-dress; as well as dealing more briefly with patent law, designs, and competition law, discussing these areas separately and in relation to one another. The book discusses software as a multi-layered functional product, setting the scene for other legal discussions by highlighting software's unique characteristics. It examines models for the provision of software, addressing licensing patterns and overall enforceability, as well as the statutory and judicial tools for regulating the use of such licences. It further assesses the protection of non-literal and functional software elements under EU and US copyright law, focusing on internal architecture and behavioural elements. The application of trade secrets law to software is examined under traditional, online, and cloud models. Finally, it examines the application of trade dress protection to software's 'look and feel', particularly relating to the highly topical area of cloud environments. Protecting Software offers a unique outlook on contemporary issues concerning the legal protection of computer software.



Forum Shopping in the European Judicial Area

Forum Shopping in the European Judicial Area Author Pascal de Vareilles-Sommières
ISBN-10 9781847314017
Release 2007-12-18
Pages 248
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One of the issues left untouched by the Brussels Convention of 27 September 1968 (and by the Brussels-1 Regulation replacing it) concerns the leeway left to domestic courts when applying European rules on international jurisdiction in civil and commercial matters. For instance, is the court under a duty of strict compliance with the jurisdiction rule as it is drafted? Would such a duty go so far as to require the court to abide by the jurisdiction rule, even though it is being used by one of the litigants to achieve an unfair result, for example to delay adjudication on the merits? Under what conditions may the Court decline jurisdiction on account of any unsuitable forum shopping, thus ruling out the European provision on jurisdiction? Recent litigation in the ECJ has yielded rather, even excessively, restrictive answers, ruling out any discretion by domestic courts to remedy any inconvenience arising from the strict application of the European provisions, if such discretion were provided for by the lex fori (the Gasser case, the Turner case, and the Owusu case). This series of rulings from the ECJ raises several questions. Most observers have questioned the appropriateness of prescribing a blind application of European rules on jurisdiction by domestic courts, relying on the legal traditions of EC Member States usually providing for corrective mechanisms - such as 'forum non conveniens' in English Law and 'exception de fraude' in French Law - in cases when a party abusively triggers the jurisdiction of a court in order to obtain an unjust advantage, thus practising unacceptable forum shopping. The time has now come for an analysis, under both Community and comparative law, of the ramifications of the recent Gasser/Turner/Owusu cases. Readers will find in this book a collection of studies by some of the leading English and French experts today, analysing the ins and outs of jurisdiction and forum shopping in Europe.



The Future of Contract Law in Latin America

The Future of Contract Law in Latin America Author Rodrigo Momberg
ISBN-10 9781509914265
Release 2017-09-21
Pages 352
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This book presents, analyses and evaluates the Principles of Latin American Contract Law (PLACL), a recent set of provisions aiming at the harmonisation of contract law at a regional level. As such, the PLACL are the most recent exponent of the many proposals for transnational sets of 'principles of contract law' that were drafted or published over the past 20 years, either at the global or the regional level. These include the UNIDROIT Principles of International Commercial Contracts, the Principles of European Contract Law, the (European) Draft Common Frame of Reference and the Principles of Asian Contract Law. The PLACL are the product of a working group comprising legal academics from Argentina, Brazil, Colombia, Chile, Paraguay, Uruguay and Venezuela. The 111 articles of the instrument deal with problems of general contract law, such as formation, interpretation and performance of contracts, as well as remedies for breach. The book aims to introduce the PLACL to an international audience by putting them in their historical and comparative context, including other transnational harmonisation measures and initiatives. The contributions are authored by drafters of the PLACL and contract law experts from Europe and Latin America.



General Principles of Law

General Principles of Law Author Stefan Vogenauer
ISBN-10 9781509910694
Release 2017-06-15
Pages 432
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Examining general principles of law provides one of the most instructive examples of the intersection between EU law and comparative law. This collection draws on the expertise of high-profile and distinguished scholars to provide a critical examination of this interaction. It shows how general principles of EU law need to be responsive to national laws. In addition, it is clear that the laws of the Member States have no choice but to be responsive to the general principles which are developed through EU law. Viewed through the perspective of proportionality, legal certainty, and fundamental rights, the dynamic relationship between the ingenuity of the Court of Justice, the legislative process and the process of Treaty revision is comprehensively illustrated.



General Principles of Law and International Due Process

General Principles of Law and International Due Process Author Center for International Legal Education University of Pittsburgh School of Law
ISBN-10 9780190642709
Release 2017-03-15
Pages 304
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Article 38 of the Statute of the International Court of Justice defines "international law" to include not only "custom" and "convention" between States but also "the general principles of law recognized by civilized nations" within their municipal legal systems. In 1953, Bin Cheng wrote his seminal book on general principles, identifying core legal principles common to various domestic legal systems across the globe. This monograph summarizes and analyzes the general principles of law and norms of international due process, with a particular focus on developments since Cheng's writing. The aim is to collect and distill these principles and norms in a single volume as a practical resource for international law jurists, advocates, and scholars. The information contained in this book holds considerable importance given the growth of inter-state intercourse resulting in the increased use of general principles over the past 60 years. General principles can serve as rules of decision, whether in interpreting a treaty or contract, determining causation, or ascertaining unjust enrichment. They also include a core set of procedural requirements that should be followed in any adjudicative system, such as the right to impartiality and the prohibition on fraud. Although the general principles are, by definition, basic and even rudimentary, they hold vital importance for the rule of law in international relations. They are meant not to define a rule of law, but rather the rule of law.



The Oxford Handbook of Comparative Constitutional Law

The Oxford Handbook of Comparative Constitutional Law Author Michel Rosenfeld
ISBN-10 9780191640179
Release 2012-05-17
Pages 1416
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The field of comparative constitutional law has grown immensely over the past couple of decades. Once a minor and obscure adjunct to the field of domestic constitutional law, comparative constitutional law has now moved front and centre. Driven by the global spread of democratic government and the expansion of international human rights law, the prominence and visibility of the field, among judges, politicians, and scholars has grown exponentially. Even in the United States, where domestic constitutional exclusivism has traditionally held a firm grip, use of comparative constitutional materials has become the subject of a lively and much publicized controversy among various justices of the U.S. Supreme Court. The trend towards harmonization and international borrowing has been controversial. Whereas it seems fair to assume that there ought to be great convergence among industrialized democracies over the uses and functions of commercial contracts, that seems far from the case in constitutional law. Can a parliamentary democracy be compared to a presidential one? A federal republic to a unitary one? Moreover, what about differences in ideology or national identity? Can constitutional rights deployed in a libertarian context be profitably compared to those at work in a social welfare context? Is it perilous to compare minority rights in a multi-ethnic state to those in its ethnically homogeneous counterparts? These controversies form the background to the field of comparative constitutional law, challenging not only legal scholars, but also those in other fields, such as philosophy and political theory. Providing the first single-volume, comprehensive reference resource, the Oxford Handbook of Comparative Constitutional Law will be an essential road map to the field for all those working within it, or encountering it for the first time. Leading experts in the field examine the history and methodology of the discipline, the central concepts of constitutional law, constitutional processes, and institutions - from legislative reform to judicial interpretation, rights, and emerging trends.



Competition Law of the EU and UK

Competition Law of the EU and UK Author Sandra Marco Colino
ISBN-10 9780199587322
Release 2011-05-12
Pages 476
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This student-friendly and engaging textbook is an excellent introduction to competition law. With a comparative approach, it gives clarity to the differences and similarities between EU and UK systems. Providing up-to-date coverage of cases and legislative changes, it explains the fundamental economic concepts of this area of the law.



The Foundations and Future of Financial Regulation

The Foundations and Future of Financial Regulation Author Mads Andenas
ISBN-10 9781135043377
Release 2013-11-20
Pages 544
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Financial regulation has entered into a new era, as many foundational economic theories and policies supporting the existing infrastructure have been and are being questioned following the financial crisis. Goodhart et al’s seminal monograph "Financial Regulation: Why, How and Where Now?" (Routledge:1998) took stock of the extent of financial innovation and the maturity of the financial services industry at that time, and mapped out a new regulatory roadmap. This book offers a timely exploration of the "Why, How and Where Now" of financial regulation in the aftermath of the crisis in order to map out the future trajectory of financial regulation in an age where financial stability is being emphasised as a key regulatory objective. The book is split into four sections: the objectives and regulatory landscape of financial regulation; the regulatory regime for investor protection; the regulatory regime for financial institutional safety and soundness; and macro-prudential regulation. The discussion ranges from theoretical and policy perspectives to comprehensive and critical consideration of financial regulation in the specifics. The focus of the book is on the substantive regulation of the UK and the EU, as critical examination is made of the unravelling and the future of financial regulation with comparative insights offered where relevant especially from the US. Running throughout the book is consideration of the relationship between financial regulation, financial stability and the responsibility of various actors in governance. This book offers an important contribution to continuing reflections on the role of financial regulation, market discipline and corporate responsibility in the financial sector, and upon the roles of regulatory authorities, markets and firms in ensuring the financial health and security of all in the future.



European Constitutional Language

European Constitutional Language Author András Jakab
ISBN-10 9781107130784
Release 2016-03-24
Pages 488
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Provides a systematic analysis of both the historical development and current interpretation of constitutional law discourse in Europe.



The Foundations of European Union Competition Law

The Foundations of European Union Competition Law Author Renato Nazzini
ISBN-10 9780191630125
Release 2011-12-01
Pages 488
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Article 102 TFEU prohibits the abuse of a dominant position as incompatible with the internal market. Its application in practice has been controversial with goals as diverse as the preservation of an undistorted competitive process, the protection of economic freedom, the maximisation of consumer welfare, social welfare, or economic efficiency all cited as possible or desirable objectives. These conflicting aims have raised complex questions as to how abuses can be assessed and how a dominant position should be defined. This book addresses the conceptual problems underlying the tests to be applied under Article 102 in light of the objectives of EU competition law. Adopting an interdisciplinary approach, the book covers all the main issues relating to Article 102, including its objectives, its relationship with other principles and provisions of EU law, the criteria for the assessment of individual abusive practices, and the definition of dominance. It provides an in-depth doctrinal and normative commentary of the case law with the aim of establishing an intellectually robust and practically workable analytical framework for abuse of dominance.



The Free Movement of Capital and Foreign Direct Investment

The Free Movement of Capital and Foreign Direct Investment Author Steffen Hindelang
ISBN-10 9780199572656
Release 2009-07-09
Pages 399
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The book deals with one of the key areas of EU law. It explains and analysis in great detail the EC Treaty provisions on free movement of capital. A sound understanding of those provisions will assist, firstly, foreign investors willing to set up or to acquire an undertaking in one of the EU Member States in identifying and fending off protectionist measures of their potential host State by taking recourse to EU law. Such protectionist measures can, for example,take the form of discriminatory tax regimes or restrictive market access policies This study, secondly, will also be useful for EU investors which face discriminatory or restrictive treatment by a Member State due to their investments outside the EU. The study will provide legal advisors,tax consultants but also government officials and lobby groups with the necessary, easy accessible information, including a wide range of reference sources, which is vital to conduct their complex work effectively on behalf of their clients and principals. Furthermore, the study fills a research gap in one of the key areas of EC law and is, therefore, a valuable tool for scholars and advanced students.



Lobbying the European Union

Lobbying the European Union Author David Coen
ISBN-10 9780191607219
Release 2009-06-04
Pages 390
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It is universally accepted that there has been a huge growth in EU lobbying over the past few decades. There is now a dense EU interest group system. This entirely new volume, inspired by Mazey & Richardson's 1993 book Lobbying in the European Community, seeks to understand the role of interest groups in the policy process from agenda-setting to implementation. Specifically, the book is interested in observing how interest groups organise to influence the EU institutions and how they select different coalitions along the policy process and in different policy domains. In looking at 20 years of change, the book captures processes of institutional and actor learning, professionalisation of lobbying, and the possible emergence of a distinct EU public policy style. More specifically, from the actors' perspective, the editors are interested in assessing how the rise of direct lobbying and the emergence of fluid issue-based coalitions has changed the logic of collective action, and what is the potential impact of 'venue-shopping' on reputation and influence. From an institutional perspective, the contributors explore resource and legitimacy demands, and the practical impact of consultation processes on the emergence of a distinct EU lobbying relationship. It will be essential reading for academics and practitioners alike.



Gifts

Gifts Author Richard Hyland
ISBN-10 9780199711093
Release 2009-06-05
Pages 730
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Gifts: A Study in Comparative Law is the first broad-based study of the law governing the giving and revocation of gifts ever attempted. Gift-giving is everywhere governed by social and customary norms before it encounters the law and the giving of gifts takes place largely outside of the marketplace. As a result of these two characteristics, the law of gifts provides an optimal lens through which to examine how different legal systems engage with social practice. The law of gifts is well-developed both in the civil and the common laws. Richard Hyland's study provides an excellent view of the ways in which different civil and common law jurisdictions confront common issues. The legal systems discussed include principally, in the common law, those of Great Britain, the United States, and India, and, in the civil law, the private law systems of Belgium and France, Germany, Italy, and Spain. Professor Hyland also serves a critique of the dominant method in the field, which is a form of functionalism based on what is called the praesumptio similitudinis, namely the axiom that, once legal doctrine is stripped away, developed legal systems tend to reach similar practical results. His study demonstrates, to the contrary, that legal systems actually differ, not only in their approach and conceptual structure, but just as much in the results.



An Introduction to Competition Law

An Introduction to Competition Law Author Piet Jan Slot
ISBN-10 9781782250135
Release 2017-04-06
Pages 416
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This book is intended to serve as a first acquaintance with competition law. It aims to reach a broad range of readers: students, teachers in further and higher education, officials and practising lawyers who are not usually faced with competition law issues in their working lives. This second edition has been fully updated in the light of the latest developments, and covers both EU and UK competition law along with an introduction to the EU rules on State Aid. It provides insight into the combined system of EU and UK competition law, providing a broad range of examples for the three main subjects – the prohibition of cartels, the prohibition of the abuse of a position of dominance and the supervision of concentrations (ie mergers and acquisitions). Those examples are drawn from European and UK practice. These greatly enhance the exposition of the general principles, taking into account recent legislative and judicial developments.



VAT Exemptions

VAT Exemptions Author Rita de La Feria
ISBN-10 9041132767
Release 2013
Pages 363
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This book is the only in-depth analysis of VAT to focus on exemptions as a whole. Ten insightful chapters by economists, lawyers, legal academics, and government tax advisors from a wide variety of jurisdictions grapple with the essential questions: Are VAT exemptions desirable? Are they avoidable? Are alternative legal designs possible? Are such alternatives necessary? What new problems do such designs give rise to? The authors emphasize in particular the design alternatives to exemptions that characterize modern VAT and the newly proposed post-modern VAT, both those that are already in operation in some countries and others that have not yet been attempted anywhere in the world. Among the core issues discussed are the following: out-of-scope supplies and suppliers; merit or concessional exemptions for, e.g., charities, healthcare, cultural activities, and education services; and technical exemptions applied to, e.g., gambling, immovable property, financial and insurance services. The book s high-calibre contributions provide a firm foundation for productively carrying the debate forward on traditional European-style VAT vs. modern VAT approaches. Most obviously, the book admirably meets the ongoing need of tax practitioners to assess VAT-related opportunities and pitfalls in order to properly safeguard the interests of their clients. It will also be greatly appreciated by tax counsel, financial services providers, and interested government officials, as well as by academics, students, and researchers in tax matters worldwide."



English and European Perspectives on Contract and Commercial Law

English and European Perspectives on Contract and Commercial Law Author Louise Gullifer
ISBN-10 9781782255185
Release 2014-10-23
Pages 424
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The purpose of this book is to honour the influential and wide-ranging work of Professor Hugh Beale. It contains essays by twenty-five very distinguished authors, each of whom has worked with Professor Beale as a co-author, as a teaching colleague, during his time as Law Commissioner of England and Wales, or as part of the study groups working in Europe on contract and commercial law. The essays reflect different aspects of Professor Beale's interests. Some concentrate on English contract law, either from a historical or a current perspective, while others are focused on aspects of European contract law. There are four essays looking at current issues relating to security and financing, and, as befits a former Law Commissioner, three essays on law reform. The essays in the final section discuss trends in transnational and European commercial law. This book brings together the reflections of eminent writers from all over Europe on important issues facing contract and commercial law and will be of interest to all scholars and practitioners working in these areas.