Contemporary Challenges in the Business Law
Contemporary Challenges in the Business Law
Contributions to the 6th International Conference Perspectives of Business Law in the Third Millennium, November 25-26, 2016, Bucharest
Contributor(s): Catalin-Silviu Sararu (Editor)
Subject(s): Law, Constitution, Jurisprudence
Published by: Societatea de Stiinte Juridice si Administrative
Keywords: business law; international law; national law; public law; private law;
Summary/Abstract: This volume contains the scientific papers presented at the Sixth International Conference „Perspectives of Business Law in the Third Millennium” that was held on 25-26 November 2016 at Bucharest University of Economic Studies, Romania. The scientific studies included in this volume are grouped into two chapters: Contemporary challenges in the regulation of international business law; Contemporary challenges in the regulation of national business law. The present volume is addressed to practitioners, researchers, students and PhD candidates in juridical sciences, who are interested in recent developments and prospects for development in the field of business law at international and national level.
- E-ISBN-13: 978-606-94312-0-7
- Page Count: 181
- Publication Year: 2017
- Language: English
The Evolution and Challenges of Directors' Duty of Loyalty
The Evolution and Challenges of Directors' Duty of Loyalty
(The Evolution and Challenges of Directors' Duty of Loyalty)
- Author(s):Adina Ponta
- Contributor(s):Catalin-Silviu Sararu (Editor)
- Language:English
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:11-32
- No. of Pages:22
- Keywords:duty of loyalty; good faith; conflict of interest; corporate opportunity doctrine; fiduciary duties; agency
- Summary/Abstract:The duty of loyalty is the core of the fiduciary relationship between ownership and effective control of a company. This paper aims at identifying the contours of this heterogeneous fiduciary duty in corporate law, absent of clearly established legal limits. The objective is to highlight the pattern of this duty based on evolutionary case law, from the beginning of confluences between legal and microeconomic elements, by emphasizing the shades of current social and moral norms. The article renders both exposures of this duty, from the minimalist conception, "lack of betrayal", to the broad dimension of "active commitment". Various case law examples contribute to the identification of overlaps between loyalty and good faith, and of conflicts between applicability of the duty of care and duty of loyalty. The paper exposes a comparative analysis of the duty of loyalty among the jurisdictions of the European Union and Romania, emphasizing the influences of agency rules and traditional fiduciary values within civil law. The expansion of the duty is reflected by addressing the notions of conflict of interest and corporate opportunity doctrine. The findings reveal case law substantiated factors which facilitate the identification of duty of loyalty violations and differentiate them from good faith situations, where jurisprudence mainly facilitates the exclusion of this fiduciary duty.
Administrative Contracts in the European Union Law
Administrative Contracts in the European Union Law
(Administrative Contracts in the European Union Law)
- Author(s):Catalin-Silviu Sararu
- Contributor(s):Catalin-Silviu Sararu (Editor)
- Language:English
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:33-42
- No. of Pages:10
- Keywords:administrative contracts; public procurement; concessions; European Union law; the Single Market
- Summary/Abstract:The administrative contracts of procurement and concessions involving substantial funds, one of the main sources that feed the ongoing process of economic and social development of Member States. The article analyzes developments in European legislation on public contracts and concessions, purpose and action directions of these regulations. The article points out the role of EU regulations in the field of public contracts. It stresses that freedom of exchange and application of competition rules of the common law can not be sufficient to ensure a genuine internal market for public contracts in the European Union. To these must be added the harmonization of procedures in Member States through EU directives regulating: to choose the form of adjudication, advertising, conditions for participation of undertakings, conditions for awarding contracts, ways of contesting the proceedings.
The Improvement of Legal Framework of the Limited Liability Company Provided by International Uniform Law
The Improvement of Legal Framework of the Limited Liability Company Provided by International Uniform Law
(The Improvement of Legal Framework of the Limited Liability Company Provided by International Uniform Law)
- Author(s):Charlotte Ene, Ileana Voica
- Contributor(s):Catalin-Silviu Sararu (Editor)
- Language:English
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:43-48
- No. of Pages:6
- Keywords:European company law; European Private Company; Societas Privata Europaea; cross-border activities; articles of association
- Summary/Abstract:One of the tasks assumed by the European Commission is to create a suitable legal framework for companies in order to facilitate the cross-border cooperation and to consolidate the European internal market. This article examines mainly the legal framework of Societas Privata Europaea, a supranational private limited liability company designated especially for small and medium enterprises, as one of the dimension of the harmonization process of the corporate law in the EU. In this regard, it starts by outlining the evolution of the European Private Company, and then presents the proposal for the Statute of this company. In the end, this article are analyzed other provisions regarding similar supranational structure drafted by international law-makings in order to draw the future developments. In conclusion, this form of supranational company will improve the legal framework of Limited Liability Company by eliminating a great amount of uncertainties in doing trans-border businesses into internal market, and allowing to set up the same European legal entity across the Member States.
International Air Transport of Passengers and Luggage from Tourist Industry Perspective and the Rights of Tourists
International Air Transport of Passengers and Luggage from Tourist Industry Perspective and the Rights of Tourists
(International Air Transport of Passengers and Luggage from Tourist Industry Perspective and the Rights of Tourists)
- Author(s):Ilie Dumitru
- Contributor(s):Catalin-Silviu Sararu (Editor)
- Language:English
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:49-66
- No. of Pages:18
- Keywords:air transport; tourists; damages; the Montreal Convention; European Union law
- Summary/Abstract:The tourism sector represents for many countries one of the engines of economic growth and the interdependence between tourism and transport branch, especially that of the transport of passengers and luggage, is more than obvious. For this reason, at international level a greater need to develop more uniform legal regulations was felt in recent decades, along with the exponential growth of the number of tourists. Although by the adoption of the Montreal Convention in 1999 an important step was made in this direction, backed then by its taking over by the European Union law, it still remain many countries which are of great interest to tourists where this international convention or EU regulations are not applicable. Therefore, we believe that an analysis of the provisions of regulations applicable at an international, European and national level, as well as of the international jurisprudence and doctrine regarding the protection of passengers' rights, the compensation due to them in case of damages and the limitations of damages can be nothing but useful.
Considerations Regarding the Competence of the European Union External Trade Policy
Considerations Regarding the Competence of the European Union External Trade Policy
(Considerations Regarding the Competence of the European Union External Trade Policy)
- Author(s):Ioana Nely Militaru
- Contributor(s):Catalin-Silviu Sararu (Editor)
- Language:English
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:67-74
- No. of Pages:8
- Keywords:freight; services; intellectual property; GATS; TRIPS
- Summary/Abstract:A significant component of international trade and foreign direct investment is the service. International trade has been an evolution of its rules from objects of basic characteristic of the sixties - the goods - so far, within its scope corresponds to the scope - more broadly - the World Trade Organization Agreement. This development is reflected equally in the Treaty that established the European Community in the Treaties its subsequent and now, in the Treaty of Lisbon, and not least, the Court of Justice of the European Union by jurisprudence to which he has made a considerable contribution in this regard.
New Elements in the Regulation of Competition in Romania
New Elements in the Regulation of Competition in Romania
(New Elements in the Regulation of Competition in Romania)
- Author(s):Ana-Maria Udriște
- Contributor(s):Catalin-Silviu Sararu (Editor)
- Language:English
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:77-98
- No. of Pages:22
- Keywords:competition; anticompetitive deeds; dawn raids; sanctions; mergers; access to file; recognition
- Summary/Abstract:Taking into consideration the increased activity of the competition authority over the past few years, it was expected that the main framework in this area will suffer substantial amendments in order accurately outline the objectives and fundaments that are the basis of Competition Council. Consequently, during the last couple of years, Competition Act no. 21/1996 suffered important amendments, in order to align its provisions with the economic reality, as well as the tendencies at the European level. The present paper, using comparative analysis and text interpretation as methods, has as purpose to outline the main amendments brought to the Competition Act no. 21/1996 over the past two years, as well as their impact in the day-to-day activity of the individual and companies in relation to the competition authority. In order to facilitate reading this paper, the conclusions have been introduced at the end of each chapter where that amendment is analyzed, whereas at the end of the paper we can find the most important changes stressed, as well as the path the competition authority should embrace in the near future, in order to give efficiency to these amendments.
The Complexity of the Litigations in the Energy Regulated Field of Activity. The Necessity of the Specialization of the Judge Panels
The Complexity of the Litigations in the Energy Regulated Field of Activity. The Necessity of the Specialization of the Judge Panels
(The Complexity of the Litigations in the Energy Regulated Field of Activity. The Necessity of the Specialization of the Judge Panels)
- Author(s):Andreea Stoican
- Language:English
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:99-112
- No. of Pages:14
- Keywords:regulated field; regulatory authority; renewable sources; specialised panels
- Summary/Abstract:In Romania, a whole series of scopes of business are currently regulated, and the level of detail, technicality and high number of specific normative acts related thereto make it extremely difficult to understand and apply them, both for technical experts, and particularly for jurists. Such a business scope is the regulated field of electrical power (energy). Primarily regulated by the Parliament, though the laws outlining the general implementation framework, the trading activities in the field of electrical power are mainly performed through the provisions stipulated by the secondary regulations, namely by the ones elaborated, approved, implemented and supervised by the National Regulatory Authority for Energy (Autoritatea Naţională de Reglementare în Domeniul Energiei – ANRE). The legal professions which are currently most often confronted with issues arising from the wrongful implementation of the provisions mentioned hereinabove are the ones of attorney-at-law and magistrate. Therefore, this paper aims at analysing the necessity of training certain categories of professionals in the legal field specialising in this activity sector, so that they may have a basic training level offering them the opportunity to represent or assist the players on the regulated market, namely to correctly settle the litigations occurring between such players or between the players and the Regulatory Authority.
On the de Facto Director of a Romanian Limited Liability Company
On the de Facto Director of a Romanian Limited Liability Company
(On the de Facto Director of a Romanian Limited Liability Company)
- Author(s):Cristina Cojocaru Borovina
- Contributor(s):Catalin-Silviu Sararu (Editor)
- Language:English
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:113-122
- No. of Pages:10
- Keywords:director; de facto director; limited liability company; management body
- Summary/Abstract:The study is focused on the existence of the de facto director of a limited liability company. The matter is analysed starting from a case from the recent judiciary practice, in which the courts of law issued different decisions on the lack of capacity to stand trial invoked by the shareholder who, at the time, exercised only in fact the management of the company. In order to establish the consequences of the existence of a de facto director for the company and for third parties, the article provides an overview on the appointment of the director, his duties and on the implications related to his responsibility.
Some Aspects Concerning the Setting up of Companies Regulated in Romania by the Law no. 31/1990 Republished
Some Aspects Concerning the Setting up of Companies Regulated in Romania by the Law no. 31/1990 Republished
(Some Aspects Concerning the Setting up of Companies Regulated in Romania by the Law no. 31/1990 Republished)
- Author(s):Ana-Maria Lupulescu
- Contributor(s):Catalin-Silviu Sararu (Editor)
- Language:English
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:123-132
- No. of Pages:10
- Keywords:setting up; legal personality; constitutive act; incorporation; the company under setting up
- Summary/Abstract:The setting up of a company regulated by Law no. 31/1990 republished does not imply only the mere conclusion of a company contract as an expression of the agreement reached between associates, but in every situation requires a period of time, of variable length, for completing the steps and formalities imposed by the law in order to obtain the legal personality. Moreover, during the setting up period, until the incorporation in the Register of Trade, the company has a specific legal regime, because, although it does not have legal personality yet, it must conclude certain juridical preparatory acts, precisely for the purpose of its valid setting up as a distinct subject of law. In these circumstances, we consider that an analysis of the legal regulation on the setting up of companies with legal personality, contained mainly in the Law no. 31/1990 republished, but also in the Civil Code, may appear particularly useful, both for analysts in law and practitioners, especially since this analysis highlights certain aspects that present a particular importance in this process.
Excise Duties in European Union. Relevant National Case-Law
Excise Duties in European Union. Relevant National Case-Law
(Excise Duties in European Union. Relevant National Case-Law)
- Author(s):Mihaela Tofan
- Contributor(s):Catalin-Silviu Sararu (Editor)
- Language:English
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:133-146
- No. of Pages:14
- Keywords:Excise duty; harmonized rules; national case-law; EUCJ influence
- Summary/Abstract:Excise duty is an indirect tax category, particularly important due to the economic impact it has on the public budget. EU harmonized excise duties represent special consumption fees that are due to the state budget for certain products, derived from domestic production or imported. In the area of regulation concerning substantive law on excise duties, EU law contains harmonized rules, mainly through directives. Accordingly to the transposition right into national law, each Member State has its own regulations in the field, resulting a very diverse legal framework. Especially in the rules of procedure, we notice considerable differences on the perception and payment of these tax liabilities, as demonstrated by the consistent jurisprudence. This paper shows the influence of the jurisprudence of the EUCJ on the interpretation of the rules of law applicable in the field.
The Lease Contract under Insolvency Law
The Lease Contract under Insolvency Law
(The Lease Contract under Insolvency Law)
- Author(s):Raluca Antoanetta Tomescu
- Contributor(s):Catalin-Silviu Sararu (Editor)
- Language:English
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:147-156
- No. of Pages:10
- Keywords:lease; insolvency; financier; user; financial leasing
- Summary/Abstract:The reason for the promulgation of the current insolvency law, Law 85/2014, was that of creating a legal framework effective and proper for the collective enforcement of debtors who are insolvent to ensure the recovery of claims that they owed and implicitly to protect business environment by saving viable enterprises and eliminating those that no longer have any chance of recovery. Starting from the different opinions drawn from the doctrine, and from the examples given by the inconsistent judicial practice, in case of the lease contract, when the debtor user enters insolvency proceedings, serious practical problems have been raised both in terms of the fate of this contract after the date of declaring the insolvency procedure open, but especially in terms of the registration of the claim arising from this contract on the list of creditors. Thus, the completion of the legislation with specific regulations for these operations was imposed. Through the institutional arrangements that aimed at enhancing the doctrinal and jurisprudential opinions, they managed to codify the status of the lease contract subject to insolvency proceedings, the situation of this contract being treated especially by the current Code of Insolvency, the new legislative framework offering principles that certainly will lead to the substantiation of a predictable and fair jurisprudence.
Considerations Regarding the Contract Assignment in the Romanian Civil Code
Considerations Regarding the Contract Assignment in the Romanian Civil Code
(Considerations Regarding the Contract Assignment in the Romanian Civil Code)
- Author(s):Tudor Vlad RĂDULESCU
- Contributor(s):Catalin-Silviu Sararu (Editor)
- Language:English
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:157-172
- No. of Pages:16
- Keywords:obligations; assignment of contract; relativity of contract; Romanian civil code
- Summary/Abstract:This article aims to give an overview of an institution that has not benefited from general rules in Romanian legislation before 2011 (the year that the actual Civil Code has entered into force) respectively the assignment of contract. The paper starts with a brief review of some aspects of comparative law regarding the assignment contract, moving through the few applications of this operation that were present in the Civil Code of 1864, to end with the actual regulation of the contract assignment, with its particular applications.
Consultation between Social Partners. From a General View to a Particular One
Consultation between Social Partners. From a General View to a Particular One
(Consultation between Social Partners. From a General View to a Particular One)
- Author(s):Magda Volonciu
- Contributor(s):Catalin-Silviu Sararu (Editor)
- Language:English
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:173-181
- No. of Pages:9
- Keywords:social partnership; social dialogue; labor law; collective labor agreement; individual employment contract
- Summary/Abstract:The paper was based on an analysis that focuses on the following aspects: Can the social partnership be the same thing as social dialogue? What is the place of the social dialogue in the consultation and information procedures among partners? Is the Law. 62/2011 an obstacle to a real social partnership? Also, it refers to the advantages and disadvantages for close dialogue from the baseline - the unit (including discussions on the concept of unity, according to the latest practices of European law) but also the employee`s right to be informed and the transition from the individual to the collective. For a thorough research of the problem it addresses the following: The general framework of information and consultation procedure established by Law no. 467/2006, the specific information and consultation procedures established on normative aspects but also the specific information and consultation procedures established by convention but also the strengthening of the social partnership. Last but not least, we analyze the social intervention in economic and managerial decision with their limits and risks.