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1 – 10 of over 15000Héctor Simón-Moreno and Padraic Kenna
The measures enacted so far at European level to address the global financial crisis are likely to have limited effects as they are still market efficiency oriented. Accordingly…
Abstract
Purpose
The measures enacted so far at European level to address the global financial crisis are likely to have limited effects as they are still market efficiency oriented. Accordingly, this study aims to explore how the EU Charter on Fundamental Rights may be useful to achieve a more human right dimension in EU regulatory law.
Design/methodology/approach
The work departs from the current commodification of housing worldwide and the limited capacity of EU to tackle new housing challenges. The work takes the link already established by the CJEU between EU consumer law and the EU Charter on Fundamental Rights one step further and addresses the potential implications concerning residential mortgage lending.
Findings
The main finding is the potential influence that the EU Charter of Fundamental Rights may have on EU regulatory mortgage lending, as there are indicators of a bifurcation of mortgage law regimes at the EU level, separating home loans from other mortgages.
Social implications
The influence of the Charter of Fundamental Rights on EU regulatory law, mainly consumer law treated in a human rights dimension, could be a first step to treat housing as a social good and not as a commodity in the EU. This could lead to a completely new approach concerning the traditional rules governing residential mortgage loans.
Originality/value
The potential constitutionalisation of consumer law and the impact of the CJEU cases on national procedural rules have already been addressed by scholarship. The present work goes one step further as it addresses the potential implications of the EU Charter of Fundamental Rights on EU regulatory law in terms of the potential bifurcation of EU rules on mortgage lending.
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The purpose of this paper is to explore the law relating to European Union (EU) Anti-Money Laundering (AML) Directives and the effect of Brexit on money laundering regulation in…
Abstract
Purpose
The purpose of this paper is to explore the law relating to European Union (EU) Anti-Money Laundering (AML) Directives and the effect of Brexit on money laundering regulation in the UK and the EU. The first part of the paper involves a review of AML Directives and how they are transposed into the UK. The question whether the fourth AML directive or other directives due to become law in the UK will be implemented or culled will largely depend on the relationship between the UK and the EU going forward. The UK will have the full autonomy in terms of making decisions as to which laws to implement or which laws to scrap or to cull, as it sees fit. The UK having relinquished its membership of the EU notwithstanding could still be bound by EU anti-money directives particularly if it chooses to remain in the EU single market. The UK could also forge alliances with EU member states and in which case it will be expected to apply the same EU market rules as its other EU counterparts. The fourth AML directive that was due to become law in all EU member countries in June 2017. This directive was introduced to streamline the third AML directive (2005/60/EC) largely with regard to beneficial ownership of nominee accounts and politically exposed persons (PEPs). The paper scoped current EU AML directives, and how they have been used in the fight against money laundering both in the UK and beyond. Brexit is likely to have far-reaching implications on many regulatory areas, including in prevention of money laundering and its predicate offences in the UK and the EU. The fourth AML directive was due to become law in the UK on 26 June 2017, and whether the UK Government will go ahead and implement it or bin remains to be seen.
Design/methodology/approach
The paper has evaluated the potential effect of BREXIT on EU AML Directives in the UK, drawing examples in non-EU countries. It articulates the raft of EU AML Directives to assess whether the fourth AML directive (which was due to become law in June 2017) will become law in the UK or be culled. It draws on experiences of non-EU countries like Switzerland and Norway, which despite not being members of the EU, have full access to the EU single market. The first part of the paper provides a review of AML Directives in Europe and how they are internalised into member countries. Data were evaluated often alluding to existing mechanisms for harnessing EU AML Directives in member countries. The last part of the paper proposes the measures that are ought to be done to minimise or forestall the threat of money laundering and its predicate offences in the post-Brexit regulatory environment.
Findings
The BREXIT has already unravelled markets both in the UK and in the EU with far-reaching implications on money laundering regulation in multiple ways. The paper has articulated the mechanisms for internalisation of EU AML directives in all Member countries and countries that want to exit the EU. It is now clear that, as the UK voted to relinquish its membership of the EU, it will not be under any obligations to apply EU AML regimes or any other EU laws for that matter. The findings of the paper were not conclusive, as the UK government has not yet triggered Article 50 of Treaty of Lisbon on the functioning of the EU. The fourth AML directive, which was due to become law in the UK on 26 June 2016, could still be adopted or culled depending on the model the UK decides to adopt in its relationship with the EU going forward. There is a possibility for the UK to remain a member of the EU single market and to retain some of the regulatory rules it has operated in relation to money laundering regulation and its predicate offences. It could adopt the Norway, Switzerland or the Canadian model, each of which will have different implications for the UK and the EU in terms of their varied AML obligations. It will be in the commercial interests of the UK Government to not cull the fourth AML directive (which was due to become law in June 2017) but to transpose it into law.
Research limitations/implications
There were not so many papers written on the issue of Brexit in the context of this topic. It was therefore not possible to carry out a comparative review of Brexit and its effect on money laundering regulation in the UK, drawing on experiences of other countries that have exited.
Practical implications
Brexit is likely to have far-reaching implications on many regulatory areas, including prevention of money laundering and its predicate offences in the UK and the EU.
Social implications
The Brexit has elicited debates and policy discussions on many regulatory issues and not the least money laundering counter-measures in the post-Brexit environment. Brexit will have far-reaching implications for markets, people and national governments both in the EU and beyond. It has already unravelled social and economic life both in the UK and in the EU. The significance of paper is that it could enhance future research studies on money laundering regulation within countries delinking from regional market initiatives to address attendant changes.
Originality/value
This paper proffers insights into the Brexit and its implication on AML regulation in the UK and the EU during and post-Brexit era. To curtail the social-economic effect of Brexit on financial markets regulation, the UK should remain a member of the European single market not only to minimise the potential of losing more ground and leverage as a financial capital of the world but also to protect financial markets tumbling downhill!
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The paper examines the disclosure of information within public contract awards under EU law. EU Public Procurement rules have several objectives that may at some times be…
Abstract
The paper examines the disclosure of information within public contract awards under EU law. EU Public Procurement rules have several objectives that may at some times be conflicting with each other. A certain level of transparency of public procurement procedure is necessary in order to fight corruption, enhance trade opportunities and ensure effective legal remedies. On the other hand, too much transparency may have certain anti-competitive effects. The national laws regarding disclosure of information vary in different EU member states. In Finland the EU law principle of effective remedies has been interpreted as requiring full transparency among the bidders. The transparency rules under EU law and certain Member States' national laws are analysed. As a conclusion, it is suggested that the rules on disclosure should not be left solely to the discretion of member states as the over-transparent approach taken by certain member states may negatively affect the markets both on a national and EU level.
Markets for public contracting are in the process of transition. Various public/private partnership arrangements replace conventional purchasing, especially within the local and…
Abstract
Markets for public contracting are in the process of transition. Various public/private partnership arrangements replace conventional purchasing, especially within the local and regional government area. Municipal entities may not be in a position to define their needs up-front because they would not have the overview of what the market may have to offer. So one should ask: Is the traditional ban-on-negotiations in mandatory tender procedures (sealed bidding) - such as it is in EU public procurement law - counter-effective to genuine best value for public money? The article displays significant differences between European Union (EU) law, U.S. law and other regimes such as United Nations Model law, The World Trade Organisation’s Government Procurement Agreement (WTO/GPA), The International Bank for Reconstruction and Development (IBRD), and the NAFTA (North American Free Trade Agreement). New avenues for public/private demand a new agenda and the recent EU 2004 directive scheme attempts to respond to the market challenges. The author accepts that the new directive on public contracting facilitates a more smooth approach than in current EU law with regard to high-tech complicated contract awards, but questions whether the ’competitive dialogue’ really can afford tailor-made solutions to cope with long-term public/private partnership arrangements of the kind now spreading all over Europe
Ugo Pagallo, Jacopo Ciani Sciolla and Massimo Durante
The paper aims to examine the environmental challenges of artificial intelligence (AI) in EU law that regard both illicit uses of the technology, i.e. overuse or misuse of AI and…
Abstract
Purpose
The paper aims to examine the environmental challenges of artificial intelligence (AI) in EU law that regard both illicit uses of the technology, i.e. overuse or misuse of AI and its possible underuses. The aim of the paper is to show how such regulatory efforts of legislators should be understood as a critical component of the Green Deal of the EU institutions, that is, to save our planet from impoverishment, plunder and destruction.
Design/methodology/approach
To illustrate the different ways in which AI can represent a game-changer for our environmental challenges, attention is drawn to a multidisciplinary approach, which includes the analysis of the initiatives on the European Green Deal; the proposals for a new legal framework on data governance and AI; principles of environmental and constitutional law; the interaction of such principles and provisions of environmental and constitutional law with AI regulations; other sources of EU law and of its Member States.
Findings
Most recent initiatives on AI, including the AI Act (AIA) of the European Commission, have insisted on a human-centric approach, whereas it seems obvious that the challenges of environmental law, including those triggered by AI, should be addressed in accordance with an ontocentric, rather than anthropocentric stance. The paper provides four recommendations for the legal consequences of this short-sighted view, including the lack of environmental concerns in the AIA.
Research limitations/implications
The environmental challenges of AI suggest complementing current regulatory efforts of EU lawmakers with a new generation of eco-impact assessments; duties of care and disclosure of non-financial information; clearer parameters for the implementation of the integration principle in EU constitutional law; special policies for the risk of underusing AI for environmental purposes. Further research should examine these policies in connection with the principle of sustainability and the EU plan for a circular economy, as another crucial ingredient of the Green Deal.
Practical implications
The paper provides a set of concrete measures to properly tackle both illicit uses of AI and the risk of its possible underuse for environmental purposes. Such measures do not only concern the “top down” efforts of legislators but also litigation and the role of courts. Current trends of climate change litigation and the transplant of class actions into several civil law jurisdictions shed new light on the ways in which we should address the environmental challenges of AI, even before a court.
Social implications
A more robust protection of people’s right to a high level of environmental protection and the improvement of the quality of the environment follows as a result of the analysis on the legal threats and opportunities brought forth by AI.
Originality/value
The paper explores a set of issues, often overlooked by scholars and institutions, that is nonetheless crucial for any Green Deal, such as the distinction between the human-centric approach of current proposals in the field of technological regulation and the traditional ontocentric stance of environmental law. The analysis considers for the first time the legal issues that follow this distinction in the field of AI regulation and how we should address them.
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Maryna Glukh, Tetiana Matselyk, Julia Anistatenko, Maryna Anisimova and Kateryna Rohozinnikova
Particular attention has been paid to the need to adapt the sources of financial law of Ukraine to the acquis communautaire. This paper emphasizes that the system of sources of…
Abstract
Purpose
Particular attention has been paid to the need to adapt the sources of financial law of Ukraine to the acquis communautaire. This paper emphasizes that the system of sources of financial law is inherently dynamic, which is reflected in the constant development of both its content and external form of expression.
Design/methodology/approach
This paper analyzes the main approaches to determining sources of law. The main features and peculiarities of the sources of financial law in Ukraine have been outlined. The positions of scholars on the characteristics of the sources of financial law of the European Union (EU) have been analyzed.
Findings
It is considered appropriate to allow soft law to belong to one of the sources of financial law. It is established that the adaptation of financial legislation of Ukraine to EU law is due to the following objectives: implementation of theoretical and practical experience of EU member states in the form of European standards enshrined in the sources of EU law; and harmonization of the rules of financial activity in Ukraine to the norms of EU financial law is necessary to ensure the free movement of persons, goods, services and capital.
Originality/value
The directives of the EU that regulate financial relations and the state of their implementation have been described. This paper proposes to improve the sources of financial law of Ukraine to harmonize the national legislation of Ukraine with the standards of the EU.
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Sara Moggi, Glen Lehman and Alessandra Pagani
This paper aims to critically analyse the transposition implications of Union Directive 2014/95. This Directive identified the need to raise the transparency of the social and…
Abstract
Purpose
This paper aims to critically analyse the transposition implications of Union Directive 2014/95. This Directive identified the need to raise the transparency of the social and environmental information provided by the undertakings to a similarly high level across all Member States.
Design/methodology/approach
The paper considers how the European Member States of the European Union (EU) have transposed Directive 2014/95 into their regulations. The focus is on the juridification of social accounting in the pursuit of creating an overlapping consensus through Habermas’s concept of internal colonisation. The paper uses qualitative content analysis to scrutinise the national laws that transpose Directive 2014/95, discussing both what has been accomplished and what can be achieved by the release of future legislative provisions.
Findings
Despite the aim of Directive 2014/95 to create a common language for disclosing non-financial information, this study shows an implementation gap among and between Member States and an inconsistent picture of the employment of this Directive. Its implementation in the 28 European countries was considered a process of colonisation in implementing Union directives among European undertakings. However, the implementation process, which exemplifies Habermas’s juridification, has failed due to the lack of balance between moral discourse and actions.
Originality/value
This paper contributes to the ongoing debates concerning the implementation of mandatory disclosure of environmental and social information in the EU Member States, promoting new directions for the EU’s democratic laws on social accounting. In addition, it offers an example of how internal colonisation only catalyses effects when moral laws are legitimised through the provision of procedures.
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Directive 91/308/EEC has been hailed by many European Union commentators as an extraordinary advance in the cause of EU integration, not least because it is still one of the few…
Abstract
Directive 91/308/EEC has been hailed by many European Union commentators as an extraordinary advance in the cause of EU integration, not least because it is still one of the few Directives actually in force in the field of EU criminal law. From the point of view of money laundering control, the Directive has been the EU's main weapon in its endeavours to ensure that the liberalisation of the financial markets and the consequent freedom of capital movements ‘is not used for undesirable purposes, such as money laundering’. Notwithstanding the undoubtful success of the Directive to introduce a minimum level of money laundering control mechanisms in all 15 EU member states (some of which had not even criminalised money laundering before transposing the Directive), however, Directive 91/308/EEC is no longer considered an adequately progressive legislative text for the advancement of further money laundering prevention to a pace equal to the one currently in force both at the international level and within some of the EU member states. The legislative response of the EU to the need for increasingly progressive legislation has been the Draft Money Laundering Directive, which having been passed by the Council and the Parliament is in the final stages of becoming part of EU legislation.
Evaluates the effects of shipwrecks and peoples’ reactions following them, with regard to their feelings of preventability on someone’s part. In particular to the Erika in 1989…
Abstract
Evaluates the effects of shipwrecks and peoples’ reactions following them, with regard to their feelings of preventability on someone’s part. In particular to the Erika in 1989, and the Prestige in 2002. The European Union (EU), which theretofore seemed to be neglecting maritime safety appears to have developed a maritime culture. The EU seems to have adopted the International Maritime Organisation’s (IMO) attitude regarding safety protocols, which must be a right and proper thing to do. Concludes that shipping has needed, and is now receiving, a proactive approach with regard to safety from the EU which should limit, as far as possible, disasters of both a human and ecological kind for the maritime world.
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With the rise of geopolitical tensions among the leading state actors, the Chinese citizens and companies are increasingly targeted by the unilateral restrictive measures. These…
Abstract
Purpose
With the rise of geopolitical tensions among the leading state actors, the Chinese citizens and companies are increasingly targeted by the unilateral restrictive measures. These frequently include the so-called secondary sanctions, i.e. penalties imposed on third parties for failing to comply with the sanctions regime, the US practice being a prominent example. The purpose of this paper is to analyze China's legal instruments related to imposition of and protection from unilateral restrictive measures of third countries.
Design/methodology/approach
The present paper discusses China’s legal defenses counteracting the extraterritorial sanctions by comparison with the legislative and enforcement practices of the EU, which has accumulated substantial experience trying to shield its businesses from the US secondary sanctions. The paper identifies the differences between the two anti-sanctions regimes and highlights the key factors that will affect the future enforcement of blocking rules in China.
Findings
When designing its anti-foreign sanctions legislation, China has considered similar legislation adopted by other jurisdictions, most notably – the EU blocking statute. The comparative assessment of the two blocking regimes reveals substantial similarities in legislative and procedural standards with important differences in enforcement capabilities and institutional frameworks.
Originality/value
The paper represents one of the first attempts to anticipate the directions in enforcement of China's blocking legislation taking into account the EU experiences in this domain.
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