scholarly journals Communicating Scientific Choices in a Multilingual EU: The Position of “Third Parties” in EU Agencies’ Technical Assessments

2020 ◽  
Vol 11 (3) ◽  
pp. 667-682
Author(s):  
Alessia MONICA
Keyword(s):  
Risk Assessment ◽  
Third Parties ◽  
Health Protection ◽  
Third Party ◽  
Democratic Process ◽  
Eu Law ◽  
Specific Interest ◽  
Administrative System ◽  
Scientific Assessment ◽  
The Eu

Frequently, decisions related to health protection are taken directly on the basis of scientific assessment and they are not clearly understood, as is highlighted in the Xylella example. Therefore, this article suggests that coherent processing of information in risk assessment may allow also a “third party” (who has not already expressed a specific interest in the procedure) to participate. In order to truly grasp the EU administration, an accountable way of communicating is helpful. Therefore, communication around the democratic process might be based on EU administrative principles and rules supporting a composite administrative system: it must not neglect the implications of compliance with the multilingual principle and its consequences for EU law, which would also lead to greater trust in risk assessment.

Third-Party Releases in Insolvency of Multinational Enterprise Groups

2021 ◽  
Vol 18 (1) ◽  
pp. 107-140
Author(s):  
Ilya Kokorin
Keyword(s):  
Business Models ◽  
Multinational Enterprise ◽  
Third Parties ◽  
Third Party ◽  
Insolvency Law ◽  
Legal Responses ◽  
Group Members ◽  
Legitimate Expectations ◽  
Enterprise Groups ◽  
The Eu

Abstract Europe is experiencing the rise of restructuring proceedings, which has recently culminated in the adoption of the Restructuring Directive. While being a major achievement in harmonising substantive (pre)insolvency law in the EU, it lacks rules targeting restructuring of multinational enterprise groups. As a result, effectiveness of group reorganisations may be undermined. Nevertheless, some jurisdictions adopt innovative tools, facilitating group solutions. Among them – third-party releases. Such releases entail a total or partial discharge or amendment of claims against third parties, such as co-obligors, guarantors and collateral providers (typically, group members) in the insolvency or restructuring proceeding of the principal debtor.The diversity of approaches to third-party releases highlights their controversial nature. Such releases may frustrate legitimate expectations of creditors relying on cross-guarantees and other forms of cross-liability arrangements. Extending the effects of debt reorganisation to third parties in the absence of a separate insolvency proceeding may also run contrary to the longstanding views on corporate insolvency and entity shielding. This article argues that a single-entity-restructuring risks being short-sighted and that third-party releases are a matter of commercial necessity, synchronising legal responses with actual business models and better addressing the complexity of group interdependencies, realised through various intra-group liability arrangements.

scholarly journals The Question of Applicability: EU Law or International Law in Nord Stream 2

2019 ◽  
Vol 44 (2) ◽  
pp. 117-147
Author(s):  
Paul Gragl
Keyword(s):  
International Law ◽  
Third Party ◽  
Energy Market ◽  
Eu Law ◽  
Legal Regime ◽  
Energy Charter Treaty ◽  
Pipeline Project ◽  
Nord Stream ◽  
Security Standards ◽  
The Eu

Seeing that a bilateral agreement between the EU and Russia on the Nord Stream 2 pipeline project is highly unlikely to be concluded due to political considerations, this paper enquires which existing legal regime is applicable to the governing of this pipeline, especially in order to guarantee solidarity and security within the EU energy market through third-party access and unbundling requirements. The question is whether EU law in general (which the Council denies) or international law applies, and if the latter, which specific regime(s): the Energy Charter Treaty, wto law, the law of the sea, or a combination of regimes? Lastly, this paper also investigates whether and to what extent these international law regimes might guarantee the same solidarity and energy security standards as EU law.

scholarly journals Protecting Trade Mark Proprietors Against Unfair Competition in EU Trade Mark Law

2021 ◽  
Vol 30 ◽  
pp. 152-163
Author(s):  
Gea Lepik
Keyword(s):  
Competition Law ◽  
Trade Mark ◽  
Third Parties ◽  
Unfair Competition ◽  
Eu Law ◽  
Trade Marks ◽  
Unfair Competition Law ◽  
Trade Mark Law ◽  
Eu Trade Mark Law ◽  
The Eu

With aims of protecting trade mark proprietors against commercial practices of third parties that could hinder the use of the trade mark in informing and attracting customers, negatively influence its selling power, or exploit its attractive force, the EU legislator and the Court of Justice of the EU (CJEU) have broadened the protection afforded under trade mark law to cover such acts. At the same time, the CJEU has sought appropriate balance between the exclusive rights of trade mark proprietors and the interests of third parties, in allowing those practices that can be deemed acceptable as part of fair competition. The author argues that, in consequence, EU trade mark law is becoming ever more an EU law of unfair competition with regard to practices that involve the use of trade marks. The article represents an attempt to explain these developments by looking at specific policy choices and decisions of the CJEU on the protection of trade marks, alongside the wider context of EU law dealing with unfair competition. A key conclusion is that, in light of the lack of harmonisation of unfair competition law in the EU (at least pertaining to practices that affect businesses), the widening of the scope of protection under trade mark law helps to ensure the necessary degree of harmonisation while avoiding a parallel system of protection. When compared to pre-existing EU instruments of unfair competition law that prohibit certain uses of trade marks, this approach provides trade mark proprietors with a more efficient mechanism for enforcing their rights. In the course of elucidating this finding, the article gives the reader an understanding of how EU law addresses the protection of the commercial value of trade marks.

scholarly journals Resolving the Inconsistency Between National and EU Motor Insurance Law. Was Factortame the Solution Nobody Sought?

2021 ◽  
Vol 22 (1) ◽  
pp. 122-146
Author(s):  
James Marson ◽  
Hasan Alissa ◽  
Katy Ferris
Keyword(s):  
Motor Vehicle ◽  
Transitional Period ◽  
Third Party ◽  
Eu Law ◽  
Insurance Law ◽  
Enforcement Mechanisms ◽  
Free Movement Of Persons ◽  
The Uk ◽  
Motor Vehicle Insurance ◽  
The Eu

AbstractIn this Article, we argue that the uncertainty of UK national motor vehicle insurance law—when viewed with respect to its European Union (EU) parent, the Motor Vehicle Insurance Directive (MVID)—was never satisfactorily addressed, primarily when using the remedy available through the non-contractual liability of the State. The EU enforcement mechanisms were equally haphazard in their effectiveness and success in affording rights to third-party victims. Given the link between the MVID and the free movement of persons and goods, on which the harmonization of insurance protection was based, we present the first Article establishing an argument that those offending aspects of UK national law should have been disapplied. The UK has concluded its agreement to withdraw its membership of the EU—and thus no longer to be bound by EU law and the jurisprudence of the Court of Justice. Yet until the transitional period ends, the UK remained aligned to EU law and those defects present in national law should have been remedied. Therefore, the remedy issued from the Factortame line of case authorities may have proven to be the most effective way to grant access to rights which were denied to third-party victims in the UK. Here we present a justification for its application.

Risk Assessment of Core Banking System Replacement based on ISACA Framework

2014 ◽  
Vol 1 (1) ◽  
pp. 35-45
Author(s):  
Fenty Simanjuntak ◽  
Bobby Suryajaya
Keyword(s):  
Risk Assessment ◽  
Banking System ◽  
Residual Risk ◽  
Project Teams ◽  
Third Party ◽  
Project Delivery ◽  
Business Growth ◽  
Regulatory Requirements ◽  
The Core ◽  
Medium Risk

Many banks are looking for a better core banking system to support their business growth with a more efficient and flexible core banking system to improve their sales and services in the competitive market and to fulfill regulatory requirements. The decision of replacing the legacy core banking system is difficult due to the high IT investment cost required for banks because they are also trying to cut costs. But maintaining the legacy system is costly in terms of upgrade. Changing the core banking system is also a difficult process and increases risks. To have a successful Core Banking System implementation, risk assessment is required to be performed prior to starting any activities. The assessment can help project teams to identify the risks and then to mitigate the risks as part of the plan. In this research the Core Banking System replacement risks were assessed based on ISACA Framework for IT Risk. Fourteen risk scenarios related to Core Banking System Replacement were identified. The high and medium rated inherent risks can become medium and low residual risk after assessment by putting the relevant control in place. The result proves that by adding mitigation plan it will help to mitigate the Residual Risk to become low risk. There are still three residual risk which categorized as medium risk and should be further mitigated they are Software Implementation, Project Delivery and Selection/Performance of Third Party Suppliers. It is also found that COBIT 5 has considered some specific process capabilities that can be used to improve the processes to mitigate the medium risks.

A refusal to grant access to a grid within the provision of crude oil transfer services as an example of a prohibited abuse of a dominant position in the EU and Polish competition law

2018 ◽  
Vol 5 (2) ◽  
pp. 199 ◽  
Author(s):  
Wojciech Paweł SZYDŁO
Keyword(s):  
Crude Oil ◽  
Competition Law ◽  
Eu Law ◽  
The European Union ◽  
Dominant Position ◽  
Oil Companies ◽  
Effective Competition ◽  
Oil Pipelines ◽  
Transfer Services ◽  
The Eu

Aim: The paper discusses cases in which a refusal by an energy enterprise to connect other enterprises to the network is treated as a prohibited abuse of the enterprise's dominant position and, equally, will represent behavior prohibited by art. 12 of the Treaty on the Functioning of the European Union and by art. 9 par. 2 item 2 of the Competition and Consumer Protection Law as well as legal consequences of such refusal. It is important to pinpoint such cases since the EU sectoral regulation does not provide for obligating any undertakings which manage and operate oil pipelines to enter into contracts with other undertakings such as contracts on connecting into their network or contracts on providing crude oil transfer services. Conditions for accessing oil pipelines and selling their transfer capacities are determined by the owners of the networks: private oil companies in the countries across which the pipelines are routed. These conditions are not governed by the EU law.  Furthermore, the very obligation of connecting other entities to own network by energy undertakings operating in the oil transfer sector in Poland will only arise from generally applicable provisions of the Polish competition law.  Design / Research methods: The purpose of the paper has been reached by conducting a doctrinal analysis of relevant provisions of Polish and EU law and an analysis of guidelines issued by the EU governing bodies. Furthermore, the research included the functional analysis method which analyses how law works in practice. Conclusions / findings: The deliberations show that a refusal to access the network will be a manifestation of a prohibited abuse of a dominant position and will be a prohibited action always when the dominant's action is harmful in terms of the allocation effectiveness. It will be particularly harmful when delivery of goods or services objectively required for effective competition on a lower level market, a discriminatory refusal which leads to elimination of an effective competition on the consequent market, a refusal leading to unfair treatment of consumers and an unjustified refusal. Originality / value of the article: The paper discusses the prerequisites which trigger the obligation to connect entities to own network by energy undertakings operating in the oil transfer sector. The obligation has a material impact on the operations of the oil transmitting undertakings, in particular on those who dominate the market. The regulatory bodies in the competition sector may classify a refusal of access to own network by other enterprises as a prohibited abuse of the dominant position, exposing such undertakings to financial consequences.Implications of the research: The research results presented in the paper may be used in decisions issued by the President of the OCCP and in judgement of Polish civil courts and EU courts. This may cause a significant change in the approach to classifying prohibited practices to prohibited behavior which represent abuse of the dominant position. The deliberations may also prompt the Polish and EU legislator to continue works on the legislation.

Cláusulas de franquicia o deducible en seguros de responsabilidad civil en el Derecho español: Naturaleza y efectos respecto de terceros perjudicados

2018 ◽  
pp. 101
Author(s):  
Rafael Lara González
Keyword(s):  
Civil Liability ◽  
Third Parties ◽  
Insurance Contract ◽  
Third Party ◽  
Liability Insurance ◽  
Legal Doctrine ◽  
Insurance Contracts ◽  
Spanish Law ◽  
Palabras Clave ◽  
Legal Nature

ResumenPese a su ubicuidad en la práctica contractual, las cláusulas de franquicia han recibido tratamiento incidental en la doctrina. La discusión sobre ellas se ha enfocado en los contratos de seguros de responsabilidad civil, y en la interpretación del artículo 76 de la Ley española de Contrato de Seguro. En este contexto se ha tratado de establecer si el asegurador puede o no oponer la cláusula de franquicia al tercero perjudicado. El presente trabajo analiza la cláusula de franquicia en la obligación principal del asegurador, su naturaleza jurídica, y examina su relación con los terceros perjudicados. La consideración principal a este respecto estará en si nos encontramos ante un seguro obligatorio o ante un seguro voluntario de responsabilidad civil. Palabras clave: Contrato de seguro; Cláusula de franquicia; Terceroperjudicado; Responsabilidad civil.AbstractDespite their ubiquity in contractual praxis, deductible clauses have received only incidental treatment in legal doctrine. Discussion on them has focused on civil liability insurance contracts, and the interpretation of article 76 of the Spanish Law of Insurance Contracts. In this context it has been attempted to establish whether the insurer can invoke the clause to oppose the injured third party's claim. This article examines the deductible clause included in the insurer's main obligation, its legal nature, and its relation to injured third parties. The main consideration in this regard will be whether the insurance contract is of a mandatory or voluntary nature.Keywords: Insurance contract; Deductible clause; Injured third party; Civil liability.

EU Non-Refoulement: (The Irrelevance of) Territoriality and Pre-Border Controls

2017 ◽  
Author(s):  
Violeta Moreno-Lax
Keyword(s):  
International Human Rights Law ◽  
Eu Law ◽  
Human Rights Law ◽  
Refugee Law ◽  
Functional Understanding ◽  
Scope Of Application ◽  
International Refugee Law ◽  
Border Controls ◽  
The Eu

This chapter identifies the content and scope of application of the EU prohibition of refoulement. Following the ‘cumulative standards’ approach, the analysis incorporates developments in international human rights law (IHRL) and international refugee law (IRL). Taking account of the prominent role of the ECHR and the Refugee Convention (CSR51) as sources of Article 19 CFR, these are the two main instruments taken in consideration. The scope of application of Articles 33 CSR51 and 3 ECHR will be identified in turns. Autonomous requirements of EU law will be determined by reference to the asylum acquis as interpreted by the CJEU. The main focus will be on the establishment of the territorial reach of EU non-refoulement. The idea that it may be territorially confined will be rejected. Drawing on the ‘Fransson paradigm’, a ‘functional’ understanding of the ‘implementation of EU law’ standard under Article 51 CFR will be put forward, as the decisive factor to determine applicability of Charter provisions. The implications of non-refoulement for the different measures of extraterritorial control considered in Part I will be delineated at the end.

Formation of Contract and Third Parties in Cambodia

2018 ◽  
Author(s):  
Ly Tayseng
Keyword(s):  
Academic Writing ◽  
Case Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Contract Formation ◽  
The Law ◽  
The Right ◽  
Formal Requirements

This chapter gives an overview of the law on contract formation and third party beneficiaries in Cambodia. Much of the discussion is tentative since the new Cambodian Civil Code only entered into force from 21 December 2011 and there is little case law and academic writing fleshing out its provisions. The Code owes much to the Japanese Civil Code of 1898 and, like the latter, does not have a requirement of consideration and seldom imposes formal requirements but there are a few statutory exceptions from the principle of freedom from form. For a binding contract, the agreement of the parties is required and the offer must be made with the intention to create a legally binding obligation and becomes effective once it reaches the offeree. The new Code explicitly provides that the parties to the contract may agree to confer a right arising under the contract upon a third party. This right accrues directly from their agreement; it is not required that the third party declare its intention to accept the right.

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