Part III Prospectus Liability and Litigation, 25 Luxembourg

2020 ◽  
Author(s):  
Hoffeld Veronique
Keyword(s):  
Civil Liability ◽  
Case Law ◽  
Civil Code ◽  
Misleading Information ◽  
Legal Provisions ◽  
Prospectus Liability ◽  
Material Information

This chapter focuses on the Luxembourg civil liability regime which applies to information given in a prospectus. Luxembourg has implemented certain specific provisions on prospectus liability; however, these do not constitute an entirely autonomous civil liability regime on prospectus liability as such. Most aspects with regards to a person's liability must be determined in accordance with the general Luxembourg provisions on civil liability from the Luxembourg Civil Code. No questions have yet arisen before the Luxembourg courts on the liability regime which applies to those persons responsible for the information given in a prospectus. There is therefore no established Luxembourg case law complementing the provisions currently in place. This chapter thus concerns those situations where a prospectus contains misleading information or omits to include material information infringing the requirements of the Luxembourg legal provisions on prospectuses.

Part III Prospectus Liability and Litigation, 23 Spain

2020 ◽  
Author(s):  
Campo Javier Redonet Sánchez del
Keyword(s):  
European Union ◽  
Civil Liability ◽  
Case Law ◽  
Securities Market ◽  
Tort Liability ◽  
Legal Regime ◽  
Royal Decree ◽  
The Public ◽  
Regulated Markets ◽  
Prospectus Liability

This chapter considers the prospectus in Spain. Historically, and unlike other European Union jurisdictions, before the enactment of Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC (the ‘Prospectus Directive’), Spain lacked any explicit regulation on the civil liability arising from the defective content of prospectuses for securities offerings and listings in regulated markets. Nevertheless, legal authors having researched on the matter had expressed the view that liability attached to prospectuses on the basis of the general principles of tort liability. The legal regime of prospectus liability enshrined by the Securities Market Act and Royal Decree 1310/2005 is not fully comprehensive, however. In addition, it is completed with the general principles of civil liability contained in the Spanish Civil Code as construed by case law stemming from the Spanish Supreme Court.

scholarly journals ABOUT THE REDUCTION OF CIVIL LIABILITY IN THE CASE OF PENALTY

2019 ◽  
pp. 39-42
Author(s):  
S. V. Cherkashyn
Keyword(s):  
Scientific Literature ◽  
Historical Analysis ◽  
Case Law ◽  
Civil Code ◽  
Economic Aspects ◽  
Economic Context ◽  
Legal Provisions ◽  
The Right ◽  
Almost All ◽  
Historical Origins

The article deals with the peculiarities of the historical formation of provisions on the possibility of reducing the amount of the penalty by court. Attention is paid to both the study of the socio-economic aspects of the problem and the consequences of modern practice. The study is based on a historical analysis of the main provisions of the Civil Code Draft (1914), the Civil Code of the Ukrainian SSR (1922), Civil Code of the Ukrainian SSR (1963), and Civil Code of Ukraine (2003). On this basis, regularities of the functioning of judicial restriction of the amount of the penalty, as well as inheritance by legislative acts of the most characteristic rules were established. Considering the regularities of the case law for 2017–2018, placed in the Unified Register of Judgments of Ukraine. Particular attention is paid to the clarification of the higher courts of law regarding the reduction of a penalty in court. Based on the comparison of legal provisions and clarifications of higher courts, was found the historical origins of the problem of application of the provisions of Part 3 of Art. 551 of the Civil Code of Ukraine. In particular, the courts substantially reduce the amount of the penalty in almost all cases without substantiating such action. This practice undermines contractual discipline and distorts the principles of liability laid down in the Civil Code of Ukraine. The analysis of the scientific literature and the case law shows that the reason for this problem is the fact that the reduction of the amount of the penalty is carried out if its size significantly exceeds the damage caused. Such positioning of liability measures is the basis of contractual discipline; otherwise the right of participants to set exactly the amount of responsibility that would make an effort to fulfill the obligation properly is nullified. In the current socio-economic context, the need to apply a judicial restriction on penalties is overwhelmingly lacking. The author proposes to improve the provisions of Part 3 of Art. 551 of the Civil Code of Ukraine by establishing the exclusivity and proportionality of the court’s reduction of the penalty.

scholarly journals Instytucja kary umownej w latach 1965–1989 — wybrane zagadnienia

2021 ◽  
Vol 43 (3) ◽  
pp. 37-45
Author(s):  
Agnieszka Guzewicz
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Case Law ◽  
Civil Code ◽  
Theory And Practice ◽  
Legal Provisions ◽  
Starting Point ◽  
The Supreme Court

The basis of this article is the analysis of the functioning of a contractual penalty in the years 1965–1989, i.e. from the time the Civil Code entered into force until the end of the Polish People’s Republic period. The research was carried out by means of analysing the legal provisions, the caselaw of the Supreme Court and the views of the doctrine. Its purpose is to reflect and draw conclusions on the functioning of the civil law institution — a contractual penalty — under authoritarian governments. The considerations were focused on selected problems, first of all concentrating on the Supreme Court’s case-law. Legal relations with the participation of socialized economy units become an important element of these considerations. The provisions of the Civil Code constitute the starting point, but they cannot be interpreted in isolation from the provisions of other normative acts that introduced special legal solutions in contracts with the participation of units of the socialized economy. The confrontation of theory and practice shows how the obligations imposed on entities of civil law are enforced. Against this background, issues of key importance for civil law emerge. They relate to the principles of concluding contracts, the performance of obligations, and the consequences of a failure to perform the contract.

scholarly journals Problems of legal regulation of delay interest as a type of civil liability for breach of monetary obligations in Ukraine

2020 ◽  
pp. 296-300
Author(s):  
Yaryna Fomenko
Keyword(s):  
Law Enforcement ◽  
Theoretical Study ◽  
National Level ◽  
Civil Liability ◽  
Legal Regulation ◽  
Civil Code ◽  
Legal Provisions ◽  
Legal Nature ◽  
Definition Of ◽  
Legal Concepts

This article is devoted to the theoretical study of the legal regulation of delay interest as a type of civil liability for breach of mo -ne tary obligations under Ukrainian law. It is the contractual sanctions, that are one of the most important parts of the contract as theyinduce the parties to comply with their obligations. In addition, sanctions are of a dual legal nature – they are both means of ensuringthe performance of the obligations and a measure of liability for a dishonest contractor. Liability for breach of monetary obligations ischaracterized by conflicting legal provisions and ambiguous court practice. For example, under the Civil Code of Ukraine delay interestand a penalty are regarded as types of forfeit, while in the Economic Code of Ukraine forfeit is treated as a separate type of sanction.However, in the absence of separate definitions of each sanction in the Economic Code of Ukraine, it is unclear as to the meaningintended by the legislator in particular in the concept of “forfeit”. This situation complicates the understanding of legal concepts andrequires a regulatory specification of such provisions in legislative acts. Based on the theoretical analysis, it is necessary to develop scientificallygrounded proposals and recommendations for improvement of law making and law enforcement activities. The legal characteristicsand peculiarities of the delay interest as a type of civil liability are investigated in the article.As a result of a comparative analysis of the regulations in the Civil Code of Ukraine and the Economic Code of Ukraine, the followingdifferences and contradictions were summarized and noted: a) different approach to the definition of “delay interest”; b) unequalapproach to the question of types of obligations to which delay interest can be applied; c) differences in the calculating of delay interestfor breach of a monetary obligation procedures.In order to effectively resolve disputes, the author notes the need to implement unification of the Civil Code of Ukraine with theEconomic Code of Ukraine at the national level and to establish clear rules for the application of delay interest for non-compliance withmonetary obligations.

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.

Contracts for the Benefit of Third Parties in Japan

2018 ◽  
Author(s):  
Masami Okino
Keyword(s):  
Case Analysis ◽  
Case Law ◽  
Contract Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
German Model ◽  
Recent Debate ◽  
The Law

This chapter discusses the law on third party beneficiaries in Japan; mostly characterized by adherence to the German model that still bears an imprint on Japanese contract law. Thus, there is neither a doctrine of consideration nor any other justification for a general doctrine of privity, and contracts for the benefit of third parties are generally enforceable as a matter of course. Whether an enforceable right on the part of a third party is created is simply a matter of interpretation of the contract which is always made on a case-by-case analysis but there are a number of typical scenarios where the courts normally find the existence (or non-existence) of a contract for the benefit of a third party. In the recent debate on reform of Japanese contract law, wide-ranging suggestions were made for revision of the provisions on contracts for the benefit of third parties in the Japanese Civil Code. However, it turned out that reform in this area was confined to a very limited codification of established case law.

scholarly journals MATRIMONIAL REGIMES IN THE NEW ROMANIAN CIVIL CODE

2013 ◽  
Vol 7 (2) ◽  
Author(s):  
Iosif Florin Moldovan
Keyword(s):  
Civil Code ◽  
The Other ◽  
Legal Documents ◽  
Legal Provisions ◽  
Marital Agreement

The matrimonial regime represents the entirety of the legal provisions concerning theproperty relations between spouses during marriage, as well as the legal documents theyconclude with other people, governing a (measurable) patrimonial asset.In addition to the legal community regime, with the adoption of the new RomanianCivil Code two new matrimonial regimes were introduced, namely the regime of propertyseparation and the regime of the conventional community.Where the two spouses opt for one of the other two regimes, instead of the legalcommunity regime, it is necessary that they should sign a marital agreement.

scholarly journals Corporate Foreign Corrupt Practices and Director Liability

2014 ◽  
Vol 51 (3) ◽  
pp. 555
Author(s):  
Paul Blyschak
Keyword(s):  
Risk Mitigation ◽  
Civil Liability ◽  
Case Law ◽  
Corporate Law ◽  
Mitigation Strategies ◽  
Public Officials ◽  
Risk Mitigation Strategies ◽  
American Case ◽  
Director Liability

This article examines the various forms of potential liability faced by directors in their capacity as such in connection with corrupt practices engaged in by the corporations they serve. Although generally little discussed to date, Canadian directors do face potential civil liability associated with contraventions of the Corruption of Foreign Public Officials Act that are particular to their status as directors of a corporation. This article thus highlights this particular area of corporate law by reviewing both Canadian jurisprudence and American case law to decipher what lessons Canadian directors can learn in the absence of Canadian precedent similarly on point. Several key cases are highlighted and various risk mitigation strategies available to Canadian directors to guard against these potential liabilities are also discussed.

scholarly journals In the name of the public: Representatives of collective and wider interest of the public in administrative matters in Serbia

Pravni zapisi ◽  
2020 ◽  
Vol 11 (2) ◽  
pp. 504-531
Author(s):  
Jelena Jerinić
Keyword(s):  
Public Interest ◽  
Case Law ◽  
Legal Framework ◽  
Interested Party ◽  
The Public ◽  
Administrative Procedure ◽  
Active Approach ◽  
Legal Provisions ◽  
Direct Indication ◽  
Administrative Procedures

Serbian Law on General Administrative Procedure (LGAP) opened a possibility for broadening the standing in administrative procedures and administrative disputes, by inclusion of subjects representing collective interests and interest of the wider public - primarily, citizen associations and similar organizations. However, by failing to regulate a series of concrete issues, the Law places the administration and the Administrative Court before a challenge, demanding from them an extensive interpretation of not only LGAP's provisions, but other legislation already recognizing such organizations as AIDS in realization of the public interest. The author analyzes relevant legislation, as well as available administrative and court caselaw in search of these answers. The lack of explicit legal provisions could be balanced by a creative approach in practice, especially by the Administrative Court. Having in mind comparative solutions, the question arises whether it is necessary to regulate this category of potential parties separately or to link it more explicitly to the already existing notion of an interested party. Instead, completely new notions have been introduced - collective interests and the wider interests of the public - which are not or not consistently defined in Serbian law. The current, not so voluminous case law, shows that the administrative bodies need a more direct indication of the rules, i.e. a more explicit definitions of these terms. However, despite the restrictive legal framework, administrative bodies should be open to understanding the specific circumstances, i.e. the motivation that an organization has when it seeks standing. In the normative sphere, one of the solutions could be to envisage the analogous application of LGAP's provisions on the interested party. Other solutions could be sought in explicitly mentioning them in the provisions on right to appeal. The current formulations of LGAP do not provide sufficient guidance to the administration and an extensive interpretation would be a great challenge for them. An active approach of the Administrative Court could show the way for the administration toward and effective application of these provisions of LGAP.

Ambiguity in Insider Trading Regulations: Saudi Arabia as a Case Study

2020 ◽  
Vol 34 (4) ◽  
pp. 408-427
Author(s):  
Yahya A. Alomari
Keyword(s):  
Saudi Arabia ◽  
Insider Trading ◽  
Public Information ◽  
Case Law ◽  
Insider Information ◽  
The Law ◽  
Definition Of ◽  
Criminal Conduct ◽  
Material Information

Abstract The Saudi legal system recognises insider trading as a crime and has established laws in order to prevent it. Yet, the complicated nature of insider trading makes it challenging to enact regulations that cover all of the aspects of the crime and clearly identify criminal conduct. This article analyses insider trading regulations in Saudi Arabia and addresses their ambiguities. This article specifies current Saudi regulations pertaining to the crimes of insider trading and disclosing material information, as well as analysing both crimes. It addresses ambiguities found in the language of the law as well as in case law. This article also criticises the definition of insider information under the law. The issue of ‘use’ versus ‘possession’ is discussed: namely, whether what is prohibited is trading on the basis of material non-public information or trading while in possession of material non-public information.

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