Table of Contents
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- Associate scientific researcher Cristina Elena POPA (TACHE)
1. Adapting an Efficient Mechanism for Resolving International Investment Disputes to a New Era. Vienna Investment Arbitration and Mediation RulesAbstract:The neutrality of the tribunal that is to settle a dispute concerning international investment is the first criterion to be established from the outset and the first thing taken into account by the party that chooses a tribunal to settle its case. It is true that we live in an era in which we observe the efforts to establish and operate the European Union Multilateral Investment Court (MIC), but one of the many questions2 that both states and especially investors ask every time is about neutrality and efficiency because only these proven qualities will attract and really determine the parties from the start to choose a certain court. On the other hand, the traditional VIAC established by the Austrian Federal Economic Chamber in 1975 has continuously remained an independent and neutral institution for the administration of commercial disputes. Recently, VIAC expanded its portfolio to include investment dispute management, welcoming efforts in the light of international developments (the landscape created by the global crisis generated by Covid - 19, Austria's special role as a neutral place for dispute resolution, and Vienna in particular. As a hub for international trade and negotiations, issues that are set out in detail in the VIAC documents, as shown, with its historically established position in Central and Eastern Europe, ICSID as well as the face of future MIC. The method used to create this material was a comparative analysis materialized in logical deductions looking for the ideological and practical apex of a hypothetical system for resolving investment disputes.
Keywords:Investment Courts, international investment arbitration, investment rules, pandemic crisis, international investment law.
JEL Classification:D25, F21, K23
Page 91 - Legal adviser Lucía Piazza DOBARGANES
2. Climate-Related and Environmental Risks in EU Banking SupervisionAbstract:Climate-related and environmental pose a threat to financial stability and at credit institutions’ level. This paper delves into the on-going European Union initiatives for a sustainable banking sector, elaborates on how addressing this newly-identified source of financial risk fits within the mandate of prudential supervisors and provides an insight on their treatment under the current prudential framework for European credit institutions.
Keywords:banking law, climate change, environmental risks, European credit institutions.
JEL Classification:K22, K32
Page 102 - PhD. student Alexander KULT; PhD. student Jan SKRABKA
3. European Protection of Retail Investors in Insurance-Based Investment Products: Product Interventions under PRIIPsAbstract:The main goal of the Packaged Retail and Insurance-based Investment Products Regulation (PRIIPs) is to enhance investor protection standards for retail investors, in particular enabling them to better understand and compare the key features, risk, rewards and costs of different PRIIPs, through access to a short and consumer-friendly Key Information Document (KID). The regulation does not regulate advertisement information and does not aim to intervene in the measures associated with particular products otherways than in connection with the investment component. However, it contains authorisation for both EIOPA and the national regulators to set up remediation measures and restrict the distribution of particular products with investment component or particular types of financial activities. PRIIPs thus presents a kind of negative regulation of product development. The envisaged intervention mechanism is similar to those established in the framework of MiFID II and MiFIR. The authors mainly use the research methods of legal comparison, critical analysis, synthesis and deduction. The objective of the study is to clarify the impact of the above-mentioned rights of the regulatory bodies to the autonomy of will and the freedom of contract. The result of this study implies that the restrictive measures envisaged by PRIIPs may be applied only ultima ratio and are associated with private law liability.
Keywords: insurance, insurance-based investment product, unit-linked insurance, product intervention, PRIIPs, insurance law.
JEL Classification:G22, K20, K22, K23
Page 115 - Professor M. Elvira MÉNDEZ-PINEDO
4. The Effectiveness of EEA Law and the EFTA CourtAbstract:The principle of effectiveness is an unwritten principle of European Economic Area law (EEA). It is required by the general principle of homogeneity with European Union law (Article 1(1) EEA Agreement) and the loyalty principle (Art. 3 EEA Agreement). This study explores how this concept has been applied in practice by the EFTA Court within the framework of this legal order during 2010-2020. This European Court has confirmed the existence of the principle as inherent in the EEA Agreement and mostly refers to effectiveness in three different strands of jurisprudence (where effectiveness takes different meanings). The findings of the study show that, while the Court has used the doctrine to guarantee the judicial protection and justiciability of individual rights; it has not defined, clarified or elaborated on the meaning, content and scope of this important principle, A table of most important case-law of the EFTA Court on effectiveness and its different meanings is to be found in the conclusions.
Keywords: European Economic Area, EEA law, EFTA Court, effectiveness.
JEL Classification:F59, K33
Page 124 -
Associate professor Sónia de CARVALHO
5. Chicago School Analysis on Vertical RestraintsAbstract:In the early 1930s, an ideological movement developed at the University of Chicago that, having started by focusing on the economy, became known as the Chicago Economic School. One of the cornerstones of this school was the renewal of competition policy to the consumer welfare (consumer welfare), understood here in a broad sense. For Bork, economic efficiency corresponds to the maximization of wealth, which is equivalent to the welfare of the consumer, since it allows lower costs, lower prices and increased production of products and services desired by the consumer. The Chicago School role in vertical restraints rehabilitation, using empirical analysis, in order to demonstrate its competitive and efficiency effects, hitherto considered anti-competitive, exerted a significant influence on US competition law and, in recent years, in European competition law, justifying the analysis of its main characteristics. The explanation found by Chicago School, which, unlike the Harvard School, was able to point to efficiency as a justification for these practices, called by Williamson nonstandard, is based on the overcoming by Chicago School of the perfect competition model advocated by price theory. The Chicago School's analysis of these restrictions also accepts the existence of market failures in the relationships between distributors and producers resulting from the transaction costs. This paper aims at demonstrating the existence of a continuity relationship between the Chicago School and the Theory of Transaction Costs, showing that the approach by the Chicago School to vertical restrictions reveal, in several aspects, the proximity to the Transaction Cost Theory and the rejection of the perfect competition model. The analysis of economic aspects of vertical restraints performed by Chicago School, forestalling the Transaction Cost Theory, assumes particular importance as it has been shaping the US and European antitrust policy towards vertical agreements, challenging the competition law approach in the 21st Century.
Keywords: antitrust, vertical restraints, transaction cost theory, Chicago School.
JEL Classification:K23, K32
Page 151 - PhD. student Ingrid A. MÜLLER
6. The Regulatory Framework Applicable in International Arbitration and the Interplay Between its ComponentsAbstract:This paper is a broad analysis of the norms applicable in international arbitration. Its purpose is to outline the way these norms interact, by reference to the characteristics of arbitration as an alternative dispute resolution method, mainly pertaining to party autonomy, but also considering elements outside of the parties’ control. The research method employed is the comparative one. Nevertheless ― since a detailed analysis of such aspects would exceed the limits of this exercise ― no direct comparison will be made neither between commercial arbitration and investment arbitration, nor between institutional arbitration and ad-hoc arbitration, while the differences between the aspects pertaining to procedure and those applicable on the merits of the disputes will not be insisted upon. Rather, the focus will be on the overlapping issues. The results will highlight the advantages of corelating the applicable law with the arbitral rules as well as with other relevant norms, such as mandatory norms (e.g., public policy - whether national, supranational, or transnational/international) on the one hand, and soft law instruments on the other hand.
Keywords: international arbitration, arbitral rules, regulatory framework, supranational norms, public policy, soft law instruments.
JEL Classification:K33, K39, K49
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