Band 16, Heft 6

According to economic literature, climate change is a financial factor: this is the logical premise of the European Directive N. 2014/95/EU requiring disclosure on the policies adopted by big corporations on climate change risks and opportunities. Through disclosure, climate change imprints the contents of directors’ duty of skill and care in Europe. On the contrary, in US there is no federal legislation or SEC regulations specifically on climate disclosure. Absent any binding decision yet, the current assessment of directors’ fiduciary duties under state law does not include consideration of climate change risks and opportunities according to American authors, even though fiduciary duties may evolve. The sole effective tool is the Martin Act. Levels of disclosure of US and EU corporations are therefore already significantly different both in terms of climate risks and opportunities. This situation can drive the financial sector to direct capital to Europe. Institutional investors in US have been trying to increase disclosure through shareholders’ proposals under Rule 14a-8 but these efforts have been recently undermined by the micro-management argument used by SEC. The conclusion is that the market cannot govern climate change by itself: because of regulation, European corporations are better positioned to mitigate the “carbon bubble”. What is at stake is the profitability of American corporations.

When the General Data Protection Regulation (henceforth: GDPR) came into force, it quickly became clear that the new data protection law would strongly influence many different areas of law. This article deals with the relationship between data protection law and insolvency law, which was hardly considered before the GDPR was adopted. This relationship is particularly relevant where personal data is to be sold as asset in insolvency proceedings. As will be shown, the new data protection law imposes requirements on such data transfers which are very difficult to fulfil. The main problem is that in German law, personal data is not transferable because it is considered part of a subject’s personality. This situation is comparable to German copyright law, since the copyright itself is a non-transferable good. However, just as usage rights in copyright, the rights to use the personal data can be transferred to a third party provided that the requirements of the GDPR are satisfied. This article will comprehensively analyse under which conditions a transfer of such rights would be possible in insolvency proceedings. To create a balanced relationship between data protection law and insolvency law, the principle of proportionality is of crucial importance in this respect.

Resolving regimes of non-performing loans (NPLs) have raised concerns among supervisory authorities and banking regulators. NPLs play a central role in the linkages between poor lending and credit risks. This has implications for the management of asset quality and for the stability of the firm and the financial sector. A high stock of NPLs is undesirable to investors which can lead a decrease in the stock price, profitability loss and potentially to a distressed scenario. In the aftermath of the global crisis, the early resolution of NPLs requires coordinated insolvency proceedings and harmonised restructuring tools. The EU legislation introduced minimum loss coverage layers of capital for NPLs to address newly formed losses. Specifically, the supervisory toolkit implemented in the European Banking Union aims to improve the classification of loan quality and establish common practices to monitor non-performing exposures. This article argues that there is a need to enhance private arrangements within the resolution of distressed debts – alternative to public support such as asset management companies and securitisation mechanisms – which in turn would make it more manageable to reduce the NPL on banks’ balance sheet.

This study addresses the arbitrability of corporate law disputes and the validity of arbitration clauses stipulated in the articles of association (AoA) of joint stock companies, and compares Turkish law with German and Swiss jurisdictions in particular. While corporate law disputes are considered arbitrable, disputes concerning invalidity of corporate decisions and actions for dissolution are heavily debated. The paper argues that both types of disputes are arbitrable, albeit judicial dissolution requests accommodate practical hurdles. It is also argued that arbitral awards should be granted the erga omnes effect, as long as the interested third parties are provided with the necessary procedural protection. Furthermore, arbitration clauses can be validly stipulated in the AoA of privately held joint stock companies. However, the binding effect of the arbitration clause in question depends on its legal nature, namely, korporative or formell. Addressing this issue, the paper proposes to adopt a two-step test. Finally, it suggests practicable legislative recommendations and a model arbitration clause in order to enable and facilitate arbitration in corporate law disputes.