Band 3, Heft 3

Technology has made the world a smaller and more integrated world for investors and firms seeking capital through public offerings. Investors and issuers across the globe now invest and raise capital in foreign markets through international portfolio investment. Indeed, there is an accelerating pace of such transnational investing and offerings. An important component of these developments are the scope of mandatory disclosure requirements that issuers must satisfy to list their securities for trading or to conduct their offerings in a country.Under the current system of securities law, issuers need to comply with the disclosure requirements prescribed by the regulations of the country in which it proposes to make the share offerings. The rapid growth in international portfolio investment and globalization has forced us reexamine the fundamental premise of regulation: the territorially based scope of national securities laws. The benefits of cross-border share offerings have triggered the search for an alternative system of securities law, which would encourage the growth cross-border portfolio investments.There are three different approaches that have been promulgated by researchers namely, multinational/trans-national regulations approach, multiple disclosure standards approach and uniform minimum disclosure approach. Recently, there have been a few instances of practical applications of these approaches, the most noteworthy of which are the single European market plan and the IOSCO proposal. This article attempts to bring forth the salient features of these two attempts; and in conclusion it is hoped that other nations are inspired from these two examples and aspire to establish a uniform disclosure norm for public share offering across the globe.

Asymmetry in the allocation of information, together with personal and market conditions, may lead to an inequality of bargaining power between contracting parties. In other words, in the context of contract formation, one party may enjoy a superior bargaining position on the other, which may be exploited in the form of unfair contractual terms and misleading conduct. Different legal regimes have developed their own remedies to protect the weaker contractual party, more generally consumers, in such scenarios. The aim of this paper is to confront U.S. and Italian legal rules, in terms of effectiveness and efficacy in accomplishing this goal. This work will try to address differences and analogies between these legal systems, aiming to ascertain their ability both to foster freedom of contract and offer consumer protection at the same time. The work will present an introductory part, which will define what is meant by “inequality of bargaining position“ and “vices of consent” in the contractual setting, followed by two other main sections. The first section will introduce the “doctrine of unconscionability”, by evidencing those aspects which distinguish it from classical contractual remedies. Subsequently, attention will focus on Italian legal provisions of standard terms and contracts, and consumer protection. Together with the Italian Civil Code provisions, contents and aims of the European Directive 13/93 on “unfair terms in consumer contracts” will be briefly considered. The second part will provide a comparative analysis between of the Italian and the U.S. provisions, where differences and analogies between the two legal systems will be underpinned. The aim is to tackle the legal tendencies which have been developed in the Italian context with the consolidated practices of U.S. law. The results of this comparative analysis will offer some conclusions on the efficacy of the Italian legal norm, in an attempt to provide a cross-country overview of legal remedies against oppressive clauses and other forms of unequal bargaining.

The common law and civil law systems are generally considered as ostensibly different. They are nevertheless faced with similar challenges in terms of fact situations needing to be resolved. In this respect, the comparative analysis between the Canadian constructive trust and the French negotiorum gestio proves to be relevant. While the French negotiorum gestio is the remnant version of the original Roman law institution using the same latin name, the constructive trust was developped by the courts of common law through the doctrine of Equity. Hence, if these institutions are objectivley highly different from a technical standpoint, their comaprison may bring us to the conclusion that both are founded on concurring rationales, that is developing a necessary obligatory lien when neither contract law or tort law can apply

Securitization separates the receivables and liabilities of the company by transferring the receivables to a special purpose vehicle (SPV), and enables the SPV to issue securities to generate funds at a lower cost from the capital market. To access established capital markets and target better sources for finance, the SPV may be established in a foreign country and securities would be issued in capital markets of that country.I submit that the structuring an international securitization basically revolves around two issues, firstly determining the jurisdictions in which the cross-border securitization would operate and secondly, ascertaining the applicable law and structuring the securitization in consonance with the applicable law. While studying these two issues, I deduce that international securitization is regulated by private law making system i.e. the contract system, and the various processes of securitization are also subject to the municipal laws of the country where the processes occur.In conclusion, I put forth that international securitization law is essentially formulated by lawyers. I also argue that international securitization can be efficiently structured by lawyers, by making the appropriate inquiries to the local counsel for analyzing the municipal law implications.

Taxation has provided the backdrop to many historical, social, and administrative developments throughout the existence of organized society. To collect taxes presumes the existence of authority to impose and collect it. In most cases, this authority is wielded by the State. Consequently, taxation is clearly part of a political economy. This paper is not meant to be a comprehensive history of the taxation of e-commerce, nor a detailed analysis of the legal arguments involved. Instead, it takes a brief and necessarily simplified look at current practices and principles surrounding the taxation and how they are likely to be applied to e-commerce and will specifically focus on the issue of jurisdiction, sovereignty and taxation.

The concept of Human Dignity has become more and more prevalent in legal, moral and philosophical discourses. However, as much as linguistic functions of the concept have become widespread, its meanings have become ambiguous and blurred. This paper seeks to map and depict the main functions and meanings that the concept of human dignity encompass, and, hence, to enable both those concerned with law and its interpretation, and moral-philosophers to discern the different linguistic-spheres and the different meanings this concept encircle. The analysis will show that the meanings of human dignity are socially constructed in accordance with particular cultural and historical contexts. There is no one "true" meaning of human dignity, but rather different levels of "thickness" and "thinness" that are culturally determined in each society. The paper advances insights regarding the use of human dignity in both the legal parlance - as a justification for human rights in legal documents; and in the moral-philosophical parlance - as compared to a worldview on the one hand, and as related to humiliation on the other.

The aim of the article is to offer a contribution to the debate on European codification by focusing the attention on methodology. At present, the contributions of legal science to the European civil code debate are still not supported by a clear methodology, which seems indispensable to clarify, among the different aspects, the real utility of a supranational code. This is probably caused by the fact that the problem of a possible European codification is a rather recent research field: however, as will be demonstrated, not only European codification is the ideal ground to examine the methodological differences of various disciplines, which analyse codification attempts, but such an examination could give rise to a profitable synergy. Two new methodological approaches to European codification will be proposed: Comparative Law and Economics and Modern Law and Economics. On the basis of these methods, I will try to analyse the advisability of enacting a Restatement of European contract law. Such an analysis is needed not only because at present the enactment of a European Civil Code is not technically possible - given the lack of a provision in the Treaty of the European Community upon which the creation of a European Civil Code could be based and the lack of an answer to the question whether or not a European Civil Code will lead to efficient results according to the subsidiarity principle – but also because the combined use of different methodologies suggests to chose this model. A Restatement should then not be seen as a second best choice, given the difficulties of intuducing a binding civil code, but as a truly alternative model for harmonisation or unification of the law in Europe.