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Law no. 126/2018 which transposes into the Romanian legislation a very uncomfortable directive in the field of the capital market - MiFID II Directive – became effective. The impact of the Directive is huge in terms of entities regulated by the legislation specifically dedicated to the capital market, but the spotlight will be placed on the Authority and its conduct in relation to market operators - how will A.S.F. exercise its’ supervisory skills? Will substantial fines be imposed and harsh measures taken? Or will the Authority understand the importance of the additional obligations placed on the operators and comply with the principle of proportionality while exercising the powers reserved by the law? In any of these cases, the Authority is required to strictly respect the principle of the legality of the incrimination, as well as applicable in contravention matters.
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The paper bases on a few premises which are specific to liberal paternalism theories, and analyzes the contributions of US private law doctrine to standard form contract theory. An indispensable legal instrument for most business relationships, the standard contract has recently advanced in the center of doctrinal concerns in our country, considering the worrying issue of abusive clauses and the legal and judicial interventions in private party contracts. The paper discusses the outstanding contributions of legal theorists such as Fr. Kessler, A. Leff, K. Llewellyn, W.D. Slawson, T. Rakoff, M. Meyerson or M. Trebilcock, who have reshaped the concept of contract in American law and have influenced both the doctrine and jurisprudence of European legal systems.
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Legal norms contained in text-driven contracts (as well as in statutes and bylaws), which are written in natural language, can be subject of algorithmic conversion in certain phases of the contract circle (implementation, monitoring, control, interpretation). The application of the blockchain concept as a structural pattern opens the possibility of creating a code-driven contract with automated execution: a “smart” contract. Algorithmization is understood as a process which enables the text of the contract to be translated into a format that is understandable to software developers. To this end, the use of the following methodologies is proposed: design of a pseudocode, application of formal logic symbols and the use of flowcharts. Successful conversion of legal prose into a code calls for cooperation between lawyers and programmers. The framework of that cooperation is the establishment of the so-called “Legal Expert System” (LES). Originally conceived by lawyers, LES is a program which allows the algorithm to solve the problem of contract execution. Contract algorithmization should convert contracts from prose to a code, while preserving contract validity and efficiency. For the time being, smart contracts cannot regulate commercially complex scenarios; thus, the de lege lata application of smart contracts as a complete replacement for traditional (analogous) contracts is excluded. A potential object of algorithmization are the primary instructions aimed at executing the characteristic performance of the contract. Contract algorithmization is an ongoing process, which is here to stay. The significance of this process is indisputable but its scope, dynamics and assumptions are still only partially defined and tested. The necessary condition (but hardly a sufficient one) is to legitimize the conception of a contract as an algorithm in the process of defining contractual provisions. Further development of this concept will depend on the functioning of other elements in the environment where code-driven contracts would be used and, above all, on the commercial response to the entire process of contract algorithmization. In effect, in order to be widely applied, contract algorithmization must become a commercially viable activity.
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Digital environment poses new challenges to the traditional concept of copyright protection. Digital copies of works, new forms of exploitation of copyrighted goods, the impossibility of adequate enforcement of intellectual property rights on the Internet and, in this regard, the reexamination of the role of intermediaries, are just some of the issues that have occupied the scientific and professional public. New circumstances necessarily impose changes in the copyright protection regime, including the introduction of new rights but also new exceptions and limitations on copyright. The EU Directive (2019/790) on copyright and related rights in the Digital Single Market introduced exceptions on text and data mining. Given the huge amount of data in the digital environment, the analytical technique is commonly used for text research, data collection and processing. This technique is aimed at finding correlations and patterns, and extracting information from large amounts of data by using automated methods. Text and data mining may be performed in a variety of fields and for different purposes: scientific research, research in journalism, medicine, business, or for market research purposes. Such text and data may be protected by copyright, which gives rise to the question of possible copyright infringement. The new Directive introduced two mandatory exceptions on copyright and related rights for the purpose of text and data mining, one of which is explicitly provided for scientific research purposes. These exceptions are important for the freedom of scientific research in the digital environment but also for some issues related to the development of Artificial Intelligence.
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The fundamental breach of contract is defined in Article 25 of the UN Convention on Contracts for the International Sale of Goods (CISG), which states: “A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result.” When a fundamental breach of contract occurs, the deprived party (seller or buyer) has a right to avoid a contract. Avoidance of contract is the last resort remedy applicable in case other remedies are ineffective. Pursuant to Article 25 of the CISG, there are two criteria which must be fulfilled for a fundamental breach of contract to exist. The first criterion is objective; it comprises two conditions: a) there is a breach of obligation defined in the contract or in the CISG; and b) such a breach substantially deprives the other party of what the party is entitled to expect under the contract. The second criterion is subjective: the breaching party has to foresee such a result. Although this criterion is essentially subjective, it contains an objective element, embodied in the use of the reasonable person standard. Hence, even when the breaching party has not foreseen substantial deprivation of the other party as a result of breach, a substantial breach of contract will be deemed to exist if a reasonable person of the same kind in the same circumstances could have foreseen such a result.
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Unitary patent protection is one of the key challenges for the European Union. The current initiatives, which – despite being just a short step away from full implementation due to legal and formal issues, such as the complex legal structure or non-legal claims concerning their negative impact on the economy and competitiveness of enterprises – still raise doubts and uncertainties. The aim of this article is to illustrate the problem of unitary patent protection on selected issues concerning the European patent with unitary effect and the Unified Patent Court. The obstacles that prevent the implementation of the Unified Patent Court are presented. Critical voices assessing the proposed model of unitary patent protection are also presented and discussed.
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Legal relationships in the field of HoReCa involve specialized contractual partners for this activity. Among them we mention: the owner of the reservation platform, called wholesaler, hotel, client. The specificity of these contractual legal relationships is also determined by their complexity, both in their conclusion and in their development. Through the tourism contract, a complex activity is performed which involves contractual legal relations of: transport, accommodation, curative treatments, rest, seasonal sports, tourist circuits of historical or leisure interest, medical assistance, etc. Of course, the paper involves a brief presentation of some categories of legal relationships.
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We can see in the last four decades the profound and growing extent of international economic relations. As an effect, are necessary international economic institutions such as World Trade Organization (WTO). A number of newer subjects are now regulated by WTO (competition policy, human rights issues, investments rules, environment, labour standards, sanctions, disputes settlement). When we are speaking about such the topic of competition at international level, the main institution involved is World Trade Organization (WTO). At present WTO has an important role in ensuring the free competition in international trade (business) relations. It got this role from GATT.
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Security deposit is a special form of securing the landlord’s claim against the tenant. This institute is regulated by Section 2254 of Act No. 89/2012 Coll., The Civil Code. Although the rules on certainty may seem to be sufficient and clear to the first impression, after closer examination it is clear that this is not so and that there are a large number of unanswered questions which are mentioned in this paper, for example: Is the statutory maximum amount of security deposit sufficient? Is it possible to count on the security deposit given to the landlord and to supplement the security deposit during the tenancy relationship, if such an arrangement is included in the lease contract? And what about the return of the security deposit? The aim of the paper is to find a solution to the above-mentioned shortcomings of the Czech legislation on the basis of a comparison with the legislation of the Slovak Republic, which for historical reasons is verysimilar to the Czech legislation.
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This article, which is intended for arbitration practitioners, demonstrates that international arbitration as a subset of the field of alternative dispute resolution (ADR) offers a useful toolkit for the expeditious resolution of international intellectual property law disputes. The article demonstrates how the theory and practice of international arbitration is particularly well poised to address some of the specific considerations and requirements of paramount concern to the international intellectual property lawyers and their clients. The article will explain how the inherent features of the international arbitration legal landscape combine to indicate that it should be considered as the preferred method of ADR and explain how each of these features can provide both time and cost efficiencies. The article will identify the legal reasoning behind the benefits inherent to choosing international arbitration and will also address those circumstances when international arbitration may be precluded or otherwise considered unsuitable for intellectual property matters. The article examines several distinct benefits that international arbitration uniquely offers to international intellectual property law users and highlights some areas of the field that require additional caution.
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In the context of changes in 2019 in the European Union, in terms of ensuring the availability of efficient procedures and adapted to current economic and social challenges, allowing the gradual transition to digitization of communication with public authorities of all categories of economic operators, recent legislative interventions have led to the promotion of concrete measures in the process of registration in the trade register, measures to encourage the free movement of capital, by adopting Directive (EU) 2019/1151 of the European Parliament and of the Council of 20 June 2019 amending Directive (EU) 2017/1132 on the use of digital instruments and processes in the context of company law, amending Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 on certain aspects of company law, European act which coded all company directives.In Romania, the need to comply with the relevant European norms and requirements is to codify the provisions regarding the registration operations in the trade register and in other registers kept by the National Office of the Trade Register (ONRC), based on the control of the registrar or, as the case may be, on the basis of the court decision.
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Notaries have the obligation, according to a provision recently introduced in the Fiscal Code, to declare every semester to the territorial tax authority all real estate transactions, even those below the taxable threshold of 450,000 RON, carried out by individuals from personal assets. In this way, the tax authorities will have the necessary tools to verify the transactions and requalify them in independent activities, where the situation requires it. This will result in higher taxes paid by the culprits, plus interest and late fees. Who are the main targets?
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This paper analyses some of the most important points of harmonization of Serbian company law with the European Union law. Legal theory should be critical and suspicious, and in accordance with its potentials, the EU designs the short, medium and long-term growth periods. This work will pay particular attention to the matters of company law in the strict sense. Considering the process of globalization and international integrations, there is a requirement of harmonization of national legislation with the EU Law. The solutions already modified or kept abreacted according to the latest developments at the EU level are also considered. According to some opinions, the integration of solutions which is established by the EU in the national laws leads to a single, i.e. universal or worldwide law. The question is to what extent and in which solutions to implement the EU dimension into the national law. Speaking about the change or the field of company law, as well as considering our Company Law Act, there is a dilemma in which extent and to which dimension we should implement the solutions which exist in the EU, especially in the Anglo-American law. Moreover, despite all benefits, there is a suspicion about some solutions, for instance, holding a meeting of shareholders without their physical presence of electronic transactions, particularly as viewed from the point of legal certainty. On the one hand, there is an obvious necessity of harmonization of the company law, the securities law, the stock law, the competition law, as well as the bankruptcy law, in order to establish and be present at the common and functional market. On the other hand, contrary to different levels of development of some states, as well as their potentials, the EU designs the short, medium and long-term growth periods. Chapter 6 (in the membership process), which relates to the company law, is coordinated by Serbia in order to improve its own business environment, which will also affect investments in Serbia. Certainly, the roles of human resources and their capability are in the foreground.
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Liquidation is one way of ending the activity of a commercial company, whereby during the procedure, it continues its activities in the same organizational scheme retaining its legal status until the end of the liquidation proceedings, although significantly reduced. Since the liquidation of a company may only be carried over a solvent business organization, it is the basic characteristic by which the liquidation differs from bankruptcy because the bankruptcy proceedings are conducted in respect of an insolvent company. As a rule, liquidation is carried out over a time limited duration company. The liquidation occurs because of non-financial reasons which distinguish it from bankruptcy that occurs because of the insolvency of the company. The liquidation procedure is carried out in legally determined cases, after concluding the debtor’s obligations could be settled from its assets if a solvent company is in question. From the beginning of this procedure, only the purpose of the company is being changed. From this moment its intention is not to make a profit but to carry out the liquidation of the company assets and their distribution to the authorized persons. All debts are being settled, while the rest of liquidation surplus is distributed among the company’s members.
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In the modern business world, the banking sector is of great importance because banks have a significant place in the financial mechanism of each economy. The place and role of banks require that their business is kept under constant monitoring. Since many banks operate globally, it is necessary to have a regulator at the international level. This is exactly the Basel Committee that defines the rules and gives guidelines which banks have to adhere to in their business. These guidelines and rules are embodied as the Basel Agreements I, II and III, and they complement each other. The paper explains the purpose, goals, structure, advantages, disadvantages and implementation of the Basel standards, from Basel I to Basel III. The application of Basel standards should make banking operations safer, with banks becoming more resilient to negative changes. Each of these standards must be implemented in the country's banking system if that country wants a stable and strong financial system resistant to stress and crises. Any failure to comply with the given rules and guidelines by banks can easily turn into a crisis. The global financial crisis, partly promoted by inadequate regulations, has provoked a further development of the Basel standards. Basel III, as the latest standard that has been adopted, has provided a good framework for the long-term success, survival and security of the banking sector's operations, and provides banks with a good basis for coping with unforeseeable events in the future. How long the new standard will succeed in the set goals remains to be seen. The aim of this paper was to familiarize with the Basel standards I, II and III, and to observe their implementation and application in the Republic of Serbia and the Republic of Croatia. In this paper were used: the method of analysis and synthesis, the method of induction and deduction, the historical method and statistical mathematical method.
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The market daily makes the selections among companies by continuously setting increasing number of standards and requirements, which should be answered in order to ensure survival. Insufficient ability to keep pace with competitors gives rise to serious financial problems, which may result in the exit from the market and the start of the business cessation process. When an enterprise encounters difficulties in performing its activities that are mainly of a financial nature, when it is no longer able to function normally, or when it is unable to settle its obligations, a bankruptcy is imposed as a solution to the problem. Opening a bankruptcy procedure can mean the beginning of the cessation of business, its closure or extinguishing, which unfortunately happens in the vast majority of cases. The need to protect creditors' interests becomes stronger in companies whose continuation of operations is questioned due to high losses and inability to pay its obligations. The task of bankruptcy laws is to protect the interests of creditors, regardless of whether the company's crisis will end with a reorganization or a bankruptcy. The main purpose of the bankruptcy procedure is to settle the claims of creditors depending on the total volume of their claims and the available bankruptcy estate. Also, the opening of bankruptcy should stop the possible dissipation and the alienation of the assets of the debtor in order to maximize the creditors' claims. In order for bankruptcy proceedings to be initiated, it is necessary to fulfil certain legal requirements. According to the current Bankruptcy Law of the Republic of Serbia, the main reason for the initiation of bankruptcy proceedings is the inability to make payments (complete suspension of payments from the company's current account for more than 30 days) or overindebtedness or insolvency. Since bankruptcy is a forced procedure, it consists of several steps, of which the most important is the initiation of bankruptcy proceedings, the formation and liquidation of the bankruptcy estate, the settlement of creditors from the bankruptcy estate and the conclusion of the bankruptcy proceeding. Solving bankruptcy issues contributes to increasing the efficiency of the economy. Serbia's membership in the Council of Europe involves harmonizing laws and adapting to European standards in the area of bankruptcy and bankruptcy legislation. Legal and economic experts point out that the adoption of the regulations in the European Convention on Certain International Types of Bankruptcy and Bankruptcy Proceedings contributes to the improvement of legal economic regulations in the Republic of Serbia…
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As a rule, commercial computer programs come exclusively in executable form, and the accompanying license agreement requires the user to refrain from actions that could violate the author’s exclusive right to adapt, process and otherwise modify - if the user needs such changes, the author’s it is in the interest of the user to contact him and pay a special fee for such a service. However, what happens if software vendors go bankrupt, abandon the software development business, or stop further development of their software in situations where it has not yet reached the end-use stage by the licensee, who has allocated significant funding to the license and plans to use it for a long period of time to achieve a return on investment. How companies that are legal users of software can continue to use and adapt the product to their needs in these situations is an important question to consider when entering into business arrangements to procure software products. The solution to such situations can be found in escrow agreements. In this paper, we briefly explain the concept of escrow software contracts for possible use by business entities in Bosnia and Herzegovina.
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Over time, there have been controversies and divergent doctrinal opinions regarding the limiting nature of cases of exclusion of the partner from a company. Part of the doctrine has supported the enunciative nature of the provisions in question, considering that the associations have the possibility to add other situations that may constitute grounds for exclusion, insofar as they are in the spirit of the law. The High Court of Cassation and Justice recently settled this dispute. The exclusion of associations from limited liability companies can be made according to the Companies Law, not under the Civil Code.
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The European Commission revised its earlier Community guidelines on state aid for rescue and restructuring firms in difficulty in 2014. The new Guidelines aim to ensure that public funding is directed where it is most needed and that investors in unsuccessful companies bear their fair share of restructuring costs rather than leaving the burden on taxpayers of the Member States in which they operate. The adopted rules apply only to non-financial firms in difficulty. This paper analyzes the specific solutions contained in the new Guidelines.
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