WINNER: Tom Wordsworth
Firm: LINDER MYERS LLP
To précis, the very idea of prenuptial agreements has caused controversy around the world. In the last two decades, the more familiar and ordinary the concept has become, the more acceptance it has gained.
During the anguish of a divorce, and the bitterness of separating from your spouse, how would it feel to enter a court room on a final hearing arguing validity and enforceability of a prenuptial agreement? Should such an agreement provide absolute assurance, to minimise animosity? So long as formalities are complied with, we have seen that almost all jurisdictions will enforce the terms of nuptial agreements, albeit some jurisdictions will diminish a dominant party’s claim if it renders one party extremely vulnerable. Some jurisdictions place consideration on events that have occurred since the agreement was entered into, such as lottery wins and children, such events affecting the weight attributed to its terms. This level of discretion seems fair and welcome.
In comparison, for the jurisdiction of England and Wales, all of the above applies. Judges may follow statute, and or a multitude of conflicting case law to reach their decisions. Fairness appears at the heart of judicial intent but this has resulted in obscurity in the enforceability of nuptial agreements. Potentially the verdict at a final hearing could fall absolutely anywhere within the vast spectrum of orders available. There is no surety; there is no certainty.
This paper has considered the many advantages and disadvantages of all perceptions, approaches, and implications of nuptial agreements, with a view to offering the reader the ability to make an informed judgment as to the best way to proceed in the future in this readily emerging and topical area of law.
Paper:THE COMPARATIVE ENFORECABILITY OF NUPTIAL AGREEMENTS IN ENGLAND & WALES AND AROUND THE WORLD
Participant: Aurora Donato
Firm: Mariani, Menaldi & Associati
An important part of different kinds of economies all over the world consists of public enterprises, or enterprises which, at least in part, belong to public authorities. In many European Union Member States, public enterprises of all kinds exist and operate and use private law tools to pursue public interests.
As much as the EU Treaties are intended to promote competition and a free market economy, they do not forbid this kind of undertaking. Nevertheless, the EU Treaties do set rules on competition and, in particular, on State aid, which, while they apply to both public and private undertakings alike, become of particular importance with respect to public enterprises, often the main beneficiaries of public subsidies. In some cases, in fact, the loss of public subsidies has had disruptive effects on the very existence of such undertakings.
At the same time, on the subject of public enterprises and State aid, in the EU Member States another set of rules overlaps with those set by the EU Treaties and the related secondary legislation: the rules deriving from the World Trade Organization (WTO) agreements.
The two frameworks both deal with public enterprises and State aid, with many common aspects and some very significant differences, mostly related to fact that the legal systems themselves are binding in different degrees. However, as a State aid granted by an EU Member State to one of its public undertakings may be relevant to both legal systems (and not necessarily evaluated by them in the same way), it is worthwhile to analyse both sets of rules, attempting to compare them and addressing potential outcomes of their intersection.
This paper attempts to verify what margins are left for European Union Member States to establish or maintain public enterprises and to employ them in their policies, in the light of these two different legal systems.
The main difference between the two sets of rules on State aid regards their enforcement, reflecting the different nature of the legal systems which they belong to. The procedure provided for in the WTO Agreements, for instance, provides for virtually no exemptions, but it envisages sanctions which consist essentially only in multilateral remedies. On the other hand, the European Commission has the power to determine that State aids in particular sectors have an intrinsic value that justifies their exemption from the Treaty’s rules and to evaluate – with relatively broad discretion – if a proposed aid falls into one of the several exemptions provided. When a Member State does not comply to EU State aid rules, however, the Commission itself has the power to impose effective sanctions against it.
The paper concludes that neither the WTO nor the EU legal framework prevent the survival of public enterprises, but that both provide sets of rules which – with various nuances, with different scope and with varying degrees of enforceability – affect their functioning and the relationship that they have with the public authority which has established them. In this context, the survival of public enterprises and the possibility for EU Member States to utilize them as an instrument for public policies depends on the respect of the limits set by both frameworks but, especially, of those on State aids set by the EU Treaties and enforced by the European Commission and on the circumstance that public enterprises operate, even when inspired by social purposes, according to criteria of economic efficiency.
Paper:Public enterprises and State aid in the WTO and EU legal frameworks