Dr. Thomas Marx Award 2016

Dr. Thomas Marx Award 2016

WINNER OF THE DR. THOMAS MARX AWARD 2016:

Stefano Luchini, IZZI Toniatti Pini Perron-Cabus Ziliani De Lodi

<b>WINNER</b>:  Stefano Luchini

WINNER: Stefano Luchini

Firm: Izzi Toniatti Pini Perron-Cabus Ziliani

Summary:

This paper analyses online profiling and in particular the challenges of technological
development on the law. It is of particular interest to observe how the legislation has approached the online profiling which has been carried out via new technologies by asking for more stringent requirements.

The critical factor to note is if the regulatory regime applicable in the EU to online advertising is adequate or if there is a need of further legislation.
In this regard, first, the concept of online profiling and advertising is explained. In the second part, the risks connected to online profiling and low user awareness are considered. The third part focuses on the EU legislative framework. From this existing legislation, particular attention is paid to review the conditions for lawful online profiling for websites operating in several Member States of the European Union. Fourthly, the EU legislation is critically examined by looking at the actual implementation of the EU Directives by the websites operating within Europe and the need to implement further legislation in the market.

It will be demonstrated that the European Union's legislative regime is inadequate and needs to be reconsidered, evaluating hypothetical ideal legislative reform.


Paper:

Online Profiling in EU: the challenges of technological development on the law.

Chayanis Aueamnuay

Participant: Chayanis Aueamnuay

Firm: HütteLAW

Summary:

During the 2008 financial crisis, governments and regulators around the world were forced to deal with the crisis in an ad hoc manner. Since there was no resolution regime in place, the only solution they could agree on was to bail bad banks out with taxpayer support. These implicit state guarantees enjoyed by systemically important banks resulted in massive losses of taxpayer money, which exceeded € 1.6 trillion globally. The absence of an appropriate resolution tool for financial institutions also led to disruptions in international financial markets, sub-optimal procedural outcomes and costly advisor fees.
Traditional bail-outs raise both the question of fair level playing field between systemically
important banks and smaller banks and the matters of concern about the deficit constitutional ground. In order to tackle these problems, there is a growing consensus that resolution tools and frameworks for the effective resolution of financial groups should be developed. The centerpiece of efforts to avoid a repeat of the 2008 financial crisis is the so-called ‘bail-in’ regime. By shifting the burden of bank rescues away from taxpayer and allowing writedowns so that investors will be the first to bear losses, bank bail-ins should prevent the privatization of gains and socialization of losses. Resolution authorities and competence authorities empowered with this resolution tool will be able to intervene quickly when a bank is facing financial difficulties that simultaneously erode its balance sheet or infringe the requirement for continuing authorization.

It is extremely difficult, if not impossible, for the legislators to include all the aspects of bail-in regime into the law. One certainty is that bail-in is not a panacea and there are still some downsides, which require a regulatory improvement. Financial markets will need to adjust to this new measure, especially on how they should price the risk of investments associated with the bail-in regime. This paper aims to provide a complex hindsight of the development of the bail-in regime, a neutral evaluation of how bail-in will affect the global banking sector, a detailed legal framework of the regime within the European Union and lastly some thoughts on how bail-ins should be strengthened in the future.


Paper:

A Paradigm Shift in the Global Banking Landscape and Its Legal Framework within the European Union (Latest Developments Since 2014)

Filipa Iglésias

Participant: Filipa Iglésias

Firm: Abreu Advogados

Summary:

Beyond the citizen described by Law
there’s a human being sung by the trees and stars

Teixeira de Pascoaes, Portuguese Poet

In October 2002, gathered in Shanghai, China, the participants of the International
Council of Museums (ICOM) affirmed the significance of creativity, adaptability and
the distinctiveness of peoples, places and communities as the framework in which the
voices, values, traditions, languages, oral history, folk life and so on are recognized and
promoted, and recommended that museums as cultural institutions act as facilitators of
constructive partnerships in the safeguarding of the common heritage of humankind.
A year later, in 2003, the United Nations Educational, Scientific and Cultural
Organization (UNESCO), following a series of Soft Law, i.e., non-binding norms,
adopted the Convention for the Safeguarding of the Intangible Cultural Heritage,
where, for the first time, is recognized the need to support the Cultural Heritage that
never until then had benefited from such a comprehensive legal and programmatic
framework.

From a top-down to a bottom-up approach to heritage protection and safeguarding
established by the UNESCO Convention with the involvement of people from a variety of backgrounds, a shift of perspective begun to happen and turned out to be a key to
achieve a sustainable development.

Migration, minorities, geographical and human changes, in truth, the evolution of
Humanity throughout the ages, has contributed to the international extension of the
concept of Cultural Heritage, in order to include the Intangible Cultural Heritage. The
pivotal role that the communities, groups and individuals play in the production,
safeguarding, maintenance and re-creation of the Intangible Cultural Heritage and the
creation of Soft Law in this area can provide clear and authoritative guidelines with the
aim to enrich cultural diversity and affirm humankind's unique and irreplaceable legacy
for future generations.


Paper:

Safeguarding Cultural Heritage of Humanity in times of uncertainty / From soft Law to individual empowerment

Anastasia Stomo

Participant: Anastasia Stomo

Firm: Levitt Robinson Solicitors

Summary:

Recent commentary discussing Brexit referendum have emphasised how global markets are influenced by both certainty in commerce, and the availability for trade and commerce to conduct business freely. The need for certainty extends to business possessing confidence in and knowledge of the rules and regulations that apply to international business relationships – both the transaction, and in the event dispute arises.

The United Nations Convention for the international sales of Goods (CISG) was adopted in the 1980 as a uniform model for international contracts regardless of the level traditions of the country where the contracting parties are domiciled. Its aim to introduce the certainty necessary for international business transaction, and it is intentionally designed to allow for flexibility in its application. However, when applied the CISG must necessarily interact with local legal systems and domestic laws. Together with its inherently fluid design, this interaction leaves open the possibility for alternative applications of the CISG in different jurisdictions.  In turn this may lead to uncertainty in international business dealings.

While guides that explore the vital considerations for the drafting of international agreements exist, they largely fail to property analyse how internationals law, both international conventions and bilateral agreements, interact with domestic laws, to affect industry business. This element is pivotal for certainty in international business dealings.

Using a hypothetical scenario of the exportation of wine from France to Australia, this paper explores the interrelation of the CISG with Australian law, and in particular the law of the state of New South Wales. In particular it assesses what the Australian perspective of the CISG could mean to an international transaction for business that are domiciled in a state with different legal traditions to Australia, in this paper France, a European civil law country. The paper asks what are the benefits and detriments of applying Australian law to the hypothetical international transaction, and can these be minimised or enhanced by reliance on the alternate dispute resolution? The paper continues to explore the interaction of the Australian European Community Wine Agreement, an industry specific bilateral agreement, with Australian and other international law. While such agreements are designed to assist free trade, they may simultaneously impose additional requirements of which business must be informed before entering the international market. To conclude, the paper explores anti-dumping regulations, and how such regulations, while not technically law, intersect with both Australian law and bilateral agreement to impact on international business dealings.

Hypothetical Scenario

An Australian company has contacted a producer of French sparkling wine in Champagne waiting to import his wine into Australia. The Australian company has indicated their preference to buy the wine directly from French importer and then sell it in Australia, although would also be open to an agency or distributorship arrangement if that war preferred.

The Australian company insists that Australian law, and in particular the la of New South Wales, must apply to the international transaction.

The French produce has a surplus of stock and is considering the proposal, although has no experience selling his product outside of Europe. He has asked for advice with regards to which law does and should apply to the transaction, and what his obligations are under this law. He would also like information regarding how future disputes, should they arise, would be decided if the parties are domiciled in different countries.

The French product has further inquired whether any specific requirements apply when selling wine in Australia. This includes any local labelling requirements that he should be aware of, or any other significant factor that requires consideration when making the business decision whether or not to export to Australia.


Paper:

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Rules & Application Form 2016