Abstract In the last 2 years, two Hungarian regional courts of appeal have published decisions in which they examined the nature of the right to dividends. The courts had to answer whether the general meeting had the right to amend its earlier decision on the payment of dividends. The judgments were based on the premise that the decision to pay dividends does not change the legal nature of the member’s right to dividends, and it does not create an obligation between the member and the company under the law of obligations. The courts therefore concluded that the decision to pay dividends could subsequently be amended by the company. In this paper, we argue that this interpretation is wrong. The decision to pay dividends creates a monetary claim (dividend claim) for the company’s members under the law of obligations. It follows therefore that company law measures, such as a resolution of the general meeting, cannot affect the dividend claim, and—as with all other monetary claims—it can only be changed based on a contract between the creditor (i.e., the shareholder) and the debtor (i.e., the company), in line with the rules of the law of obligations. We also examine the question of when such a dividend claim becomes due. We argue, acknowledging the difficulties of interpretation, that the claim becomes due when the decision is taken by the general meeting, but that the company cannot make a payment if this would jeopardise the company’s solvency.

Abstract Central counterparties (CCPs) play an essential role in modern financial markets. Their market access is strictly regulated, not only domestically but also across borders. To gain access to European Union financial markets, third-country CCPs (TC-CCPs) must comply with the recognition procedure set up by the European Market Infrastructure Regulation (EMIR). One of the conditions in this procedure is that the European Commission has adopted an equivalence decision concerning the legal framework of the TC-CCP’s home jurisdiction. Such a decision states that the foreign legal framework is deemed to be equivalent to that provided by EMIR. In this paper, we analyse the equivalence decisions and underlying legal frameworks of three different jurisdictions, i.e., the United Kingdom, the United States, and Switzerland, in order to distil common principles. We also identify common observations concerning the Commission’s attitude when it adopts decisions. We find that the Commission demands strict equivalence but is also a negotiator with two faces. What is, at first glance, a technical assessment aimed at safeguarding financial stability is supplemented by broader political and practical considerations. We conclude that the current approach can help promote financial stability but warn that it creates uncertainty for the market players involved.

Abstract Nowadays, payments are almost always facilitated by intermediaries. Therefore, it is crucial to investigate whether Art. 31 of Regulation (EU) 2015/848 is applicable to cross-border triangular payments to protect foreign intermediaries. However, this question is difficult to answer – the Advocate General, in expressing her Opinion for the van Buggenhout case, wrote that Art. 31 EIR 2015 is applicable to cross-border triangular transactions, while the CJEU, in deciding this case, ruled that Art. 31 EIR 2015 is not capable of doing so. Why? This paper argues that both the Advocate General and the CJEU had good intuitions, but that their views were partial and incomplete. This paper reaches two conclusions. First, in principle, Art. 31 EIR 2015 is applicable to cross-border triangular payments, even when the intermediary is not a debtor of the insolvent debtor. Secondly, and surprisingly, the application of Art. 31 EIR 2015 to cross-border triangular payments depends on the lex fori concursus. In fact, even though Art. 31 EIR 2015 contains a provision of EU substantive law, this application presupposes that the lex fori concursus does not affect the instruction that the insolvent debtor has given to the intermediary. If it does, which is the case in many Member States, the payment performed by an intermediary cannot be counted as a payment by the debtor. This paper ultimately makes a recommendation that aims at preventing the lex fori concursus from affecting the instruction that the insolvent debtor has given to the intermediary.

Abstract Climate risk poses a significant threat to economic actors across the world. Given the (systemic) nature of this risk, governments stand ready to rescue or extend relief to distressed firms in various ways. As in the case of the COVID-19 pandemic, widespread government rescues or targeted interventions in firms deemed ‘too important to fail’ are a real possibility in the case of climate-change-related impacts. While such interventions may be ex-post efficient or rather politically driven, they do not prevent deadweight losses and may create moral hazard in the sense that firms, ex ante, do not identify and/or address the climate risks they face. This ultimately means that climate change adaptation – a policy goal whose importance increases as climate change remains unmitigated – will not reach socially optimal levels. A better strategy involves adaptation policies where the relevant framework guides, incentivizes and pushes firms to build resilience to climate risks. Stress testing coupled with proactive adaptation measures that respond to revealed vulnerabilities appears to be the best option among various risk management strategies. In cases where government relief remains inevitable, there is a further need to ensure that it is fair and efficient.

With the rapid pace of technological innovation, traditional methods of policy formation and legislating are becoming conspicuously anachronistic. The need for regulatory choices to be made to counter the deadening effect of regulatory lag is more important to developing markets and fostering growth than achieving one-off regulatory perfection. This article advances scholarship on innovation policy and the regulation of technological innovation in the European Union. It does so by considering what building an agile yet robust anticipatory governance regulatory culture involves. It systematically excavates a variety of tools and elements that are being put to use in inventive ways and argues that these need to be more cohesively and systemically integrated into jurisdictions’ regulatory toolbox. Approaches covered include strategic foresight, the critical embrace of iterative policy development and regulatory learning in the face of uncertainty, and the embrace of bottom-up approaches to co-creation of policy such as policy labs and the testing and regulatory learning through pilot regulation and experimentation. The growing use of regulatory sandboxes as an EU policy tool to boost innovation and navigate regulatory complexity, as seen in the EU AI Act, is also probed.

Abstract Derivatives contracts are essential for financial markets and are supported by market practice and regulation. And yet, courts in different jurisdictions are recurrently confronted with parties claiming their voidness or unenforceability. Although the legal doctrines in each case differ, including ‘capacity’, ‘illegality’, ‘mistake’, ‘causa’, and ‘object’, this paper suggests that their common denominator is the complicated relationship between law and financial ‘speculation’. Speculation is protected by regulation and respected by academic thinking. The consensus behind this support, however, results from a combination of ideas that is complex, socially controversial, and unstable. Courts are often called to arbitrate conflicts, but their role in the oversight of derivatives markets is secondary, and determining whether an individual transaction is ‘speculative’ is difficult, if not impossible. To shape the broader conflict into a constructive dialogue, courts and parties use different legal doctrines. Yet, this paper argues that not all choices are equally suitable. Using a comparative analysis of case law in the United Kingdom, Germany, Portugal, Italy and Spain, it identifies how different choices can cause discontinuities and instability, a restless status quo, or a doctrinal emergence that leads to a new equilibrium, while drawing some general conclusions about courts’ role in disputes over derivatives.

The Crisis Management and Deposit Insurance (CMDI) framework needs repair. Some elements may be hailed as essential (deposit insurance, transfers, creditor hierarchy). However, the reform of the ‘twilight zone’ framework, including early intervention measures (EIMs), resolution preparation and triggers, is obviously needed and its substance is hard to object to. This paper explains why, and how to go about it. EIMs overlap with supervisory measures, or are mired in legal uncertainty, and are therefore not used. Preparation for resolution is not openly acknowledged by the law. Resolution triggers make the system rigid and slow. Lack of coordination can leave entities in legal limbo. ‘Twilight’ measures sit badly with market abuse. The Commission’s CMDI reform proposal addresses most of these flaws. It eliminates overlaps and enhances consistency between EIMs and supervisory measures, acknowledges the need to prepare for resolution, and allows the triggering of resolution through a sensible combination of framed discretion, cooperation between supervisors and resolution authorities, and a Public Interest Assessment (PIA) that compares resolution and insolvency-based liquidation more fairly. These amendments do not sufficiently acknowledge the relevance of market forces and do not suffice for a functioning Banking Union, but they are certainly necessary for other reforms to yield their benefits.