1,720,993 research outputs found
Banca en la Sombra: regulando el futuro con las dudas del pasado
No full text“Banca en la sombra”, o “sistema bancario en la sombra” es el término utili- zado por el Financial Stability Board (FSB) para promover una nueva batería de reformas en la regulación nanciera. El término se ha establecido tanto en los estudios académicos como en las propuestas de regulación por parte de distin- tos organismos como el propio FSB, el Comité de Basilea para la Supervisión bancaria (CBSB, o BCBS, en su acrónimo en inglés), la Organización Internacio- nal de Comisiones de Valores (IOSCO), o la propia Comisión Europea.
Se trata de un concepto sugerente, y, a la vez, inquietante, que describe un fenómeno con- sustancial a la regulación. Si esta es efectiva, genera un incentivo para que los operadores realicen una actividad funcionalmente equivalente fuera de los límites marcados por las normas: cuando se mani estan los primeros síntomas de la crisis, la con anza se evapora de manera súbita, revelando la fragilidad del sistema no regulado, y contagiando al sistema regulado
The Law of Transnational Securitization
No full textSecuritization has been one of the most successful financial transactions in living memory. Although it gained notorious reputation as a result of the 2007-2008 financial crisis, neither the crisis was due to securitization, but to its pathological use, nor can modern financial markets, especially the secondary mortgage and credit market, survive without securitization. Despite its importance, however, there have been few attempts to explain the implications for different branches of the law, and even fewer of those have been comprehensive. This book tries to bridge that gap, focusing on securitization's different angles, including the patrimonial (debtor-creditor relationship), liability, governance, regulatory, conflicts of laws and cross-border aspects, using a comparative perspective that examines the experience of the United States and United Kingdom, but also Spain, France, Italy, Luxembourg, and specific examples from other jurisdictions from all the continents, as well as uniform guidelines from international regulatory and standard-setting bodies
Los árbitros y el poder para dictar condenas no pecuniarias
No full textArbitration is based on consent. Arbitration is supposed to be an effective mechanism of dispute resolution. What happens if the two features collide, as it seems to occur when arbitrators believe the best course of action lies in an order to perform, or abstain from, a certain action, instead of the typical pecuniary award? This article explores the issue of non-pecuniary awards and orders, reaching the conclusion that arbitrators can rely on the power to make non-pecuniary orders, which may stem from a variety of sources, including the parties' (express or implied) will, the lex arbitri, the law applicable to the substance, or the arbitrators' implied powers. In general, this poses no problems at the enforcement stage, although it raises interesting issues that need attention
Tax arbitration and its issues: from fiction to reality, to surrealism
No full text«Tax» and «arbitration» are two seemingly unrelated terms. Yet recent efforts, first by the OECD, and then by the United States and other countries to introduce arbitration clauses in their Tax Treaties require to reconsider the association. Alas, rather than rejoicing by the presence of a new member of the «arbitration club» the contents of the solutions envisaged in those Treaties command caution. Wanting the best of both worlds, States have tried to take the benefits of arbitration without giving away the control that it needs to work properly. The series of middle-of-the-road solutions envisaged in the Treaties not only raises suspicion about the practical functioning of the mechanism itself. They also pose fundamental ques- tions about what can be called «arbitration», how is it supposed to work, and whether the hybrid tax arbitration can ultimately improve expediency, while preserving accountability
La Convención de Viena sobre Contratos de Compraventa Internacional de Mercaderías
No full textLa Convención de Viena es el texto de Derecho Uniforme con mayor proyección e influencia. El capítulo realiza un análisis de la jurisprudencia más relevante
Bank Resolution and Insolvency Ranking and Priorities
No full textBank resolution, and the tool of write-down and conversion of capital and debt instruments (bail-in) try to enhance financial stability, prevent systemic risk, and prevent moral hazard, which has been implemented in crises times without much consideration to its implications on insolvency law, especially creditors' ranking and priorities, which is considered a matter of public order. Bank resolution claims to be aligned with insolvency law, but pursues different objectives, and subjects itself to different principles, which, once a hard case arises, will be a source of tension if a consistent interpretation is needed before bank resolution and its bail-in tool are to be deployed. This chapter explores that tension between resolution provisions and insolvency law, first in isolation, then in combination with the recent quasi-prudential rules that try to create a 'new' layer of debt susceptible to bail-in, and, then, adding the cross-border dimension. The resulting picture does not try to offer definitive answers, but at least ask pertinent questions
A game of snakes and ladders. Tax Arbitration in an International and EU setting
Full text linkTax arbitration? Yes, that would be a very good idea... Yet the trend in different tax treaties to introduce mechanisms of dispute reslution labelled 'arbitration' immediately raises a very basic doubt: is this arbitration at all? The question is not a matter o semantics. Whether a mechanism of dispute resolution is considered arbitration in the legal sense affects the power of arbitrators to rule on their own jurisdiction, or to organize the proceedings, as well as the enforceability of the decision, or the evaluation of whether the procedure respected fundamental rights. The chapter examines all these uetsions in detail, concluding that, as convenient as tax treaty dispute resolution mechanisms may be for tax authorities, they are (extremely) short on safeguards for the taxpayer
Comparaciones transatlánticas o el retorno a una visión ética del derecho mercantil
No full textCommercial Law is often analyzed from a purely positivistic perspective, which enhances the differences between legal systems. As the law is rather seen as a mechanism to solve problems, it becomes plainer that the problems are often the same, and comparison becomes easier. As one deepens into that comparison, it also emerges that many of the principles on which Commercial Law is based have their origin and deeper roots in moral principles, which have crystalized in legal rules throughout the course of history. The article illustrates the point by developing a dialogue with the works of Prof. Boris Kozolchyk, one of the great comparatists who focuses on the connections between morals and Commercial Law
Some reflections on the standard of review in the experience of the ESAs Joint Board of Appeal and of the SRB Appeal Panel
No full textThis chapter investigates the role of judicial standards of review in the context of financial regulation and cross-border disputes within the European Union. It critically analyzes how courts—particularly the Court of Justice of the European Union—apply varying levels of scrutiny to decisions made by financial regulatory authorities and national bodies. The chapter explores the tension between judicial deference and the need for robust legal oversight in a complex, expert-driven regulatory landscape. It highlights how the choice of review standard affects the effectiveness of judicial protection, the accountability of financial institutions, and the coherence of EU financial governance. The discussion is situated within the broader debate on balancing technocratic discretion and legal control in a multilevel legal order
A promise kept? The first years of experience of the Appeal Panel of the SRB
No full textThis chapter reflects on the evolution and implementation of the Capital Markets Union (CMU) project in the European Union, emphasizing its connection to the foundational promise of effective judicial protection in cross-border financial disputes. It assesses whether the EU has fulfilled its commitment to establishing a unified, resilient, and investor-friendly financial market. The analysis revisits key legislative developments, enforcement mechanisms, and institutional reforms introduced under the CMU, while also highlighting persistent challenges, such as fragmentation, legal uncertainty, and access to justice for retail investors. The chapter argues that the CMU represents not only a financial integration initiative but also a litmus test for the EU’s capacity to deliver on its legal and political commitments to rights-based financial governance
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