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Article

The Reform and Harmonization of Commercial Laws in the East African Community

Journal European Journal of Law Reform, Issue 4 2017
Keywords law reform, harmonization of laws, commercial laws, legal transplants, East African Community
Authors Agasha Mugasha
AbstractAuthor's information

    The partner states in the East African Community (EAC) have modernized their commercial laws to claim their post-colonial identity and facilitate development. While law reform and the harmonization of laws are both methods of shaping laws, the national law reform programmes in the EAC mainly aim to ensure that the laws reflect the domestic socioeconomic circumstances, in contrast to the harmonization of national commercial laws, which focuses on the attainment of economic development. This article observes that the reformed and harmonized commercial laws in the EAC are mainly legal transplants of the principles of transnational commercial law that have been adapted to meet domestic needs and aspirations.


Agasha Mugasha
Professor of Law, University of Essex; and former Chairperson, Uganda Law Reform Commission 2011-2015.
Article

Fixed Book Price Regimes

Beyond the Rift between Social and Economic Regulation

Journal European Journal of Law Reform, Issue 3 2017
Keywords fixed book price policies (FBP), Brazil, Resale Price Maintenance (RPM), social regulation, antitrust law
Authors Carlos Ragazzo and João Marcelo da Costa e Silva Lima
AbstractAuthor's information

    Brazil is currently discussing the introduction of a nation-wide Fixed Book Price (“FBP”) policy, thus providing context for a discussion of its welfare benefits. There is a rift between the reasons for implementing FBP regimes, and those used to scrutinize them. In order for the debate surrounding the pros and cons of implementing FBP regimes to become more productive, one must investigate the links between the reasons for designing and enforcing such policies, on one side, and standard antitrust analysis, on the other. There are many interesting arguments at the table that both corroborate and compromise the case for an FPB policy. However, throughout history, these policies have experimented cognizable trends. The objective FBP regimes pursue and their design have changed subtly, yet relevantly throughout history. In our view, the current academic and public policy debate surrounding FBP regimes, in both countries considering adopting or revoking them, would benefit from an enhanced awareness of these trends and their policy implications. Ultimately, so would the antitrust analysis of these policies. We argue that a better grasp of these trends could potentially result in a more sober examination of the welfare risks associated with FBP policies.


Carlos Ragazzo
Carlos Ragazzo is Professor of Law at Fundação Getulio Vargas in Rio de Janeiro; he has a doctorate degree from Universidade do Estado do Rio de Janeiro (UERJ) and an LL.M from New York University School of Law.

João Marcelo da Costa e Silva Lima
João Marcelo da Costa e Silva Lima has an M.A. in Regulatory Law from Fundação Getulio Vargas in Rio de Janeiro.
Article

Get Your Money’s Worth from Investment Advice

Analysing the Clash over the Knowledge and Competence Requirements in the Markets in Financial Instruments Directive (MiFID II)

Journal European Journal of Law Reform, Issue 1-2 2017
Keywords Better Regulation, ESMA, financial regulation, expertise, MiFID II
Authors Aneta Spendzharova, Elissaveta Radulova and Kate Surala
AbstractAuthor's information

    This special issue aims to examine whether there is an enduring politicization in the European Union (EU) “Better Regulation” agenda despite the emphasis on neutral evidence-based policy making. Our article addresses this overarching research question by focusing on the use of stakeholder consultations in the case of financial sector governance, particularly, the amended Markets in Financial Instruments Directive (MiFID II). We show that calibrating key provisions in MiFID II, such as those concerning knowledge and expertise, is not a simple exercise in rational problem definition and policy design. The provisions examined in this article have important repercussions for financial sector firms’ business strategies and operations. Thus, investment firms, banks, training institutes and public organizations have mobilized and actively sought to assert their views on the appropriate requirements for professional knowledge and experience in MiFID II. We found that, following the stakeholder consultation, the European Securities and Markets Authority (ESMA) opted for a minimum harmonization approach at the EU level. At the same time, ESMA also supported giving the respective national competent authorities sufficient remit to issue additional requirements in accordance with national laws and regulatory practices. Our article demonstrates that while public consultations provide rich evidence for the policy making process, they also contribute to the lasting politicization of regulatory decisions.


Aneta Spendzharova
Aneta Spendzharova is Assistant Professor in the Political Science department of Maastricht University, The Netherlands.

Elissaveta Radulova
Elissaveta Radulova is Assistant Professor in the Political Science department of Maastricht University, The Netherlands.

Kate Surala
Kate Surala is a graduate student in the MSc in Law and Finance, Pembroke College, University of Oxford, UK.
Article

The Politicization of ex post Policy Evaluation in the EU

Journal European Journal of Law Reform, Issue 1-2 2017
Keywords policy evaluation, Better Regulation, participation, REFIT, politicization
Authors Stijn Smismans
AbstractAuthor's information

    The European Commission’s 2015 Better Regulation package has placed ex post evaluation at the centre of European governance. This strengthens a trend of gradual politicization of evaluation in European policymaking. This article analyses how the European Commission’s approach to ex post policy evaluation has changed over the last decade. It shows how evaluation has developed from a rather technical process to a more politicized process, which is clearly linked to political priority setting, subject to centralized control, and involving a wider set of actors. At the same time, the Commission avoids a profound debate on the merits and objectives of the process of evaluation itself. The article concludes on the merits and risks of evaluation at times of rising populism.


Stijn Smismans
Stijn Smismans is a professor of law at the School of Law and Politics and director of the Centre for European Law and Governance at Cardiff University.
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