Prosecutorial Discretion in Three Systems: Balancing Conflicting Goals and Providing Mechanisms for Control

In regulating the authority and discretion exercised by contemporary prosecutors,national systems balance a variety of goals, many of which are in tension or direct conflict. Forexample, making prosecutors politically or democratically accountable may conflict with theprinciple of prosecutorial neutrality, and the goal of efficiency may conflict with accuracy. National systems generally seek to foster equal treatment of defendants and respect for theirrights while also controlling or reducing crime and protecting the rights of victims. Systems thatrecognize prosecutorial discretion also seek to establish and implement policy decisions aboutthe best ways to address various social problems, priorities, and the allocation of resources. Finally, all national systems are facing the challenge of increasing caseloads. The United States differs from France and Germany in the training and selection of prosecutors, in the understanding of their role, and in the structure of prosecutorial authority. This chapter explores how these differences affect the balance each system has struck among the competing goals of accountability, neutrality, efficiency, accuracy, and equal treatment, how these systems differ in the availability of mechanisms to establish and implement policies, and how each is responding to the challenges of increasingly heavy caseloads. This chapter begins with a description of the U.S. approach to the structure of prosecutorial authority, the training, selection and ethos of U.S. prosecutors, and the scope of prosecutorial discretion in the U.S. Part II turns to a comparison of the French and German systems. On the basis of this foundation, Part III then considers how the three systems are resolving some of the key tradeoffs between the goals of efficiency, accuracy, democratic accountability, neutrality, consistency, and the need for mechanisms to set priorities and policies. It concludes that the structure of prosecutorial authority is continuing to play a significant role in each system’s distinctive response to prosecutorial discretion. In contrast, differences in the traditional understanding of the prosecutor’s role seem to be of diminishing importance as each system responds to the pressure of increasing caseloads

Individual Risk Management for Digital Payment Systems

Despite existing security standards and security technologies, such as secure hardware, gaps between users’ demand for security and the security offered by a payment system can still remain. These security gaps imply risks for users. In this paper, we introduce a framework for the management of those risks. As a result, we present an instrument enabling users to evaluate eventual risks related with digital payment systems and to handle these risks with technical and economic instruments.Payment Systems, Digital Money

Governance of securities clearing and settlement systems

In the context of securities clearing and settlement systems, the nature of governance arrangements acquires a dimension that goes beyond their traditional function in corporate law. They constitute a tool for regulators and central banks to achieve their respective policy goals relating to market operation, market integrity, and systemic stability. In the light of the analysis of this paper, and pending a further evolution in the regulation of securities clearing and settlement in the Community, the following conclusions can be drawn. Whatever the model of corporate governance used in a jurisdiction, securities clearing and settlement systems should adopt and ensure effective implementation of the highest corporate governance standards or best practices adopted or recommended for companies in the jurisdiction in which it operates as such standards or practices evolve over time. Generally, this would imply that securities clearing and settlement systems at minimum should adopt and implement the best practices recommended for listed companies. Additionally, a securities clearing or settlement system should adopt corporate governance mechanisms adequate to address the interests of users and the public in the operation of the system. Such mechanisms should be organized so that the criteria followed to select participants on the board or on specialized committees are established ex ante. Board members should also take into account the interests of users and the public in board decisions, in particular, those relating to qualifications for system access, fair pricing, the integrity of the risk management system, innovation and efficiency, and the achievement of the policy objectives of competent authorities. Securities clearing and settlement systems should make adequate disclosures regarding their corporate governance arrangements so that users and the public can ascertain the manner in which conflicts of interest among owners, the board, users and the public interest are prevented, resolved or mitigated. Corporate governance arrangements of securities clearing and settlement systems should be the subject of adequate regulation and oversight to ensure that services are provided at fair prices to users under fair and equitable conditions of access; that the risk management programs of system operators are effective; that risk management decisions are not affected by considerations extraneous to the risk management function; and that, to the maximum extent possible, functional service providers compete in equivalent conditions of competition. Looking forward, the adoption of a harmonized regulatory regime for securities clearing and settlement systems should be considered to complete the internal market within the Community and to better achieve the policy goals identified in this paper relating to the governance of those systems.clearing, settlement, governance, risk management, oversight.

Insolvency laws around the world - a statistical analysis and rules for their design

Insolvenzrecht, Welt, Konkurs, Bankruptcy law, World, Bankruptcy

Characterisation framework of key policy, regulatory and governance dynamics and impacts upon European food value chains: Fairer trading practices, food integrity, and sustainability collaborations. : VALUMICS project “Understanding Food Value Chains and Network Dynamics” funded by EU Horizon 2020 G.A. No 727243. Deliverable D3.3

The report provides a framework that categorises the different European Union (EU) policies, laws and governance actions identified as impacting upon food value chains in the defined areas of: fairer trading practices, food integrity (food safety and authenticity), and sustainability collaborations along food value chains. A four-stage framework is presented and illustrated with examples. The evidence shows that European Union policy activity impacting upon food value chain dynamics is increasing, both in terms of the impacts of policies upon the chains, and, in terms of addressing some of the more contentious outcomes of these dynamics. A number of policy priorities are at play in addressing the outcomes of food value chain dynamics. unevenness of the distribution of profit within food value chains, notably to farmers. Regulation of food safety and aspects of authenticity has been a key focus for two decades to ensure a functioning single market while ensuring consumer health and wellbeing. A food chain length perspective has been attempted, notably through regulations such as the General Food Law, and the rationalisation of the Official Controls on food and feed safety. However, there are still gaps in the effective monitoring and transparency of food safety and of food integrity along value chains, as exemplified by misleading claims and criminal fraud. This has led to renewed policy actions over food fraud, in particular. EU regulations, policies and related governance initiatives provide an important framework for national-level actions for EU member states and for EEA members. The more tightly EU-regulated areas, such as food safety, see fewer extra initiatives, but where there is a more general strategic policy and governance push, such as food waste reduction or food fraud, there is greater independent state-level activity. Likewise, there is much more variation in the application of both national and European (Competition) law to govern unfair trading practices impacting upon food value chains. This report presents the findings of a survey of members from the VALUMICS stakeholder platform, that were policy facing food value chain stakeholders across selected European countries, including both EU and EEA Member States. The survey was conducted to check the significance of the main policies identified in the mapping exercise at EU and national levels and so to incorporate the views of stakeholders in the research. The responses suggest the policy concerns identified in EU and national-level research resonate with food value chain stakeholders in participating nations. The report concludes by exploring in more detail how the themes of fairness and of transparency are being handled in the policy activities presented. Highlighted are the ways that both fairness and transparency can be extended within the existing frameworks of EU policy activity. The findings in this report provide an important context for further and detailed research analysis of the workings and dynamics of European food value chains under the VALUMICS project

The paradoxes of the theory of imprévision in the new French law of contract: a judicial deterrent?

As part of the reform of the law of contracts,the theory of imprévision is now enshrined in Article 1195 CC of the French Civil Code. The novelty of this article lies essentially in the new judicial power of review. As this paper shows, Article 1195 CC raises three paradoxes:the first one in the nature of the article itself as a default rule that encourages a voluntary ex-ante contractual solution over a judicial solution through careful pre-emptive drafting;the second at the renegotiation phase as the affected party has the right to request renegotiation whereas the other contracting party the right to refuse to renegotiate; and the third in the new judicial powers that play as a deterrent and favour an ex-post contractual solution through renegotiation. Overall, this article demonstrates a clear bias for a private contractual and negotiated solution (over a judicial one). Small and medium sized businesses are likely to avail themselves of the new framework to redefine their contractual relationship. By contrast, larger commercial enterprises are further incentivised to enhance their self-reliance by boosting forward-looking contractual and expert determination provisions dealing with changed circumstances. The fear of a snowball effect with the provision generating a a more interventionist judicial attitude appears therefore exaggerated

The Perfect Crime? FIFA and the Absence of Accountability in Switzerland

Article published in the Md. J. International Law

Contracts Induced by Means of Bribery: Should they be Void or Valid?

This paper argues that contracts induced by means of bribery should be valid. Nullity and voidability decrease the incentive for voluntary disclosure, assist corrupt actors with enforcing their bribe agreements and provide leeway for abuse. Thus, they run counter to effective anti-corruption. It is argued that other instruments are more suitable for preventing corruption.Bribery, Contracts, Corruption, Due Diligence, Enforcement, Impugnment, Liability, Leniency, Nullity, Private Law Validity, Voidability, Voluntary Disclosure (Program)

Regulating Data as Property: A New Construct for Moving Forward

The global community urgently needs precise, clear rules that define ownership of data and express the attendant rights to license, transfer, use, modify, and destroy digital information assets. In response, this article proposes a new approach for regulating data as an entirely new class of property. Recently, European and Asian public officials and industries have called for data ownership principles to be developed, above and beyond current privacy and data protection laws. In addition, official policy guidances and legal proposals have been published that offer to accelerate realization of a property rights structure for digital information. But how can ownership of digital information be achieved? How can those rights be transferred and enforced? Those calls for data ownership emphasize the impact of ownership on the automotive industry and the vast quantities of operational data which smart automobiles and self-driving vehicles will produce. We looked at how, if at all, the issue was being considered in consumer-facing statements addressing the data being collected by their vehicles. To formulate our proposal, we also considered continued advances in scientific research, quantum mechanics, and quantum computing which confirm that information in any digital or electronic medium is, and always has been, physical, tangible matter. Yet, to date, data regulation has sought to adapt legal constructs for “intangible” intellectual property or to express a series of permissions and constraints tied to specific classifications of data (such as personally identifiable information). We examined legal reforms that were recently approved by the United Nations Commission on International Trade Law to enable transactions involving electronic transferable records, as well as prior reforms adopted in the United States Uniform Commercial Code and Federal law to enable similar transactions involving digital records that were, historically, physical assets (such as promissory notes or chattel paper). Finally, we surveyed prior academic scholarship in the U.S. and Europe to determine if the physical attributes of digital data had been previously considered in the vigorous debates on how to regulate personal information or the extent, if at all, that the solutions developed for transferable records had been considered for larger classes of digital assets. Based on the preceding, we propose that regulation of digital information assets, and clear concepts of ownership, can be built on existing legal constructs that have enabled electronic commercial practices. We propose a property rules construct that clearly defines a right to own digital information arises upon creation (whether by keystroke or machine), and suggest when and how that right attaches to specific data though the exercise of technological controls. This construct will enable faster, better adaptations of new rules for the ever-evolving portfolio of data assets being created around the world. This approach will also create more predictable, scalable, and extensible mechanisms for regulating data and is consistent with, and may improve the exercise and enforcement of, rights regarding personal information. We conclude by highlighting existing technologies and their potential to support this construct and begin an inventory of the steps necessary to further proceed with this process

Securitization in East Asia

Securitization offers a range of benefits for Asiaâs financial systems and economies as a mechanism to assist funding and investment. As a form of structured finance, reliable and efficient securitization can assist development by enabling financial systems to deepen and strengthenâthus contributing to overall economic growth and stability. It must be recognized, however, that there are both overt and more subtle risks in certain uses of securitization. The credit and liquidity crisis that began in the United States and spread to other developed financial systems in mid-2007 exposed the danger associated with securitization: excessive risk-taking or regulatory capital arbitrage rather than a tool to assist more conventional or conservative approaches to funding, risk management, or investment. Securitization has also been criticized for rendering financial markets opaque, while contributing to a growing emphasis in the global economy of credit intermediation conducted in capital markets rather than through banks. This study examines the institutional basis of these concerns by investigating the use of securitization in East Asia, questioning both the growth in regional activity since the 1997/98 Asian financial crisis, and the reasons for it remaining constrained. The paper concludes with a discussion of proposals to support proper development of securitization in the region, including institutional mechanisms that could better allow securitization to enhance development and financial stability. If East Asia begins to make fuller use of securitization, its motive will be to meet funding or investment needs in the real economy rather than balance sheet arbitrage of the kind that peaked elsewhere in 2007.Securitization; East Asia; debt markets; risk transfer