Erasmus Law Review

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Issue 3, 2023 Expand all abstracts

Access_open Doing Business in a World of Goliaths: Power Imbalances and Economic Dependency in Platform-to-Business Relations

Keywords online platforms, platform-to-business relations, abuse of dominant position, abuse of economic dependence, Digital Markets Act
Authors Samuel Scandola
AbstractAuthor's information

    Digital platforms have emerged as crucial infrastructures in today’s economy, facilitating digital transactions between buyers and sellers. However, propelled by network effects and other sources of market power, digital platforms are generally the stronger party in their relations with users, and this could lead them to abuse their market power through exclusionary and exploitative practices. While extensive consumer regulations shield consumers in business-to-consumer (B2C) transactions, scant protection is afforded to businesses in presumed peer-to-peer business-to-business (B2B) transactions. Although certain EU provisions, such as Article 102 TFEU, Regulation 1150/2019 and the Digital Markets Act (DMA), aim to safeguard business users in platform-to-business (P2B) contexts, their effectiveness is constrained. These regulations and provisions are often too narrow in scope, fail to consider the platform’s unique features, prioritise public interests over those of individual businesses and lack effective remedies. Conversely, some Member States have adopted abuse of economic dependence regulations, potentially offering stronger protection, as such an approach provides more flexibility and emphasises contractual fairness for individual business users. The present article attempts to show that business users are in fact economically dependent on the platform, thereby suggesting that an EU level prohibition of abuse of economic dependence could more effectively address the existing gaps in protection.

Samuel Scandola
Samuel Scandola, PhD,Associate at the Antitrust, Competition and Trade (ACT) practice of Freshfields Bruckhaus Deringer.

Access_open Faith-Based Investing, Stewardship, and Sustainability: A Comparative Analysis

Keywords ESG, faith-based investing, stewardship, sustainability
Authors Petrina Tan Tjin Yi
AbstractAuthor's information

    This article discusses how faith-based investing addresses sustainability, focusing on Catholic, Church of England, and Islamic faith-based investing in the US, the UK and Malaysia, respectively, as illustrative examples. It posits that there are three dimensions to how these three institutional religions approach sustainability through faith-based investing, namely the underpinning religious values and principles, the legal and regulatory framework governing faith-based investing, and investment stewardship approaches. Section 2 provides an overview of sustainability and sustainable finance, situating faith-based investing within the universe of socially responsible investing and environmental, social and governance investing. Section 3 delves into sustainability and the values and organising principles underpinning Catholic, Church of England, and Islamic faith-based investing to highlight areas of conceptual alignment and their nexus to sustainability. Section 4 examines the legal and regulatory frameworks governing faith-based investing contrasting an extensive reliance on soft law in the US context with specifically tailored law and regulation for Islamic faith-based investing in Malaysia and considers its implications on the certification of faith-based investing as a central element. Section 5 compares the faith-based investment stewardship approaches in these jurisdictions to identify areas of convergence and divergence. Section 6 reflects on the broader opportunities which faith-based investing encounters in its development and the challenges it faces in advancing sustainability.

Petrina Tan Tjin Yi
Petrina Tan Tjin Yi is a Postdoctoral Fellow at the EW Barker Centre for Law & Business, National University of Singapore. The author thanks the participants of the 2023 Conference of the Private Law Consortium at City University of Hong Kong, the 2022 Stewardship Roundtable 1 at the Law and Society Association Annual Meeting, Hans Tjio, Jeanette Yeo, Selene Tanne and two anonymous reviewers for their thought-provoking comments and questions on previous versions of this article. The author is also grateful to the EW Barker Centre for Law & Business for supporting the research and writing of this article. All errors and omissions are the author’s own.

Access_open Artificial Intelligence, Neuroscience and Emotional Data. What Role for Private Autonomy in the Digital Market?

Keywords Artificial Intelligence, private autonomy, contract law, consumer vulnerability, emotions
Authors Tommaso De Mari Casareto dal Verme
AbstractAuthor's information

    Within the context of mass production, consumers represent a vulnerable category since they are the weaker contracting party due to the existing information asymmetry between companies and customers. Moreover, consumers suffer from new forms of vulnerability due to the combination of new technological phenomena – such as Artificial Intelligence (AI) and Big Data – and the latest findings in neuroscience, which allows businesses to have a monopoly on the newly acquired knowledge on consumers’ purchase decision-making. This article aims at analysing the new technological trends in digital marketing that show the increasing role of ‘AI emotional marketing’ as a tool to access the inner and unconscious layers of consumers’ mind to redirect their economic choices. In this respect, the article will focus on the legal notion of ‘autonomy’ within the EU legislation on consumer protection and contract law, in order to investigate whether the current legal framework is well equipped to counteract the new form of algorithmic manipulation in the digital market.

Tommaso De Mari Casareto dal Verme
Tommaso De Mari Casareto dal Verme, Ph.D. , Research Fellow in Private Law, University of Trento.

Access_open The Frustration Doctrine and Leases: Lessons from the Hong Kong COVID-19 Litigation

Keywords frustration, COVID-19, contract law, change of circumstances
Authors Alexander F. H. Loke
AbstractAuthor's information

    Despite the immense impact of COVID-19 on the business environment, the Hong Kong (HK) courts did not find room for the operation of the frustration doctrine. While all the reported HK cases involved leases, they offer valuable lessons on the theoretical basis of frustration and how the ‘radical change in nature of obligations’ test is critically concerned with characterising the nature of the bargain. Beyond their precedential value, the decisions point to the limits of contractual construction and the need to recognise the role of legal policy in exercising what is in effect judicial risk allocation when applying the doctrine of frustration.

Alexander F. H. Loke
Alexander F. H. Loke, Professor, City University of Hong Kong, School of Law.

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