Geneviève Helleringer

Towards a European Legal Culture

European harmonization efforts - such as a European civil code, European constitutional treaties, European principles, and European fundamental rights - are frequently criticized for building on or creating a European legal culture that does not exist. In reality, what we have is European legal pluralism. Some have argued that the pluralistic structure of European law hinders the development of a community, which is a necessary requirement for a European legal culture. And, if there can be no common European legal culture, then there is no basis for harmonizing exercises. The contributors to this book explore whether, in fact, the contrary is true. Cultural pluralism might indeed be a distinctive feature of European legal culture. Diversity is not something that is in opposition to a European legal culture, but rather constitutes a new, different understanding of it. The book demonstrates in detail how such an approach - inter alia in the areas of private, corporate, administrative, and constitutional law - furthers the understanding of a developing European legal culture, how it offers theoretical and doctrinal insights, and how it adds critical perspective.

Corporate Opportunities in the US and in the UK: How Differences in Enforcement Explain Differences in Substantive Fiduciary Duties

Fiduciary duties are often today held out as typical instruments of shareholder protection in the common law of both the US and the UK, which are sometimes held out as examples for a consensus model for what is considered good corporate law conducive to good capital market development. However, fiduciary duties in these two jurisdictions often operate in strikingly different ways. This chapter looks at the specific example of corporate opportunities, with which the UK and the US deal in remarkably different ways. Each of them focuses on a starting point: avoiding conflicts of interest in the UK approach versus identifying the correct owner of the opportunity in the US approach. While the US relies on an open-ended standard, the UK corporate opportunities doctrine effectively constitutes a rule. In this chapter, we suggest an explanation for why the two core jurisdictions of the common law world have developed so differently in this respect. We argue that only in the US fiduciary duties are typically enforced by the courts, whereas in the UK, corporate law enforcement is typically left to ex ante monitoring by outside directors and institutional investors. Only courts, in applying an ex post substantive assessment, are capable of implementing a complex “standard” for corporate opportunities. Institutional enforcement, as in the UK, lends itself better to a hard-and-fast rule. We suggest that this distinction is only an example of a larger distinction between the corporate laws of these two jurisdictions, and indicative of a broader difference in how corporate fiduciary duties operate.

L’analyse comportementale du droit Manifeste pour un nouveau champ de recherche en Europe

To be effective, legal rules need to incorporate a representation of human behaviour that is as accurate as possible. In this regard, Behavioural Sciences offer useful insights, which law can helpfully draw on. In this article, we present a scholarly movement which has developed over the past twenty years and provides ways to integrate behavioural insights in legal analysis and policy-making. We first make explicit the premises of behavioural legal analysis. We then discuss how the integrated study of law and behavioural sciences should be named (in French). Next, we define the scope of this interdisciplinary field of study by describing its objects and characteristic research questions. Finally, we give a brief overview of methodological issues. With this introduction to behavioural analysis of law, we hope to draw more European legal researchers into the field.

Quelle influence pour les droit des l’homme et les droits fondamentaux en droit privé français?

Sous ce titre ambitieux de « rapport national », cet article est issu d’un rapport realise en vue du XIXeme congres de droit compare qui se tiendra a Vienne en juillet 2014. L’objet etait de recenser, a partir de questions precises, le rayonnement des droits de l’Homme et des droits fondamentaux sur le droit prive francais. Il s’agissait d’etre synthetique. Par consequent, il etait impossible d’etre exhaustif. De plus, la forme etait necessairement imposee par la liste des questions. L’essentiel etait de mettre l’accent sur les evolutions les plus saillantes et recentes. Il s’agissait egalement d’etre le plus objectif possible, ce qui explique la neutralite du propos. La partie II a ete redigee par Genevieve Helleringer. Les parties I, III, IV, V et VI par Kiteri Garcia.

Retail Investors and Disclosure Requirements

Disclosures are among the most common techniques introduced. The purpose of such regulation is to correct, for the benefit of the potential retail investor, information asymmetries relating to the characteristics of the financial products and the motivations of the intermediary advisor. The devil is in the detail, however, and it has become apparent that disclosing without assessing “how” to disclose may create unexpected and harmful side-effects. For this reason, there is a need for a research agenda centred around the limits deriving from motivation in the use of financial information and in good decision- making. This research design would disentangle connections between financial law and emotions and, in particular, financial law and happiness as well as financial law and altruism.