YEAR 2022 No 2 Volume 28

ISSN 2182-9845

2022 No 2 Volume 28
EDITORIAL

Alexandra Aragão

Legal eco-innovation for sustainability in the Anthropocene
Ecoinovação jurídica para a sustentabilidade no Antropocénico

Celebraram-se, em junho de 2022, os 50 anos da Declaração de Estocolmo de 1972, sobre o ambiente e o desenvolvimento humano. Abrangentes e de caráter percursor, os princípios de Estocolmo irradiaram até aos nossos dias. Desde então e sob a influência de tão visionária Declaração, foram adotados instrumentos jurídicos de Direito ambiental, internacional e interno, cobrindo temas tão diversificados como ar, água solo, natureza e biodiversidade, alterações climáticas, proteção do ozono, uso do solo, resíduos, produtos químicos, biotecnologia, indústria, proteção civil e prevenção de acidentes, governança.

Contract Law and Human Dignity. Second Ole Lando Memorial Lecture, Vienna 2020

Christian von Bar

Contract Law; Fundamental Rights; Contracts in Disrespect of Human Dignity; Law governing the Natural Person; Assisted Dying.
 

Modern private law needs to be shaped by human and fundamental rights. The rules governing the law of the natural person have to be rooted in the constitutional demand of protecting human dignity. This overarching principle is also relevant for contract law. Contracts in disregard of human dignity are unenforceable. Human dignity is particularly vulnerable at the end of life. The law on assisted dying has to take that into account. It should free itself from ideology and simplifying religious concepts.

Startups Funding Legal Regime

Joana Costa Lopes / Chen Chen

Startups; innovation; funding; crowdfunding; venture capital; Initial Coin Offerings; securities.

Because of their characteristics, startups are generally unable to access traditional forms of funding, such as bank loans. However, the global digital and technological revolution of recent years has enabled other forms of funding to emerge, offering alternatives to bank loans. These have allowed startups to fund themselves and so develop their business. This paper sets out to look at the alternative, technology-driven forms of finance used by startups and how these funding arrangements are regulated in the Portuguese legal system and in the European Union.

MiCA and DeFi (“Proposal for a Regulation on Market in Crypto-assets” and “Decentralised Finance”)

Guilherme Maia / João Vieira dos Santos

Crypto-assets; Decentralised Finance; DeFi; Blockchain; Fintech; MiCA.

This paper aims to analyse the relationship between the proposal for a Regulation on Markets in Crypto-assets (MiCA), an element of the Digital Finance Package of the European Commission presented on the 24th September 2020, and DeFi (Decentralised Finance), an ecosystem of decentralised applications (dapps) that provide financial services built on top of peer-to-peer and trustless networks. To this end, it also analyses what could be a decentralised protocol. After that, this paper intends to propose solutions to align DeFi applications within legal frameworks and with the state intervention in the economy (particularly the protection of investors and financial stability).

The inheritance disability of Article 2034, subparagraph a), of the Portuguese Civil Code – Can the specific and concrete judicial declaration of the criminal’s unworthyness be waived in relation to each of the inheritances later opened by the death of the persons referred to in that subparagraph?

João Paulo Remédio Marques

Capacity to succeed; unworthiness to succeed; personality rights; relatives of the unworthy heir; res judicata; unconstitutionality.

Unworthy conduct on the part of the heir or legatee may assume several different forms in Portuguese inheritance law. One of them is against the life of the deceased, even if the murder has not been consummated. The judgment of the Portuguese Supreme Court of Justice of February 23, 2021 generates, in our opinion, a unconstitutional normative interpretation of Article 2034.º, subparagraph a), of the Civil Code, as it decided that “the declaration of unworthiness to succeed [due to the wilful murder] in relation to the succession with respect to the deceased extends to the succession of his spouse and closest family members (id est, mandatory heirs: herdeiros legitimários), not being necessary several declarations of inheritance unworthiness lawsuits”.

Cooperative Compliance: SWOT Analysis for the Brazilian CONFIA Program

Antonio Lopo Martinez

Cooperative Compliance; Tax Administration; Taxpayer; Tax Advisor; Trust.

Cooperative compliance ensures that the taxpayer–Tax Administration relationship is based on transparency, mutual trust, and preventive actions of assistance and collaboration. These three foundations are formalized into six characteristics, two of which (transparency and disclosure) apply to taxpayers and five of which (commercial awareness, fairness, proportionality, transparency, and responsiveness) apply to the Tax Administration. This article discusses cooperative compliance concepts, requirements, advantages, tax control framework (TCF), tax risk, and governance issues. It then considers some Brazilian initiatives, highlighting the exposure of the CONFIA proposal as a cooperative compliance program of the Brazilian Revenue Service (RFB).

The duty of loyalty of directors of capital companies and the obligation to return unjust enrichment — analysis of the Spanish and Portuguese systems

Paulo Nuno Horta Correia Ramirez

Dever de lealdade dos administradores sociais; enriquecimento injusto ou sem causa; caráter compatível, subsidiário ou complementar da restituição do enriquecimento.

The present work addresses the issue of sanctions for non-compliance with the duty of loyalty by the directors of public corporation. The aim was to analyze, fundamentally, the relationship between the obligation to indemnity the damages caused to the companies property and that of restoring to the administered company the unjust enrichment obtained by the administrator. In this context, it was questioned whether the legitimacy to invoke this last institute is compatible, subsidiary or complementary to that of compensation for losses and damages.

The digital transformation in banking and the growing relevance of operational resilience

Maria Emília Teixeira / Lara Reis

Digital transformation; operational risk; operational resilience; DORA Regulation; Information and Communication Technology (ICT) Risks.

The automation and digitalisation of procedures related to the provision of financial services impose new ways of operating on these entities and imposes on them the capacity to adapt their operational procedures and processes to the continuous technological evolution. From among all the risks associated with financial activity, operational risk has been particularly highlighted on the work agenda of all regulators. In our essay we seek to address the relevant aspects of the Information and Communication Technology (ICT) risk management cycle and analyse the new perspectives that the DORA Regulation brought to respond to the densification and harmonisation of rules for the financial sector related with security and ICT risk management.