YEAR 2022 No 1 Volume 27

ISSN 2182-9845

2022 No 1 Volume 27
EDITORIAL

Henrique Luís de Brito Araújo

The State and Justice
O Estado e a Justiça

Há cinco anos, nestas mesmas páginas, elegi como tema o “Estado da Justiça”.
Nessa oportunidade, descrevi os tempos médios das decisões dos tribunais comuns, sinalizei os aspetos que, em meu entender, constituíam obstáculos a uma justiça mais pronta, apontei deficiências ao sistema de organização dos tribunais e defendi a alteração de quadros punitivos em alguns ilícitos penais relacionados com a criminalidade económica e financeira.
Havia, então, a esperança de que o repto lançado, pouco tempo antes, pelo Senhor Presidente da República, pudesse dar frutos. Infelizmente, o apelo a um ‘Pacto para a Justiça’ não passou de uma intenção sem consequências.

A community of accrued gains system for England and Wales?

Adrián Arrébola Blanco

Matrimonial property; separate property system; community of accrued gains system; community property system; English Law; Welsh Law.

The House of Lords concluded that English and Welsh Law had not yet known a system of community of property, neither in a full, or deferred way. Nevertheless, the evolution of ancillary relief has shown a trend towards the introduction of a community of accrued gains system from the middle of the past century. Recently, in fact, there has been a bill in process whose provisions were going to bring it slightly closer to a matrimonial property system. For this reason, it is time to analyse the past, the present and the future of ancillary relief in order to reflect on the current existence of a community of property system in England and Wales.

Notes on banking activity from islamic law perspective

António Pedro A. Ferreira

Islamic banking; Financing mechanisms; Islamic contracts; Shariah principles; Corporate governance; Conventional banking.

The Islamic financial services industry, where the banking sector is most important, has experienced exponential growth, arousing a growing interest in its study. Such interest lies on the fact that the respective activity is carried out in accordance with the dictates of Shariah, which largely depart from the principles underlying the exercise of banking activity in the conventional way. Islamic financial activity emphasizes the use of risk-sharing financial instruments, a fact that has proved to be of great importance as it has helped to avert many of the most severe consequences of recent financial crises, for example by preventing Islamic banks exposure to subprime or toxic assets.

Companies re-structuring and tax relief

João António Bahia de Almeida Garrett

Insolvency; bankruptcy; company re-structuring; tax relief; legal principles and criteria.

This article intends to discuss the current status of the effects of company insolvency and bankruptcy on its unpaid taxes within the legal proceedings leading to company re-structuring. Addresses, in particular, the possibility of extinguishing, reducing or delaying payment of these unpaid taxes through the analysis of the pertinent legal rules, either from the tax law or the insolvency law, the court decisions and legal writers’ opinions. And concludes that the Portuguese law does not prevent the reduction or other limitations to taxes due in these situations, providing the conditions imposed by the insolvency law are met.

Mutual Evaluation Report: comparative analysis of Cape Verde and Senegal in relation to the role of the financial action group (FAFT) in leading measures to combat money laundering and terrorist financing

Sheila Soraya Dias Gomes Mendes

Mutual Evaluation; Money laundering; Terrorist financing; FATF; GIABA; FSRBs.

This article aimed to define the Financial Action Task Force (FATF) and its Style Regional Bodies (FSRBs) that combat money laundering and terrorist financing in the specific case of Cape Verde and Senegal with FATF`s recommendations with respect to the regulation and supervision. Therefore, a comparative analysis methodology with a descriptive-analytical approach was developed to compare two member countries of the Intergovernmental Action Group Against Money Laundering in West Africa (GIABA). In data collection, secondary data sources were used: theoretical literature on the subject and FATF report on Mutual Assessment Reports (RAM).

Actionis paulianae against insolvent debtor – insolvency effects of granting the action

Fernando Silva Pereira

Actio pauliana, debtor`s insolvency; par conditio creditorum principle; insolvency effects of the granting of the action.

This article discusses the problem of knowing whether, if an actio pauliana is filed to contest an act performed by an insolvent debtor (or one that has been declared insolvent in the meantime), the effects of the granting of this action will benefit only the claimant creditor (who has the right to the execution of the asset directly in the third party acquirer's legal sphere - Article 616(1) CC - competing with the other creditors of the third party acquirer) or whether, on the contrary, should the object of the contested transaction return to the debtor's legal sphere, entering the insolvent estate and thus benefiting all of the insolvent debtor's creditors (principle of par conditio creditorum).

Does it make sense for a company to move its headquarters or establishment because of the General Data Protection Regulation?

Benedita Cunha Pinto

Forum Shopping; Data Protection; Territorial Scope; Establishment; Standard Contractual Clauses; Representative.

The article aims to make an analysis of the issue of the transfer of headquarters or even of the establishment because of the General Data Protection Regulation (Regulation (EU) 2016/679 of 27 April 2016). In a first phase we approach in detail the territorial scope of the GDPR in accordance with the establishment criterion and the targeting criterion. Then, we point out some limitations related to the execution of the aforementioned Regulation, as well as some reasons that may lead a company to consider transferring its registered office to a country outside the European Economic Area (EEA) or, simply, opting to resort to establishment migration.

Book review of Giménez Zuriaga, Isabel (Dir.): Retos de la sociedad digital y medios de pago, Thomson Reuters, Navarra, 2019, 341 pp. (ISBN 9788413095127)

David López Jiménez

Consumers; Law; payments; regulation; technology.  

Book review of Giménez Zuriaga, Isabel (Dir.): Retos de la sociedad digital y medios de pago, Thomson Reuters, Navarra, 2019, 341 pp. (ISBN 9788413095127)