ODELIA MINNES, Ono Academic College
Email: odelia.mi@ono.ac.il
DOV SOLOMON, College of Law and Business - Ramat Gan Law School
Email: solomon@clb.ac.il

A company in financial distress is bound to experience turbulence. In particular, the zone of insolvency is a crucial time in a company’s life in which conflicts of interest between shareholders, managers, and creditors are sharply enhanced. Directors’ liability during this period is a recurring topic of interest. The current COVID-19 pandemic and the global economic crisis generated by it bring this topic to the forefront once more. This Article points to two distinct approaches to this issue. The first is represented by the U.S. legal system, in which directors’ liabilities do not change in the zone of insolvency but, rather, conform to the same standards set by corporate law. We call this the “corporate law approach.” The second method is represented by the U.K. legal system, which sets different standards for directors’ actions in the zone of insolvency, requiring them to minimize creditors’ losses. We refer to this as the “bankruptcy law approach.” This Article shows that there are significant shortcomings to the latter approach. As a result, this Article concludes that the corporate law approach is comparatively more efficient. This Article further demonstrates the superiority of the corporate law approach by analyzing the shared theoretical, normative, and practical linkages between corporate and bankruptcy law. Finally, this Article discusses two possible policy implications of our discussion, one broader and one specifically tailored to minimize the negative consequences from the COVID-19 crisis.

SUNIMAL MENDIS, Tilburg University
Email: sunimal.mendis@gmail.com

Within the current European Union (EU) online copyright enforcement regime — of which Article 17 of the Copyright in the Digital Single Market Directive [2019] constitutes the seminal legal provision— the role of online content-sharing service providers (OCSSPs) is limited to ensuring that copyright owners obtain fair-remuneration for content shared over their platforms (role of ‘content distributors’) and pre-venting unauthorized uses of copyright protected content (‘Internet police’). Neither role allows for a recognition of OCSSPs’ role as facilitators of democratic discourse and the duty incumbent on them to ensure that user freedoms to engage in democratic discourse are preserved. This essay proposes a re-imagining of the EU legal framework on online copyright enforcement — using the social planning theory of copyright law as a normative framework — to increase its fitness for preserving and promoting copy-right law’s democracy enhancing function.

TITO RENDAS, Catholic University of Portugal (UCP) - Católica Global School of Law
Email: tito.rendas@gmail.com

The article discusses the legal nature of permitted uses in copyright law – uses like private copying, quotation or parody, which may be lawfully performed without the rightholder’s authorisation, despite falling within the prima facie scope of an exclusive right.

It starts by examining the nature of the rules that lay down permitted uses, arguing that they should be considered “exceptions” rather than “limitations”. This qualification should not be taken as carrying a preference for their strict interpretation or as admitting their hierarchically inferior status in relation to exclusive rights. Although these rules are more appropriately described as "exceptions", nothing prevents them from being construed in a broad manner.

The article then delves into the nature of the entitlements granted by copyright exceptions. It submits that, in general, we should not refer to such entitlements as “rights”, since they are not paired with a correlative duty, but as “privileges” or “freedoms”.

In some cases, however, the prerogatives enjoyed by users may be regarded as rights. One such case is created by the most controversial provision in the CDSM Directive - Article 17. Whereas Article 17(7) puts online content-sharing service providers under a duty not to prevent uses that are covered by exceptions, Article 17(9) gives the beneficiaries of those exceptions access to truly offensive means of reaction, instead of mere means of defense. Read together, these safeguards confer actual rights upon users.

ALEKSANDRA FOKINA, MGIMO University
Email: a.fokina@my.mgimo.ru

This study presents a comparative legal analysis of the institution of a mandatory share in inheritance in the law of Russia and some foreign countries according to three comparison criteria: the concept and legal definition; the size of the mandatory share and mandatory heirs; features of calculating the size of the mandatory share.

The relevance of the chosen topic is due to the fact that the similarities and differences established as a result of comparative legal analysis of the norms of inheritance law of Russia and foreign states of the legal regulation of the institution of mandatory share in inheritance allow us to re-evaluate the current regulation of mandatory share in inheritance in Russian law and use the experience of foreign countries for further improvement of Russian legislation on inheritance.

As a result of the conducted research, significant differences were established in the regulatory and legal regulation of the institution of a mandatory share in the inheritance, which can be used as part of the reform of the inheritance law of Russia.

HELGE DEDEK, McGill University - Faculty of Law
Email: helge.dedek@mcgill.ca

In the first edition of his famous treatise 'Reine Rechtslehre, Einleitung in die Rechtswissenschaftliche Problematik' (translated as 'Introduction to the Problems of Legal Theory'), Hans Kelsen makes the claim that the existing liberal, property rights-based private law of his era is a ‘democratic form of law’ and that private law rights are ‘political in the same sense as those rights that are usually characterized as political rights.’ In this article, I aim to explain how Kelsen developed his theory of private law and private rights within the theoretical and methodological framework of the ‘Pure Theory of Law’ and its philosophical underpinnings of relativism and ‘value neutrality,’ culminating in the connection between private law and democracy. I wish to highlight, in particular, the still often underappreciated fact that the Pure Theory saw itself as a critical project, aimed at exposing and exorcizing ‘ideology.’

To Kelsen’s contemporary audiences, drawing a connection between ‘capitalist’ private law and democracy must have appeared particularly counter-intuitive against the backdrop of one of the most important – if now almost forgotten – political debates of the Weimar era, the debate on ‘economic democracy’ (‘Wirtschaftsdemokratie’). It was a powerful trope in the inter-war period that the capitalist economy and its institutional safeguards – private, labour, commercial, and corporate law – were ‘undemocratic.’ I submit that Kelsen’s statement – which flipped the contemporaneous revisionist-socialist rhetoric on its head – may be better understood in the larger context of the precarity of democracy in the Weimar period and especially in the context of a theoretical and political challenge that contrasted the existing ‘bourgeois’ parliamentary democracy with a ‘true,’ ‘social’ democracy that would realize conditions of social and economic justice. By connecting ‘capitalistic’ law with ‘democracy’ and ‘socialistic’ law with ‘autocracy,’ Kelsen once more underscores that democracy, properly understood as a formal principle, is irreducible to substantive justice.

ASAF RAZ, University of Pennsylvania Law School
Email: asafraz@pennlaw.upenn.edu

Corporate law is again taking center stage in practice, policymaking, and scholarship. Despite this, commentators have yet to adequately answer a very preliminary question: is corporate law part of private law, or is it public law? This distinction has far-reaching implications for ongoing policy discussions, including the debate between shareholder and stakeholder conceptions of the firm, epitomized by a series of recent high-profile legislative proposals and scholarly works.

As this Article demonstrates, corporate law is indeed private law. Relying on broader legal and economic theory, together with insights from the new private law (NPL) literature, this Article responds to the four main types of arguments raised by public theorists of corporate law: that the corporation's affairs are dictated by its state-issued charter; that the requirement of registration with a state agency makes the corporation a "creature of the state"; that the mandatory, structural features of corporate law make it public law; and that corporations are required to take into account the interests of a broad array of stakeholders. Each claim is based on real-world observations, but as this Article illustrates, in every case, those facts actually point to corporate law being part and parcel of private law—just as much as contract, property, or tort law.

At the same time, this Article also explains how corporate law advances broader rule of law considerations. Corporate law is far from being the contractarian regime envisioned by some scholars since the 1980s. Instead, corporate law—like contract, property, and tort, albeit even more systemically—requires strict compliance with positive law (both public and private), and strongly upholds values of interpersonal justice and fairness. This Article expands on these points in a highly nuanced manner, not previously recognized in scholarship, or in the wider public debate about corporations in society.

RAPHAËLE XENIDIS, University of Edinburgh, iCourts, University of Copenhagen
Email: rxenidis@ed.ac.uk

This article proposes a new explanatory framework to understand the transversal developments that have emerged from the recent case law of the Court of Justice of the EU on the Framework Employment Directive. It argues that the Court operates a functional differentiation in the implementation of anti-discrimination norms, which gives rise to a complex interpretation architecture. Following the constitutionalization of EU equality law, the Court reads three main functions into the Framework Employment Directive: socialization, integrity, and calibration. This differentiation gives rise to competing interpretive paradigms and analytical templates that affect the level and shape of equality protection under the Directive.