Search

The aim of the thesis – to theoretically analyze and scientifically explain civil liability of the financial intermediary as investor protection instrument, to provide reasoned assessment of the regulation of civil liability of the financial intermediary and its application practice in the USA and the EU, to identify relevant problems and suggest theoretically grounded solutions and recommendations for these problems which would also put an emphasis on practical efficiency of civil liability; thus supplementing the doctrine of the EU and national law in this field. This thesis consists of two related yet relatively independent parts. The first part covers the most common issues of civil liability of the financial intermediary against the investor and extensively analyzes the conditions of civil liability of the financial intermediary, i.e. fault, damages, causation and unlawfulness, last one being of particular importance because due to the massive regulation of the activities of financial intermediaries it covers the widest range of legal issues. The second part of the thesis analyzes the relevant questions of the application of civil liability, which is possible only when the required conditions for the rise of civil liability have been established. Therefore, it analyzes the cases under the law or the contract, where the financial intermediary is relieved of liability even if the conditions of civil liability are met. The main focus of the second part is placed on the most relevant question of this doctoral thesis – the award of compensatory and restitutionary damages.

Comparative Analysis of Crowdfunding Regulation in EU and the Lithuanian National Law The aim of this analysis is to study and evaluate the legal regulation of crowdfunding in Lithuania and the European Union. The goal is achieved through examining doctrinal positions, research conducted by financial market supervisory authorities and legal regulation of Lithuania and foreign countries. The first part of the work reviews the crowdfunding market, assesses the operation requirements for crowdfunding platform operators and explains the basis for the legal regulation in general. The second part of the work analyses which types of crowdfunding are chosen to regulate both in Lithuania and the EU, evaluates the requirements for owners of crowdfunding projects and explains the stimuli for the demand for the crowdfunding market. The third part of the work reveals the risks to investors in crowdfunding projects and measures set in place in order to protect their interests. The paper concludes that despite small differences, crowdfunding is regulated in a very similar way both under the current legal regulation in Lithuania and under the upcoming EU crowdfunding regulation. However, given the regulatory differences, it is warned that Lithuanian crowdfunding platform operators must responsibly assess their customers before exercising the right to operate throughout the EU under the crowdfunding regulation. It is established that peer-to-peer lending has been chosen not to be regulated by the Regulation. The changing role of supervisory authorities is also assessed.

Civil Liability for the Harm Caused by the Bank of Lithuania Nowadays, the legislation provides huge power and discretion for the public authority thus the amount of discretion the Bank of Lithuania has is considerable. Taking into account, the question raises if the right amount and broadness of the legislation is adopted based on the fragility of the financial system in the society. In the first section, it is analysed the civil liability of the public authorities (the public civil liability). The analysis consists of the review of applicable legislation as well as the examination of relevant legal cases. The purpose of this is to evaluate the development and the trend of public civil liability in the Republic of Lithuania and other countries. In the second section, private and public interests are reviewing through legal cases and legal precedents. It is discussed, what impact for the financial market participants brings financial stability while being the public interest due to the regulation of the Constitutional Court of the Republic of Lithuania. It is analysed how financial stability deals with the principle of full compensation. The third section provides the analysis of functions of the Bank of Lithuania, especially describing the monetary policy and the supervisory of national banks. Additionally, the limits of the discretion of the Bank of Lithuania is reviewed. According to the legislation in the Republic of Lithuania, to prove the civil liability of the Bank of Lithuania it is necessary to comply with all the conditions provided in laws, however, the fault is the condition of most concern. The fault divides into intentional actions either negligence. In the fourth section, the civil liability of the European Central Bank is being analysed as well as the possibility of the solidary civil liability of the Bank of Lithuania and the European Central Bank.

Intuitu Personae Obligations: Concept, Significance, Peculiarities of Emergence, Execution and Expiration. The aim of the master's thesis is to analyze the concept and peculiarities of intuitu personae obligations, comparing it to the overall concept of the obligation, also the basics of emergence, execution and expiration of intuitu personae obligations, distinguishing certain peculiarities, which are determined by the purely personal nature of this kind of obligations. The subject of emergence, execution and expiration of intuitu personae obligations is not widely analyzed by the law scientists. Certain aspects of emergence, execution and expiration of intuitu personae obligations are analyzed by the foreign authors – E. A. Farnsworth, P. Richards, E. Suter, J. L. Baudoin ir P. G. Jobin, E. M. Storme, W. H. Rogers, P. R. Wood, O. Lando etc. Some aspects of these obligations are analyzed by the Lithuanian scientists – V. Mikelėnas, V. Mizaras, J. Usonienė and R. Volodko. It should be noted that the court practice on aspects of execution and expiration of intuitu personae obligations is insufficient. Except the court practice on inheritance of obligation to compensate for non-pecuniary damage. In the latter case the practice of Lithuanian Supreme Court is not the only what is significant in this case. The practice of the Constitutional Court of Lithuania is significant either. The Constitutional Court of Lithuania caused confusion when it was said, that right to compensation for non-pecuniary damage, which is intuitu personae, may be transferred to other person. This act of Constitutional Court of Lithuania caused a lot of questions, but no one, except R. Volodko, tried to find the answers to it. Despite already thirteen years are passed. It is important to find out if the act of Constitutional Court of Lithuania means that the right to compensation for non-pecuniary damage begins to lose its nature of intuitu personae, or maybe the obligation to compensate for non-pecuniary damage is not an intuitive personae obligation.

The Distinction between Main and Secondary Things: Problematic Aspects The thesis analyzes the historical origin of the Institute of Main and Secondary Things, the concept in modern law, the legal relationship and significance of the main and secondary things, and the most relevant problems arising in the law of Lithuania in relation of dividing the objects into the main and secondary ones. In the law of the chosen foreign countries, the dividing of things into the main and secondary ones is considered only to the extent that it is necessary to analyze and present the concept of the thing and compare it with the concept of it in the legal theory of Lithuania. The foreign legal systems governing similar legal relations are chosen for this purpose: Germany and France (because their civil codes have deep historical traditions), Greece and the state of Louisiana of the United States. The main attention is paid to the analysis of legal acts of the Republic of Lithuania and court practice. The thesis does not analyze the problems arising from the practice of foreign courts in relation of dividing the objects into main and secondary ones. The jurisprudence of foreign countries is analyzed to the extent that this thesis requires to describe the concepts of basic and secondary things. Since of the entry into force of the new Civil Code of the Republic of Lithuania, the doctrine of the substantive law is not developed in comparison with the doctrine of the law of obligations, therefore, even the institution of basic and secondary things is not sufficiently analyzed. Taking into account of the current issue of the Institute of Basic and Secondary Sciences and the aim of the work - to determine the legal significance of the main and secondary things for their interconnection and to present the most commonly encountered problems regarding of dividing the things into main and secondary, the thesis analyzes the concepts of the main and secondary things of Lithuania and the chosen foreign countries in the theoretical level, including the legally significant connection and related problems at the practical level, based on the practice of the Lithuanian courts.

The Delimitation of Capital Movement in Financial Markets from Competing Internal Market Freedoms. This work contains analysis of cases of the competition in application between the free movement of capital and the freedom to provide financial services and the freedom of establishment in financial markets, as well as the criterions developed in the case-law of the Court of Justice of the European Union (hereinafter – the CJEU) for the delimitation of these internal market freedoms and solving the competition in their application. The research is conducted first by identifying the concept of capital movements in the EU law and analyzing the particularities of competition between the free movement of capital and other internal market freedoms arising in the context of financial markets. Cases of overlapping between the scope of application of the free movement of capital and other internal market freedoms and the competition arising between them are revealed by, using systemic analysis, linguistic, logical and other methods, analyzing both primary and secondary EU law provisions and conducting an in-depth analysis of the case-law of the CJEU, which deals with legal cases where the subject-matter was recognised as related to both competing internal market freedoms. The author shows that although there are financial services which do not fall within the scope of application of the free movement of capital, for example, such as those consisting solely of consultancy activities, the scope of application of the free movement of capital and the freedom to provide services will in most cases overlap in financial markets. The work also shows that the scope of application of the free movement of capital and the freedom of establishment in financial markets will overlap in cases when investments confer the possibility of effectively participating in the management and control of the company. In the work, by conducting an in-depth analysis of the case-law of the CJEU using systemic analysis, logical, linguistic and other methods, it has been found that, apart from the „de minimis“ protection provided under the free movement of capital to financial investments in some cases, in the majority of cases of competition between the free movement of capital and the free movement of financial services, the priority of application is given not to the free movement of capital, but to the free movement of services. In cases of competition between the free movement of capital and the freedom of establishment, the CJEU gives priority to the freedom of establishment where the case concerns only investments which have a definite influence on the management or control of the company, but the CJEU gives priority to the free movement of capital in cases related with "golden shares" and in cases where the purpose of the applicable national legislation has more bearing on the free movement of capital than on the freedom of establishment.

Unit-Linked Life Insurance: Regulatory Issues SUMMARY Unit – linked life insurance is a permanent, cumulative life insurance, which essentially involves two different transactions, i. e. insurance and investment. In this case, part of the insurance premium is invested and the policyholder is responsible for the investment. This type insurance has conceptual differences not only from traditional life insurance, but also from financial instruments. Although there is an opinion that unit – linked life insurance does not correspond to the functions of the doctrine, the author of the Master's thesis is of the opinion that these functions are not fully implemented in accordance with the violations of legal requirements. Among other things, in the Master's thesis is analysed the issues of unit - linked life insurance regulation that was distinguished of the Bank of Lithuania. As well as the regulatory issues that was identified at European Union level. Analysis of these problems shows that most of these regulatory issues are inadequately defined, and that the proposed improvements in regulation are ineffective and should be considered as superfluous in the light of the legal regulations in force at that time. Among other things, the reform of the Law on Insurance of the Republic of Lithuania is considered as not guaranteeing real protection of consumer rights. Thus, one of the main problems of unit - linked life insurance, which in fact creates the major part of the problems identified by the Bank of Lithuania, is finally considered by the author. In the third part is presented and analysed possible ways of solving existing regulatory issues, which were not identified by the Bank of Lithuania and not established in recently enacted European Union legislation, i. e. Directive and Regulation.

Trade secrets faces new challenges of the 21st century. The increasing risk of economic espionage, longer supply chains, prevalence of outsourcing and labour force migration forces to question the sufficiency of current legal regulation. Even though trade secrets are often used by business to protect confidential information, trade secrets are still considered as an opaque field of law. Dubbed as “Cinderella” of intellectual property, it is still unclear whether trade secrets may be regarded as a traditional object of the intellectual property. TRIPS agreement laid a foundation for a global legal protection of trade secrets. Nonetheless, most of the countries applied the provisions of the agreement in a particular way, therefore the legal protection of trade secrets substantially varies in different countries. European Union institutions acknowledges the importance of the link between the trade secrets and the competitiveness of the whole region, therefore, EU intends to raise the bar of trade secret legal protection throughout every member state. The first chapter of the master thesis analyses the concept and development of trade secrets as well as addressing the complex question whether trade secrets may be deemed as intellectual property. The second chapter analyses the main three conditions for the information to be considered a trade secret – secrecy, commercial value and reasonable steps by the rightful holder of the information to keep it secret. The rest of the chapter analyses national legal regulation of trade secret protection. In order to identify main deficiencies of EU trade secret legal protection fragmentation, third chapter of the master thesis focuses on comparative analysis of different EU jurisdictions. The last chapter of the thesis analyses the provisions of Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure. Master thesis presents a thorough analysis of Directive’s travaux préparatoires and its provisions. By comparing the forthcoming regulation with the current legal regimes, the author presents the assumptions whether Directive’s provisions will solve the existing legal problems on national and regional scale.

Consumer Protection in Mortgage Loan Relations The Law on Credit Relating to Immovable Property, which is going into effect on 1st July, 2017, reforms the current regulation of mortgage home loans. This master thesis is orientated to address how much the new regulation solves existing problems of the current regulation of mortgage home loans. Accordingly, in this master thesis it is first analyzed what is the regulation of mortgage home loans until 1st July, 2017, and the drawbacks of the current regulation are identified. After this the new regulation is being addressed by analyzing all rights and duties of the parties that are established in the Law on Credit Relating to Immovable Property. Finally, the author of the thesis evaluates, whether the new regulation actually solves the problems of the current regulation that were identified before. The author of the master thesis makes a conclusion that the current regulation is not sufficient considering a specific nature of the relations of mortgage home loans. The main drawbacks of the current regulation are the right of the credit institution to unilaterally set the interest rate of the loan and the fact that the protection of the customers is limited to the control of unfair consumer contract terms. Even though one of these problems (the right of credit institutions to unilaterally set the interest rate) is being solved, the author of the master thesis criticizes the fact that the ways how consumers can protect their infringed rights are still limited under the new regime. Accordingly, the author of the master thesis suggests that new legal remedies should be established as they are in the legal systems of another countries.

Peculiarities of Carrier’s Civil Liability Freight carriage by road transport remains the main type of freight transportation in Lithuania. For this reason and relatively high risk in this type of cargo transportation in practice legal disputes often arise, in which the matter of carrier’s civil liability is being resolved. Freight carriage by road transport in CMR convention are regulated very specifically because of that, in order to properly apply stipulations of CMR convention in case of carrier’s civil liability, there is a need to examine and analyze the peculiarities of carrier’s civil liability. By analyzing Lithuanian and foreign authors legal literature and case law in this master thesis main peculiarities of carrier’s liability are distinguished: legal basis and conditions of civil liability application, problematic of interpretation of these conditions in case law, interpretation and application of principle of strict carrier’s civil liability, problematic aspects of carrier’s exemption from civil liability and peculiarities of such liability limitation, cases when civil liability is applied (not applied) to the carrier, etc. It is worth to mention, that road carrier’s civil liability in CMR convention distinguishes by very specific feature – strict carrier’s civil liability which determines great part of carrier’s civil liability regulation specifics. Nevertheless, in order to counterbalance the application of principle of strict carrier’s civil liability general and specific (“privileged”) basis of carrier’s exemption from civil liability are established in CMR convention as well as the possibility for carrier to restrict his own civil liability by using Special Drawing Right (SDR). In this master thesis it is concluded that the limitation of carrier’s civil liability is sufficient and properly supporting the balance of interests between the parties of road carriage contract.

Legal Restrictions of Trade in the EU Financial Markets Author of this paper investigates the need and reasoning of legal restrictions of trade in the EU financial markets as well as considers potential problems of restrictions which were introduced after 2008 financial crisis as well as those which will come into force on 2018 January 3rd. Considering problems arising from uncontrolled trading in financial markets, which were identified by both law and economic scholars it is clear that trade and person right restrictions are necessary for orderly and effective functioning of the financial markets. However, any restriction on trading in financial markets is an intrusion by the government into private relations as well as restriction of individual’s rights, therefore it has to be proportional and necessary. Moreover restrictions, while regulating specific asset circulation field – financial markets, are applied to contracts which are primary area private law regulation. 2008 – 2009 financial crisis exposed legislative gaps in financial regulation, which motivated EU institutions to start legal reform, in order to create tighter as well as more broadly applied financial regulation. These reforms also included restrictions on trade. Restrictions on trade in financial markets are aimed to safeguard investors, encourage creation of the single financial services market, and assure effectiveness of financial system as well as transparent and honest trading process. Despite that, most of the restrictions will improve transparency of financial markets, their impact on market efficiency and stability is questionable. Especially problematic are those restrictions, which ban some types of trade as well as improved transparency impact on some parts of the financial markets.

The aim of the research is to examine and evaluate the validity and conditions for the application of the civil tort liability for market abuse and money laundering actions. This aim is implemented by invoking doctrinal positions and case law of Republic of Lithuania and foreign countries courts, also by studies, accomplished by financial market regulators. In the first part of the research, conditions of tort liability for market abuse and money laundering actions are analyzed, according to national, regional and international laws, including considerations of the relationship of the relevant actions. In the second part of the research, specificity of tort civil liability for market abuse and money laundering actions is analyzed, including an identification of persons, who are entitled to bring an action for damages, for the indicated actions. In the third part of the research, the importance and significance of the application of civil tort liability for market abuse and money laundering actions is revealed, by determining the impact of the applied liability to the market abuse and money laundering prevention. The conclusion is that torts of market abuse and money laundering are directly related to each other, thus, they must be analysed by combining them together. Legislation, regulating analized actions, provides legal preconditions for bringing an action for damages. The application of tort civil liability, for actions indicated, is complicated, taking into account the difficulties of determining its conditions, but is neccessary, in order to strengthen the prevention mechanism of analized actions.

Cyber Risk Insurance Contract Cyber risk insurance is one of the newest kind of insurance, which distinguishes by its object – cyber risks. Cyber risks are the probability of financial damages caused by cyber-attacks in cyber space. Cyber risk insurance contract is used for insured, for a certain amount of pay, to move its risk to the insurer, and manage their cyber risk financial losses. Even though many different methods to manage cyber risks exist, like using firewalls, anti-virus programs, cyber security policies, however regardless newer and better cyber security technology and encryption, because of very specialized cyber-attacks cyber risk is not possible to be fully avoided by any means. When deciding the cyber risk insurance contract matter the biggest problem that insurers face is information asymmetry about cyber risk occurrence probabilities and caused damage. And the biggest problem insureds face is not being able to unambiguously detail insured and not insured events. It is believed, that for the sake of legal clarity, cyber risk insurance contracts must have precisely indicate all insured and not insured events, provided with insured cyber-attack methods and illustrations. The insured, before signing cyber risk insurance contract should estimate what kind of cyber risks he can safeguard by providing cyber security training for his employees and investing in cyber security technology, from what kind of cyber risks the insured cannot take precautions and what kind of cyber risks it is financially advisable to insure.

Significance of EU Internal Market Freedoms for Financial Services. An increase in legislation intensity of a post-financial and Euro zone crisis European Union not only has significantly changed the provision of financial services but has also raised plenty of new complex issues to be solved by the future practise and doctrine. Considering that the doctrine shows tendencies on focusing on the analysis solely on the content of the newly issued legislation, thus neglecting the analysis thereof in the context of the primary law, this master thesis examines the regulation of the financial services in the light of the latter. By such analysis it is intended to determine the significance of internal market freedoms in the field of financial services. To achieve the said objective the master thesis is divided into two main parts, the first thereof deals with the internal market freedoms relevant for the provision of financial services while the second one provides with an analysis on how and in what circumstances does the relevant internal market freedoms are still relevant in the provision of financial services. The first part of the master thesis examines free movement of services, right of establishment and free movement of capital. Relying on the analysis of the case law of the European Union Court of Justice the main characteristics, prohibited restrictions as well as the possible justifications of restrictions of the said freedoms are examined in relation with the financial services sector. The second part of the master thesis deals with the secondary legislation of the European Union regulating the provision of financial services. By analysing the legal basis of such legislation, scope, object and other traits thereof a significance of internal market freedoms on the provision financial services is revealed and divided into impact of the internal market freedoms on the adoption of the legislation and into areas of law where the internal market freedoms could still be directly relied on. Finally, a stance of the thesis author on the significance of the internal market freedoms on the provision of financial services is provided as well as the author’s view on the European Union’s legislator’s activity in the financial services sector.