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Prudential regulation has become increasingly important over time. In such a context, strict suitability requirements for members of the management body and key function holders are considered an adequate tool to safeguard the sound and prudent management of banks. In the years following the Great Financial Crisis in 2008–2009 and the Eurozone sovereign debt crisis in 2010–2012, the regulatory and supervisory approach to banks’ corporate governance has seen a significant evolution. The centralisation of banking supervision at the Eurozone level was complemented by the application of a single rulebook throughout the European Union which stated, in compliance with the Capital Requirements Directive, higher suitability requirements for being appointed as a member of a management body or as a key function holder at a bank. Furthermore, the choice to identify fit and proper requirements through standards attributes significant power to the decision maker, thus allowing greater public control over private choices, and is justified by the need to prevent negative externalities. This approach is open to debate. Against the background of the pursuit of public interest, the lawmaker confers discretionary power on the supervisory authorities (the European Central Bank and the national competent authorities), and sets restrictions on the job market for board member candidates. This paper is a contribution enriching the ongoing discussion about the existing regulatory and policy regime, with a special focus on the specific functions performed by the management body members and particularly by the chairs of the management body’s special committees.

Aimed at establishing an effective and consistent enforcement of market abuse regulation, the regime introduced by Regulation (EU) No. 596/2014 (‘MAR’) and Directive 2014/57/EU (‘MAD II’) relies on a mix of criminal penalties and administrative sanctions, both of which are subject to the principles of double jeopardy and due process. In the light of a few cases decided by the Court of Justice of the European Union and the European Court of Human Rights (‘ECtHR’), the features of this regime are, however, unclear, and it is doubtful whether the current framework is adequate to achieve its goals. This article criticizes the decision to criminalize market abuse at the EU level and argues that a credible EU supervisory system is better served by an enforcement system based on administrative sanctions. Moreover, the article discusses the solution offered by the ECtHR to the trade-off between efficiency and fairness in administrative proceedings and proposes an allocation of prosecution and decision-making to independent bodies within the same supervisory authority as a means to better balance efficiency and fairness.

EU Regulation 2015/848 (Recast) laid down new rules on the debtor’s ‘centre of main interests’ (COMI) both to make it easier to determine international jurisdiction and to prevent a debtor from fraudulently relocating his/her/its COMI from one Member State to another. However, the terms of the litigation concerning the NIKI case and an in-depth analysis of the Recast demonstrate that this operation has been unsuccessful. This paper argues: first, that the new COMI rules contain logical and teleological flaws; secondly, that the prerequisite that the COMI ‘shall be the place […] which is ascertainable by third parties’ is a duplicate of the prerequisite ‘on a regular basis’; thirdly, that the ‘ascertainability’ prerequisite could even prove to be problematic when insolvency occurs within an enterprise that is multinational in nature; and/or conducts its relationships with suppliers and customers through digital networks; and/or deals with a business having glocal considerations. Consequently, this paper puts forward a proposal for a better regulation that would aim both at fixing the regulatory flaws and at addressing more efficiently insolvencies within multinational, digital and glocal enterprises.

Though now possible, no European state is competing for incorporations, and this is unlikely to happen in a general fashion. In this article I argue, however, that the possibility of one state competing for one specific segment of the market for incorporations should not be ruled out altogether. As happened with Nevada in the US, a state could seek to attract companies that are looking for a very protective legal environment for their directors, officers and shareholders or for the company itself. Given the importance of enforcement, I argue that states could compete by capitalising on the inefficiency of their courts, rather than by changing the law on the books. The fact that no investment is necessary would change the perspective on incentives for states to compete: a very small incentive will be needed if the costs are negligible. I also consider the possible drawbacks of such competition and the possible reactions from other states.

The dualism between private and public enforcement of investor-related rights and its influence on the development of capital markets has been the subject of much recent commentary. While opinions differ as regards preference for private or public enforcement, scholarly analysis has so far been focused on the principal-agent relationship between investors and issuers, and has tried to depict the most effective enforcement system from a deterrence perspective. In this article we present some data about the Italian experience of enforcement. Rather than of lawsuits against issuers or gatekeepers, investor protection in Italy is mostly the result of proceedings brought by individuals against investment services providers. Does such a model promote the public goals of securities regulation? Is it efficient? By answering these questions, we aim to show how the Italian experience may contribute to the international debate on the enforcement of securities regulation.