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Crypto-assets are defined as digital representations of value or of rights, applications of distributed ledger technology (DLT), including blockchain technology. DLT means an information repository that keeps records of transactions and that repository is shared across, and synchronised between, a set of DLT network nodes. Representations of value regarding crypto asset include a value attributed to a crypto-asset by the parties concerned or by market participants. That means the value is based on the interest of the purchaser of the cryptoasset only. Digital assets that cannot be transferred to other holders do not fall within the definition of crypto-assets. Therefore, digital assets that are technically impossible to transfer directly to other holders should be excluded from the scope of the European Regulation [Regulation (EU) 2023/1114]. Some crypto-assets qualify as financial instruments as defined in Directive 2014/65/EU of the European Parliament and of the Council1 (MiFID II) and fall within the scope of existing Union legislative acts on financial services. Therefore, a set of rules already applies to issuers of such crypto-assets and to firms conducting activities related to such crypto-assets. But other crypto-assets fall outside of the scope of Union legislative acts on financial services. European legislator chooses to regulate crypto assets that not fall within the regulation of financial instruments outside of this regulation. The new regulation [Regulation (EU) 2023/1114]2 intended to legislate in the field of crypto-assets, not interfering with financial instruments. Somehow similar to financial instruments market architecture the new regulation defines crypto assets types (e-money tokens, 'asset-referenced tokens' and third type outside the two defined types), admission to trading of crypto-assets and offer to the public of crypto assets, crypto-asset services and application for authorization as a crypto-asset service provider or operation of a trading platform for crypto-assets, prevention and prohibition of market abuse involving crypto-assets. Similar to capital market domain, Member States shall designate the competent authorities responsible for carrying out the functions and duties provided for in the regulation on crypto assets market. Member States shall notify those competent authorities to EBA (European Banking Authority) and ESMA (European Securities and Markets Authority). [ABSTRACT FROM AUTHOR]

The latest version of directive regarding markets in financial instruments, Directive 2014/65/EU of the European Parliament and of the Council of 15 may 2014, known as MiFID II, lists trading venuesin EU jurisdictions as the regulated markets, multilateral trading facilities (MTFs) and organised trading facilities (OTFs). The differences between these three trading places are laying down through European secondary legislation. European approach on markets do not follow the American model on trading markets: stock exchanges and alternative trading systems (ATS). Although the names differ, the essence has been preserved for alternative trading systems and multilateral trading facilities. Trading venues include regulated markets and multilateral trading facilities. Both trading places involve a multilateral system „which brings together or facilitates the bringing together of multiple third-party buying and selling interests in financial instruments”. In both cases the pairing of orders is done in a way that results in a contract. In both cases the orders are issued in respect of the financial instruments admitted to trading under markets rules which is authorised by competent authority (Financial Supervisory Authority, FSA). Both places are operated regularly and in accordance with national and European law. The difference between the types of trading places will be quantitative, not qualitative. MTF – multilateral trading facility, the alternative market – although it is not a regulated market in the strict sense, it looks very similar. Still, it differs from regulated market by the lack of regulated procedures for admission to the market, simplified authorization and more relaxed market operation. The difference is only about a level - missing or different - of regulation, not about the essence of the concepts. Fundamentally, although more relaxed, alternative markets create the same particular framework for the formation of legal acts and operations regarding the financial instruments accepted by the system (market). [ABSTRACT FROM AUTHOR]

European law lays down a diversity of rules for undertakings for collective investment which operate on the principle of risk-spreading. First tier of legislation regards undertakings for collective investment in transferable securities (UCITS) which are tailored for low-risk appetite (Directive 2009/65/EC of the European Parliament and of the Council on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities). Such undertakings provide a way of investing money alongside other investors in transferable securities or in other liquid financial assets. UCITS distributes units or shares which are, at the request of holders, repurchased or redeemed, directly or indirectly, out of those undertakings' assets. Such UCITSs may be constituted in accordance with contract law (as common funds managed by management companies) or statute (as investment companies). Second tier of legislation regarding collective investment comprises alternative investment funds (AIFs), with a large rage of juridical forms and repurchasing options. A specific type of AIF is European venture capital fund (EuVECA). European law reserves designation 'EuVECA' in relation to the marketing of venture capital funds in the Union. Qualifying venture capital fund with qualifying investments are established for the delimitation of these entities (EuVECA). [Regulation (EU) no. 345/2013 of the European Parliament and of the Council on European venture capital funds]. [ABSTRACT FROM AUTHOR]

Securitisation scheme enables credit institutions to refinance a set of loans, exposures or receivables, such as residential loans, auto loans or leases, consumer loans, credit cards or trade receivables. These loans, transferred to a special purpose vehicle, are transformed in tradable securities offered to investors. The lender organises loans into different risk categories for investors, thus giving them access to investments in loans and other exposures to which they normally would not have direct access. Returns to investors are originated in payments made by debtors of the underlying loans. Domestic law regarding securitisation (Law no 31/2006) does not meet the market expectations in order to generate securitisation schemes. Moreover, the domestic law came into conflict with European legislation (Regulation UE 2017/2402 laying down a general framework for securitisation and creating a specific framework for simple, transparent and standardised securitisation). Finally, domestic law has been repealed to leave room for application of the European regulation. [ABSTRACT FROM AUTHOR]

Investment services and activities on the account of the investors shall be supplied under a contract drafted in accordance with Capital Market Laws. Intermediaries (investment firms) hold the market access monopoly to trading systems of the regulated market or multilateral trading systems. Contracting them is the only way for investors to have access (indirectly) to trading through market orders. The legal framework shaped by the contract regarding investment services and activities is the premise, the mandatory and preliminary condition for the sale or purchase of financial instruments. The contract of investment services and activities is thus a sine qua non for trading on the capital market. [ABSTRACT FROM AUTHOR]

European Union Law had explicitly authorized the use of a double punishment (administrative and criminal) in the context of the fight against illegal conduct on the financial markets. Thus many facts and behaviours on the capital market have a double regulation, especially in the area of market abuse. For example, we have the misconduct of market manipulation punished with administrative (pecuniary) penalty and the market manipulation offense punished with criminal penalty. Criminal liability conditions are different from administrative liability but generating facts and behaviours are rigorously identical. Therefore acts of market manipulation are punished as misdemeanours (administrative procedure) when acts are committed without the form of guiltiness required by law to qualify them as offenses (criminal procedure). The question raised by European and Romanian regulations on financial market is the compatibility with or violation of the European Convention on Human Rights (ECHR). In order to ensure the integrity of markets and to enhance investor confidence in those markets, European law has created broad administrative offences, which punish the risk of harm to the market with severe, pecuniary and non-pecuniary penalties. Access to a subsequent court in administrative proceedings is an evasive guarantee that does not compensate the unfairness of the administrative procedure. ECHR case law concluded that market pressure and need for compliance in that field cannot prevail over international human rights obligations of States bound by the Convention (ECHR). [ABSTRACT FROM AUTHOR]

The Romanian Capital Market Law (Law no 297/2004) lays down rules regarding public offers (to buy or sell) of securities admitted to trading on a regulated market. Such offers are not unknown in the general framework of companies' regulations, i.e. Company Law no 31/1990. Actually a public limited liability company (joint stock company) can use a public subscriptions (offering shares for sale) to raise the registered capital for incorporation of the company or to increase the company's share capital already established. But all such operations are voluntary decisions. The founders or the shareholders of the company are those who decide to launch a public subscriptions. Capital Market Law comes with something new and at least peculiar at first sight: mandatory takeover bid, meaning a mandatory public offer made by an offeror to the holders of the securities of a company (offeree) to acquire all or some of those securities. Can someone be forced to buy securities on the regulated market? The Capital Market Law responds affirmatively, but only if such takeover bid follows or has as its objective the acquisition of control of the offeree company in accordance with national law. The takeover bid remains under supervision and authorization of the national authority of the Capital Market (FSA - Financial Supervisory Authority). [ABSTRACT FROM AUTHOR]

The rules laid down by Romanian Capital Market Law and the regulations put in force for its implementation apply to issuers of financial instruments admitted to trading on the regulated market established in Romania. But the issuers remain companies incorporated under Company Law of 1990. Such dual regulations need increased attention in order to observe the legal status of the issuers/companies and financial instruments/shares. Romanian legislator has chosen to implement in Capital Market Law special rules regarding the administration of the issuers of financial instruments, not only rules regarding admitting and maintaining to a regulated market. Thus issuers are, in Romanian Law perspective, special company that should comply special rule regarding board of administration and general shareholders meeting. [ABSTRACT FROM AUTHOR]

RASDAQ Market was launched in Romania in 1996, appeared as a mirroring of the well-established American market NASDAQ (which stood for National Association of Securities Dealers Automated Quotations). The role designated for RASDAQ was as platform for valuing papers issued in the privatization program in Romania (mass privatization process - MPP). In fact the participating companies to MPP had the legal obligation, under first Romanian Capital Market Law, No 52/1194, to be listed on a stock exchange. Although it attended a US regulatory model, RASDAQ had to adapt to European rules with the accession of Romania to the European Union. The relevant EU rules (i.e., Directive 2004/39/EC on markets in financial instruments - MiFID, about to be replaced by Directive 2014/65/EU - MiFID II) provide for only two types of trading systems, i.e. regulated markets and multilateral trading facilities (MTF), while the RASDAQ Market securities fall under none of these two trading systems regulated by MiFID1. After an entire decade of uncertainty concerning the status of the RASDAQ, Romanian legislator settled the situation of shares traded on this market. This regulation means the end for RASDAQ. Law No. 151/2014 provides that the RASDAQ Market is to be closed within twelve months as of the effective date of such law (October 27, 2014). To this end companies listed on the RASDAQ Market will have to opt for listing on a regulated market or on a MTF or for becoming private companies. Such option rests on the hands of shareholders. Going private asks for shareholders' rights protection so Romanian Financial Supervisory Authority (FSA) provides a procedure implementing the right to withdraw from the company of the dissenting shareholders and for computing compensation for their shares (FSA Regulation No. 17/2014). [ABSTRACT FROM AUTHOR]

National laws governing collective investment undertakings were updated as a result of European secondary law modernization with a view to approximating the conditions of competition between those undertakings at Community level, while at the same time ensuring more effective and more uniform protection for unit-holders. Such coordination intended to facilitate the removal of the restrictions on the free movement of units of UCITS in the internal market. For the purposes of internal regulation UCITS means an undertaking: (a) with the sole object of collective investment in transferable securities or in other liquid financial assets of capital raised from the public and which operate on the principle of risk-spreading; and (b) with units which are, at the request of holders, repurchased or redeemed, directly or indirectly, out of those undertakings' assets. The UCITS may be constituted in accordance with contract law (as common funds managed by management companies), trust law (as unit trusts), or statute (as investment companies). Key investor information should be provided as a specific document to investors, before the subscription of the UCITS, in order to help them to reach informed investment decisions. Investment funds enjoy in Romania a new regulatory framework: the contract of common society hosted by new Civil Code and the new Emergency Ordinance regarding UCITS. [ABSTRACT FROM AUTHOR]

For a long time, dispute resolution and alternative techniques like mediation have been dealing with a classic conception: every part involved in dispute resolution was carrying exactly one patrimony. Irrespective of physical or moral person the rule was the same: one person, one patrimony. Alternative dispute resolution, like mediation, dealt with persons in order to reach a mutual agreement affecting their unique patrimony. The rule is already history. Still remain the first premise: every person has a patrimony. But under present Civil code the provision is stopping here. As a result, the uniqueness of the patrimony vanished from new law. Dealing with different patrimonies a dispute solver should be able to understand the new notion and to assist the parties to finals agreements according to the rules of the divisions of the patrimony. First at all we should observe that any division of the patrimony of a person have to have a legal basis. The "liberalisation" of the patrimony is not so advanced in order to accept any voluntary division of the patrimony of the person. Second, the prominent creation in this field are represented by fiducia (a kind of Anglo-Saxon trust concept) and assigned patrimony. Fiducia is new for our legal system only, following in fact the Quebec civil code regulation. The assigned patrimony was already been present in our legislation. The Ordinance no 44/2008 was dealing with this concept in commercial field. [ABSTRACT FROM AUTHOR]

The new concept of enterprise is laid down in new Civil Code in connection with another new concept: the professional (entrepreneur). The old commercial terms, commercial acts and deeds and merchant, have been well represented in legal texts in comparison with present concepts. Our new code imported these concepts together with their weaknesses from the Italian and Quebec Codes. The short references within the Code to enterprise and professional put again the burden of clarification on the scholars' shoulders. The law defines the professionals as the persons who carry on an enterprise and therefore the legislator pursues to the 'carrying on an enterprise" definition. Doing so, in fact the legislator leaves the enterprise concept undefined. The carrying on by one or more persons of an organised economic activity, whether or not it is "commercial" in nature, consisting of producing, administering or alienating property or providing a service, constitutes the carrying on of an enterprise. The enterprise is a term long time connected with commercial and private law. All past decades, beginning with the old Commercial code, then socialist economy and post-communist era used intensively the concept of enterprise. The meaning of this term differed substantially in every decade. Present notion need scientific scrutiny in order to crystallize a convergent approach. In our paper we will consider the notion of enterprise starting from the past perception of this concept then we will try to observe the variety of enterprises under present law. [ABSTRACT FROM AUTHOR]

Capital Market is usually depicted as a place for experts, for people with high trading skills. This is a half truth. There are entities established and functioning under strict scrutiny of Romanian National Securities Commission (RNSC), in compliance with Capital Market Law and regulations. There are also the investors, in many cases individuals involved in shares/financial instruments trade. In both cases disputes can rise. Disputes are inevitable a part of human interaction, hence the need for dispute resolution. First option is the judicial court system. Alternative dispute resolution comprises arbitration and mediation. Arbitration is an alternative choice to provide simpler, speedier and more accessible justice than ordinary courts as well as expertise in matters that are technical in nature and require special knowledge to adjudicate upon. Capital Market environment provides an institutional arbitration court for all participants, including investors. In many cases the agreement executed between participants under RNSC scrutiny The other option for settling disputes outside the court is mediation. Mediation can provide a much cheaper and quick extrajudicial resolution of disputes in commercial matters without time consuming procedures and rigid rules. Agreements resulting from mediation are more likely to be complied with voluntarily and are more likely to foster the commercial relationship between the parties. The interaction between investors and brokerage houses is based on investment services agreement concluded by parties. This is the usual framework for disputes between parties and the usual "landscape" for mediation on capital market. [ABSTRACT FROM AUTHOR]

The nullity of the juridical person is a notion without correspondence in the old civil law theory. In fact the regulation of the juridical person is a matter that enters relatively recent civil law because in traditional approach civil law dealt with natural persons and associations of natural persons only. The difference between the nullity of the agreement of association and the nullity of the juridical person itself, born by such association, is clearly revealed by the law. The two notions are still linked. One cannot imagine a nullity of the agreement without the nullity of the legal person born by such agreement. Nevertheless the nullity of the juridical person is laid down independently, comprising limited cases of occurrences. The regulation of the nullity of the juridical person finds out its correspondence in the Company Law. The nullity of the company has a distinct regulation, in Company Law, in line with the regulation of the nullity of the juridical person. In this case the civil law imported the notion from commercial law in order to limit the incidences of the nullity aiming the security of the civil circuit and the interest of the third persons. In a general accepted way, nullity represents a civil sanction which impedes the effects of an act concluded in a way that breach the law. The principles of the effects of the nullity are well recognized and accepted by scholars but the sanction of nullity, applied at a superior level, of the juridical person, has a totally different effects than the old nullity. [ABSTRACT FROM AUTHOR]

The Romanian law on capital market adheres to the OECD Principles on Corporate Governance and manages to adopt a form of minority shareholder representation. Thus the national law implemented a version of cumulative voting. Despite the large adherence to the corporate governance principles in the economic European field very few national states implemented minority shareholder representation. Probably such tool is fitted for emergent markets, for young and developing democracies. The Romanian legal regime for cumulative voting is a very general one, the administrative regulations enforced by Romanian National Securities Commission being responsible with implementation of the particular voting system. The law that enforces the cumulative voting for the election of the directors of a company, has put aside, in certain conditions, the long reigning "majority rule". The Romanian law on capital market has to solve the weaknesses of the cumulative voting system: the size of the board (it should have enough eligible places) and the procedure for revocation, resignation or any other event that end unexpectedly the term the directors are serving for. [ABSTRACT FROM AUTHOR]

The occurrence of the nullity acting on "institutional" level, a level different than that represented by the juridical act (agreement or promise), as well as the very specific effects of such nullity enforcements in commercial area, needs a closer look. In a general accepted way, nullity represents a civil sanction which impedes the effects of an act concluded in a way that breach the law. The principles of the effects of the nullity are well recognized and accepted by scholars. What if the sanction is applied to an upper level, to an "entity" or "operation" level? No one seems to care about the advance toward a "superior" level, easily forgetting about the act (agreement) itself, in fact working at a level where the juridical act is not even distinguished, at a "holistic" level. The sanction applied at a superior level (holistic) has a totally different effect. Shall such sanction remain inside the borders of the nullity? [ABSTRACT FROM AUTHOR]