The CGSL Working Papers series provides a glimpse into the ongoing research conducted by our faculty and researchers. Our hope is to facilitate a dialogue among scholars, practitioners and policymakers about current legal issues and challenges. We encourage readers to engage with our authors by providing feedback and suggestions that will help refine their research and ideas.
This section is updated regularly with new papers, so please check back frequently to stay up-to-date on the latest legal research happening at Católica Global School of Law.
Once Bitten, Twice Shy – Multiple Voting Shares in Continental Europe
Jorge Brito Pereira
Over the last decade, several jurisdictions in continental Europe have somewhat lifted regulatory restrictions on multiple voting shares (MVS), in the form of dual-class share structures and/or loyalty shares. Though more heterogenous than coherent, all such reforms have been overly conservative and fall short of allowing the legal freedom of jurisdictions such as the United States and United Kingdom. In a globalized environment of regulatory and stock-exchange competition, this approach may be difficult to understand. This paper explores the reasons for the common conservative approach, which appear to lie mostly in early 20th century experiences of multiple voting rights in countries such as France, Germany, and Italy. For comparative purposes, the paper also investigates the completely different experience of the United Kingdom, where a liberal MVS framework produced distinct outcomes
A Revisit to Islamic Inter-Polity Legal Theory
This article delves into the jurisprudential and legal theory aspects of the religion of Islam in regard to inter-polity laws and relations. The conceptualisation of Islamic inter-polity commands and laws follows a bright line criterion, for it clearly defines non-Muslim polities and people, categorises them, and commands Islamic polity’s approach in regard to non-Muslims in unequivocal terms. The approach of this article is neither polemic nor protectionist; though it indeed is critical. To recognise veneration of an ideology is not tantamount to discrediting or hampering critical explorations about it, and Islam is not an exception. The concern of this article is to shed light on fundamental pillars upon which Islam’s inter-polity commands are formed and textually reinforced as being legally unquestionable and intrinsically legitimate. The discourses through which the Islamic inter-polity legal theory is scrutinised; in this piece, are the following: intrinsic legitimacy of the territorial and ideological expansionism of Islam, and Islam’s ‘group identity’ politics in its private and public laws under the notion of ‘Ummah’ or Islamic community.
The Normative Power of Artificial Intelligence
Giovanni De Gregorio
Artificial intelligence technologies are increasingly spreading across society. Generative systems, such as ChatGPT and DALL-E, provide only some examples of the expanding consumption of artificial intelligence products in daily lives. Particularly, the reliance on the systems in public and private sectors reinforces the process of technological delegation which characterizes the algorithmic society. However, the standards applied by artificial intelligence systems are not always immutable, particularly when focusing on unsupervised machine learning technologies. These systems do not only make decisions on how to moderate online speech, check employment performances in the workplace, or evaluate credit scores. They also contribute to creating norms, thus defining another generative layer of normativity in the algorithmic society. This work argues that artificial intelligence systems autonomously develop norms by experience and learning within an opaque, technical space that tends to escape the logic of the rule of law. This normative system, or the rule of tech, raises questions for constitutional democracies that are already struggling with solutions to limit other forms of normative powers, particularly the power of online platforms to set private standards. Within this framework, the plurality of these normative powers has put the rule of law under pressure. The expansion of the rule of tech as a source of norms leads to addressing the role of the rule of law in limiting technological delegation in the algorithmic society. The proposal for the Artificial Intelligence Act in Europe is only an example of how the rule of law can limit the expansion of the rule of tech in the digital age. This work analyses the consolidation of the normative power of artificial intelligence systems and examines the spaces for the rule of law in the algorithmic society.
Who fits the stereotype? Gender discrimination within the ECHR
Benedita Menezes Queiroz
This article argues that the way women are judicially perceived within the system of the European Convention of Human Rights (ECHR) impacts the achievement of gender equality. While the European Court of Human Rights (ECtHR) plays an important role in dismantling harmful women stereotypes, the approach taken has not always been consistent or comprehensive in this analysis. The present article is divided in three main parts. The first part addresses the principle of non discrimination on the grounds of gender and delves into the issue of gender stereotypes within the system of the Convention. At this stage the analysis focuses on landmark cases which made first visible gender stereotypes on the reasoning of the ECtHR, such as: Konstantin Marin v. Russia and Khamtokhu and Aksenchik v. Russia. The second part of this study argues that the Court did not shy away from applying the principle of anti-stereotyping. Yet, recent case law on sexual and reproductive rights shows that ECtHR missed the opportunity to address intersectionality in discrimination cases: Carvalho Pinto de Sousa Morais v. Portugal and G.M. and others v. Moldova. Finally, the article concludes by shedding light into the importance of equipping the Court with the tools to conduct a systemic effort. One that depends greatly on how judges’ approach the law and assess discriminatory measures and that requires an explicit intersectional dimension.
Non-contractual liability applicable to artificial intelligence:
towards a corrective reading of the European intervention
Henrique Sousa Antunes
The aim of this article is to demonstrate that the application of the principle of subsidiarity to European regulation of compensation for damage attributable to artificial intelligence requires more than adjustments to fault-based liability, with the necessary creation of compensation funds for injuries caused by high-risk artificial intelligence systems. The conclusion is supported by an analysis of the relationship between the innovation principle and the precautionary principle in the regulation of artificial intelligence and by the specific features of this emerging digital technology.
The Dark Triad:
Private Benefits of Control, Voting Caps and the Mandatory Takeover Rule
Jorge Brito Pereira
This paper takes as an example the intertwined relations between Grupo Espírito Santo and Portugal Telecom and the events surrounding the unpaid Rioforte loan to describe minority blockholders’ strong incentives to protect the extraction of private benefits of control when a third party threatens a company takeover. This paper argues that the combination of the extraction of private benefits of control, the takeover protection granted by a statutory voting rights ceiling provision and the existence of a mandatory takeover rule create a vicious circle with an unintended outcome. Although a mandatory takeover rule should protect minority shareholders, it instead works in favour of the blockholder extracting private benefits of control, which is the exact opposite of its original intent.
An Ocean Apart:
The Mandatory Takeover Rule in Brazil and in Europe
Jorge Brito Pereira
The common statement that there are two different regulatory systems concerning the mandatory takeover rule – the market rule system and the equal opportunity system – is, in practice, overly simplistic: facing the choice between freedom and strict regulation on whether the control premium should be proportionally shared with all non-controlling shareholders, some jurisdictions have adopted a hybrid solution. The Brazilian mandatory takeover rule (re)approved in 2001 is a good example. This paper will comprehensively analyse the Brazilian and European rules on mandatory takeover bids, using empirical data about the Brazilian markets and details of various cases that tested the limits of the existing regulation.
The Conundrum of Constitutionally Conforming Interpretation
Gonçalo de Almeida Ribeiro
This paper examines the doctrine or canon of constitutionally conforming interpretation in constitutional adjudication in Portugal. It begins by posing the following conundrum unveiled by the doctrine: on the one hand, it is very hard if at all possible to draw a line between constitutionally conforming interpretation and judicial review of constitutionality; on the other hand, statutorconstruction is always already constitutionally conformed, namely by basic principles and fundamental rights. It follows that there are no obvious conceptual limits to the jurisdiction of a specialized constitutional court. Following a brief description of the main features of the Portuguese system of judicial review of legislation, which departs from the standard post-war model in a number of noteworthy respects, the paper discusses the ways in which the case law of the Constitutional Court manages the challenge to its own jurisdictional boundaries posed by the doctrine of constitutionally conforming interpretation in two main realms of activity: incidental control and abstract review. It then concludes that the Portuguese case illustrates the unsettled ambivalence between two grand conceptions of constitutional adjudication in a liberal democracy: a restrictive one as a counterpart to the democratic legislature and an expansive one as the paramount forum of constitutional interpretation.
Are EU Member States required to have a sense of humor?
In transposing the CDSM Directive, the EU Member States that presently lack a parody exception in their domestic copyright laws are faced with one fundamental choice: either they include a provision allowing for parodic uses only in the context of Article 17, or they implement a general parody defense, covering not only those online acts, but also others, online and offline alike, that are not related to Article 17.
This paper argues that the former approach is not compatible with EU copyright law when interpreted in light of the Charter of Fundamental Rights. Instead, those Member States that have no parody exception and that are yet to transpose the Directive, like Cyprus, Greece and Portugal, would be well-advised to use the opportunity provided by the implementation to finally recognise a general parody defense.
You can’t sit with us. Discrimination against women in football:
a commentary of the Mariyam Mohamed vs. Asian Football
Confederation (AFC) elections case
Miguel Poiares Maduro & Benedita Menezes Queiroz
The present paper focuses on the issue of discrimination against women in sports governance. The first part of this paper addresses the issue women discrimination in sports governance through looking into the case of Mariyam Mohamed vs. Asian Football Confederation (AFC) elections, which was recently decided by the Court of Arbitration for Sport (CAS). Further, the case analysis will also allow, in the second part of the paper to call the attention to several other malaises affecting sports leadership and decision making, such as the lack of transparency of the CAS decisions and their inability to deliver an effective remedy in situations like the one of Mariyam Mohamed. There was no question, for CAS, of whether the AFC electoral procedures were conducted in breach of the prohibition of discrimination against women and of improper third-party influence. Nevertheless, CAS recognized that it was also powerless to act on it leaving the situation unremedied for the time being, shedding light on a structurally more profound consequence to sports justice and other sports governance bodies modus operandi.