Business Law International (BLI)

‘Sustainable development’ is a term coined numerous years ago to define the achievement of an optimal level of economic development and growth that does not compromise available resources or lead to significant environmental and social costs. Over the years, however, the concept of ‘sustainability’ has been expanded to cover not only aspects of production and waste but also the quality of the output and the externalities generated by products or services.

Many companies, aware that their sustainability-related efforts can be relatively easily undermined or subject to ‘free-riding’ by their more profit-seeking competitors, acknowledge the imperative for a certain level of cooperation and coordination with their competitors. This course of action might represent the most logical choice if the overarching aim is to successfully introduce a sustainable product on the market. However, in these situations, traditional competition law enforcement may represent a material obstacle to cooperation in order to achieve sustainability objectives.

As part of the European Union Green Deal, the European Commission is committed to applying and enforcing EU law, including its competition rules, in an appropriate manner that takes into account the pursuit of legitimate sustainability objectives. To this end, the European Commission has included in its draft revised Guidelines on Horizontal Agreements (the ‘Draft Guidelines’) a specific chapter on sustainability agreements that aims to clarify the assessment of these kinds of agreement under EU competition law. Among other things, the Draft Guidelines expressly acknowledge the possible need for agreements in the context of sustainability objectives to overcome consumers’ cognitive biases or to prevent free-riding.

This article aims to analyse a range of possible legal, economic and policy arguments that may justify cooperation among competitors in order to overcome consumer bias, ensure the viable launch of sustainable products and further the sustainability objectives sought by corporations and the EU as a whole as part of the EU’s Green Agenda. This is a critical aspect of the competition law analysis of such cooperative agreements, as antitrust principles are underpinned by the desire to pursue open competition in order to achieve the optimum welfare results that inure to the benefit of consumers. By the same token, the Green Agenda pursues long-term public policy goals, which also benefit consumers and all individuals as a whole. Reconciling those two positions with the information we now have regarding inherent consumer biases is an important challenge that both private industry and policy-makers must address.

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It seems almost overnight that global news was flooded with talk of blockchain and non-fungible tokens (NFTs). The barrage of such information has both confused and captivated the world, leading many to still wonder what an NFT is, while inspiring others to apply this technology to advance their industry or industry sector, with one such industry sector being health data. Specifically, this article explores the use of NFTs to store health data. Much of this article may be applicable to the use of NFTs to store any type of data, but it focuses on health data, highlighting some of the significant opportunities and challenges in this space. It also provides critical analysis to demonstrate how businesses should begin to analyse their work in the NFT space under existing regulations.

This article first demystifies blockchain and NFTs by explaining what they are. Second, it explores the use of NFTs to store health data, and some of the opportunities presented by this use. Third, the article highlights some of the legal and ethical gaps surrounding the use of blockchain to store health data, with a specific focus on individual privacy and privacy rights. This is accomplished through an analysis of a variety of global privacy laws and their application to NFTs, specifically when used to store health data. The article concludes with a discussion of some ethical concerns related to the use of NFTs to store health data.

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Simple agreements for future equity (SAFEs) are financing instruments that may be used to raise capital in seed financing rounds. Generally, such financing instruments are viewed as a more founder-friendly alternative to convertible notes on an international level. A SAFE is an investment agreement that gives the investor the right to receive equity of the company under certain circumstances. In 2013, the American startup accelerator Y Combinator introduced the first SAFE, which was based on a pre-money valuation. However, in 2018, Y Combinator amended the form of the SAFE to be based on a post-money valuation.

SAFEs or SAFE-like instruments are used in many jurisdictions, such as Austria, Germany, Italy, Norway, Sweden and the United Kingdom. However, this article describes the most relevant aspects of SAFEs from a United States, UK, Austrian and Swedish law perspective. Further, it elaborates on the most frequently used types of seed financing instruments as an alternative to SAFEs in the relevant jurisdictions, including convertible notes (also referred to as convertible promissory notes or convertible loans).

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This article examines the perspective of African states on investor-state dispute dynamics and frameworks applicable to the African continent. It considers African responses, innovations and solutions as African states seek to craft an international investment framework that is responsive to their needs and concerns. The first part considers African initiatives and innovations related to arbitral institutions on the continent. The second part then considers African perspectives on investment treaty-making and law-making, and the third considers the likely implications of these dynamics for the content of the Investment Protocol of the African Continental Free Trade Agreement.

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A recent judgment by the High Court in London in the case of Lavinia Deborah Osbourne v (1) Persons Unknown (2) Ozone Networks Inc, trading as Opensea [2022] EWHC 1021 (Comm) decided that non-fungible tokens (NFTs) are to be treated as property as a matter of English law (or, in the context of the present hearing, made ex parte: ‘there is at least a realistically arguable case that such tokens are to be treated as property as a matter of English law’).

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• Volume 23 Number 2, May 2022
• Volume 23 Number 1, January 2022
• Volume 22 Number 3, September 2021
• Volume 22 Number 2, May 2021
• Volume 22 Number 1, January 2021
• Volume 21 Number 3, September 2020
• Volume 21 Number 2, May 2020
• Volume 21 Number 1, January 2020
• Volume 20 Number 3, September 2019
• Volume 20 Number 2, May 2019
• Volume 20 Number 1, January 2019