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Dr hab. Paweł Wajda, prof. UW
ORCID: 0000-0003-4423-8881
Dr hab. Paweł Wajda, prof. UW Professor at the Faculty of Law and Administration of the University of Warsaw, an advocate, as an of counsel in the Baker McKenzie law firm, he is responsible for the area of the financial services regulatory.
DOI: 10.33226/0137-5490.2021.5.3
JEL: G28, K23

In recent years, the domestic market for investment funds has been witnessing a trend towards consolidation of this market, which has its specific private and public law aspects. The most important element within this process is the PFSA's power to control the capital flows occurring within a given financial institution, i.e. a given investment fund company. The main idea of this regulation is to prevent a takeover of control over a given TFI and to prevent gaining significant influence over TFI management by shareholders who do not ensure correct functioning of the TFI and do not provide stability and security for its further activity. In the content of this part of the publication, the authors will refer in particular to the issue of the decision prohibiting the exercise of voting rights from TFI shares or the prohibition of exercising the rights of the parent company TFI, and will also indicate the public law consequences of issuing such a decision by the Polish Financial Supervision Authority, also referring to private law aspects.

Keywords: supervision; Financial Supervision Authority; prohibition to exercise voting rights; investment fund manager; investment fund; corporate effects
DOI: 10.33226/0137-5490.2021.4.5
JEL: G28, K23

In recent years, the domestic market for investment funds has been witnessing a trend towards consolidation of this market, which — although at first glance it seems to be a phenomenon characteristic only of private law — has its specific private and public law aspects. The most important element within this process is the PFSA's power to control the capital flows occurring within a given financial institution, i.e. a given investment fund company. The main idea of this regulation is to prevent a takeover of control over a given TFI and to prevent gaining significant influence over TFI management by shareholders who do not ensure correct functioning of the TFI and do not provide stability and security for its further activity. This mechanism is in fact composed of two parts. First, i.e. the notification mechanism, under which the PFSA has been provided with powers to object to an intention of direct or indirect acquisition or subscription for shares or rights attached to shares of the TFI, in a number ensuring reaching or exceeding, respectively, 10%, 20%, one-third, 50% of the total number of votes at the general meeting or participation in the share capital. Secondly — which will be analysed in this publication — the mechanism of the PFSA's decision regarding the prohibition on exercising voting rights from TFI shares or prohibition on exercising rights of the TFI parent entity. Taking into account the fact that this decision has effects both in the sphere of administrative and commercial law, and that it remains outside the mainstream of doctrinal interest, it is appropriate to characterise this decision, the procedure for its issuance, as well as the legal consequences of its entry into legal circulation, in a closer and detailed manner.

Keywords: supervision; Financial Supervision Authority; prohibition to exercise voting rights; investment fund manager; investment fund; corporate effects
DOI: 10.33226/0137-5490.2021.3.5
JEL: G21, K15

This second part of the article is about banks` condiction claim regarding the reimbursement for noncontractual use of capital provided by banks in the situation of acknowledgement of invalidity (ex tunc) of credit agreement. The issue arises on the basis of judicial practice on mortgage credit agreements denominated in or indexed to foreign currencies. This issue arose on the basis of the jurisprudence concerning mortgage loan agreements denominated or indexed to a foreign currency. This part of article discusses the doubts that have arisen, based on — which requires an explicit reservation — the body of case-law, as well as proposing specific solutions. Such a solution is the result of the fact that the problem which is the subject of this paper has been created on the basis of court case law (where it was "initiated" in a way by the judgment of the Court of Appeals in Białystok on 20 February 2020; reference: I ACa 635/19) and is a strictly practical problem; thus, its solution should be drawn from the hitherto judicial output. As a result of the above, both the doctrinal considerations and the analysis of the doctrine acquis will be reduced here to the necessary minimum.

Keywords: non-contractual use of capital; unjust enrichment; invalidity of credit agreement; condiction claim
DOI: 10.33226/0137-5490.2021.2.3
JEL: G21, K15

The first part of this article is about banks` condiction claim regarding the reimbursement for non-contractual use of capital provided by banks in the situation of acknowledgement of invalidity (ex tunc) of credit agreement. The aim of the article is to show — based on the analysis of the existing judicature — that if a credit agreement is declared invalid ex tunc, the bank, as part of its condition, is entitled to reimbursement for noncontractual use of the capital by the borrower. This issue arose on the basis of the jurisprudence concerning mortgage loan agreements denominated or indexed to a foreign currency. This approach to the subject is the result of the fact that the problem which is the subject of this paper has been created on the basis of court case law (where it was "initiated" in a way by the judgment of the Court of Appeals in Białystok on 20 February 2020; reference: I ACa 635/19) and is a strictly practical problem; thus, its solution should be drawn from the hitherto judicial output. This article discusses the doubts that have arisen as well as proposes specific solutions.

Keywords: non-contractual use of capital; unjust enrichment; invalidity of credit agreement; condiction claim
DOI: 10.33226/0137-5490.2020.5.2
JEL: G28, K23

This article is devoted to the analysis of public law aspects of transactions of acquisition of significant
stakes in investment funds managers. The article describes the procedure that is being used by the Polish
Financial Supervision Authority to determine whether the purchaser of a significant portfolio of shares gives
a guarantee of proper, safe and stable operation of investment fund manager, as well as the issue by the
Polish Financial Supervision Authority of the decision expressing or not expressing (objection) consent to the
acquisition of a significant portfolio of shares of an investment fund manager. Another element of
consideration is the presentation of mechanisms to ensure compliance with the obligations related to the
acquisition of significant portfolio of shares, as well as the assessment of the institution itself as regards the
supervision of the acquisition of significant blocks of shares of investment fund managers.

Keywords: investment fund manager; significant portfolio of shares; supervision; Financial Supervision Authority; objection; notification; consent
DOI: 10.33226/0137-5490.2020.4.1
JEL: G28, K23

This article is devoted to the legal analysis of transactions involving the acquisition of significant stakes in investment funds managers that are managing the investment funds. The authors focused on the most important issues from the point of view of the practice of conducting such transactions. The article presents, in particular, the specificity of such transactions, the ratio why such transactions are the subject of supervisions conducted by the Polish Financial Supervision Authority, as well as detailed description of the institution of notification of the acquisition of a significant stake in an investment fund managers.

Keywords: investment fund manager; significant portfolio of shares; supervision; Financial Supervision Authority; objection; notification; consent

Dr hab. Paweł Wajda, prof. UW

Professor at the Faculty of Law and Administration of the University of Warsaw, an advocate, as an of counsel in the Baker McKenzie law firm, he is responsible for the area of the financial services regulatory.