Although the means to apply the mechanism of unpredictability is nowadays one of the most debated subjects in civil law, it is almost impossible not to be tackled in other domains, such as public law. Whereas the theory of contractual unpredictability had been born under the constraints of administrative jurisdiction, it became a lot more popular after its regulation in the Romanian Civil Code. There were numerous reasons to undertake this measure. After the financial crisis of 2008-2009, an institution that could balance the inequity between the parties’ rights and obligations – torn by an exceptional change of the circumstances – was demanded by many people who concluded different types of credit loans. The situation was new, but somehow foreseen. From the perspective of public law, even though there were few specific regulations, the jurisprudence elaborated some theories regarding the means of the harmonisation of economic and judicial realities.

The Romanian Civil Code provides that part of the deceased’s estate shall be granted, even against his wish – manifested through donations or wills –, to a category of heirs called forced heirs (for the legal regime of forced heirship, see Articles 1.086 – 1.099 of the Romanian Civil Code, 2009). However, since this is effectively a limitation of a person’s possibility to freely dispose of his property and, as such, a limitation of the right to property, a question arises: is this limitation compatible with the right to respect for private property enshrined in Article 1 of Protocol no. 1 of the European Convention on Human Rights (hereinafter referred to as ECHR)?

1. Introduction

According to the Romanian Civil Code, the obligation of confidentiality presents itself as a mutual obligation, regardless of the position of the parties sitting at the negotiation table. The legislative system has appreciated the protection of confidential information, which is required to be incorporated explicitly in a legal provision. This must be seen from a dual perspective, first the negative, where the holder of the confidential information is obliged not to disclose the information to third parties. The positive one establishes that the party which possesses confidential information must inform the other party of its nature. It has rightly been held that, regarding confidential information, ‘the parties seek the protection of their private interests, therefore they can abolish or restrict the sphere of its application’.

1. Introduction

Despite being a common law creation, ‘drag along’ and ‘tag along’ clauses have gradually come into practice in Romania. Due to the recent years’ strong economic progress and the growth of some economic sectors (e.g. the IT market) institutional investors, such as venture capital investors, private equity investors, even business angels (individual investors who provide capital for businesses) have appeared. For them an exit from their investment is particularly important. There are many ways to withdraw from an investment, but this article will focus on the drag along and tag along clauses. These clauses are considered universally valid, regardless of jurisdiction and I will try to determine how they fit into the Romanian legal system.

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