bluuebunny/crossref_metadata_2025 huggingface dataset:
US and UK Legal Responses to the Global Financial Crisis
Authors: Yeoh Peter
Published: March 2022

Both the US and the UK initially responded to the current global financial crisis with the use of existing financial laws, but have had to come out with much bigger and more comprehensive measures as it reached global proportions. Fresh and bolder legal initiatives have been needed to tackle the serious erosion of confidence and trust in their financial systems and, indeed, the global financial system. A carrot and stick approach characterised by financial support for financial institutions making renewed contributions to the flow of liquidity between themselves and general businesses and enhanced disclosure obligations is being implemented. This article looks at the background and describes the US and UK responses before pondering the future of Western capitalism.
Deceit: Welcome Developments for Victims of Fraud?
Authors: Corrie John , Paterson Stuart , FitzHerbert Anna
Published: March 2022

The tort of deceit was recently considered by the Court of Appeal in the long-running case of Dadourian Group International Inc v. Simms, which resulted in a unanimous judgment upholding the lower court’s findings of deceit. This and other recent cases perhaps indicate an increased judicial willingness to recognise that deceit has occurred and to assist victims. This article outlines the ingredients for a successful claim in deceit before giving an overview of the case, including looking at the standard of proof and quality of evidence, before commenting on the potential impact of Dadourian.
What is the Extent of the Customer’s Duty not to Facilitate Fraud?
Authors: Davies Bill
Published: March 2022

This article examines the duty owed by a customer to his bank not to facilitate fraud on his account. It considers the extent to which the nature and scope of this well recognised duty have remained the same despite major changes in the banking industry. It considers the impact on the contract of electronic banking, in particular the introduction of automated teller machines (ATMs) and the use of personal identification numbers (PINs). It questions whether the impact of these banking innovations on the banker–customer relationship. Finally the article considers the Payment Services Regulations 2009 that came fully into force from 1 November 2009. These regulations cover various incidents of the banker–customer relationship and amongst other features, replace the Banking Code.
The Impact of the Global Financial Crisis on Corporate Governance and Executive Pay in the US and the UK
Authors: Yeoh Peter
Published: March 2022

Financial regulators and governments generally attribute the current global financial crisis to general flaws in corporate governance including incentives-based compensation which induced extreme risk-taking at the expense of long-term corporate financial health. This article analyses the response measures taken through regulatory and self-regulatory reforms and initiatives undertaken in the US and the UK.
A Tale of Two Cities – The Benefits of Publishing the RBS Report
Authors: Davies William
Published: March 2022

The decision of the Financial Services Authority (FSA) not to publish a report into the Royal Bank of Scotland attracted widespread criticism in the national press. As a result of this criticism the FSA have now announced that a report will be published in March 2011. This article seeks to compare this initial reluctance to publish with the publication of the Valukas Report earlier this year into the collapse of Lehman Brothers. Whilst this article acknowledges that Lehmans and RBS were very different events and the remit of the investigations differed significantly; it argues the demonstrable benefits from a published analysis of the failures in RBS make the change of heart by the FSA highly welcome.
Legislative Environment of the Arabic Supreme State Audit Systems: An Analytical Comparative Study from a Control and Accounting Perspective
Authors: Rahahleh Muhammad Yassein
Published: March 2022

The legislation governing the public agencies, including the Supreme Systems, provides an environment that enables these institutions to carry out the tasks entrusted to them, as it references between these institutions and between the government entities subject to control, and control results users from the other side. However, standards and principles of the International Organization of Supreme Audit Institutions represent reference for such institutions to carry out its tasks in the best way in the control of public funds. This paper aims to identify and explore the legislative environment of the supreme audit institutions in Arab countries, including the functions; the financial, administrative and functional dependency; the scope of control; and types of reports and the entities they are submitted to. Moreover, this study will evaluate this comparative research in the actual practice with the principles of the international standards issued by International Organization of Supreme Audit Institutions. The research covers Supreme Audit Institutions in Jordan, Syria, Saudi Arabia, United Arab Emirates, Oman, Bahrain, and Kuwait. The study shows that there are differences in legal rules that govern such institutions. These differences can be shown with respect to financial, administrative and functional independence of these institutions from executive authority; types of control applied; and reports prepared, and the parties to whom reports are submitted. To this end, this article recommends that there is a need to develop legislation that should be consistent and comported with all the modern trends on public property control such as environmental and information technology and not to be limited to financial control.
Harrison v Link Financial Ltd [2011] EWHC B3: Greater Protection for Consumer Debtors?
Authors: Mason Lee
Published: March 2022

In Harrison, the claimant argued that he was not liable for any sum standing to his debit under the agreement because of MBNA's non-compliance with the Consumer Credit Act 1974 including, inter alia, a failure to send the claimant a copy of the 'terms and conditions'. This case is important because, other than the decision being based on non-compliance with various statutory provisions, the manner in which the creditors sought payment also formed the basis of the decision.
Danone v Wahaha: Who Laughs Last?
Authors: Bu Qingxiu
Published: March 2022

Multinational companies may experience culture clashes, incompatibility of Western corporate governance and legal resolution strategy problems. As one of the most successful joint venture models, the high-profile Danone v Wahaha dispute has accelerated into a two-year legal feud across jurisdictions against infringement of the famous Wahaha brand. The case represents a significant watershed, which reflects the status quo of controversy over cooperation and competition in China. Under the current legal framework, Danone's withdrawal serves as a wake-up call for both foreign investors and Chinese companies in the dramatically increasing cross-border merger & acquisitions situation. The seminal case perfectly illustrates unwritten issues about public opinion, nationalism and the rule of law. Danone v Wahaha has also been commonly conceived as a landmark case through the Chinese may judge the fairness of the Western judicial system, while Europeans may regard it as a touchstone for China's investment environment as well as the specific sphere of contracts. It also offers many lessons, including the need for watertight contracts, IP rights, and international arbitration.
Lucky Strike
Authors: Cheriyan Ron
Published: March 2022

This article reviews the law of striking out in the light of recent case law.
Workplace Insecurity: The Case for Global Governance
Authors: Hough Peter
Published: March 2022

The annual global death toll from accidents at work far outstrips that accrued in acts of war or terrorism, but the phenomenon struggles to command anything like the prominence of these traditional priorities of international security in global politics. Whilst the 'securitization' of many non-military issues, such as climate change and disease, has come to be accepted in some sections of the academic and 'real' political world, this status has very rarely been granted to workplace accidents. This seems to be because of the perception that a) accidental deaths cannot be equated to deaths inflicted directly by enemies (including non-human ones) and b) protecting workers is a domestic rather than international political concern.

Protecting people against such accidents, though, is a legal and political task which has been accepted by industrialized governments from as far back as the late nineteenth century when 'social security' policies began to evolve in response to changing economic and social conditions. Equally, incidents of workers in Less Developed Countries being killed are no longer unfortunate problems unconnected with the relatively safe lives of people in the global North since developed world consumers are functionally connected to these systemic failures as never before. This paper therefore presents the case for the international community to adopt a human security approach which allows for worker safety to be given the international political priority it deserves.
Do Women Returning to Work Following Maternity Leave have Access to Quality Part-Time Work?
Authors: Atkinson Jamie
Published: March 2022

The purpose of this article is to investigate whether women returning to work following maternity leave or a career break have access to quality part-time work. Part-time work is set in the context of the UK labour market and the issues of occupational segregation and occupational downgrading of women employees are discussed. The findings of two recent studies on quality part-time work are considered, which focus on attempting to define the characteristics of quality part-time work and how to implement a quality part-time work strategy in the workplace. This article also considers the extent to which UK law is deficient in enabling women employees to access quality part-time work. Legislation which imposes obligations on businesses to ensure greater access to quality part-time work is likely to be contentious. Instead, more effort should be directed towards attempting to persuade policy makers and the business community of the advantages of quality part-time work.
Interpretation of Micro-Organism Under the TRIPS Agreement
Authors: Qtaishat Ali Khaled
Published: March 2022

The present article provides an assessment of the implications of intellectual property claims in relation to micro-organisms. It fundamentally focuses on the lack of a precise definition of the term 'micro-organism' resulting in inherent anomalies in patenting these life forms. Though the TRIPS Agreement mandates patent protection for micro-organisms, it does not define micro-organisms, thus there is no standard definition for member nations to follow. This has wide implications for developing countries rich in bio-diversity, such as India. The lack of a precise definition may cause conflicting or dubious interpretations of the term 'micro-organism', which in turn may lead to the patenting of non-patentable objects.
Enforceability of Share Transfer Restrictions in India: Momentous Regulatory Shift
Authors: Banerjee Soham , Pareek Nikhil Suresh
Published: March 2022

This paper focuses on the enforceability of share transfer restrictions under the ambit of company contracts including, inter alia, preemptive rights such as 'right of first refusal', or' tag-along' or 'dragalong' rights contained in shareholders' agreements or articles of association. With the enactment of the Indian Companies Act 2013 company law jurisprudence in India is set to take an efficacious leap as it addresses not only corporate governance issues but also introduces sweeping changes which, though sine qua non to rights of shareholders, have been consistently denied in India.
Class Actions under the Indian Companies Act 2013: A Critique
Authors: Thej Aravapalli Krishna
Published: March 2022

In this legislative comment an attempt is made to understand the 'pros','cons' and some confusion created by section 245 of the Indian Companies Act 2013. It is argued that, while class actions, which section 245 seeks to introduce, are laudable as being a step forward in boosting and enhancing investor protection, some concerns and confusion remain.
Evidence in Competition Law
Authors: Laskowska Magdalena
Published: March 2022

This paper first discusses the object of evidence, and then rules of evidence and evidential proceeding before finally analysing various types of proof, all with reference to competition law.
Corporate Governance in the UK: A Time for Reflection
Authors: Yeoh Peter
Published: March 2022

Subsequent to almost every financial crisis, business corporations are found to have either committed fraudulent acts or engaged in various kinds of unethical undertakings. Policymakers and regulators typically respond with new rules for corporate conduct in the hope that bad corporate conduct would not recur. Yet, it often did, at least as seen in the current scandals in the financial services sector. Still, the idea of using refreshed or reformulated corporate governance to prevent corporations from engaging in reckless corporate action or inappropriate business conduct continue to be made in response. This article reflects on what has been the situation in the UK and develops from this a way forward.
Requirements for Funds, Bodies or Institutions Regulations 2011: Are Donations Made to Non-government Entities Still Tax Deductible in Nigeria?
Authors: Ikeyi Nduka
Published: March 2022

In 2011 the Nigerian Federal Inland Revenue Service (FIRS) issued regulations for the certification of entities entitled to receive tax-deductible donations (the ‘Regulations’). This statute note contends that the Regulations have inadvertently excluded non-government entities from receiving tax-deductible donations, and concludes that the Regulations are in excess of the powers of the FIRS.
The Fourth Industrial Revolution: Technological Impact and Privacy and Data Security Issues
Authors: Yeoh Peter
Published: March 2022

This article focuses on the Internet of Things (IoT) and its impact on privacy and data security for users. It examines the economic value of the IoT, its rapid growth, the technological challenges it faces, and why regulators are watching its development closely especially in relation to privacy and data security issues. The article argues for a less precautionary regulatory approach to enable the IoT to achieve its full potential for the benefit of economies across the world.
Doctrinal Watershed in the Interpretation of Contractual Impossibility Under the CISG, UNIDROIT Principles and English Law
Authors: Nwafor Ndubuisi
Published: March 2022

The advents of uniform international commercial laws and model laws have seen serious variations in the applications and interpretations of different doctrines. The doctrine of impossibility of performance of a contract has spawned different routes via the connotations and interpretations various legal systems and regimes of laws have given to it. This article will constructively and critically analyse the doctrines of exemption, force majeure and frustration under the CISG, UNIDROIT Principles and English law respectively in order to lay the foundation for further and better appreciation of these doctrines.
Navigating the Uncharted Risks of Covert Advertising in Influencer Marketing
Authors: Gürkaynak Gönenç , Kama Ç. Olgu
Published: March 2022

Nowadays one of the more commonly used types of advertisement is through the use of influencers by brands on social media. There is no doubt about social media’s – and therefore the influencers’ – potential to reach a wide range of global consumers. Accordingly, such reach makes this global, newly-emerging group of tastemakers very valuable to brands. However, there is a catch: when content about a product is generated by influencers e.g. on their Instagram account, how do the consumers know whether the influencer genuinely used and liked that product, or whether there is a commercial relationship between the brand and the influencer, and such relationship is the real reason the influencer is posting about that product?
Corporate Governance and Climate Change: Smoothing Temporal Dissonance to a Phased Approach
Authors: Andreadakis Stelios , Benjamin Lisa
Published: March 2022

SUMMARY

 

Projections for climate change extend decades into the future, and usually to the end of this century due to the long-lived nature of greenhouse gases (GHGs). Predominant normative frameworks for corporate governance are primarily short-term in nature, creating a temporal dissonance within the context of corporate governance and climate change. Adding to this complexity, the energy transition itself has temporal paradoxes and implications for the global economy – the transition away from fossil fuels cannot be too sudden and sharp, but an urgent yet stable, phased transition is required. Statutory interventions in the UK have imposed on directors the requirement to consider the long-term profitability of companies. New initiatives, such as the task force on climate related disclosures (TCFD), the Enterprise Principles, and the Oxford-Martin Principles, also advocate for directors to consider the risks from climate change, including emissions scenarios which take into account short-, medium- and long-term scenarios. It is by using a phased approach to climate risk that a smoothing of this temporal dissonance between corporate governance and climate change can be initiated by businesses. While many of these new governance initiatives do not yet provide the requisite level of specificity to demonstrate how a phased approach could be adopted by particular companies, the TCFD guidance does provide some tools which would allow companies to adopt a phased approach, however the types and levels of detail of these tools should be increased for a variety of types of industry.
Initial Coin Offerings and Venture Capital Investments: Risk Assessment and Mitigation
Authors: Basak Sayan
Published: March 2022

Technology and economy are the two most important and dynamic pillars of development. With the rise in the use of blockchain and other distributive ledger technology, the economy has taken an upward turn through ease of financing and funding. Funding in the nature of Initial Coin Offerings (ICOs) and the likes are gaining magnitude due to their inherent flexible nature and convenience in contrast to the traditional Venture Capital funding. However, this mode of funding through the use of tokens is not all that it seems and engenders a number of plausible problems when compared to the traditional mode of funding. This article highlights both the pros and cons of using such mode of funding providing solutions to the major problems that are haunting the same. It also discusses certain alternatives to the ICOs which are recently being used in the funding industry. This article tries to provide a comprehensive answer to an ever important question about the viability and suitability of such a funding mechanism in a dynamic market.
COVID-19 Legal-Economic Implications of a Pandemic
Authors: Yeoh Peter
Published: March 2022

This article discusses the legal-economic implications of COVID-19, with focus on the situations in the US and the UK.

COVID-19, Pandemic, Legal and economic implications, Force Majeure, Doctrine of frustration, Adverse Material Change
Legal Status of the Present-Day Employee in the US: Arbitration, Gig Economy & AI
Authors: L. Pate Richard
Published: March 2022

The employer-employee relationship is a derivative of asymmetrical bargaining power. Legislation and unions have historically been the means of lessening such inequitable underpinnings. Most recently, however, such measures have been curtailed and the negotiating gap between the employer and employee is again widening. The aim of this article is to suggest that three developments are converging to cause such a predicament: (1) the suffocation of the employees’ collective voice; (2) the development of the ‘independent contractor’ dependent gig economy; and (3) the swelling use of artificial intelligence in the workplace

Arbitration, Class Action, Unions, Protected Concerted Activity, Gig Worker, Gig Economy, Artificial Intelligence, independent contractor.
Majority Dictates and Minority Rights: ‘Oppression and Mismanagement’ Law and Practice in India – A Primer for International Business Lawyers
Authors: Sharma Ajay Kr.
Published: March 2022

One of the foundational democratic principles of modern Company Law is that the majority shareholders of the company decide the company’s policy, and take internal management decisions, binding the minority, which are not usually interfered with by the company courts and tribunals. This was first judicially recognized and established in the famous English case of Foss v. Harbottle two centuries ago. Numerous exceptions have however also evolved from time to time to the Foss v. Harbottle rule. One such exception is ‘Oppression and Mismanagement’. And so, the statutory remedies for oppression of the members and mismanagement of the company assume much importance. However, the oppressed minority members cannot easily surmount the necessary statutory thresholds for availing these remedies. Bearing in mind the limiting considerations, this article scrutinizes the current Company Law and policy challenges in this realm in India, by pointedly analysing the key legal provisions in light of some important disputes and case law from India, which also rely on some English cases as well. The salient concluding results clearly and succinctly present the key legal aspects of the regulatory law and practice in India in this crucial area of Company Law, thus making this article an informative and analytical Primer on this area for International Business Lawyers.

Shareholders, minority rights, oppression and mismanagement, Foss v. Harbottle
Insolvency and Data Protection
Authors: Walters Robert
Published: March 2022

This article examines the interrelationship between crossborder insolvency, insolvency in general and data protection. Prior to the outbreak of the coronavirus, the world had already been facing significant geopolitical and economic challenges. It examines Australia, the European Union, the United Kingdom (BREXIT), and the United States data protection and privacy laws. What has emerged from the recent adoption of data protection and privacy law, is a highly fragmented approach. States and in the case of the European Union have largely gone it alone. This poses significant challenges to entities that are experiencing financial stress and either going through insolvency (including cross border insolvency), restructuring or a merger or acquisition. Insolvency and legal practitioners will need to be aware of the varied approach taken by jurisdictions in defining personal data, the concept of consent and regulatory requirement(s) to appoint a controller or processor. This article argues that increasingly administrators and liquidators will need to consider the various data protection laws, when proceeding with cross-border insolvency.

Cross-border insolvency, insolvency in general and data protection, Australia, the European Union, the United Kingdom (BREXIT), and the United States data protection and privacy laws
Post-brexit Deal: The New Normal for the UK?
Authors: Yeoh Peter
Published: March 2022

This article examines the broad implications of the fast-tracked approval of the EU (Future Relationship) Bill, otherwise known as the EU Trade and Cooperation Agreement (EUTCA). It raises questions and the new potentials for the UK’s trade and services relationships with the EU, and further asks how and to what extent businesses could prepare for this potentially new normal.

EU Trade and Cooperation Agreement (EUTCA), Brexit, EU, Free Trade Agreement, Governance
Taking Directors Seriously: A Silver Bullet for Triggering the Creditors’ Interest Duty—Part I
Authors: Coumas Michael
Published: March 2022

Directors of solvent companies owe a fiduciary duty to shareholders qua the company. If a company becomes technically insolvent, the duty switches to the company’s creditors. This is uncontroversial. However, the duty is also said to switch some point before, i.e., in the ‘vicinity of insolvency’. Therefore, directors must be able to make decisions which do not prejudice shareholders, in a way that is free from exposure to claims by creditors. This uncertainty stems from the case law, where the rules of company law have been confused with the policies underlying insolvency law. The two bodies should be considered separately despite their interrelationship in practice. Doing so reveals the proper and fair function of the duty. Its application should be limited to cases of actual insolvency only. While exceptions may be made for cases of irresponsible or negligent risk-taking, this should be the exception – not the rule. This essay is the first of two parts, and examines the emergence of the duty and possible justifications.

company law, insolvency law, directors’ duties, fiduciary duties, agency costs
Taking the Heat: (Non) disclosure of Climate Change Risks in India
Authors: Bhaduri Anik
Published: March 2022

Following the bankruptcy of Pacific Gas and Electric in California, a number of academic commentators, central banks and regulators are coming to the realization that climate change poses a massive threat to the existing financial markets. While numerous legislative proposals to combat the emerging threat are being discussed across the world, there has been a massive rise in securities litigation involving climate change issues, particularly in the US. As early as in 2007, some US states had begun investigating companies for deliberately misleading their shareholders through non-disclosure of climate change risks. A number of similar suits have followed, increasingly binging into question the meaning and extent of ‘material information’ in the context of capital markets.

In India, the Reserve Bank of India (RBI) has identified climate change as a potential risk to the stability of the financial system, but there has been little legislative action in this regard. The Securities and Exchange Board of India (SEBI) has a provision similar to that in the US requiring all listed companies to disclose ‘material’ facts regarding their assets and value on the market, while Indian courts have long recognized that corporations as well as intermediaries on the securities market are bound by a fiduciary duty to disclose all material information to investors. Drawing a comparison with the rising trend of climate change related securities litigation in the US, this article explores whether a company failing to disclose risks associated with climate change would be in violation of the current Indian regulatory framework, and what kind of legislative changes, if any, are required to safeguard the interests of Indian investors.
The Kredietbank Luxembourg and the Liechtenstein tax affairs: notes on the balance between the exchange of information between states and the protection of fundamental rights
Authors: van Kampen T. A.
Published: March 2022

In 2008, German authorities purchased information from a former employee of the Liechtenstein Global Trust Group (LGT Group), leading to numerous procedures for tax evasions in Germany and around the world. This incident in Lichtenstein bears striking similarities to an incident involving Kredietbank Luxembourg around 1996. These events raise various legal issues, including whether States may use stolen information as evidence in criminal and tax proceedings against their citizens. This article addresses this issue focusing on the relevant European law which provides valuable protection for these citizens and an important check on the conduct of States in obtaining evidence.
Limiting Benefit Shopping: Use and Abuse of EC Law
Authors: de Graaf Arnaud
Published: March 2022

Triptych: Shopping for tax advantages: what can (and cannot) be done to prevent it. This article forms part of a triptych, each panel of which is independent but also complements the other two. The theme of the triptych is what measures are possible – and impossible – in combating conduit arrangements under EU law. The first panel deals with the issue of when Member States – specifically in their capacity as source state – can deny advantages to conduit companies under EU law. The second panel outlines the kinds of measures that Member States have introduced to combat conduit arrangements. These ‘antishopping’ measures will be considered in the light of the EU doctrine regarding abuse. The final panel makes recommendations to the Member States as regards the tools that they can use in combating conduit arrangements.
Share Disposals and the Right of Deduction of Input VAT
Authors: van Norden Gert-Jan , van Doesum Ad , van Kesteren Herman
Published: March 2022

The European Court of Justice (ECJ)’s ruling in the SKF case is a milestone in the development of the doctrine on the VAT treatment of disposals of shares by a ‘controlling active parent company’, such as AB SKF. The first question in this case was whether the disposal of shares was an economic activity and if so, whether it constituted a VAT exempt supply of services. The second question was whether input VAT incurred on costs made in connection to a share disposal can be deducted. Although the ECJ ruled that the disposal of the shares was a VAT exempt supply of services, the ECJ created routes to deduct input VAT on costs related to the disposal of the shares. Focusing on the right to deduction of input VAT, the authors investigate the implications of the ECJ’s judgment and test whether the EC VAT Directive (ECVD) and settled ECJ case law provide solid legal arguments to validate both the outcome and the implications of the SKF case.
Double Taxation of Foreign Dividends: The Damseaux Case Aiming at the Wrong Target! Criticism Should Be Directed towards France and Not Belgium
Authors: Dassesse Marc
Published: March 2022

The Damseaux judgment of 16 July 2009 (Case C-128/08) marks the unsuccessful end of the efforts deployed by Belgian taxpayers and by the European Commission (Case C-307/08, Commission v. Belgium, presumably to be dropped shortly) to have Belgium shoulder responsibility (by way of the grant of a foreign tax credit) for the French withholding tax on outbound dividends received by Belgian taxpayers. We will review these efforts hereinafter, and the factors that appear to have led to their unsuccessful outcome.

We will also argue that Mr Damseaux might have been more successful in his efforts to avoid the double taxation of his French dividends if he had, instead, lodged a claim against the French tax authorities: He could have argued that the French withholding tax is levied in breach of European law following the end of the reimbursement by the French tax authorities to Belgian resident shareholders of the French ‘Avoir Fiscal’.
Corporate Tax Burden in the European Union
Authors: Martínez Arias Antonio , García Santiago Álvarez
Published: March 2022

The main aim of this paper has been to analyse the tax burden exerted by Corporate Income Tax (CIT) on European Union (EU) companies using the effective tax rate (ETR) as a tool for analysis. For this purpose, a sample of listed companies in the EU was extracted from the Datastream/Worldscope database for the period 1995–2005. This analysis allowed us to determine the tax burden experienced by companies. The results have showed significant differences between the different EU countries as well as between statutory tax rates (STR) and ETRs. Likewise it has been proved that general reductions in STR do not have the expected effect on the tax burden. These results are especially relevant in the present environment, which is characterized by the discussion regarding harmonizing measures for CIT, which will limit its impact on business decisions regarding locating within the EU.
Tax Abuse in European Union Law: A Theory
Authors: Piantavigna Paolo
Published: March 2022

Tax abuse is a legal principle developed by the European Court of Justice (ECJ) that prevents a person from relying on a right in law where such reliance would constitute an abuse of that right. The case law demonstrates two circumstances when the principle has been applied or its potential applicability has been recognized: a person seeks to rely on a European legal right to circumvent or displace national law, and a person seeks to take advantage of a right in European law, but in a manner running contrary to its spirit. The ECJ is recognizing the full and proper construction of the European right upon which a person wishes to rely but prevents its use in any event. This principle of abuse sits alongside other developed principles of law that maintain fundamental rights already accepted in the legal systems of the Member States and in internationally recognized treaties. These general principles are not closed and include equality, proportionality, neutrality, and legal certainty. The main thrust of the application of fraus legis has been in relation to tax avoidance, but one might consider that this abuse of law or fraus legis principle has a potentially vast application in Community Law, both in tax harmonized and in tax non-harmonized areas.
Exchange of Information and the Free Movement of Capital between Member States and Third Countries
Authors: Nijkeuter Erwin
Published: March 2022

In this article, the author discusses the scope of the freedom of capital movements between Member States of the European Union and third countries. According to the ECJ, restrictions of the freedom of capital movements between Member States and third countries can be justified to ensure 'the effectiveness of fiscal supervision'. Based on case law of the ECJ, the author discusses the relevant questions to adopt this justification as suitable and proportionate.

An important factor in adopting the justification 'effectiveness of fiscal supervision' is the degree to which the Member State implementing the restriction has the opportunity to exchange information with the third country. The author, therefore, discusses the possibilities available for Member States to exchange information under EC law, bilateral tax treaties, TIEAs, etc. In the author's opinion, the Member States will - given the recent extended possibilities to exchange information - no longer be able to hide behind this justification.
Halting the Horses: EU Policy on the VAT Carousel Fraud in the EU Emissions Trading System
Authors: Efstratios Pourzitakis
Published: March 2022

The European Union (EU) Emission Trading System (ETS) has been a major tool of the EU climate policy. Despite its significance, the EU ETS faces serious challenges regarding its function. One of the major issues that encumber its contribution in EU climate policy is value added tax (VAT) carousel fraud within it. This paper examined the ways this type of swindle is conducted and its economic impact. It analyses the parameters that facilitate it and evaluates the responses of the EU and its Member States and mainly the introduction of the reverse charge mechanism. It finally highlights the need to implement some changes to the EU ETS, the VAT provisions, and the way the national tax authorities and the EU coordinate. Finally, it suggests the introduction of a real-time VAT collection mechanism that can be an effective and feasible solution to the problem in general.
The Renewed EU Social Security Coordination in Regulation No. 883/2004 and Its Link with Bilateral Tax Agreements
Authors: Verschueren Herwig
Published: March 2022

This article gives a general outline of the new European coordination rules regarding social security in Regulation No. 883/2004 that came into effect on 1 May 2010. These rules have not been fundamentally changed compared to the previous rules in Regulation No. 1408/71. However, there are some important innovations, and the provisions have been simplified, rewritten, and adapted. As for the rules on the determination of the applicable legislation, the State of employment principle has been confirmed and even strengthened. In actual practice, the new rules and agreements on a better administrative collaboration between the Member States, inter alia, via electronic exchange of data, will be of the utmost importance.

Yet, this new European social security coordination has not changed anything with regard to the lack of coordination with the rules on the determination of the applicable legislation in bilateral tax agreements. This can lead to situations in which a migrating person contributes in more than one State to the funding of social security that is sometimes considered to be an obstacle to the free movement of persons. However, both from the political and legal analyses in this article, it follows that a better coordination between the rules to determine the applicable legislation in social security and in tax matters will not come about easily and probable only on a case-by-case basis.
A Law of Counteracting Forces: The Reimbursement of Overcharged, Unduly Paid, Overcollected and Overpaid VAT
Authors: van Doesum Ad
Published: March 2022

Occasionally, it transpires that Value Added Tax (VAT) rules have been wrongly interpreted from the very beginning. The consequence of such progressive insight is that - looking back - the taxable person making supplies may have been overcharging VAT on its invoices and that the Member State overcollected VAT from that taxable person. A Member State which overcollected VAT in breach of the rules of EU law is in principle required to repay that VAT. However, it is a rule of VAT law that any person who enters VAT on an invoice shall be liable to pay that VAT. Therefore, a law of counteracting forces seems to apply. Overcollected VAT must be reimbursed, but is simultaneously due because of the mere fact that it was entered on an invoice. This article addresses the question to what extent the tax authorities of a Member State may refuse to grant a repayment of overcollected VAT on the sole ground that the VAT was entered (overcharged) on an invoice.
The Influence of the Principle of Union Loyalty in Tax Matters
Authors: Wittock Nathalie
Published: March 2022

The important but little-known Article 4, paragraph 3 of the Treaty on the European Union (TEU) expresses the principle of Union Loyalty. This article includes the principle of sincere cooperation and the obligation for Member States to help and not hinder the Union. The broad wording of this principle and its apparent obviousness falsely suggest that it is of secondary importance. In practice, the principle of Union loyalty proved decisive in capturing the precise obligations of Member States, in particular where the Treaty itself offered no solution. Not for nothing, the principle of Union loyalty is considered to be one of the main principles of the EU Treaty in legal literature.

After a brief analysis of the legal context and the general meaning of the principle of Union loyalty, this article intends to examine the impact of this principle in tax matters. Based on Article 4, paragraph 3, TEU, the ECJ developed numerous principles to ensure the effectiveness of European tax measures and to make sure that - in the exercise of their sovereign fiscal powers too - Member States do not put the full functioning of the Union at risk.
ECJ Case Law on Corporate Exit Taxation: From National Grid Indus to DMC: What Is the Current State of Law?
Authors: Sendetska Olga
Published: March 2022

With a series of cases already decided by the Court of Justice of the European Union on the corporate exit taxation and many opinions written in the literature on different aspects of this line of case law, this article aims to address the development of the reasoning of the Court of Justice and systematize the current state of law on corporate exit taxation taking into account the most recent judgment in DMC and determine how the Member States should design their national legislation to bring it in line with the case law of the Court.
The Avoidance of Double Non-taxation in Double Tax Treaty Law: A Critical Analysis of the Subject-To-Tax Clause Recommended by the European Commission
Authors: Marchgraber Christoph
Published: March 2022

Countries around the world have traditionally treated tax planning as a legitimate practice, unless the ambiguous borders to abusive behaviour have been crossed. However, over time, business structures have become more sophisticated and tax authorities have become involved in keeping pace with the continuous improvement of international tax planning. By exploiting the inconsistencies between domestic tax rules and bilateral double taxation conventions it is even possible that certain income remains completely untaxed. In order to properly address this issue of double non-taxation, the European Commission - alongside the work of the OECD on Base Erosion and Profit Shifting (BEPS) - issued a recommendation on aggressive tax planning. The EU Member States are, inter alia, being encouraged to revise their tax treaty policies. The European Commission recommends the incorporation of a general subject-to-tax clause in the Member States' bilateral double taxation conventions. This article analyses whether the Member States are well advised to follow this recommendation.
Ensuring the Effectiveness of Fiscal Supervision in Third Country Situations
Authors: Pinetz Erik , Binder Anna
Published: March 2022

Member States frequently try to justify restrictive tax provisions with the need to ensure an effective fiscal supervision. In this context, the European Court of Justice (ECJ) has applied this justification reason notably different in intra-EU situations and in situations involving a third country. In the latter cases, the Court tends to be less stringent regarding the acceptance of this justification. In light of the most recent judgments of the ECJ, namely Welte and Emerging Market Series, this article seeks to determine how much leeway the Member States have to implement provisions that foresee an unequal treatment of capital investments in third country situations.
Improving the Arbitration Procedure under the EU Arbitration Convention (1)
Authors: Pit H.M.
Published: March 2022

This article analyses the functioning of the arbitration procedure under the EU Arbitration Convention and whether improvements to this procedure are necessary and possible. The article thereby takes into account previous improvements to the arbitration procedure, as implemented by the (revised) Code of Conduct on the effective implementation of the EU Arbitration Convention, as well as current discussions within the EU Joint Transfer Pricing Forum relating hereto. Part I of this article analyses the establishment of the advisory commission and the process of appointment of its members, as well as the secrecy obligation and costs of the procedure. Part II will analyse in more detail the functioning of the advisory commission and the content of the opinion to be rendered. Each part ends with a conclusion.
An Analysis of the Past, Current and Future of the Coherence of the Tax System as Justification
Authors: Weber Denis
Published: March 2022

The Court of Justice has accepted 'the need to ensure the cohesion of the tax system' in the Bachmann case as an overriding reason in the public interest (the 'cohesion justification'). In this article, the various elements of the cohesion justification are worked out in more detail and attention is devoted if the cohesion justification is still valid today. The author is of the opinion that in many situations, the cohesion justification no longer has a right to exist, as it has become redundant. The cohesion justification can is his view still only be applied usefully if the internal national cohesion of the tax system of one Member State is infringed. This can play a role, amongst others, in situations in which there is a group taxation regime (consolidation regimes, fiscal unity, etc).
Personal Pensions in the EU
Authors: Staats Gerard
Published: March 2022

Gradually, taxpayers have become increasingly responsible for their own pensions. One of the reasons for this development is related to the problems Member States have had in financing their retirement systems. This has made second and third-pillar provisions increasingly important. Therefore it is interesting to look at the position of the third pillar within the system of retirement provisions and see if there is a model with respect to personal pensions that can be applied by Member States of the EU that complies with European and international tax law and contributes to the EU-strategy to make pension systems adequate, safe and sustainable in the long term.
The Reformulation of the Questions Referred to the CJEU for a Preliminary Ruling in Direct Taxation: Towards a Constructive Cooperation Model
Authors: García Antón Ricardo
Published: March 2022

This article appraises the role of the reformulation of preliminary rulings by the Court of Justice of the European Union (‘CJEU’ or ‘the Court’) in the field of direct taxation. The few articles on this matter written mainly by French scholars adopt a descriptive/analytical approach. As such, they enumerate the rulings whereby the Court alters the original questions posed by the national court by limiting or widening the scope of the reply, replacing a question of interpretation of EU law into one of validity or vice versa, etc. However, this contribution makes an attempt to go beyond this analytical approach in order to construe a normative model which shed light on the current interplay between national courts and the CJEU. By analysing several CJEU decisions in the field of direct taxation, my article purports to demonstrate that reformulating the questions referred is not neutral. Due to the lack of positive integration in this area, it will be argued that the reformulation constitutes a technique that enables the Court to foster its own agenda of integration at the peak of the European Judicial Power.
Germanys Fiscal Court Rules on Tax Deductibility of Donations to Foreign Charities
Authors: Steierberg Daniela , Haase Florian
Published: March 2022

In a most recently published judgment (8 May 2015), the German Federal Fiscal Court 1 specified the requirements under German tax law regarding the deductibility of donations to foreign charitable organizations. Whereas the national German written law rules as such are rather straight-forward and clear, these rules had to be interpreted in the light of recent ECJ rulings. In that regard, the German Federal Fiscal Court rendered a landmark decision with far-reaching consequences.
The TFEU Eligibility of Non-EU Investment Funds Subjected to Discriminatory Dividend Withholding Taxes
Authors: Hippert Geoff
Published: March 2022

Non-EU or third-country investment funds may be subjected to final withholding taxes on their dividend income earned in various Member States within the EU. Such dividend withholding taxes may be discriminatory in nature given that EU or Member State investment funds may not be subjected to them. This raises the question whether, and to what extent, third-country investment funds could access the fundamental freedoms (like the free movement of capital) – enshrined in TFEU – in order to gain some measure of tax relief from discriminatory dividend withholding taxes.

This article examines what terms of comparability the European Court of Justice (‘ECJ’) has developed in its recent case law in determining whether a restrictive dividend withholding tax is discriminatory vis-à-vis a third-country investment fund as compared to a Member State investment fund.

In particular, the article examines how the ECJ considers compliance with UCITS (as well as other regulatory frameworks) in its determination of whether restrictive dividend withholding taxes are discriminatory.

Regarding grounds of justification, the article considers ECJ case law that – within a third-country context – establishes that some forms of justification (like the need to guarantee fiscal supervision) could very well justify a discriminatory dividend withholding tax under certain circumstances.