bluuebunny/crossref_metadata_2025 huggingface dataset:
VAT: Money Off Vouchers and Cash Back Schemes  What Are the Problems and How Can They Be Solved?
Authors: Bijl Jeroen
Published: March 2022

Specific VAT issues currently exist with regard to situations where specific 'money off vouchers' are used as part payment for the supply of goods and services or, for example, where the purchaser of goods can use a 'cash back voucher' to get a partial payment from the manufacturer of the goods for the purchase price that purchaser paid to the retailer selling these goods. The EU VAT Directive does not provide for rules on the treatment of such transactions, and the guidance given by the Court of Justice of the European Union (CJEU) leaves numerous issues unsolved. In order to solve these issues, the European Commission has proposed several amendments to the EU VAT Directive. In this article, I will first identify all VAT issues related to these types of transactions. Then I will describe the Commission proposal, and demonstrate that this proposal does not address or solve all these issues. I will end this article with an alternative proposal that, in my view, solves the relevant VAT issues. This solution is based on the principle that, where two persons pay for or fund a transaction, under specific circumstances, both persons should be entitled to a proportionate deduction of the VAT due on this transaction.
Double Taxation of Inheritances and the Recommendations of the European Commission
Authors: van Vijfeijken Inge J.F.A. , van der Weerd-van Joolingen Hedwig F.
Published: March 2022

In December 2011 the European Commission ('EC') adopted a package of instruments to tackle the difficulties regarding cross-border inheritance tax. One of these difficulties concerns the existence of unrelieved double or multiple taxation. Tax treaties (if present) and unilateral systems of relief do not always effectively prevent this. By means of a Recommendation the EC suggests how Member States could improve their unilateral systems of relief and presses them to do so. The article starts by examining the possible causes of double or multiple taxation. In general there is an enormous variety of rules in Member States' inheritance tax systems; they all connect to a different factor for applying inheritance tax and use different concepts of residence and situs assets.

Subsequently the international order of priority of taxing rights is discussed. The State of situs normally has the strongest taxation rights, followed by the State in which the deceased was domiciled or resident. This order of priority can also be found in the EC Recommendation, which finally is considered and evaluated.
The Concept of Value in Tax Law and Customs Law
Authors: Vieira Iure Pontes
Published: March 2022

The economic value for tax and customs purposes is probably one of the most important subjects in the modern tax system, where the assessment of most taxes is based on monetary wealth. Despite its importance, different studies have been carried through of a fragmented form (the methods of tax assessment, transfer pricing, customs valuation, market value, . . .) without striking directly the definition of the economic value for tax and customs purposes.

Thus, the first main issue examined in this article is built on a concept of value, starting from the recognition of the reasons of the difficulties to establish an unique concept due to the nature of the subject touching philosophical, economical and juridical fields. Therefore, the difficulties have been overcome by the examination of the two elements of economic value (the exchange-value / usevalue) and the market value.

The second part is focused on the measurement of the value, based on the concept developed in the first part. Each aspect of evaluation, starting from the survey of the manipulations of value by the individuals, the influence of the time, place, material, motivations of the parts, passing by on the rules and methods of valuation based on contractual logic have been examined.
VAT Exemption of Intra-community Supplies of Goods: State of Play after VSTR
Authors: de Wit Walter , Nathoeni Sandhya
Published: March 2022

This article deals with the application of the value added tax (VAT) exemption for intra-Community supplies of goods. Since 2006, there has been quite some European Court of Justice (CJEU) case law on this topic and also in practice, we see that there are many companies that struggle with application of the exemption, especially in chain transactions. In this article, the authors provide a brief overview of the legal basis of the exemption in the VAT Directive. They then discuss the most relevant CJEU cases and based on these cases, conclude with the conditions for a supplier to apply the exemption.
The Agenda for Adequate, Safe and Sustainable Pensions from a German Point of View
Authors: Jochum Heike
Published: March 2022

In February 2012, the European Commission published the White Paper: An Agenda for Adequate, Safe and Sustainable Pensions (hereinafter 'White Paper'). An ageing population presents a major challenge to pension systems in all Member States. The current financial and economic crisis is aggravating these prospects. The European Commission wants to develop and implement comprehensive strategies to adapt pension systems to changing economic and demographic circumstances. The most important topics set out by the Commission's agenda for making pensions adequate and sustainable in the long term are going to be examined in this article from a German point of view. In particular, the suggestions on developing complementary private retirement savings by providing tax and other financial incentives, the intended revival of the Portability Directive proposal and the modernization of the supervision of Institutions for Occupational Retirement Provision (IORP) will be discussed.
The 3D I Case: Useful Clarification from the Court on the Boundaries of the EU Merger Directive
Authors: Rossi-Maccanico Pierpaolo
Published: March 2022

With its judgment in the 3D I case, the Court has issued a useful reminder of the statutory limits of the EU Merger Directive. Although the tax deferral regime provided by the Directive is the standard for corporate reorganizations in the EU, it does not go beyond the temporary non-recognition of gains realized because of reorganization. Most notably, it does not concern the elimination of economic double taxation resulting from the transfer of assets into a corporate subsidiary.
Transfer Pricing and EU Fundamental Freedoms
Authors: Glahe Moritz
Published: March 2022

In this article, the author analyses the relation between national transfer pricing rules and the European Union (EU) fundamental freedoms. The article focuses on the discrimination/restriction analysis and the justification test. It is shown that the European Court of Justice (ECJ's) judgment in Société de Gestion Industrielle (SGI) is not the end of the discussion, but that discriminating national transfer pricing rules applying the arm's length principle have to fulfil several legal requirements in order to be justified. In this regard, a closer look is taken at the tax avoidance and balanced allocation justifications and the requirements set out by ECJ case law with regard to the proportionality test. In addition, it is shown that fiscal cohesion might become another ground for justifying arm's length profit adjustments.
The CCCTB as a Proposed Solution to the Corporate Income Taxation Dilemma within the EU
Authors: Celebi Huelya
Published: March 2022

The existence of twenty-seven different tax systems within the EU causes problems for multinational enterprises and the Member States. After almost ten years work, in March 2011, the European Commission published the proposal for a Council Directive on a CCCTB in order to overcome this corporate income taxation problem within the EU. The aim of this article is to present a review of research studies in this area concerning the following issues: (1) the problem of corporate income taxation within the EU, (2) the content, pros and contras of the CCCTB as a proposed solution of the European Commission, (3) the alternatives proposed by researchers in order to overcome this problem and (4) the state of knowledge based on research studies conducted till date. The outcomes of the reviewed studies demonstrate ambiguous opinions or results concerning the proposed CCCTB. Based on these outcomes, the CCCTB has to be modified in order to fulfil the interests of companies, the Member States and the European Union as a whole.
Exit Taxes: The Commission versus Denmark Case Analysed against the Background of the Fundamental Conflict in the EU: Territorial Taxes and an Internal Market without Barriers
Authors: Brocke Klaus von
Published: March 2022

Exit taxes are the last resort for States to tax unrealized capital gains which accrued while its underlying assets were attributable to the respective territory and are transferred cross-border. From a high-level point of view, an exit tax, triggered upon the mere migration of an asset or person from one Member State to the other clearly violates the internal market principle. However, since the decision in national Grid Indus it is common accord that the exit tax as such, i.e., the right of the Member State to tax the unrealized capital gains, is not infringing the freedom of establishment principle. Rather, it is the timing when such an exit tax can be enforced and under which circumstances. The latest decision in a series of treaty infringement procedures against several Member States sheds more light into the questions (i) when can a realization of the capital gains be deemed, (ii) is there a right for requiring a bank guarantee and (iii) what about the charging of interests on the deferred taxes.
The Permanent Establishment: Still a (Permanent) Requirement?
Authors: de L’Hotellerie-Fallois Domingo J. Jiménez-Valladolid
Published: March 2022

This article examines the relevance of the 'remaining permanent establishment' requirement under the Merger Directive in the light of the recent jurisprudence of the Court of Justice of the European Union on corporate exit taxes. This requirement is a mechanism meant to ensure that Member States will be able to effectively exercise their taxing rights. However, the decisions of the Court of Justice in this field may have an impact on how the common tax system envisaged in the Merger Directive functions, obliging Member States to extend deferral to situations where the requirements envisaged in the Directive are not fulfilled.
Balanced Allocation and Coherence: Some Thoughts in Light of Argenta and K
Authors: Neyt Robert
Published: March 2022

The Court of Justice of the European Union (hereinafter the 'Court') generally refuses justifications put forward by the Member States for restrictions of the four freedoms which are based on the need to prevent the loss of tax revenue. In its case law, the Court made limited exceptions to this general principle by allowing Member States to safeguard the coherence of its tax system and to preserve the balanced allocation between the Member States of the power to tax. The scope of the coherence argument is limited by the (traditionally) strictly interpreted requirement to have a 'direct link' between a tax advantage and a subsequent tax levy. The justification ground balanced allocation is generally only accepted if the restriction is a necessary measure taken by the Member State to avoid the (risk of) shifting of profit or losses by taxpayers.

 In its recent judgments in the cases Argenta (C-350/11, rendered on 4 July 2013), and K (C- 322/11, rendered on 7 November 2013), the Court applied both justifications grounds. Although the facts of both seem (at first sight) to be similar, the Court reached a completely different outcome. The article critically discusses and compares both recent cases in light of the Court's previous case law.
Tax Recovery Assistance in the EU: Analysis of Directive 2010/24/EU
Authors: De Troyer Ilse
Published: March 2022

This article focuses on the scope and the different forms of tax recovery assistance provided by EU-directive 2010/24: exchange of information, presence of officials in another Member State, assistance for the notification of documents, and assistance by taking recovery or precautionary measures in the requested Member State.
Tax Recovery Assistance in the EU: Execution of Requests for Recovery and/or Precautionary Measures in Other EU Member States
Authors: De Troyer Ilse
Published: March 2022

This article describes how requests for recovery and/or precautionary measures, sent in accordance with EU directive 2010/24, should be handled by the competent authorities of the requested Member State. It also provides an analysis of the consequences of disputes for the recovery or precautionary measures taken in that requested Member State.
Inheritance Taxes and European Union Law: A Case Law to Be Inherited?
Authors: Dafnomilis Vassilis
Published: March 2022

Inheritance taxes are direct taxes that are levied upon the death of a person. As direct taxes, they are closely connected to the fiscal sovereignty of Member States, falling within their competence. However, these taxes can set serious obstacles to the functioning of the internal market while the absence of appropriate ways of relieving cumulative taxation of inheritances may lead to levels of taxation that are appreciably higher than those applicable in situations that are purely internal to one or other of the Member States involved. At this article, the case law of European Court of Justice concerning inheritance taxes will be reviewed and commented on, including the most recent decisions of ECJ, while there will be an extensive presentation of the double taxation problem, caused by the application of inheritance taxes by two or more Member States.
Growing Impetus for Harmonization of Personal and Family Allowances: Current State of Affairs of the Schumacker-Doctrine after Imfeld and Garcet
Authors: Niesten Hannelore
Published: March 2022

By applying the rules of market integration and fundamental freedoms (e.g., the principles of non-discrimination and non-restriction), the CJEU has enforced various elements of the taxpayers’ personal ability to pay taxes that have been denied by Member States in cross-border situations. The CJEU’s Schumacker-doctrine shapes the taking into account of the taxpayer’s personal and family circumstances in the internal market. The article argues that the CJEU’s Schumacker-doctrine still contains a number of inconsistencies and incorrect assumptions, and raises the question whether EU law has to stick to this Schumacker-doctrine or go another way. Whether this issue can be resolved by the CJEU on the basis of existing international tax treaty provisions depends on its case law and the national laws of the Member States, or the possible need for specific EU legislation. The case law of the CJEU in Imfeld and Garcet of 12 December 2013 will be discussed, with an overview of possible tools to refine the taking into account of the taxpayer’s personal and family circumstances. The article concludes that actions on EU level are needed to eliminate double (non-)taking into account of the personal and family circumstances that is the result of the parallel exercises of Member States’ fiscal sovereignty.
Miljoen, X and Société Générale: The Final Curtain of the Dividend Withholding Tax Saga?
Authors: Korving Jasper
Published: March 2022

In many EU Member States, requests for the reimbursement of dividend withholding tax based on EU law- related arguments are pending. Basic argument is that combinations of domestic law provisions result in full neutralization of dividend withholding tax in domestic situations, while this is not always the effect in cross-border situations. Taxpayers and tax authorities, however, seldom agree on what is the comparable domestic situation to determine whether the tax treatment in cross-border infringes EU law. The joint cases Miljoen, X and Société Générale could bring more clarity. On 25 June 2015, AG Jääskinen issued his opinion in these cases.
A Common GAAR to Protect the Harmonized Corporate Tax Base: More Chaos in the Labyrinth
Authors: Aramayo Silvia Velarde
Published: March 2022

The analysis of the general anti-avoidance tax rule in five countries of the European Union (United Kingdom, Austria, Germany, Sweden and France) shows clearly the frailty and weakness of the theoretical and jurisprudential constructions designed to fight this international problem. The research also displays a high degree of judicial discretionary, a worrying level of legal uncertainty – as a result of the introduction of tax rules linked to vague and imprecise concepts – and an inefficiency in the revenue collection unacceptable.

Furthermore, the article analyses the structure and function of the common general anti-avoidance rule (EU-GAAR) approved by the European Parliament, its scope and the problems that it’s possible interaction with another anti-avoidance rules (introduced by the domestic law, community law and conventional law) could generate. The author considers that the labyrinth which derives from the principle of non-discrimination on which the ECJ is trapped is also the labyrinth on which is trapped the cross-border application of the Member States GAAR’s and SAAR’s. The adoption of an EU-GAAR not solves the problem and only increases the chaotic juxtaposition of ineffective anti-avoidance rules.
VAT and Holding Companies: Position Finally Clear?
Authors: Merkx Madeleine
Published: March 2022

With the joint cases Larentia Minerva and Marenave Schifffahrt the CJEU once again delivered a judgment in a landmark case on VAT and holding companies. The author questions whether this will be the last case on holding companies or that we can expect more cases in the future, because some issues still remain unsolved.
State of Play in Respect of the Skandia America Corporation Case
Authors: van Norden Gert-Jan
Published: March 2022

On 7 September 2014 the European Court of Justice delivered its landmark decision in the Skandia America Corporation case (C-7/13). The judgment deals with the Value Added Tax (VAT) treatment of services provided by a foreign head office to its fixed establishment, which is included in a VAT group. The case has a huge potential impact not only in the financial services sector, but in cross-border business in general. Now, almost two years after the decision was taken, the author reflects on the judgment, taking into account the views of various stakeholders. The different approaches of Member States will be outlined as well as the potential way forward.
The Impact of European Union Law on the Interaction of Members States Sovereign Powers in the Policy Fields of Social Protection and Personal Income Tax Benefits
Authors: Peeters Bruno , Peeters Bruno
Published: March 2022

In almost all Member States social security benefits are financed by a mix of social security contributions and taxes, albeit with great differences between the Member States regarding the share and the design of each of these methods of financing. As to the benefits, social benefits are traditionally defined by the various social security branches. But sometimes tax systems provide for certain advantages with a social goal, such as tax reductions for children or for disability. In all these cases Member States conduct their social policy partly through tax measures.

This article explores these interactions between social and tax policy from the perspective of Member States’ sovereignty. To which extent does European Union (EU) law limit the powers of Member States to decide for themselves which policy field (social or tax) is used to obtain social goals? And how can EU law be applied and interpreted to respect or to restore this sovereignty?

The article firstly outlines the basic features of EU social security coordination and EU personal income tax law. It then analyses how EU law and in particular case law of the Court of Justice deals with situations where these policy fields interact and how it impacts on Member States’ choices to integrate elements of social policy in their tax policy. Finally it draws some conclusions.
Tax Sovereignty, Tax Competition and the Base Erosion and Profit Shifting Concept of Permanent Establishment
Authors: Santos António Carlos dos , Lopes Cidália Mota
Published: March 2022

Through a normative and critical analysis, this article aims to study the new concept of Permanent Establishment (PE) suggested in the BEPS Report on Action 7 (Preventing the artificial avoidance of PE status), which was built on proposals put forward in the G20/ OECD’s discussion drafts in the year of 2015. The new definition of PE is crucial in the international tax context, since it determines the right of a country to tax profits of non-residents as well as avoids situations of double taxation. Moreover, nowadays, the PE concept is both obsolete and not in line with the global and digital economy, which justifies our analysis.
Fixed Establishments in European Value Added Tax: Base Erosion and Profit Shiftings Side Effects?
Authors: Merkx Madeleine
Published: March 2022

The focus in the Organisation for Economic Co-operation and Development (OECD) reports in the Base Erosion and Profit Shifting (BEPS) project is on direct taxation. Still, the effects BEPS will have on indirect taxes should not be underestimated. In this article the author addresses the effects the BEPS reports and developments will have on the concept of fixed establishment (FE) for indirect taxes. She addresses the changes in the concept of permanent establishment (PE) and how these may affect the interpretation of the concept of FE for Value Added Tax (VAT) purposes. On top of that, she discusses whether or not the issues addressed in BEPS for PEs need to be examined in a similar manner for FEs in European VAT.
Anti-Abuse Measures in the Area of Direct Taxation: Towards Converging Standards under Treaty Freedoms and EU Directives?
Authors: Cordewener Axel
Published: March 2022

In recent years the Court of Justice of the European Union (CJEU) has developed a doctrine concerning the abuse of law in the area of direct taxation, providing Member States with a (rough) framework of criteria they have to take into account when applying domestic anti-abuse measures. The cornerstones of this doctrine have been shaped within the sphere of the fundamental freedoms of the Treaty on the Functioning of the European Union (TFEU), and the CJEU is now asked to apply this doctrine also with respect to domestic anti-Directive shopping rules. A coherent approach by the Court in this area will be of importance for the interpretation of current harmonization measures (in particular, the Anti-Tax Avoidance Directive).
The Interest Limitation Rule in the Anti-Tax Avoidance Directive (ATAD) and the Net Taxation Principle
Authors: Dourado Ana Paula
Published: March 2022

This article discusses the rationale for limiting the income tax deduction of interest payments, taking into account the net taxation principle, as well as the compatibility of Article 4 of the Anti-Tax Avoidance Directive (ATAD) with the Treaty on the Functioning of the European Union (TFEU).

It also discusses the compatibility of a national provision that is similar to Article 4 of the ATAD, with a national constitution. Assuming that such national interest limitation rule is declared unconstitutional, but, in turn, Article 4 of the ATAD is not declared incompatible with the TFEU, a conflict with EU Law will arise. This is so, because European Union (EU) Law is to be given full effect by EU Member States.
Hybrid Mismatches Under the ATAD I and II
Authors: Stevens Ton , Fibbe G.K.
Published: March 2022

Both Anti-Tax Avoidance Directive (atad) 1 and 2 contain specific provisions to tackle hybrid mismatches. As a matter of principle it has been decided to not remove the cause of hybrid mismatches within the internal market but to counter only a few of the symptoms of hybrid mismatches. In this article the authors discuss both the measures from atad 1 and 2 regarding hybrid mismatches, mainly focussing on hybrid mismatches caused by the use of (reverse) hybrid entities. Overall, the approach chosen by the Council does seem to close many of the existing loopholes were hybrid mismatches are used. Main remaining question is whether all twenty-seven Member States will be able to consistently implement the complex anti-mismatch rules. The authors see it as a missed chance that in the ATAD it has not been decided to address the very cause of hybrid mismatches. Cases of double taxation and hybrid mismatches with individuals are disregarded.
Central Register as a Model Instrument to Unveil Beneficial Owners for Tax Purposes
Authors: Dwi Nugroho Adrianto
Published: March 2022

This article proposes the use of Central Register of Beneficial Owners (CRB) laid down in the Fourth Anti-Money Laundering Directive (4AMLD) as a model instrument towards identifying beneficial ownership in international tax law. Although the OECD affirmed in 2014 that the term ‘beneficial owner’ ‘must be distinguished from the different meaning … in the context of other instruments’, the inclusion of tax evasion as a crime covered by the 4AMLD renders the CRB valuable in solving tax treaty cases on beneficial ownership.

Purposively, the use of CRB greatly supports the EU tax transparency agenda, which requires the Member States actively engaged in Exchange of Information (EoI) cooperation. The effectiveness of EoI is ensured by, among others, the accurateness of information stored in each Member States. The CRB also calls for protection of taxpayers data, as access to it can only be granted to parties with legitimate interests, and must accord with the secondary laws on data protection. The coherence of these policies strongly supports for wider and optimized use of CRB in the future.
The EU and ECHR Rights of the Defence Principles in Matters of Taxation, Punitive Tax Surcharges and Prosecution of Tax Offences
Authors: Richardson Mirugia
Published: March 2022

Where national tax legislation comes within the scope of EU law, it must be compatible with the principle of the rights of the defence, as developed by the Court of Justice of the European Union in its case law and found in the Charter of Fundamental Rights of the European Union. The rights of the defence proclaimed by the European Convention on Human Rights (ECHR) is also applicable in tax matters when a tax dispute involves a criminal charge. For the European taxpayer it may not be clear if and when the principle of the rights of the defence can be invoked or how the rights of the defence in EU law and the rights of the defence of the ECHR influence domestic tax proceedings. Broadly speaking, customs duties, harmonized indirect taxes and to some extent direct taxes fall under the EU rights of the defence, while the ECHR applies to tax matters in which punitive measures occur or criminal prosecution takes place.
The Tax Debtors Right of Defence in Case of Cross-Border Collection of Taxes
Authors: De Troyer Ilse
Published: March 2022

In its recent Donnellan judgment (28 April 2018, C-34/17), the CJEU provides some clarification with regard to the protection of a tax debtor’s right of defence in situations of cross-border assistance for the recovery of tax claims and tax related penalties. At the same time, this decision leads to a number of new questions, in particular with regard to the correct interpretation of Article 14 of Directive 2010/24 on mutual tax recovery assistance.
The Anti-Tax Avoidance Directive General Anti-Abuse Rule: A Legal Basis for a Duty on Member States to Fight Tax Abuse in EU Corporate Direct Tax Law
Authors: de Charette Diane
Published: March 2022

This article seeks to highlight how EU Law had left pending several interrogations about the existence of a duty to fight tax avoidance under the EU abuse of law principle, in particular in direct taxes. The situation should be remedied thanks to the introduction of Article 6 General Anti-Abuse Rule of the Anti-Tax Avoidance Directive that now establishes a clear duty for Member States to fight tax abuse, thus diminishing in this context the importance of the debate around the existence and substance of the EU general principle of abuse of law. In addition, the Anti-Tax Avoidance Directive General Anti-Abuse Rule (ATAD GAAR), that also applies domestically, provides a new legal basis for the EU to monitor the Member States’ attitude towards tax payers that shall aim at a right balance. National measures motivated by protectionism or a general aggressive stance against tax payers must not affect fundamental freedoms, just as much as complacent behaviours towards tax abuse jeopardising a sound tax competition in the internal market, must not be allowed. With the ATAD GAAR, the moral and political debates on tax abuse join an ordo-liberal objective of tax convergence aiming towards an EU tax level-playing field
The Limitations of the VAT Gap Measurement
Authors: Yiallourou Kyriaki
Published: March 2022

This article presents a thorough overview of the VAT Gap measurement as an indicator of fraud. Recently, the measurement has received prime attention for its perceived correlation to the revenues lost due to fraud and its ability to help in the enactment of measures to eliminate it. The article aims at pointing out a so far unexplored limitation of this measurement, namely the absence of regional disparities. It is suggested that Small-Medium Enterprises (SMEs) located in rural areas can potentially be more prone to evade Value Added Tax (VAT), than those located in urban areas. Yet regional disparities are not taken into consideration, and do not influence, the VAT Gap measurement. It is argued that the lack of empirical data regarding regional disparities challenges the effectiveness of the measurement. This limits the possibility of having a wider understanding of VAT fraud tendencies and challenges the enactment of effective anti-fraud policy. It is nevertheless argued that, despite this limitation, consideration should be given to reforms that target SMEs within rural settings, such as increasing the levels of audits and enhancing tax morale.
VAT and International Trades Crossroads: Right, Left or Straight On?
Authors: Starkenburg Rianne , Verbaan Naomie
Published: March 2022

The current VAT system for intra EU B2B is susceptible to fraud. This is one of the main reasons why the European Commission has tabled a proposal for a definitive VAT system based on the destination principle. On the other hand, there are Member States that want to introduce a general reverse charge mechanism in the fight against VAT fraud. While the definitive VAT system proposed by the European Commission taxes all supplies in the supply chain, the general reverse charge mechanism has the opposite effect. Under this mechanism effective collection of VAT is postponed to the last link in the supply chain. In this article, the authors evaluate both systems as well as the current system to assess which system is best.
Wrong Forma Mentis? The ECtHR’s Tax Judgment in Formela
Authors: Attard Robert
Published: March 2022

test

Human Rights, Right to a Fair Hearing, Right to Property, Article 1 of Protocol 1 ECHR, Article 6 ECHR, European Convention on Human Rights, European Charter of Human Rights, Margin of appreciation, Fiscal Stability, Value Added Tax.
The DAC7 Proposal and Reporting Obligation for Online Platforms
Authors: Stevens Stan A. , Wamelen J.T. van
Published: March 2022

On 15 July 2020, the EU Commission published a proposal for a directive amending, for the sixth time, Directive 2011/16/EU on administrative cooperation in the field of taxation. The DAC7 Proposal extends EU tax transparency rules to digital platforms. It is proposed that EU Member States will automatically exchange information on income generated by sellers on digital platforms. The authors discuss the content of the DAC7 proposal and try to assess whether it is necessary and proportionate. With respect to proportionality, the authors look in particular at the administrative costs and privacy aspects of the proposal but also consider the consequences for a level playing field for companies. Throughout the article, the authors examine whether the proposal is sufficiently clear.

DAC7, online, platforms, e-commerce, automatic information exchange, EU legislation, Platform Operators, Reportable Seller, GDPR, level playing field, digitalization
The New Rules for Reporting by Sharing and Gig Economy Platforms Under the OECD and EU Initiatives
Authors: Beretta Giorgio
Published: March 2022

During 2020, the OECD and the EU Commission have separately unveiled two proposals both laying down new rules for reporting of tax information by sharing and gig economy platforms. Although the template used for tax reporting by sharing and gig economy platforms is nearly the same, some differences can be noted by a close reading and comparison of the text under the two initiatives. In this article, the author analyses the new rules for reporting by sharing and gig economy platforms that the OECD and the EU have separately released in the first half of 2020, retraces the common rationale behind the proposed introduction of the new rules, and explains similarities and differences existing between the two initiatives.

Tax information reporting, Digital platform, Sharing economy, Gig economy, OECD, European Commission
With the Wisdom of Hindsight
Authors: Verseveld J.L. van
Published: March 2022

Assessment of the time at which newly introduced or amended legislation takes effect is difficult. This is due to the possibility that some legal rules apply to situations existing before their entry into force. These rules are in principle retroactively applicable. The CJEU evaluates retroactivity of (tax) legislation based on a distinction between procedural and substantive rules. Procedural rules are held to apply to proceedings pending at the time when they enter into force. Substantive rules are usually interpreted as not applying to situations existing before their entry into force. However, retroactive effect must be given to these rules in so far as it follows clearly from their terms, objectives or general scheme. This is to ensure observance of the principle of legal certainty and the protection of legitimate expectations. Violation of these principles is only allowed on legitimate grounds. This article compiles a framework constituting the general principles of Union law and Article 1 First Protocol European Court of Human Rights. This framework can be used to assess whether legal provisions are applicable before their entry into force. The framework is tested with a case study to the retroactive effect of Title III UCC provisions.

Retroactive effect, Retroactivity, Legitimate expectations, Possessions, Customs law, Framework, Procedural, Substantive, Article 1 First Protocol, ECHR, CJEU, General principles of Union law, UCC, CCC, Entry into force
Investment Treaty Arbitration—An Australian Perspective
Authors: Baykitch Alex , Turner Peter J. , Mangan Mark
Published: March 2022

Broadly speaking, investment treaties establish clear rules on the scope of investment protection and the treatment that states must provide to foreign investment in their territories. In addition, they establish a framework for the resolution of investment disputes through arbitration between the foreign investor and the state. This article explores the scope of investment treaties, and disputes relating thereto, with particular reference to Australia’s investment treaty programme. This article is based on a series of presentations delivered by Freshfields Bruckhaus Deringer and Blake Dawson Waldron in Perth, Melbourne, Sydney, and Brisbane over the period November 17–22, 2006.
Time to Take a Closer Look: Privilege in International Arbitration
Authors: Meyer Olaf
Published: March 2022

Document disclosure has long served as a paradigm for the clash of legal cultures in international arbitration. This is currently changing with the emergence of uniform transnational standards, based on compromise solutions that are acceptable to lawyers from both civil and common law backgrounds. However, the question of legal privilege is still excluded from this development. Arbitrators either determine the applicable law according to choice-of-law rules or apply several domestic laws cumulatively. This article argues that neither option leads to a satisfactory solution. Instead, autonomous standards have to be developed for privilege in step with the discovery procedure.
Enforcement of Arbitral Awards where the Seat of the Arbitration is Australia — How the Eisenwerk Decision Might Still be a Sleeping Assassin
Authors: Kee Christopher , Barrett-White Stephen
Published: March 2022

This article examines the enforcement of foreign awards in Australia. It identifies and explains the difference between a “foreign award” and “international arbitration award,” observing it is a somewhat surprising but potentially significant distinction. The article then moves to consider the consequences of the distinction with particular reference to the Australian arbitral landscape. Australia has dual arbitration regimes operating at the state and federal level. Particular attention is given to the still controversial Queensland Supreme Court of Appeal decision in Australian Granites Ltd. v. Eisenwerk Hensel Bayreyth Dipl-Ing Burkhardt GmbH. The article concludes by promoting a line of interpretation that will effectively allow subsequent courts to avoid the potentially disastrous effects the Eisenwerk decision may yet still wreak.
Chorzów’s Standard Rejuvenated: Assessing Damages in Investment Treaty Arbitrations
Authors: Abdala Manuel A.
Published: March 2022

Whereas damages in treaty arbitration disputes are usually valued at the date when the measures trigger a violation, Chorzów’s compensation standard provides the alternative to value as of the date of the award. The latter is critical when investors continue to operate the business, such as in indirect expropriation as well as unjust and inequitable treatment cases. Implementing Chorzów’s standard to indirect takings allows the use of ex-post information to capture any elevated value due to improved business conditions. In addition, it deters states from acting opportunistically, by not allowing them to profit from foreign investors when business conditions are expected to improve. Arbitration panels should properly implement Chorzów’s standard with renovated thrust.
The China-Style Closed Panel System in Arbitral Tribunal Formation: Analysis of Chinese Adaptation to Globalization
Authors: Gu Weixia
Published: March 2022

Freedom of tribunal formation is critical to party autonomy in any given arbitration system. In China, the practice has been controlled under a closed panel system where parties can only appoint arbitrators listed on the panel of the relevant arbitration commission. However, the past couple of years have seen some leading Chinese arbitration commissions adapting their rules to align with the UNCITRAL Model Law standards. This article discusses some thorny issues threatening parties’ interests under the existing closed panel system. In particular, the article examines the distinctive features of China’s adaptation to international standards and offers insights on the challenges faced by the Chinese arbitration regime.
The CMS Case: A Lesson for the Future?
Authors: Rosell José
Published: March 2022

A number of South American countries have placed ICSID in the middle of a storm. It is debatable whether the approach adopted by the Annulment Committee’s decision in the CMS case will clarify certain legal issues or, on the contrary, subject ICSID to wider criticism.
Arbitration in Equity and Amiable Composition under Portuguese Law
Authors: Sampaio Caramelo António
Published: March 2022

Under the Portuguese Arbitration Act, the parties may authorise the arbitrators to decide the dispute submitted to them according to equity, rather than according to the law. As there is debate among Portuguese commentators on arbitration law about the extent to which the arbitrators so empowered can depart from the law, this article seeks to contribute to the elucidation of that issue. Moreover, with respect to international arbitrations, the Arbitration Act allows the parties to authorise the arbitrators, instead of deciding the case according to the law, to settle it according to equity or by acting as “amiable compositors”, which raises the question of whether “amiable composition” under Portuguese law should be understood as being the same as arbitration in equity or if it is a different institution (a tertium genus).
Section 37h of the German Securities Trading Act and its Non–compliance with European Law
Authors: Jordans Roman
Published: March 2022

German law pertaining to arbitration agreements with consumers, in particular in securities/futures transactions, has changed its approach several times over the last twenty years. Until a reform of the law in 1989, private investors could not participate at all in futures transactions. Following this law reform, German case law slowly accepted arbitration as an alternate method of dispute settlement in such transactions. However, in 2002, the German law on securities transactions was amended again and the legislature decided to restrain securities arbitration heavily by introducing section 37h of the Securities Trading Act which makes pre–dispute arbitration clauses with consumers in the area of securities trading de facto impossible. This article considers this provision and comes to the conclusion that this provision violates European law as there is no justification for the restraint of the freedom to deliver services within the EU.
Implementing the New York Convention in Switzerland
Authors: Geisinger Elliott
Published: March 2022

The 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards entered into force for Switzerland in 1965 and, since 1989, has been applicable to the recognition and enforcement in Switzerland of all foreign arbitral awards. After a brief description of the legislative environment in which the Convention operates, this article describes how the implementation of the Convention in Switzerland reflects the arbitration–friendly and pro–enforcement policies of Swiss international arbitration law, in particular with respect to Article V of the Convention. It will also seek to identify issues that leave room for improvement, be it in Swiss practice or for the revision of the Convention itself.
New York Convention of June 10, 1958: the Application of Article V by the Courts in Italy
Authors: Perrini Marco , Bernardini Piero
Published: March 2022

This article examines the Italian procedural rules implementing the New York Convention by reference to specific proceedings for recognition and enforcement of foreign arbitral awards in Italy. In providing an overview of the relevant jurisprudence, this article makes reference to judgments of the Italian Supreme Court, which hears the I.C. Appeal of parties dissatisfied with decisions of the competent Court of Appeal granting or refusing recognition and enforcement of an award on any of the grounds set out in Article V(1) and Article V(2) of the New York Convention.
Current Issues on the Application of the New York Convention A German Perspective
Authors: Kühn Wolfgang
Published: March 2022

Germany has been a party to the New York Convention since 1961. The Convention has provided the basis for the recognition and enforcement of foreign arbitral awards based on an enforcement friendly approach in German jurisprudence. The relevance of the Convention has risen since the 1998 reform of the German domestic arbitral law and the withdrawal of the reciprocity requirement. This article focuses on German practice, concentrating on both the formal (Article II) and substantive (Article V) requirements of recognition and enforcement of foreign arbitral awards.
Japanese Court Decisions on Article V of the New York Convention
Authors: Nakamura Tatsuya , Taniguchi Yasuhei
Published: March 2022

Since Japan became a party to the New York Convention on June 20, 1961, there have only been a handful of cases in which the Japanese court was called upon to apply the New York Convention. This article examines the Japanese courts’ decisions in respect of Article V of the Convention and concludes that the courts have correctly applied the Convention to grant the enforcement of foreign awards.
Article V of the New York Convention and Korea
Authors: Wha Chang Seung
Published: March 2022

This article objectively reviews and assesses how the Korean courts have interpreted and applied individual items under Article V of the New York Convention in actual cases, with a focus on (i) arbitrability; (ii) procedural fairness; and (iii) public policy. The Korean courts, led by the Supreme Court, have set a remarkably high standard for an invocation of Article V, and consequently have recognized and enforced foreign arbitral awards in a remarkably friendly manner. At least as far as the enforcement of foreign arbitral awards is concerned, Korea can now claim to be one of the progressive leaders in the Asia–Pacific region.
What Weight Should be given to the Annulment of an Award under the Lex Arbitri?The Austrian and German Perspectives
Authors: Horvath Günther J.
Published: March 2022

Over the past two decades various national courts have repeatedly been asked to enforce arbitral awards that have previously been set aside in their country of origin. However, even today judgments in case law and opinions among arbitration practitioners continue to differ remarkably on the question of the (il)legitimacy of enforcement orders for such awards. As was demonstrated in the article by Christopher Koch, French courts have manifested their readiness to enforce annulled awards in principle, whereas others, like the U.S. courts, have shifted from an enforcement–friendly attitude to a rather more reluctant approach. The following article explores the constraints that confine enforcing courts’ discretion on enforcement and discusses the approaches taken by Austrian and German courts.
The Enforcement of Awards Annulled in their Place of Origin The French and U.S. Experience
Authors: Koch Christopher
Published: March 2022

This article examines to what extent awards which have been annulled in their country of origin can be enforced in France and the United States. In the 1990s the Hilmarton case in France and the Chromalloy decision in the United States seemed to indicate that French and U.S. case law was moving in a similar direction. In both cases the courts enforced awards that had been set aside in their place of origin, not pursuant to the New York Convention, but on the basis of the more favourable provisions of domestic arbitration law. However, since then, the French and U.S. courts have taken diametrically opposed views. While the French courts continue to ignore foreign annulment decisions altogether, and will enforce an international arbitration award regardless of what the home jurisdiction finds as to its validity, U.S. courts have increasingly refused to enforce awards which were set aside at the place of arbitration. U.S. courts will disregard a foreign annulment decision only if it fundamentally violates U.S. public policy. This article argues in favour of a middle approach. By giving the word “may” in the phrase “Recognition and enforcement of the award may be refused” in Article V of the New York Convention greater weight, enforcement courts can examine the validity of a foreign annulment decision in the light of internationally recognized annulment reasons and not from the perspective of domestic rules pertaining to the recognition of foreign judicial decisions. This should strengthen the international efficacy of commercial arbitral awards within the framework of the New York Convention and not on the basis of domestic arbitration law.