bluuebunny/crossref_metadata_2025 huggingface dataset:
Applying E-Maritime Initiatives to Enhance Productivity in the Nigerian Maritime Industry: The Need for an Enabling Policy and Legal Environment
Authors: Orji Uchenna Jerome
Published: March 2022

With the permeation of information technologies into every aspect of life, the maritime industry as other business sectors is witnessing an increasing application of information technologies to address contemporary business challenges. This article briefly discusses how the application of information technologies (E-Maritime initiatives) can enhance productivity in the Nigerian maritime industry. The article, however, suggests that there is a need for the creation of a policy and legal environment that will enhance the application of E-Maritime initiatives in the Nigerian maritime industry.
Price Squeezes as Antitrust Harm
Authors: Laskowska Magdalena
Published: March 2022

In economic literature, it is considered whether price squeezes constitute anticompetitive conduct requiring antitrust investigation. In this paper, I contemplate the intent element in exclusionary conduct. I posit that price squeezes should be prohibited, and that this should constitute an antitrust rule.
Constructing an Employee Duty of Fidelity?
Authors: Flannigan Robert
Published: March 2022

What is the nature of the duty of fidelity? Is it just a confused replication of status fiduciary accountability or is it something more? One writer recently has argued that the duty of fidelity developed independently from fiduciary accountability and performs functions beyond the control of employee opportunism. That analysis is reviewed here. The historical arguments are found to be defective and the content claims opaque. We are left to wonder how the supposed duty uniquely regulates employee conduct.
Migrant Labour Standards and Human Rights of Multinational Companies Supply Chains: Reshaping a Playing Field in China  Part II
Authors: Bu Qingxiu
Published: March 2022

It is imperative to ensure effective protection of migrant labour rights in the emerging global market. This is the second part of a two-part article discussing labour standards in China. Although some private rule-making institutions have increased their governance role in a cross-border regulatory scenario, a more viable governance regime is still arguably perceived as a national rather than a global phenomenon. Given the ineffective enforcement of labour standards in China, some authoritative standards, like the UN Tri-Pillar Framework, hold the keys to an emerging internationally recognized regime for global labour governance. It remains a challenge to strike a balance between hard law and soft law, so as to ensure multinational companies (MNCs)’s profit maximization and the protection of human rights. With an examination of counter-conventional approaches to legal pluralism and globalized supply chains, it is proposed that more multipronged forms of governance may incentivize foreign MNCs to improve labour practices across various governance levels. MNCs will need to operate beyond merely abiding by Chinese law, and contribute more by self-regulation along with other stakeholders in the implementation of human rights standards.
Pokémon Go: The Law, You Gotta Break Them All!
Authors: Irvine Alasdair
Published: March 2022

Pokémon Go has captured the imagination of the twenty-first century gamer with its fusion of the real world and the gaming world. Now that the Poké-dust has settled, what impact has the first month of this interactive game had on the legal liability of the developers Nintendo, Niantic, The Pokémon Company or the gamers themselves?
Developing a Framework for Adjudication in a Phoenix Insolvency Situation: Can the Enterprise Theory Offer a Viable Solution?
Authors: Mandal Rudresh , Mandal Debanjan
Published: March 2022

Using the much debated concept of piercing of the corporate veil, this article seeks to address the relatively unexplored problem of phoenix companies in Indian insolvency law. Following the recent insertion of section 29A into the Insolvency and Bankruptcy Code, 2016, the question of phoenixing has begun to emerge at the forefront of academic discussion. Drawing heavily upon English, Australian and US discourse, the authors attempt to outline an alternative approach to curb the practice of phoenixing. Section 2 of this article engages in profiling a phoenixing company using English, Australian and Indian Committee reports – defining a phoenix company, differentiating between legitimate and illegitimate forms of phoenixing and outlining the hazards of phoenixing. Section 3 goes on to examine the applicability of the ‘mere continuation/continuation of enterprise theory’ to phoenix companies culminating in piercing the corporate veil of the successor company. Finally, the article concludes by acknowledging the sophisticated nature of phoenix companies, and recognizes the need for a dynamic response to this practice.
The Precedential Value of Unreported Judgment on the Interpretation of Standard Contract Terms: A Warning for Practitioners
Authors: Kwan Martin
Published: March 2022

In the recent Court of Appeal decision Allianz Insurance Plc v. Tonicstar Limited [2018] EWCA Civ 434, the Court did not follow the previous interpretation of a standard contract term made by an unreported High Court judgment in 2000. Whilst the Court could lawfully not follow the unreported judgment given (1) the contractual interpretation was just a non-binding finding of fact and (2) the unreported judgment was made by a lower court, a critical reason why the Court did not follow it was because the Court considered the unreported status meant the interpretation was not well known. The meaning of the contract term thus has not been settled by the previous inconspicuous interpretation, which meant it was amenable to reinterpretation. This note suggests that practitioners should be mindful when relying on unreported judgments on contractual interpretation. Although the Court did not expressly and generally devalue any unreported judgment, the Court’s reasoning may be understood to have diminished its precedential value on the interpretation of standard contract terms. It will also be argued that there would be more certainty if the Court had not made such a distinction based on the status of being reported and unreported when considering whether a clause has been given a settled meaning by a previous judgment.
Sales Culture and Misconduct in the Financial Services Industry:An Analysis of Cross-Selling Practices
Authors: De Pascalis Francesco
Published: March 2022

SUMMARY

Over the past decade, a series of malpractice incidents in the financial services industry have shown that the risk of misconduct is not a theoretical possibility. Accordingly, the promotion and implementation of new ethics, values, and behaviours in banks and other financial institutions are primary objectives on the international regulatory agenda. Recent cases of mis-selling of financial products widened the scope of discussion towards financial firms’ sales practices. In particular, the widespread use of cross-selling techniques in the financial services industry caught regulatory attention, above all, among the European Supervisory Authorities. The ensuing debate was underpinned by the crucial question of how to guarantee a sustainable use of cross-selling by banks and financial institutions. This article addresses this question by analysing cross-selling in relation to the specificities and risks posed by the financial services industry. Whilst it was possible to elaborate on regulatory solutions in relation to a distorted use of financial practices, such as securitization and interest rate benchmarks, now it is also desirable to discuss the optimal strategy to prevent cross-selling from being the ‘tool’ for financial misconduct. This is of significance given the recognized potential of misconduct cases to pose systemic threats to financial stability.
Explaining Conspicuous Consumption
Authors: Yeoh Peter
Published: March 2022

SUMMARY

This article reviews the origin and use of unexplained wealth orders for combating economic crimes in the UK and elsewhere.
Sticks or Carrots? How to Make British Banks More Socially Responsible
Authors: Kapsis Ilias
Published: March 2022

SUMMARY

 

The relationship between banks and society in theUKremains fragile more than ten years after the financial crisis. The level of public mistrust, though lower than in the aftermath of the crisis, still remains largely negative for banks, especially as scandals continue to plague the sector. This raises the question of the effectiveness of reforms adopted in the UK since 2008 to improve the public oversight of banks and change their culture. The reforms resulted in a significant expansion of financial regulation through the adoption of large numbers of new rules with binding effects on banks. New supervisory bodies were created to implement the new rules and to monitor closely the bank activities. This article reviews the effects of the reforms on bank culture and concludes that expanded regulation and compulsory norms brought about mixed results on addressing the cultural problems facing UK banks and on repairing the relationship between these banks and UK society. The article argues that more significant cultural change could come only from the banks themselves acting voluntarily and therefore, going forward, a new balance between compulsory rules and voluntary schemes should be established. The article contributes to the ongoing dialogue between industry experts, policy makers and lawyers about the optimum levels of financial regulation, especially in light of recent calls for rolling back parts of public interventions in the financial sector. The article also contributes to the debate about ways to improve the public image of UK banks.
Workplace Non-Financial Misconduct: Problems and Solutions
Authors: Yeoh Peter
Published: March 2022

SUMMARY

 

Sexual harassment, a form of non-financial misconduct is attracting global attention due mainly to the media impact of the #MeToo movement. This article looks at the legal implications of sexual harassment laws in the US and the UK for victims, employers, and others. It also includes what policymakers, enforcement agencies, and others could expand on in both jurisdictions to balance the interests of victims and employers.
Frustration and Remedies Under the CISG, UNIDROIT Principles and English Law: A Comparative Review
Authors: Nwafor Ndubuisi , Beatrice Obuka Uju , Nwafor Morning-Glory , Edeh Kingsley N.
Published: March 2022

The doctrine of frustration is one of the most efficient risk sharing mechanisms in a commercial contract under the Contracts for the International Sale of Goods (CISG), Institute for the Unification of Private Law (UNIDROIT) Principles of International Commercial Contract and the English law. This article investigates and comparatively discusses the various remedies that can apply under a frustrated contract.
Retaining Economic Contractual Equilibrium Under the Hardship Theory in the UNIDROIT Principles of 2016 and the Contingency-Unforeseen Circumstances Theory in the Palestinian Civil Code Draft
Authors: Shandi Yousef Mohammad , Amayreh Osama Ismail Mohammad , Zakri Izura Masdina Mohamed , Tehrani Pardis Moslemzadeh
Published: March 2022

The UNIDROIT Principles of International Commercial Contracts (PICC) have a significant effect on the legal impact of changed circumstances. Many recent court and arbitral decisions have relied on the PICC when ruling on issues relating to hardship events, as a result of the occurrence of events fundamentally altering the equilibrium of the contract either because the cost of a party’s performance has increased or because the value of the performance a party receives has diminished, which is widely known in international trade as hardship clauses. This was not the case only for court and arbitral decisions, as many directives and principles did, as well, such as Article 6:111 of the Principles of European Contract Law, Article 89 of the Common European Sales Law, and Article 1195 of the Amended French Civil Code of 2016. In this context, this article analyses the role of hardship provisions in light of the PICC in retaining economic equilibrium compared with the contingency-unforeseen circumstances theory in the Palestinian Draft Civil Code Draft (PDCC) in order to reach a place of harmony. On the one hand, the research concluded that the hardship theory as contained in the UNIDROIT Principles of 2016 suits the current Palestinian reality, however, the criterion for determining the fundamental alteration of the contractual equilibrium is tainted in ambiguity. On the other hand, the research shows failure of the contingency-unforeseen circumstances theory in the PDCC in addressing changed circumstances and onerous performance, which necessitates an urgent intervention of the Palestinian legislature to amend the text of Article 151. Accordingly, in light of the current wording of Article 151 of the PDCC, the study shows that Palestinian contracting parties cannot refer to the Unified Principles of International Trade Contracts 2016 to fill the legislative vacuum in cases of changed circumstances, because it is not possible to agree on anything contrary to the provisions of the contingency-unforeseen circumstances theory.
Shareholders’ Agreements: Examining the Increasingly Common Phenomenon
Authors: Seth Aditya
Published: March 2022

Shareholders’ Agreements are essentially agreements executed between the shareholders of a company, which define their rights and obligations. While it is the articles of association which are regarded as the constitution of the company in terms of the Companies Act 2006, and which generally contain the provisions which bind the company and its members, an increasing upsurge has been witnessed in the execution and usage of shareholders’ agreements over time. This noticeable rise has resulted due to two main reasons. Firstly, the limitations and ambiguities which are continually prevailing in the operation of the articles of association have led shareholders to make use of shareholders’ agreements to establish the construct of their rights and obligations. Secondly, the nature of such agreements makes them a favourable option for a diverse range of investors owing to them allowing shareholders to agree on additional rights and obligations and, moreover, due to their confidential private nature. This article expounds upon the striking reasons owing to which shareholders’ agreements have emerged as a common phenomenon and correspondingly, addresses and critically analyses the existent limitations and uncertainties which encompass such agreements.

Agreement; Shareholders, investors, company law, articles of association, enforcement of rights
A New Enforcement Tool: A Directive to Protect Whistle-Blowers
Authors: Kafteranis Dimitrios
Published: March 2022

The European Commission decided to propose legislation on the protection of whistle-blowers in order to strengthen enforcement of Union law and to provide an enforcement tool at the national and EU level. The Directive on the protection of persons reporting breaches of Union law has been approved by the European Parliament and the Council and it will soon be published in the Official Journal of the European Union. The whistle-blower is an enforcement tool which is given to Member States in order to enhance the enforcement of EU law. The whistle-blower is in a privileged position to detect and report wrongdoings and the new Directive aims to facilitate this process by providing a concrete definition of the whistle-blower, the procedural path of report and, finally, protection from retaliation or any kind of liability. Being a debated figure until recently, the whistle-blower becomes now a helpful tool for the better implementation and enforcement of Union rules. The Directive is a positive step towards a European legal framework on the protection of whistle-blowers and a change of attitude. However, there are dubious and complex points of the Directive that may harden, instead of facilitate, the work of the whistle-blower.
Lessons in Protecting and Enforcing Copyright in Screenplays in Nigeria
Authors: Okorie Chijioke
Published: March 2022

On 2 May 2019, the Lagos Division of the Federal High Court in Nigeria delivered its judgment in Suit No. FHC/L/ CS/740/2017 Raconteur Productions Limited v. Dioni Visions Entertainment Limited and Others (‘Raconteur’). This was a claim for copyright infringement of a screenplay, and concerned what constituted sufficient proof of an alleged infringer’s access to such screenplay and evidence of substantial similarities under Nigeria’s Copyright Act.

The plaintiff did not produce physical or documentary evidence of its screenplay alleged to have been infringed. For this reason, the Court dismissed the plaintiff’s claims and held that there was no basis to consider the questions of whether the plaintiff had copyright in any screenplay; whether the defendant had access to the plaintiff’s screenplay; and whether there were substantial similarities between the plaintiff’s work and that of the defendant.

This article explores the practical implications and lessons from this case for copyright law and practice, both for legal practitioners and the film industry, especially in the digital era. It finds that the decision in Raconteur and the circumstances of the case provide pointers for screenwriters seeking to procure remuneration and copyright protection; receive credit or attribution as well as funding for the co-production of cinematograph films, embodying their screenplays as distinct, protected works. It argues for a nuanced adoption of applicable lessons from various jurisdictions such as South Africa, the UK and the US.

copyright infringement, screenplay, Nigeria, substantial similarities, film industry, protected works
The Use of Financial Derivatives to Acquire ‘Control’ of the Target Company: Locating the Indian Regulatory Approach vis-à-vis the European Discourse
Authors: Sangani Karan
Published: March 2022

The question of what amounts to ‘acquisition of control’ under the Securities and Exchange Board of India (SEBI) (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 (SAST Regulations) remains a vexatious issue, academically as well as judicially. The controversy is further compounded in case of usage of financial derivatives to acquire creeping control of the target company. This article, while providing a theoretical account for the disclosure and inclusion of financial derivatives in the determination of an open offer trigger on a qualitative basis, traces the responses of the regulators in the jurisdictions of the United Kingdom, Italy, and Germany to the usage of financial derivatives for the purposes of acquisition of de facto control of the target company. In this light, this article critiques the approach adopted by the SEBI in its determination of the trigger of the mandatory offer in the matter of New Delhi Television Limited (NDTV) in June 2018, which involved the use of financial derivatives. This article further proposes that the SEBI takeover regime ought to be overhauled to incorporate exclusive provisions regarding the disclosure and inclusion of financial derivatives in the determination of a mandatory offer trigger, if the use of derivative instruments enables the acquirer to gain effective control of the target company, in order to ensure that the Indian takeover regulations are in accordance with the regulatory practices developed by mature jurisdictions.

Acquisition of control, financial derivatives, takeover regime, minority shareholders, decoupling
Reflections on Some Emerging Issues in Tax Administration in Nigeria
Authors: A. Bukar Bagoni
Published: March 2022

The dynamic nature of taxation requires a robust means of interpreting tax laws to accord with emerging economic realities. In Nigeria, the Tax Appeal Tribunal, as a first-line quasijudicial tax adjudication body, is gradually making its mark in the development of a clear tax jurisprudence by resolving disputes and controversies arising from the operation and administration of tax laws through purposive interpretations in line with best practices.

Tax Appeal Tribunal, Nigeria, Federal Inland Revenue Service, VAT, Companies Income Tax Act.
Security Review in the Evolution of Foreign Investment Law with Chinese Characteristics: Part II
Authors: Liu Ziyu
Published: March 2022

Without detailed regulations on security review in China’s Foreign Investment Law, this article suggests a promising but challenging future of security review, from the perspective of institutional design. Based on the bureaucratic hierarchy between the central government and local governments which hindered the formulation and enforcement of security review in Free Trade Zones, it is promising that the central government will retain control over formulating and enforcing security review through inter-ministerial Joint Conference. However, the uncertain roles of central ministries will cause potential challenges. Based on the logic of the latest institutional reform led by the Chinese Communist Party, this article suggests the possible position of the National Development and Reform Commission in security review, is a sole coordinator rather than a substantial leader. It also points out that the rising role of other institutions, such as the newly-established State Administration for Market Regulation, will bring challenges in the further formulation and enforcement of security review in the Foreign Investment Law ( FIL).

Security review, Foreign Investment Law, institutional design, Chinese Communist Party, Joint Conference, National Development and Reform Commission, Ministry of Commerce, State Administration for Market Regulation
A Gap Analysis of Enforcing FCPA-compliant Codes of Conduct in Low- and Middle - Income Countries
Authors: Sahu Ritankar
Published: March 2022

Recent quantum of FCPA (US ‘Foreign Corrupt Practices Act, 1977’) settlements reveal eye-popping numbers. It has brought to light that superficial anti-bribery enforcement mechanisms are still being deployed as order of the day across many large enterprises. It seems that even after a decade of balance-sheet busting Deferred Prosecution Agreements, Non- Prosecution Agreements and other resolutions, corporations are still taking anti-bribery enforcement efforts lightly. The FCPA compliance industry is a multi-billion-dollar industry and is growing in leaps and bounds, and there is a wide variety of expertise available at all price-bands; that being so, how is it that codes of conduct and anti-bribery policies fail to prevent and/or detect misconduct for years before it spirals out of control?

In this article, I will be going over a few select elements of drafting and enforcing an effective code of conduct, which under ‘normal’ operating protocols may be perceived to be too ‘tight’ for well-lubed enterprises, but the tried and tested methods will ensure that the corporation is combat ready in the event of a breach. I will be focusing on FCPA compliant codes but will also cross-refer other legislation like the UKBA (‘Bribery Act 2010ʹ). The fact that conduct enforcers are faced with the fact that extra-territorial laws lack public assent in most low- and middle-income countries is something that I will assess in significant detail. I will be covering behavioural dynamics influenced by socio-cultural and socio-economic parameters of employees and institutions, and how pre-conceived notions of what ‘misconduct’ is, impact actual compliance efforts. Whilst the focus will be on using an effective code of conduct which works in practice, I will draw in other issues like hotline distrust, procurement integrity, economic disruption stemming from anti-bribery investigations, merits of self-reporting violations and perceptions about compliance enforcers, and how they impact organizational behaviour and institutional culture. I will be drawing cues from select high-profile resolutions like Airbus, Rolls-Royce, Odebrecht and Ericsson.

I will be talking about the usual suspects inside institutions, who suddenly become sensitive to issues of compliance after a regulator has expressed interest in a subject company. I will also look at pressure points after it is imminent that there would be enforcement action, or an investigation has already begun. A lot of my content will be focussing on the Asian strand but theobservations and intrinsic assessments, albeit picked up from actual conduct in emerging markets in Asia, will apply to a universal set of problems in most low- and middle-income countries.

Conduct, culture, socio-economic parameters, FCPA, UKBA, internal controls
Can Regulatory Intervention Save the Sustainability Rating Industry?
Authors: Cash Daniel
Published: March 2022

Relatively speaking, the so-called sustainability rating industry has been witnessing rapid growth since the Financial Crisis. More recently, the industry is continually reorganizing through a series of mergers and acquisitions. However, recent research has slowly turned away from what the sustainability rating industry can do, and moved towards what the investor base wants from them. In this direction, the findings are becoming particularly clear. The concept of a ‘mainstream’ investor base, and its growing tolerance of sustainability as a concept, is leading towards a defining point. That defining point is whether the sustainable-related service marketplace is suitable for the mainstream marketplace. By utilizing recent research into this junction, the article will consider both whether the industry can meet the needs of the marketplace as it continues to grow, and also whether any regulatory intervention could assist with the achieving of this hypothesized goal.

Sustainability, rating industry, ESG-related information, sustainabilityrelated investment
The Increasing Prevalence of Class Actions in the UK
Authors: Davies Martin , Middleton Oliver , Watret Tom
Published: March 2022

This article explains the factors behind the increasing prevalence of class actions in the UK, the procedural mechanisms available for bringing such claims, and one particularly popular form of class action: the ‘stock drop’ shareholder action brought against issuers for allegedly misleading statements or omissions.

Class actions, procedural mechanisms, the ‘stock drop’ shareholder action, UK, third party funding, ‘opt in’ and ‘opt out’ regimes
The Effectiveness of Blockchain Smart Contracts in Reshaping the Business Landscape in Nigeria
Authors: E. Nwafor Ifeoma
Published: March 2022

The Corona Virus Disease 2019 (COVID-19) pandemic has had, and continues to have, a stark economic impact/aftermath on all sectors of life, particularly the health and business sector. Businesses across the globe were compelled to shut down and drastically reduce operations. The impact of commercial transactions coming to a halt resulted in changes that have affected commercial transactions and consumer behaviour. Reported sharp declines in businesses across the globe are unprecedented. At challenging times like this, information technology can come to the rescue to shape world trade and the future economy. Technological mechanisms, such as blockchain smart contracts, can be implemented to avoid economic uncertainty since physical contacts in contract formation and execution are almost impossible during a pandemic. Smart contracts are automation applications that run on blockchain platforms to digitally accelerate the authentication, control, or performance of contract agreements. It is faster, cheaper, accurate and provides a secure environment in multiple fields, from financial services, healthcare, voting and energy resources. This article adopts a doctrinal approach. It highlights the role and convergence of technology, law and commercial transactions under COVID-19 and beyond. It explores the benefits of smart contracts and canvasses for legal measures to regulate/supervise blockchain technology in Nigeria effectively.

The Google Android case, digital markets, Turkish competition law, Russian competition law, Indian competition law
Tracing the Duty of Directors in India: Wilful Drift Towards Insolvency?
Authors: Chaliya Gaurav , Mukherjee Akash
Published: March 2022

As we tread towards overcoming the Covid-19 pandemic, the world is gearing up to face the challenges of a post-Covid era. The Insolvency and Bankruptcy Regime has already armed itself to tackle this challenge in the form of pre-packs. However, there are still a few concerns that need to be ironed out. In this article, we expound upon the ambiguity and the adverse effect of the directors’ duty towards creditors that is manifested under section 66 of the Insolvency & Bankruptcy Code, 2016 (‘the Code’). In this regard, we discuss the jurisprudence in the UK and the US on the shift in the directors’ duty from being shareholder-centric to creditor-centric. Further, the article places an insight into the safe harbour approach employed by the Australian legislators to deal with the ambiguities associated with this duty. And finally, we posit that providing safe harbour to directors, in India, is essential to fulfil the objectives set to be achieved through the Code.

Director’s duty towards creditors, safe harbour approach, India, Insolvency & Bankruptcy Code, 2016, corporate insolvency
Externalizing Indian Startups: Exploring the Flip Side
Authors: Bhattacharya Ayesha
Published: March 2022

The practice of externalization, whereby an Indian company houses its shareholding, intellectual property and other assets in an overseas firm, thereby relegating the local enterprise to a subsidiary, has gained traction over the last decade. Its increasing popularity, particularly amongst startup companies, is attributable to the desire to adopt growth-enabling strategies, access to foreign funding, fewer regulatory requirements and a better tax regime. This article explores the concerns faced by founders of an Indian startup company and considers the viability of flipping the corporate structure overseas, in light of round-tripping restrictions under the Foreign Exchange Management Act (FEMA) 1999, and various tax considerations under the Indian Income Tax Act 1961. It attempts to resolve the question regarding whether the different corporate and tax law concessions introduced by the Indian Government have succeeded in providing a conducive ecosystem for startups. The article also examines various investor-friendly jurisdictions which startups migrate towards, with special emphasis on the State of Delaware in the United States of America. Finally, the author concludes that each enterprise must individually analyse its business structure to determine whether flipping acts as an aid or an impediment to growth, as externalization is not a onesize- fits-all approach.

Externalization, overseas investment, Delaware holding company, foreign institutional investors, flip structure, venture capital, Foreign Exchange Management Act 1999, round tripping, share swap, Income Tax Act 1961.
The Sustainability of Environmental, Social and Governance (ESG) Reporting in the US and the UK
Authors: Yeoh Peter
Published: March 2022

Regardless of the controversy over the impact of environmental, social and governance (ESG) issues on the fates or fortunes of business corporations, calls whether from policymakers (I. Mirza, ‘Congress a step closer to making corporate ESG disclosure mandatory’ (2021), JD Supra, 28 June 2021, https://www.jdsupra.com/legalnews/congress-a-step-closer-tomaking- 9721287/ (accessed 8 Aug. 2021), social advocates (J. Jaeger, ‘Activist investor win at ExxonMobil should be wake-up call for companies’ (2021), Compliance Week, 15 June 2021, https://www.complianceweek.com/boards-andshareholders/ activist-investor-win-at-exxonmobil-should-bewake- up-call-for-companies/30475.article (accessed 8 Aug. 2021), and from businesses itself (A. Murray & K. Dunn, ‘CEOs are calling for more regulation-of ESG standards’, Fortune, 12 August 2021, https://fortune. com/2021/08/12/ceos-are-calling-for-more-regulationof-esgstandards/ (accessed 12 Aug. 2021), are increasingly made throughout the course of the present COVID-19 pandemic cycle for regulatory actions (C.A. Adams & S. Abhayawansa, ‘Connecting the COVID-19 pandemic, environmental, social and governance (ESG) investing and calls for “harmonisation” of sustainability reporting’, Critical Perspectives on Accounting, https://doi.org/10.1016/j.cpa. 2021.10230908/08/21 (accessed 9 Aug. 2021). Various facets of the COVID-19 pandemic have been blamed for their impacts on the lives and livelihoods of people across the world (OECD, ‘Coronavirus: The world economy at risk’ (2020), OECD Interim Economic Assessment (2 Mar. 2020), https://www.oecd.org/berlin/publikationen/Interim- Economic-Assessment-2-March-2020.pdf (accessed 8 Aug. 2021), including those in the US and the UK, but equally business corporations (E. Reicin, ‘Businesses should be held accountable for their ESG claims’ (2021), Forbes (23 Mar. 2021), https://www.forbes.com/sites/forbesnonprofitcouncil/ 2021/03/23/businesses-should-be-held-accountable-for-theiresg- claims/?sh=67265fd25679 (accessed 8 Aug. 2021) and governments (K.P. Pucker, ‘Overselling sustainability reporting’ (2020), Harvard Business Review, May–June 2020, https://hbr.org/2021/05/overselling-sustainability-reporting (accessed 8 Aug. 2021) have also been blamed for their respective failures to do their parts in addressing ESG challenges that have become more prominent.

Trust law, commercial trust, evolution of the role of a trustee, rule of law, whether a commercial trust is in the essence of a trust
Freedom of establishment tax jurisprudence: Avoir Fiscal re–visited
Authors: O’Shea Tom
Published: March 2022

This paper examines the tax jurisprudence of the ECJ relating to the freedom of establishment from the perspective of a ‘host’ Member State and from that of an ‘origin’ Member State. The Court’s Avoir Fiscal decision is revisited and reconsidered. The Court’s subsequent case law is analysed. The paper highlights that a ‘national treatment’ test is applied by the Court from both perspectives.

The paper also demonstrates that the reasoning used in Avoir Fiscal, an establishment case, has been used analogously by the Court in relation to the other fundamental freedoms and that the Court’s application of the concept of comparability has been deeply influenced by this seminal and landmark judgment.
Regional Participation in the EU Decision–Making Procedure: A Review of the Spanish Experience
Authors: Grau Ruiz María Amparo
Published: March 2022

The following pages explore the evolution of the regional participation through different modalities for legislative purposes in the European arena. The case of Spain, where the Autonomous Communities have increased their powers in the search of a true fiscal federalism, with pros and cons, may serve as a reference for policy–makers and researchers. Nowadays, the degree of participation in tax matters is kept lower than in other policy areas. In the whole process, a serious risk of lack of co–ordination is to be avoided
Interaction between the Interpretation of the Non-discrimination Provisions in Tax Treaties and in the EC Treaty: An Apparent Rather than Real Conflict
Authors: Garrido Bruno
Published: March 2022

In this article, the author demonstrates how a potentially discriminatory situation can be interpreted differently when analysed from two different tax perspectives: from the tax treaty and from the EC Treaty perspective. Besides, the author shows that, between these two sets of non-discrimination provisions, the given conflict of interpretation is only apparent, as far as both sets of provisions are independently applicable, to the extent that the tax treaty non-discrimination provision and the nondiscrimination provisions in the EC Treaty create two different and independent layers of obligations for the Contracting States. This rationale can be applied either to cases involving EU Member States or to cases where EU and non-EU Member States are parties to a tax treaty.
Free Movement of Capital between EU Member States and Third Countries: How Far Has the Door Been Closed?
Authors: Cordewener Axel
Published: March 2022

Among the many recent developments in European tax law that are worthwhile being highlighted and debated, there is one area that is of very high relevance in legal practice but has taken some twists and turns in the European Court of Justice’s (ECJ’s) case law, which have left both academics and practitioners in a state of confusion, and that is the scope of the free movement of capital in relation to non-EU countries. As a matter of fact, the problem has already been existing since 1 January 1994, the day on which the new provisions of the EC Treaty on capital movements entered into force (originally Article 73(a)–73(h) in the Maastricht version; now Articles 56–60). Not only did this step make the 1988 Directive on the liberalization of capital movements largely redundant for intra-EU situations between Member States, but it also reached beyond the EU’s outer frontiers, since Article 56(1) EC explicitly prohibits ‘all restrictions on the movement of capital between Member States and between Member States and third countries’.
Avoidance of Double Taxation and Its Interaction with European Triangular Arrangements
Authors: Peeters Hans-Peter
Published: March 2022

In this article, the authors discuss triangular situations similar to Saint-Gobain. The focus is on the interaction between double tax convention law and EC law. The position of the permanent establishment state, the residence state, and the source state will be studied. Central in this article Company X established in state R with a PE situated in state P that acts as a ‘recipient’ of passive income paid by company Y from state S. The authors conclude that, in the first place, state R has been designated to prevent double taxation by means of an exemption or a credit. Secondly, if state R uses the exemption method, the responsibility switches over to state P and state S together. Not only must state P (as a Member State) treat a PE as a resident for treaty application, but also state S (as a Member State) has this obligation if a remaining juridical double taxation is caused by neither state R nor state P. This conclusion is not negatively affected by Damseaux. Thirdly, if state R uses the credit method both for PE profits and for passive income, it is obliged to apply the credit method in accordance with both the R-P Double Tax Convention (DTC) and the R-S DTC. Then, there is no European obligation for state S to mitigate the source state taxation.
Abuse of Tax Law across Europe
Authors: Manzitti Andrea , Durand Pierre-Henri , de Monès Sébastien , Mandelbaum Jean-Florent , Klein Martin , Niemann Alice , Lasarte Guillermo Canalejo , Benítez Gloria Marín , Airs Graham J.
Published: March 2022

Abuse of tax law is both a complex and an ambiguous concept per se. Each country having developed its own approach, which entails differing consequences as regards domestic, EU and international tax law, abuse of tax law across Europe is a real puzzle. A thorough analysis of this concept requires both to bring out the common features shared by all domestic approaches of the countries chosen for this analysis – that is, France, Germany, Italy, Spain, and the United Kingdom – but also to describe the theoretical and practical specificities of each domestic approach. The first part of this article, which details the French and the German approaches, gives a taste of the similarities and of the differences of interpretation and practical implementation of the abuse of law concept viewed through two domestic prisms. For example, on the one hand, France and Germany both use a general concept of fraud, together with a certain number of specific anti-avoidance rules, and they both share a mostly statutory approach of the notion. On the other hand, however, the French and German approaches greatly differ on the penalty as well as on the proceedings which are applicable, whenever an abuse of law is characterized.
European Arbitration Convention: Thoughts on Its Principles, Procedures and First Experience
Authors: Hinnekens Luc
Published: March 2022

Some may feel that too much attention is being given to the European Arbitration Convention (AC), its basis in Article 293 second indent EC (in the meantime repealed), and its present place in the multinational enterprise tax practice (just a fig leaf). The finding itself that arbitration decisions are so scanty (and the pipeline of cases is still growing) invites more attention and thoughts about its open legal issues of principle and effective implementation in the light of the first AC experience.
Contributions to Partnerships from a European VAT Law Perspective
Authors: van Doesum Ad
Published: March 2022

Since the KapHag case, it is clear that contributions in cash to partnerships take place outside the scope of Value Added Tax (VAT). However, it is still unclear whether a contribution in kind (goods, use of goods, intangibles, labour) by a partner who is a taxable person is a taxable supply, a remuneration for a taxable supply, or an activity that is not subject to VAT at all. The consequences of this lack of clarity are legal uncertainty and unequal treatment of similar transactions. The different VAT treatment of contributions in kind in the European Union (EU) Member States shows that these negative consequences are not purely hypothetical. Since cooperation through partnerships is not necessarily restricted to partners located in one Member State, the problems may even transcend the borders of the Member States. In this article, the author first investigates whether, under EU VAT law as it stands, contributions to partnerships are subject to VAT. Second, the author investigates what the preferred VAT treatment of contributions to partnerships is under European VAT law, when testing it against the fundamental principles of EU VAT law.
A VAT Voucher System for Origin-Based Taxation
Authors: Zee Howell H.
Published: March 2022

A major challenge in value-added tax (VAT) design concerns the discovery of an approach to ensure that, in a decentralized system of VATs being administered by individual jurisdictions within a federation or an economic union, VAT revenue collection would be distributed among the jurisdictions on the destination basis even in the absence of internal fiscal borders. This paper contains a new proposal, in the form of a specially designed voucher system coupled with the coordinated use of reverse charges, to overcome the above challenge in an incentive-compatible and cost-effective manner and argues that it has significant advantages over all other currently known proposals or practices. The policy implications of this proposal are considerable not only for those authorities (such as the European Union) that are currently engaged in an ongoing search for a satisfactory solution to this long-standing VAT challenge but also for other authorities (such as the United States) that may well face the same challenge in the future.
The Swedish Taxation on Loans from Foreign Companies
Authors: Nilsson Therese , Inwinkl Petra
Published: March 2022

On 1 January 2010, the Swedish government changed the rule on taxation of prohibited loans between Swedish companies and their shareholders and extended the regulation to loans granted by foreign companies. By changing the rule to also comprise foreign companies, the government aims to eliminate tax avoidance. The inclusion of foreign corporations in national legislation has been subject to criticism by the consultative bodies in the government bill and in the legal debate. The expression of discontent is due to the fact that the extension of the statutory rules to foreign companies does not comply with the freedom of establishment. This article aims to provide a response as to whether the changes of the rule on taxation of prohibited loans are compatible with the freedom of establishment and, consequently, whether the Swedish government commits, by the extension of the statutory rules to foreign companies, a breach of the right of the freedom of establishment.
Taxation of Hybrid Entities under the Parent-Subsidiary Directive: The Example of the Netherlands
Authors: Stevens Ton , Fibbe G.K.
Published: March 2022

In this article, the application of the Parent-Subsidiary Directive in respect of hybrid entities is analysed by Prof. Ton Stevens and Dr Gijs Fibbe. A distinction is made between outbound and inbound situations. In outbound situations, Member States can differ of opinion on which is the profit-generating entity: the parent company or its hybrid subsidiary. In inbound situations, where a dividend is paid to a hybrid entity, Member States can differ of opinion about the question to whom the dividend is paid: the hybrid entity or its participants. The authors describe the explicit solution in outbound situations included in Article 4, paragraph 1a, of the Parent-Subsidiary Directive. For inbound situations, such explicit provision addressing hybrid entities is missing. The authors describe how according to them the Parent-Subsidiary Directive should be applied in respect of hybrid entities in inbound situations. After a thorough analysis, they describe why in their view Member States are, for purposes of the Parent-Subsidiary Directive, no longer autonomous in the tax classification and income allocation in respect of hybrid entities established in other Member States in inbound situations.
The Negative Harmonization Process of Losses in Foreign EU Subsidiaries: The Swedish Case
Authors: Gerson Anna
Published: March 2022

Negative harmonization within the EU is an ongoing challenge that needs to be taken seriously. This is particularly evident in areas where it can be established that (legal) persons are faced with problems related to their cross-border activities and where there exist case law from the Court of Justice holding a key to a solution to the problem or at least parts of the problem. This is, for example, the case regarding the issue of treatment of losses in foreign group companies within the EU. Since the Marks & Spencer case, the negative integration process has evolved differently at the national level in Member States.

Approximately a year ago, Sweden introduced new rules regarding compensation of terminal losses in foreign subsidiaries. The rules are a consequence of the case law from the Court of Justice but also from the Swedish Supreme Administrative Court. The legislative process as well as the interpretation of the matter by the Swedish national courts raises several questions related to the negative integration process within the EU that will be dealt with in this article.
The Influence of EU Law on Inheritance Taxation: Is the Intensification of Negative Integration Enough to Eliminate Obstacles Preventing EU Citizens from Crossing Borders within the Single Market?
Authors: Navez Edouard-Jean
Published: March 2022

A movement of relocation, or rather a geographical dispersion of people and assets, is increasingly appearing within the European borders, as well as beyond them. Recent studies have shown that many legal and practical obstacles deter European Union (EU) citizens from actually exercising their freedom to move across borders within the EU. Especially, several indicators prove that some difficulties still remain in the practice of inheritance in cross-border situations. In respect of taxation, the problems consist mainly of double taxation and discriminatory tax treatment. These last ten years, the legislation of the Member States has progressively complied with EU law requirements and the difference of treatment between residents and non-residents is beginning to disappear completely. Today, the most important obstacles to the free movement of European citizens are due to the risk of double taxation of inheritances by several Member States. In this respect, the Court of Justice is powerless since its power of interpretation does not allow it to arbitrate between the Member States' taxation powers. Aware of this problem, the European Commission has recently adopted a set of measures destined to improve the coordination between the states legislations in order to fight the double taxation on inheritances.