bluuebunny/crossref_metadata_2025 huggingface dataset:
Insider Trading Regime in India: Learning Lessons from the US and UK Regulatory Experience
Authors: Dey Shantanu
Published: March 2022

The issue of insider trading has assumed increasing relevance in the Indian context in light of the corporate governance crisis faced in the contemporary era. With the Securities and Exchange Board of India (‘SEBI’) arguing for stricter and smarter regulation of stock market transactions with the objective of regaining investor confidence, the academic discourse in favour of legalization of insider trading has gained mileage. Through this paper, the author seeks to examine the regulatory attitude towards the continued scrutiny of insider trading transactions utilizing the model endorsed by the recently introduced SEBI (Prohibition of Insider Trading Regulations) 2015.Through this paper, the author seeks to discuss the development of the insider trading regulatory regime in India in a comparative context utilizing a ‘governance approach’ to the issue and its interaction with the functioning of capital markets. The paper focusses on the line of argumentation employed by Henry Manne to justify the productivity of such transactions visà- vis its impact on the economy and attempts to highlight the implausible application of such theoretical logicality. While discussing the literature available on the topic, the article will constantly draw its analysis from the jurisprudential foundations of the SEBI (Prohibition of Insider Trading Regulations) 1992 and 2015 heavily influenced by the American jurisprudence on this subject.
Common European Sales Law: A Missed Opportunity or Better Things to Come?
Authors: Norris Karolina
Published: March 2022

Since the withdrawal of the proposed Common European Sales Law (CESL) presented by the European Commission in late 2014, there has been much talk in commercial quarters as to whether an opportunity had been lost in providing an effective sales law applicable in the EU or whether its withdrawal paves the way for a wider and more effective regime. A regime that will enhance the European Commission’s Digital Single Market Strategy. The Commission explained that ‘In 2015, as part of the Digital Single Market Strategy, the Commission will aim to conclude ongoing inter-institutional negotiations on proposals such as the common European data protection reform and the Regulation on a Connected Continent. It will also propose new initiatives, legislative and non-legislative, to bring the Digital Single Market to the level of ambition needed to respond to the existing challenges. In this context, the Commission will notably complement the regulatory telecommunications environment, modernise EU legislation on copyright and on audiovisual media services, simplify the rules for consumers making online and digital purchases, facilitate e-commerce, enhance cyber-security and mainstream digitisation across policy areas.’ Although the exact nature of the new proposals remains to be seen, it is believed that the new rules will make online purchases by consumers easier.
Various Forms of Competition  Where Do We Stand?
Authors: Laskowska Magdalena
Published: March 2022

The purpose of this paper is to attempt to conceptualize competition (to go towards the conceptualization thereof), and to support it with well-known examples (perfect competition, monopolistic competition, advertising competition), as necessary and useful in antitrust analysis. In this paper, I also advance the claim that there is no antitrust science, alluding to non-rigorous and nonexistent basic analyses in antitrust examination.

Competition policy has been part of the work of the European Community (now the European Union) ever since it was set out in the Treaty of Rome in 1957. The treaty instituted ‘a system ensuring that competition in the common market is not distorted’. The definition of competition was not presented. ‘Competition policy is about applying rules to make sure companies compete fairly with each other’ – a report of the European Union ‘Competition. Making markets work better’ (2014) states. It is, however, highly unclear and highly controversial in legal doctrine and judgments what competition denotes.

In particular, competition policy concerns the restructuring of markets in various industries by means of mergers and acquisitions. Council Regulation (EC) No. 139/2004 of 20 January 2004 applies to concentrations of Community dimension (as defined in Art. (1), pts (2) and (3)), and states that a concentration within the scope of the Regulation shall be appraised in a way that takes account of the need to maintain effective competition within the common market (in view of, among other things, the structure of all the markets concerned and the actual or potential competition from undertakings located either within or out with the Community (in accordance with Art. (2), pt (1) of the Regulation). Article (2), pt (3) of the Regulation states that ‘A concentration which would significantly impede effective competition in the common market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position, shall be declared incompatible with the common market’. It is not defined in the Regulation concerned what a process of effective competition signifies. The European Commission has regularly referred to this notion in its decisional practice, yet this issue remains unclear and controversial – also in the fundamental domain of competition policy: the control of concentrations between enterprises. In my paper, I shed, therefore, some light on this question.
Parallel Trade in Pharmaceuticals: Re-Aligning National Patent Exhaustion and Life-Saving Drugs
Authors: Mukhopadhyay Devarshi
Published: March 2022

The author, through this paper, shall seek to determine whether parallel trade, especially in the context of life-saving drugs, increases potential healthcare access1 to the developing and developed nations or in crisis markets, without significantly jeopardizing either the general safety of the goods, or diluting the sanctity of the intellectual property purpose.2 In the first segment of the paper, the author shall seek to demonstrate the business law link between the economics of parallel trade with the international context of patent exhaustion, following which the author will then go on to examine global policy regimes which have dealt with this issue in specific consumer market situations. Special focus shall be drawn to the markets of Germany, the United Kingdom, the United States of America and Canada in order to narrow down on policy experiences.

In the final and concluding segment of this paper, the author shall attempt to re-align the existing competing interests on the question of exhaustion, with the objective of reaching a suitable policy position on this. As part of this segment, a detailed study of existing litigation and case law shall also be studied in order to suggest suitable solutions to determining the parallel trade question.
The EUUS Privacy Shield: The Antidote to the Transatlantic Data Transfer Headache?
Authors: McCusker Shona
Published: March 2022

On 6 October 2015 the Court of Justice of the European  Union (CJEU) handed down a landmark ruling in Maximillian Schrems v. Irish Data Protection Commission, which declared Safe Harbor, a mechanism which pre-approved the transfer of personal data from the EU to the US, invalid. In the months that followed stakeholders in the EU and US conducted legally complex and politically sensitive discussions which have led to the newly formulated draft EU–US Privacy Shield. This article will consider the fallout from the Schrems decision and the proposed application of the resulting Privacy Shield.
Implications for the Rail Freight Sector of Stricter European Union Locomotive Emission Limits: A UK Perspective
Authors: Wilde Mark L.
Published: March 2022

The European rail freight sector has grown exponentially over the past twenty to thirty years as the limitations of road transport have become increasingly apparent.† Moreover, moving more freight by rail is seen as a greener alternative.†† Thus, in some respects it is a case of ‘back to the future’ and the halcyon days when the majority of freight was moved by rail; although it must be acknowledged that in the twenty-first century the bulk of freight is still moved by road and this is likely to be the case for the foreseeable future. This has resulted in an unprecedented demand for new motive power. A number of European rail freight companies have had their chequebooks out in recent years in order to increase capacity and fulfil contracts.
Migrant Labour Standards and Human Rights of Multinational Companies Supply Chains: Reshaping a Playing Field in China: Part I
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 first 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 United Nations 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’) 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.
A Comparative Analysis of Shareholders Derivative Action under the United Kingdom and Nigerian Companies Acts
Authors: Ubochioma Wiseman
Published: March 2022

The rights of minority shareholders have been a recurring and dominant theme in corporate law. This is because such rights do not only allow minority shareholders to protect their individual and corporate interests, but also serve as a veritable instrument through which they enforce directors’ fiduciary duties. This article examines shareholder derivative litigation under the United Kingdom (UK) and Nigerian laws. It argues that although derivative suits in both countries have common law origin, comparatively the UK laws have more flexible, liberalized and expansive rules that enhance and protect the rights and interests of the company and minority shareholders than the Nigerian laws. It further argues that the UK laws confer wider powers and standards on courts to regulate the procedure for derivative suits than the Nigerian legal regime. It recommends that the Nigerian law should be reformed along the lines of the UK regime, albeit with retention of various extant provisions that enhance the rights of minority shareholders. The article proceeds in four major sections. Section 1 examines the distinctive features and meaning of derivative action. Section 2 discusses the advantages and disadvantages of derivative suits. Section 3 makes a comparative analysis of derivative suits under the UK and Nigerian laws using the major legal principles and procedures in both jurisdictions. Section 4 concludes the article.
Carriers Liability in Contracts for the Carriage of Goods by Sea: Is There a Justification for the Hamburg and Rotterdam Rules?
Authors: Jnr Francis A Okanigbuan
Published: March 2022

This article argues that in light of the restricted application of the ‘navigation and management exception’ under the Hague- Visby Rules, the exclusion of the exception in the Hamburg and Rotterdam Rules is undesirable. Also, it was shown that the fire exception provisions under the Hamburg and Rotterdam Rules are not substantially different from the fire exception under the Hague-Visby Rules. In light of these, the position of the Hamburg and Rotterdam Rules in relation to the exceptions is unjustifiable.
A Perspective from the Market for Corporate Control of the Post-Cadbury Takeover Reform
Authors: Rogerson Nick
Published: March 2022

By some accounts, the UK has the most open market for corporate control in the world. This facilitative environment acts as a disciplinarian for the shirking and incompetent by allowing superior managers to acquire the full value of their improvement to undermanaged firms. Linked to the share price, this threat aligns the interests of shareholders and directors. Following Kraft’s 2011 acquisition of Cadbury, the Takeover Panel reviewed the Code on Takeovers and Mergers to address a perceived tactical imbalance between bidder and target. This reform, inter alia, automated the ‘put up or shut up’ regime and banned deal protection measures to strengthen the target company’s position. By restricting bids, this has incidentally weakened the market for corporate control’s operation as an external check on corporate governance.
Corporate Governance in the Aftermath of the Global Financial Crisis: Issues and Action
Authors: Arsalidou Demetra
Published: March 2022

Almost a decade has passed since the global financial crisis emerged; a crisis that has made companies, regulators and society more conscious of the possible failings in regulation, board function and shareholder behaviour. This article discusses three interrelated corporate governance weaknesses linked to the latest financial crisis, and considers ways to reduce their impact in the future. The first part discusses the role of regulatory and supervisory deficiencies as a primary cause of the crisis. It provides a concise overview of the flaws of the UK regulatory authority, and examines the reasons why UK regulation fell short of the high professional standards in the execution of its supervisory obligations. Ways to improve the regulatory and supervisory authorities are also considered. In the next part, the article examines the role played by the two primary internal organs of the company: the directors and the shareholders. It considers issues of directors’ training, accountability and shareholder engagement and deliberates upon the improvements that can be introduced to enhance the role of directors and shareholders within the corporate governance arena.
The Corporate Objective Revisited: Part II
Authors: Yan Min
Published: March 2022

The corporate objective, namely, in whose interests should a company be run, is the most important theoretical and practical issue confronting us today, as the core objectives animate or should animate every decision a company makes. Despite decades of debate, there is no consensus regarding what the corporate objective is or ought to be. Contrary to the widely held belief that the corporate objective should be shareholder wealth maximization (SWM), this article seeks to demonstrate that SWM is unsuitable by exploring its main problems. As an antithesis to SWM, the stakeholder theory generally emerges and develops to be an alternative. Justifications will be offered from different aspects. In particular, its advantages in solving short-termism and externalization compared with SWM will be focused on.
Risk Issues in Global Supply Chain Management
Authors: Yeoh Peter
Published: March 2022

This article evaluates economics and legal risks in global supply change management (GSCM) from UK and US perspectives. It follows through with a critical analysis of the implications of these with regards to board oversight risk responsibilities. The article relies on examination of related legislations, common law, applicable industry standards, and governance codes.
Private Enforcement of Competition Law in the UK
Authors: Ferguson Rebecca
Published: March 2022

Will the Claims in respect of Loss or Damages arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 20171 have an impact upon private damages actions in the UK? The aim of the EU Damages Directive2 was to encourage consumers and businesses to claim damages or compensation following harm caused by infringements of competition law.

The UK Regulations brought in on 9 March 2017, implements the EU Directive into UK law; however, will these Regulations have an impact upon private damages actions in the UK?
The Warning Light of Automobile Securitization: Credit Rating Agencies and Their Role in a Post-2016 World
Authors: Cash Daniel
Published: March 2022

With 2016 providing arguably the most politically tumultuous year in recent history, the need for vigilance in the marketplace has never been greater. The proximity to the recent Financial Crisis means that any undeserved leniency now may have dramatic and irreversible effects. In this short article, the focus will be on the opportunity that the rise in automobile securitization is offering the credit rating agencies to transgress like in the 2000s. The article will discuss the dramatic rise in personal financing and the subsequent securitization and will ultimately suggest that action needs to be taken sooner rather than later, with the abiding caveat being that there must be a political appetite to do this – whether or not this appetite exists will be discussed.
Credit Rating Agencies and the Protection of the Public Good Designation: The Need to Readdress the Understanding of the Big Threes Output
Authors: Cash Daniel
Published: March 2022

This article is concerned with assessing just one element of how the Big Three Rating Agencies – Standard & Poor’s, Moody’s and Fitch – have been able to remain profitable despite their dreadful performance in the lead-up (and arguably since) the recent Financial Crisis; the article argues that the understanding that the Big Three provide ‘Public Goods’ is systematically protecting their position. As such, the Big Three are being allowed to contribute to hazardous financial practices without the fear of serious reprisals. The article demonstrates this narrative and ultimately explains the effect that this narrative has upon the ability to understand the Big Three Rating Agencies. Ultimately, the article suggests that in order for the regulation of the Rating Industry to be truly effective, the actual output of the Big Three Rating Agencies must be clearly recognized, rather than any blanket designation attributed to the Industry as a whole remaining prevalent.
The Distorted Governance Model of Venture Capital Limited Partnerships in China: A Political Perspective
Authors: Zhang Chi
Published: March 2022

The limited partnership has been recognized and legalized by the Law of Partnership Enterprises of China in 2006. Owing to the lack of a regime of ‘piercing the veil of limited partners’ in this legislation, however, limited partners commonly actively participate in management without any unlimited liability, which has seriously decreased the efficiency of fund management and even led to governance failures in practice. The Chinese venture capital (VC) market is commonly regarded as a striking achievement of the market economy reform of China since the 1980s, the strong state control over the VC funds in contemporary China, however, is still unshakable. This article attempts to explore the root reason of this disadvantage in Chinese partnership law by considering the role of the state in the VC industry of China during the recent decades and concludes that the lack of a regime of ‘piercing the veil of limited partners’ in Chinese partnership law is caused by the active role of the state in the VC industry and the prioritized state-owned capital in the Chinese economy.
Piercing the Corporate Veil in the UK: The Never-Ending Mess
Authors: Spotorno Agustin Ricardo
Published: March 2022

Predictability and certainty are the distinctive features of English law as one of the leading choices to govern commercial contracts worldwide. Unfortunately, an area which cannot be praised for that is the ‘Doctrine of Piercing the Corporate Veil’. This doctrine and its yet unresolved issues have been threatening nothing less than two cornerstone principles for commerce and modern economy: the separate corporate personality and limited liability. After many frustrated attempts to cast light on this field, the UK Supreme Court justices in Petrodel Resources Ltd v. Prest tried once again to provide clarity by circumscribing the doctrine to excessive narrow limits. However, by ‘piercing’ that apparent veil of clarity and by analysing three subsequent rulings this article demonstrates that the confusion underlying the decision has indeed aggravated the mess, paving the way to the emergence of an ‘unnamed’ and ‘unrestricted’ doctrine now spread among conventional remedies.
The Doctrine of Corporate Opportunity: A Comparative Analysis  Part I
Authors: Chawla Varnika , Kher Nimoy
Published: March 2022

SUMMARY

In this article, the authors aim to answer the often-asked question when do the fiduciary duties of a director cease to exist, in order to allow him to undertake ventures for personal interest? This has not yet been conclusively answered by the courts, and upon conducting a detailed case law analysis, we conclude that there exist two primary approaches, which the courts have relied upon in arriving at their decisions. These have been laid down in the landmark English cases of Bhullar and Foster. These two cases are indicative of these two largely different approaches, and therefore, while not conflicting, and easily distinguishable on the basis of the facts themselves, can be said to be conflicting with respect to the difference of approach adopted by the Court of Appeals in England.

This article endeavours to elucidate upon these two approaches, in light of Bhullar and Foster. Accordingly, the paper has been divided into various sections, which aim to elaborate on the law relating to the fiduciary duties of directors, in the particular context of use of corporate opportunity. Firstly, the authors have provided a jurisprudential background of the law on fiduciary duties of directors in common law. The statutory law, as followed in the UK and India,, and common law, as followed in the USA, with respect to the same, have been discussed, keeping in mind common law principles which have developed as a result of detailed judicial analysis. Secondly, having analysed the law on directors’ fiduciary duties in different common law jurisdictions, the authors have conducted an in-depth analysis of the two primary cases, i.e. Bhullar and Foster, highlighting the discussion on issues involved in the same, and examining the difference in the approach adopted by the court, pre and post the enactment of the Companies Act, 2006. Subsequently, the two approaches, namely the American Model and the English Model which were utilized by the courts in arriving at greatly varying decisions in the two cases have been studied. Lastly, in light of such analysis, the authors have compared and contrasted Bhullar and Foster and highlighted the inherent difference in approach between the two. The Indian position with respect to fiduciary duties of directors has been simultaneously discussed and compared in every section.
Say It All If It Is New and Get a Patent Right: A Comparative Analysis of the Requirement of Disclosures in Patent Laws
Authors: Amucheazi Chibike
Published: March 2022

SUMMARY

 

This article attempts to draw some factual and authoritative parallels to establish the law of intellectual property with respect to patents as it is in some selected forums. Several principles of patents generally, and ENABLING PUBLIC DISCLOSURE as it relates to NOVELTY are discussed in comparison with applicability of these principles in other territories and countries, such as the United States of America, Japan and Nigeria. The requirement of ENABLING DISCLOSURE during application is discussed with regards to previous applications and its effect on novelty, as well as the effect of a disclosure to the public before application. Relevant decided cases have been employed to clearly view ENABLING PUBLIC DISCLOSURE and an attempt is made to effectively analyse, critique, and propose steps for better application.
Articulating the Locus of Company Secretary in Corporate Governance in Nigeria
Authors: Herbert Eti Best , Durosomo Ibitayo Oyinda
Published: March 2022

Companies are statutorily required to have a secretary. Historically, company secretaries were regarded as mere servants of the company. However, that narrative changed with a plethora of statutory and judicial recognition of the secretary as an officer of the company. The trendy emphasis on corporate governance demands that a company secretary is not only expected to perform clerical and administrative duties but also function as a corporate governance officer. This new-found status has placed huge demands on the company secretary. This article highlights the various functions of the company secretary, such as assisting the company board and management through his/her ability to proffer advice and interface with various stakeholders of the company; develop business ethics for the company; and ensure the implementation of Corporate Governance Codes. These expanded functions of company secretaries mean that they have to acquire diverse professional competences to enable them effectively perform their ever increasing duties. This article concludes that the interests of the company and its stakeholders should be of paramount concern to the company secretary in the line of duty.
Taxing the Sale of Software: Revisiting the Definition of ‘Royalty’ Under the DTAAs
Authors: Makkar Kashish
Published: March 2022

The characterization of payments, for taxation, in the hands of, non-resident payees arising out of a cross-border sale of software, has always remained controversial in India. While the Revenue, contends that such payments are ‘Royalties’ for Licensing of, Copyrights, the taxpayers argue that these payments are merely, Proceeds on the Sales of Copyrighted Articles. There have been, several conflicting decisions by different Income Tax Tribunals, and High Courts that have legitimized each of these characterizations., While the Courts and Tribunals led by the Delhi, HC held for the taxpayers by characterizing these payments as, Proceeds of Sales, the Courts and Tribunals led by the, Karnataka HC held for the Revenue. Therefore, albeit in, different jurisdictions within the country, a dichotomy persisted.

In an attempt to resolve this dichotomy, the Government, of India introduced a clarificatory amendment to the Indian, Income Tax Act, 1961 in 2012. However, the conflict persisted, as the amendment did not clarify and could not have, clarified the status of these payments under the Double, Taxation Avoidance Agreements (DTAAs) As a result, the, dichotomy, now limited to Non-Resident Payees whose resident, jurisdiction has a DTAA with India, still prevailed. These, jurisdictions include several Commonwealth nations such as the, UK, Australia, Malaysia, Canada, etc. and Ireland, which is, the most preferred jurisdiction to operate from for almost all the, tech corporations in the world. Therefore, this dichotomy still, affects the tax liability of the residents of these jurisdictions and, their ease of doing business with India.

In this article, the author will highlight that the dichotomy,, though existent, has no basis in law. The author will, highlight that the characterization of these payments as has been, contended by the Revenue is the only legitimate characterization., This characterization not only draws support from the, established Rules of Statutory Interpretation but also promotes, the ease of doing business in India.

Agreement, Consideration, Copyright, Double-Tax, Income Tax, Licensing, Literary, Payment, Royalty, Resident
Failure to Prevent Market Abuse: A Potential New Corporate Criminal Offence?
Authors: Swift Neil , Hogg Craig , Jones Katie
Published: March 2022

On 7 April 2020, the Financial Conduct Authority (FCA) published its 2020/21 Business Plan, in which the regulator renewed its commitment to developing clean markets, robust in their resistance to the threat of market abuse (FCA Business Plan 2020/ 21 accessible athttps://www.fca.org.uk/publication/businessplans/ business-plan-2020-21.pdf.). In its statement, the regulator, facing growing instability in the markets brought about by the COVID-19 pandemic, warned against the risk posed by the ‘opportunity for poor behaviour’, cautioning that where the FCA finds poor practice it would ‘clamp down with all relevant force’.

This posturing is not new: rooting out and punishing market abuse has consistently been a high priority for the regulator in meeting its key statutory objectives of protecting consumers, enhancing market integrity and promoting competition (Financial Services and Markets Act 2000, section 1b.). Set against the increasing likelihood that the UK economy is about to enter a deep phase of recession, this focus shows no sign of abating.

However, there remains ongoing debate over the most effective means of neutralizing the threat posed by market abusers. One potential model, already developed in other areas of economic crime – specifically in the area of corporate bribery and tax offending – is an extension of the so-called failure to prevent (‘FTP’) model of corporate liability (3 April 2019, Lisa Osofsky ‘Fighting fraud and corruption in a shrinking world’ available at https://www.sfo.gov.uk/2019/ 04/03/fighting-fraud-and-corruption-in-a-shrinking-world/.). This approach would see a shift away from the ‘identification’ principle, in which corporate criminal liability is predicated on establishing a ‘directing mind and will’ of the company and towards a focus on wider corporate malfeasance.

While the desire for such an extension of liability is easy to understand from a regulatory perspective, the existing FTP model in force in this country, in the area of corporate bribery and tax offending, requires close examination before serious consideration is given to such a course, as well as careful consideration given to the effectiveness of the FCA’s existing policy of personal accountability, given effect through the Senior Managers Certification Regime (‘SMCR’).

Market abuse, corporate criminal offence, failure to prevent, EU Market Abuse Regulation 2014, whistleblowers.
Comparative Law and the Enhancement of Financial Regulation
Authors: Zhang Lin
Published: March 2022

Since the ravage of the devastating global financial crisis in 2008, the legal academia has increasingly focused on the interrelationship between law, financial stability and economic development. It is evident that the overwhelming majority of research in this aspect is concerned with curbing derivative transactions and enhancing collective actions among States by making multilateral agreements. Few discussions have been carried out to scrutinize the domestic regulatory structures of leading commercial jurisdictions and further examine the potential possessed by informal international law to reinforce the efficacy of these regulatory structures. By comparing and contrasting the financial regulatory structures in Hong Kong, Mainland China, the UK and the US, and the core principles of the BIS (Bank of International Settlements), the IOSCO (International Organization of Securities Commissions) and the IAIS (International Association of Insurance Supervisors), this article attempts to fill in the research gap to some extent.
Delivery of Electronic Products in Electronic Sale Contracts Under Jordanian Law: An Overall Comment
Authors: Ali S. Al-Qassaymeh Maen Mohammad
Published: March 2022

Delivery of the item in a contract of sale is an important obligation which should be fulfilled by the seller. The rules which regulate this obligation in Jordanian Law do not touch on the issue of delivery of an electronic product (such as epictures, e-programs, e-files, films, movies, music, games and others), which come from the electronic contract. However, this issue is regulated indirectly in some provisions in the Jordanian Electronic Transaction Law (JETL).( Jordanian Electronic Transaction Law, 2015 (Act No. 15 of 2015).) This Article is assigned to disclose these indirect rules and to discuss the extent of appropriateness of them to regulate all aspects of delivery of the electronic products.

Contract of sale, electronic product, Jordan, place and the time of delivery
Impact of the COVID-19 Outbreak on Minority Shareholder Protection
Authors: Kaya Meltem Karatepe
Published: March 2022

The COVID-19 outbreak, which was announced by the World Health Organization (WHO) as a global outbreak on 11 March 2020, comprises a risk not only for human health, but also for the whole world including society, business and the global economy. During lockdowns caused by the COVID-19 virus, the general atmosphere of companies changed. The significant restrictions and measures announced by the countries in order to deal with the COVID-19 crisis had serious economic outcomes for companies. The crisis environment has been used by some managers, who are also majority shareholders in the company or influenced by majority shareholders, for their own interests to oppress minority shareholders and to remove them from the company and management. Protection of shareholders matters for the facility of companies to raise the capital required to grow, innovate, diversify and compete. Thus, in these difficult COVID-19 times, it is more important to provide protection for minority shareholders. That will develop the level of confidence, trust and finally the levels of investment, which would result in a healthy and robust countries’ economy. Based on that, this article uniquely contributes to minority shareholder protection during the COVID-19 outbreak by focusing on corporate governance and also primary remedies that may be obtained by shareholders during the current pandemic.

COVID-19 outbreak, Corporate governance, Minority shareholder protection, Derivative action, Unfair prejudice petition
Blockchain Technology and Law: Lessons for Law Firms
Authors: Wang Dan
Published: March 2022

The advancement of technology brings tremendous challenges and opportunities to the legal industry. This article will examine the blockchain technology, in particular the decentralized autonomous organization (DAO) and its unique governance features compared with traditional companies. This article also intends to provide recommendations for law firms to prepare for the challenges brought by blockchain technology.

Blockchain, challenges, decentralized autonomous organization, DAO, governance, law firm
What If DABUS Came to Africa? Visiting AI Inventorship and Ownership of Patent from the Nigerian Perspective
Authors: Oriakhogba Desmond Osaretin
Published: March 2022

Dr Stephen Thaler’s artificial intelligent machine – DABUS (Device for the Autonomous Bootstrapping of Unified Sentience) recently created two patentable devises that were the subject of patent applications in the European Patent Office (EPO), the United Kingdom Intellectual Property Office (UKIPO), the United States Patent and Trademark Office (USPTO) and other patent offices, including under the Patent Cooperation Treaty system. Thaler named DABUS as the inventor in the applications and claimed to have acquired the right to patent from DABUS as its owner, employer and successor in title. The EPO, UKIPO and USPTO recently rejected the applications on the ground of non-compliance with the formal requirements of their respective patent legislation for failing to name a natural person as inventor. Based on a comparative study conducted as a desk research, the paper reviews the EPO, UKIPO and USPTO decisions against the backdrop of the ongoing policy and academic conversations on AI and patent policy. It then situates the decisions within the African context, especially under the Nigerian patent regime, and determines whether the Nigerian patent office will reach a different conclusion from those made by the EPO, UKIPO and USPTO should a similar patent application be considered in Nigeria.

Artificial Intelligence, Inventorship, Patent Regimes, DABUS, EPO, UKIPO, USPTO, Nigeria
Multinational Corporate Group Governance After Vedanta: The Obligations of Parent Company Directors
Authors: Hamzah Sendut Jefferi
Published: March 2022

In Vedanta v. Lungowe, the UK Supreme Court established that a UK-based parent company can owe a duty of care in negligence to third parties harmed by the conduct of an overseas subsidiary. The key issue is whether there is sufficient intervention on the part of the parent company, a position subsequently reaffirmed by the Supreme Court in Okpabi v. Shell. This article argues that a full understanding of Vedanta and related jurisprudence requires the consideration of the duties owed to parent companies by their directors. It first highlights that such a consideration is timely (section 2). Parent company directors face significant uncertainty over the appropriate management of multinational corporate groups (MCGs). While it is recognized that parent companies owe certain responsibilities for the adverse impacts of their overseas subsidiaries, Vedanta pushes in the opposite direction. In light of such uncertainty, this article then explores how parent company directors’ decision-making post- Vedanta might be affected by their duties to promote the success of the company, and to act with reasonable care, skill and diligence, under sections 172 and 174 of the UK Companies Act 2006 (section 3). While these duties do not restrict parent company directors from adopting a hands-off approach to overseas subsidiary regulation, they should not be ignored.

multinational corporate groups, parent company directors, overseas subsidiaries, tort, directors duties
Sale in the Ordinary Course of Business Under Ghana Law: Recent Developments and Lessons from the UK
Authors: Yidana Nuhu
Published: March 2022

The Sale of Goods Act 1962 (Act 137) put a statutory footing on implied conditions for the quality and fitness of goods in every contract involving the sale of goods in Ghana. The functionality of the implied conditions of quality and fitness of goods hinges on the sale of goods taking place in the ordinary course of the seller’s business. This article evaluates the concept of the sale in the ordinary course of business under which the implied conditions of quality and fitness of goods apply in Ghana. The paper argues that the current definition of sale in the ordinary course of business under the law in Ghana, is narrow to the disadvantage of buyers of goods. Consequently, this article advocates that the definition of the sale in the ordinary course of business needs to be broadened along the lines of the English law to help enhance the degree of protection of buyers of goods in Ghana. The paper further submits that the courts should consider distinguishing consumer matters in widening the scope as the current definition is mainly the product of non-consumer case law.

implied conditions, quality of goods, fitness of goods, sale in the course of business, buyers of goods, sellers of goods, distinguishing, consumers, and non-consumers
The Influence of Game Theory in HM Revenue and Customs’ Choice of Civil or Criminal Enforcement
Authors: Marson James , Khan Hamza
Published: March 2022

This article outlines the method by which self-employed individuals assess and fulfil their income tax obligations. The civil and criminal investigative powers available to Her Majesty’s Revenue and Customs (HMRC) are analysed, adopting a comparative approach, following which we present an application of game theory in determining the strategy for the most advantageous options available to both the taxpayer and HMRC for payment and recovery, respectively. Game theory provides an explanation for the conscious and purposeful decision-making of competing parties, based often on incomplete information and/or the intentions of the parties. This is particularly apt given the nature of the self-assessment tax regime in England and Wales with the choice of the taxpayer to fairly and honestly disclose their income and the tax to be paid, and equally HMRC with its choice to accept or challenge the details in the taxpayer’s return. As such, we use game theory as a means for determining optimal behaviours in difficult circumstances.

Criminal and civil enforcement, Fraud, Game theory, HMRC, Tax returns.
The first steps of the European Court of Justice concerning an abuse-doctrine in the field of harmonized direct taxes
Authors: Weber Denis
Published: March 2022

Survey as a result of the Denkavit-\/lTIC-Voormeer case (joined cases C- 283194, C-991/94 and C-292/94), on anti-abuse clauses and methods of interpretation and implementation of the Parent-Subsidiary Directive
Cross–border direct tax issues of investment funds from the perspective of European law
Authors: Calisto Pato António
Published: March 2022

This article addresses the issue of discriminatory taxation of investments through investment funds. In particular, the article seeks to demonstrate that national legislations of Member States,while trying to grant neutral treatment to such investments as compared to direct investments, create sometimes obstacles to their internationalization. Furthermore, it tries to find solutions in the ECJ Case Law (with a special emphasis on Orange Smallcap) that might help mitigating or solving such obstacles. The author analyzes several scenarios where he tries to interact EC Law, double tax treaties and domestic law. To achieve that purpose, the author goes through several scenarios where investment funds, investors and investments are in different Member States or in third states and tries to detect restrictions or discriminations in both the source and home State, giving special emphasis to the comparability tests and to possible justifications.
The Lessons of Orange European Smallcap Fund
Authors: Weyn An , Spaas Thomas
Published: March 2022

In the Orange case, the European Court of Justice was asked to rule on the compatibility with the European Community law of a Dutch tax measure that aimed to make investment through a Dutch investment enterprise as attractive as direct investment, at least for Dutch tax residents. In this judgment, the Court clarified its position on cross–border dividend taxation as well as on other contested topics of the European Community tax law. In this article, we examine the answers given by the Court and whether these should be seen as a departure from earlier case law, as well as the new questions to which Orange gives rise.
German and Austrian VAT Proposals to Combat Carousel Fraud
Authors: Cnossen Sijbren
Published: March 2022

There is much ado about carousel fraud, also called missing trader intra-community (MITC) fraud, in the European Union (EU). This article briefly describes carousel fraud and the proposals that have been made to combat this type of fraud. It focuses in particular on the German and Austrian solution, which defines carousel fraud away by proposing a system of comprehensive reverse charging combined with universal cross-checking. The article concludes that this solution throws the baby out with the bathwater.
Are LOB Provisions in Double Tax Conventions Contrary to EC Treaty Freedoms?
Authors: Osterweil Eric
Published: March 2022

Double tax conventions (DTCs) generally include clauses that refuse to residents of a contracting state the right to claim treaty benefits with respect to income derived from the other contracting state if they are not ‘beneficial owners’ of the income. ‘Limitation-on-Benefits’ (LOB) clauses in DTCs, particularly where the United States is a contracting state, provide objective criteria for limiting taxpayer rights under DTCs. LOB clauses, which are designed to prevent treaty abuse, may, however, be in violation of the Treaty Establishing the European Community (EC Treaty) freedoms. This article explores the issue of the compatibility of LOB with EC freedoms of establishment and movement of capital.
Taxation of Cross-Border Dividends in Greece: In Line with EC Law Requirements
Authors: Elmalis Georgios
Published: March 2022

Using as a motive the infringement procedure of the European Commission against Greece for discriminatory tax treatment of inbound dividends and the subsequent judgment of the ECJ in Case C-406/07, Commission v. Greece, which formed the causa of a radical legislative reform of the Greek regime governing taxation of dividends, the author conducts, in this article, a detailed examination of the Greek dividend tax rules, under the perspective of Community law requirements in this field. In that respect, the author performs an analysis of the extensive case law of the ECJ on dividend taxation, and draws case law principles which, together with the Parent-Subsidiary Directive provisions, constitute the point of reference of the inquiry undertaken. With the example of the Greek dividend tax systems as a tool, the author displays how exemption, imputation and final withholding tax systems are applied in practice and how EC law affects their function and interaction in cases of crossborder dividend distributions.
On X Holding and the ECJ’s Ambiguous Approach towards the Proportionality Test
Authors: de Wilde Maarten F.
Published: March 2022

On 25 February 2010, the Court of Justice rendered its decision in the X Holding case. The Court ruled that the Dutch tax consolidation regime is compatible with the freedom of establishment. The territoriality principle justifies the limitations on the regime’s scope of application in an intra-European Union (EU) context. Accordingly, today, it seems clear that the Dutch tax consolidation regime in its current design may be kept in place. However, the Court of Justice did not provide a clear answer to the underlying question of how the proportionality test should be interpreted under primary EU law where EU Member States raise the territoriality principle as a justification for an obstacle imposed. In this article, I address the question of how the proportionality test should be interpreted in this respect.
VAT Fraud and Emission Allowances
Authors: Márquez Jesús Rodríguez , Bilbao Estrada Iñaki
Published: March 2022

The absence of Community legislation on the value-added tax (VAT) treatment of allowances has meant that, after the detection of suspected cases of fraud, several Member States have departed from the guidelines adopted unanimously by the VAT Committee. While this situation has produced a swift reaction from the European Union (EU) through the Proposal for a Directive to amend the VAT Directive aimed at giving a unified response to the phenomenon of the plots of fraud in general, it is surprising its voluntary nature. In addition, this article will show how, given the urgency of adopting a solution, the special characteristics of the emission rights market to arbitrate other measures have not been taken into account. Likewise, it also tries to show that the general answer is, of course, forgetting the inclusion of the tax treatment of allowances in the proposed directive to prevent Member States adopt different treatments that may distort the functioning of the allowance.