bluuebunny/crossref_metadata_2025 huggingface dataset:
Enhancing Worker Mobility via the Mobility Directive: Arrange the Tax Consequences for Supplementary Pension Rights Now!
Authors: Weerepas Marjon J.G.A.M. , Bollen-Vandenboorn Anouk H.H.
Published: March 2022

On 21 May 2014 the Mobility Directive entered into force. The Directive stipulates minimum conditions for enhancing worker mobility between Member States by improving the acquisition and preservation of supplementary pension rights. The aim of the European Commission is to improve the mobility of workers between Member States. The goal of this Directive is to reduce the impediments created by supplementary pension scheme rules related to employment relationships. Coordination and guidance exist at the European level in the fields of social security and pension law. Without a change in tax law rules, however, labour mobility will continue to be hampered. Where it is clear in Regulation 883/2004, Council Directive (EC) No. 98/49/EC and the Mobility Directive what in general terms qualifies as a pension, such qualification for tax purposes remains complicated. Due to the fiscal sovereignty of Member States, each Member State is free to apply its own conditions and requirements before recognizing a supplementary pension scheme. This contribution will address the entry into force of the Mobility Directive, the coherence of coordination rules concerning statutory pension rights and directives relating to supplementary pension rights, and will explore the extent to which at the European level in particular a connection can be made to fiscal regulation in order to optimize labour mobility.
Welmory: A Recipe for VAT Avoidance?
Authors: Jovanovic Nebojša
Published: March 2022

The judgment of the CJEU in the Welmory case attracts particular attention. This is due to the fact that the CJEU had to apply the concept of fixed establishment, which originated from the context of traditional economy, for the first time to the digital economy.

In this article the authors discuss the more general considerations of the CJEU in respect of the scope and status of the VAT Implementing Regulation and the fixed establishment concepts described therein as well as the interpretation of the concept of fixed establishment in relation to the digital economy. The main question of the article is whether the CJEU with its judgment in the Welmory case proves to be able to deal with the VAT challenges of the digital economy or whether it is a recipe for VAT avoidance.
The Never-Ending Issue of Cross-Border Loss Compensation within the EU: Reconciling Balanced Allocation of Taxing Rights and Cross-Border Ability-to-Pay
Authors: Cerioni Luca
Published: March 2022

Although the case-law on cross-border loss offsetting has been developed by the European Court of Justice (ECJ), to date, only on the bases of fundamental freedoms, and has been oscillating between a global approach and a single-country approach, these two approaches could be reconciled with a view to an ultimate concern to avoid tax evasion and tax avoidance within the EU territory. Moreover, this concern would be fully consistent with the development of an EU law principle of ability-to-pay, which could arguably be applied, inter alia, through a fractional deduction of cross-border losses in each Member State even for those taxpayers not falling within the Common Consolidated Corporate Tax Base (CCCTB) project, to the benefit of both balanced allocation of taxing rights and taxpayers’ interests.
An Analysis of the Financial Transaction Tax in the Context of the EU Enhanced Cooperation Procedure
Authors: Ness Richard
Published: March 2022

This article aims to provide a comprehensive and detailed analysis of the constitutional issues surrounding the European Union’s Financial Transaction Tax (FTT). This analysis will firstly explore the enhanced cooperation procedure (ECP) used to resurrect the abandoned 2011 Commission proposal, as well as a discussion of the conditions – procedural and substantive – which the procedure must satisfy. To what extent, if at all, use of the ECP in this situation represents a changing constitutional tide will be considered. The most recent FTT proposal and its objectives will then be analysed, with a focus on the most controversial aspect of the tax: its extraterritoriality stemming from its adoption of the residence and issuance principles. This article will conclude that not only is this FTT unlikely to attain its objectives, but that the current use of ECP as a method of differentiated integration has been inconsistent and, at times, inappropriate.
Double Taxation of Inheritances: Does the Ineffectiveness of EU Law Lead to an Effective EC Recommendation?
Authors: Dafnomilis Vassilis
Published: March 2022

This article provides an overview of the CJEU case law on double taxation of cross-border inheritances. Legal concepts like disparities and conflicts of tax jurisdiction principles will be discussed and commented on. Furthermore, the author comments on the effectiveness of the EC Recommendation 2011/856/EU regarding the relief for double taxation of inheritances. He examines the EC Recommendation in order to ascertain whether its distributive provisions eliminate the double taxation problems or whether other coordination/harmonization initiatives are necessary for the taxpayers’ protection.
Harmonization and Coordination of Corporate Taxes in the European Union
Authors: Garbarino Carlo
Published: March 2022

An harmonized European Union (EU) corporate income tax – i.e. a traditional tax aimed at raising resources for a common fiscal policy – is not attainable in the short-term: the Treaty unanimity rule is an obstacle and the priority is constituted by the (unresolved) EU fiscal architecture. However the coordination of corporate taxes can prevent negative tax externalities at EU level and operates along three ‘dimensions’. The first dimension is defined as ‘intra-EU’ and attains to intra-State mobility of persons and capital among different Member States but within the boundaries of the EU. The second dimension is defined as ‘EU-inbound’ and refers to the policies of the EU as a whole vis-à-vis non-EU investors. The third dimension is defined as ‘EU-outbound’ and refers to the policies of the EU as a whole in respect to EU investors (i.e. investors based in a Member State) and operating outside of the EU. The intra-EU dimension belongs to the traditional aquis communautaire in corporate tax matters, while ‘EU-inbound’ and ‘EU-outbound’ dimensions are emerging from recent EU initiatives as they relate to the shifting of profits across borders. So the EU coordination of corporate taxes is faced now with policies based on the OECD BEPS project which might crystallize in binding legislation either at EU or national level. The article describes this process by relying on a few preliminary concepts, such as tax competition, tax convergence and enhanced cooperation
Tax Transparency in the European Union Regarding Country by Country Reporting (BEPS Action 13)
Authors: Wilms Anna Lena , Seer Roman
Published: March 2022

One goal of the fight against aggressive tax planning is to improve tax transparency of the globalized activities of Multinational Entities (MNE). The OECD Action Plan No. 13 does not only recommend a unilateral implementation of a Country-by-Country- Reporting (CbCR), but also an additional implementation package composed of a Multilateral Competent Authority Agreement (MCAA) and bilateral agreements. In line with the Organisation for Economic Co-operation and Development (OECD) tax policy the European Union (EU) has already amended again the Council Directive 2011/16/EU (hereinafter ‘DAC 1’) by the Council Directive 2016/881/EU of 25 May 2016 (so-called DAC 4) implementing the OECD-CbCR-standard also on the EU-level. However, this action will respect, in general, the international tax secrecy (see Article 16 paragraph 4 DAC 1) as well as the business secrets of Article 17 paragraph 4 DAC 1. Furthermore, the EU commission has issued a proposal for a Directive amending Directive 2013/34/EU as regards disclosure of income tax information by certain undertakings and branches, COM (2016) 198 of 12 April 2016 (so-called Report on Income Tax Information – RITI). In contrast to DAC 4, the RITI will make the CbCR data public. This article will ask for legal consistency, a mismatch of legislative competence and the protection of business interests during the CbCR process.
Customs Valuation and Transfer Pricing: ICC proposals
Authors: Salva Jean-marie
Published: March 2022

Intercompany transactions account for more than 60% of global trade value. In this article, one can easily understand that the concept of transfer pricing is a major issue in the determination of customs valuation. However, the relationship between transfer pricing and customs valuation is not easy to grasp. Basically, there is two different approaches of transfer pricing, the first one adopted by tax agencies, based on the OECD Transfer Pricing Guidelines and the second adopted by customs agencies, based on the WTO Customs valuation Agreement (CVA). From the business perspective, the divergence between the two taxation regimes is an obstacle to the liberalization of trade and inhibits international development for companies. On another hand, the International Chamber of Commerce (ICC) strongly believes that the WTO CVA and the use of OECD guidelines are enough to settle the issue of customs valuation and transfer pricing. However, ICC specifies that tax and customs approaches of intercompany transactions should converge to the same value. In this goal, ICC published a policy statement in 2012, which has been integrated in the WCO guidelines. This statement, based on the harmonization of the current rules, contains several additional options to derive customs value. Also we can regret that the Union Customs Code (UCC) does not contain any evolution from a transfer pricing perspective but contains some negatives changes regarding custom valuation. Also, the opportunity of the WCO Free Trade Agreement (FTA) should be taken to move forward on this issue.
International Double Taxation in the European Union: Comparative Guidelines from Switzerland and the United States
Authors: Van de Vijver Anne
Published: March 2022

The Court of Justice of the European Union (CJEU) ruled on several occasions that, while international double taxation may hinder the fundamental freedoms guaranteed by European Union (EU) law, it can nevertheless not be considered as a forbidden restriction to the extent that (direct) tax law is not harmonized. It is a result of the overlapping tax competences of the EU Member States. Conversely, in Switzerland, the Tribunal Fédéral held that inter-cantonal double taxation was contrary to the Swiss free movement of persons. In 2015 also the US Supreme Court decided in Maryland v. Wynne that interstate double taxation unconstitutionally discriminated against interstate commerce. The purpose of the current contribution is to compare the EU with the Swiss and the US fundamental freedoms in order to find a justification for these different approaches. Our comparative research shows that at least in certain circumstances international double taxation within the EU is contrary to the EU fundamental freedoms. We suggest a more comprehensive analysis following the example of the Swiss territory-based allocation rules and the US internal consistency test.
Analysing the European Commissions Final Decisions on Apple, Starbucks, Amazon and Fiat Finance & Trade
Authors: Cachia Franklin
Published: March 2022

This article addresses the issues which stem from the State aid investigations opened by the European Commission (EC) against Luxembourg, Ireland and the Netherlands, concerning aid granted in the form of tax base reduction to certain undertakings, namely Apple Inc., Amazon, Starbucks and Fiat Finance and Trade (FFT). Furthermore, this article analysis the EC’s main line of argument in the aforementioned State aid investigations that is, acceptance by the Netherlands, Ireland and Luxembourg, of the proposed calculation of the taxable base of these multinational enterprises (MNEs) which do not reflect normal market conditions, may result in State aid, in that it will offer a more favourable treatment to the MNE compared to the treatment other undertakings would normally receive under the Member States’ ‘normal’ tax system. In arriving at what would constitute normal market conditions, the EC uses two benchmarks namely, the internationally accepted standard, the Arm’s Length Principle (ALP) and the Prudent Independent Market Operator (PIMO), which makes its first appearance in these investigations.
The General Anti-Abuse Rule of the Anti-Tax Avoidance Directive: An Analysis Against the Wider Perspective of the European Court of Justices Case Law on Abuse of EU Law
Authors: Beckers Dorien
Published: March 2022

A general anti-tax avoidance rule (GAAR) has been adopted as part of the Anti-Tax Avoidance Directive of 12 July 2016 (ATAD). This article first sets out the concept of abuse of (tax) law and its role within the European Union legal order, based on the jurisprudence of the European Court of Justice (section 2). Subsequently, it establishes a recent trend towards mandatory GAAR codification. The traditional approach whereby secondary EU laws merely authorizes national GAARs to combat abusive practices is replaced by an obligation for Member States to eliminate abusive tax practices (section 3). The mandatory GAAR that was included in the amended Parent-Subsidiary Directive of 2015 seems to have set a precedent which the ATAD has extrapolated to the corporate income taxation of the Member States. Finally, section 4 provides a critical analysis of the scope, requirements and legal consequences of the ATAD GAAR, whereby questions and concerns are raised showing that, despite its remarkably swift adoption, interpretation and implementation of the new provision are far from self-evident.
VAT Effects of Year-End Transfer Pricing Adjustments
Authors: van Doesum Ad , van Kesteren Herman , van den Brekel Ronald
Published: March 2022

A recurrent topic of debate concerns the effects of transfer pricing adjustments for direct tax purposes on the taxable amount for VAT. This topic is currently gaining attention, which is underlined by the recently published VAT Committee working paper on the possible VAT effects of transfer pricing adjustments. Focussing on so-called ‘year-end transfer pricing adjustments’, the authors discuss various fundamental questions concerning the VAT implications of such adjustments. Do year-end adjustments lead to retroactive adjustments to the taxable amounts for VAT of supplies made throughout the year? If any retroactive adjustments need to be made to the taxable amounts for VAT, what are the implications for the VAT returns, EC-Sales lists and interests? What if a year-end adjustment does not lead to an adjustment of the taxable amount for VAT? Can intercompany payments (which follow from year-end adjustments) then be regarded as the remuneration for any service rendered? Or are year-end adjustments merely to be regarded as financial transactions outside the scope of EU VAT after all? These, and other questions are discussed in this article.
One Inheritance, One Tax
Authors: van Vijfeijken Inge J.F.A.
Published: March 2022

The problem of double inheritance tax is caused by a lack of tax treaties, diverging Succession Law and diverging Inheritance Tax. In December 2011 the European Commission (EC) adopted a package of instruments to deal with the difficulties regarding cross-border inheritances, but nothing really happened since then. The European Court of Justice (ECJ) can prevent double taxation in some cases, but the scope of effect of the TFEU is limited.

In 2014 an expert group was installed by the EC to identify tax problems faced by individuals who move from one EU country to another. The expert group had to provide independent solutions for these problems. The advice of the expert group can be summarized as ‘one inheritance, one tax’. This motto will be discussed in this article.
Congregación De Escuelas Pías Provincia Betania: Tax Exemption for Education Services by Religious Congregation Not Sacrosanct from State Aid Perspective
Authors: Luts Joris
Published: March 2022

On 27 June 2017, the Court of Justice handed down a judgment in another fiscal State aid case concerning a tax exemption granted by Spain to a religious congregation performing educational services (Case C-74/16 Congregación de Escuelas Pías Provincia Betania). The Court of Justice’s judgment is interesting – and relevant for future fiscal state aid cases – for a number of reasons, which are discussed in the present article. Firstly, the case adds to the growing body of case law regarding the interpretation of the selectivity requirement in tax matters. Secondly and more importantly, the case provides insight into what constitutes an ‘economic activity’ and an ‘undertaking’ for state aid purposes, and specifically deals with the role played by the receipt of remuneration in this respect. Finally, the case may shed light on an issue of growing importance, i.e. the interaction between an instrument of public international law (a treaty) and various aspects of EU state aid law.
Customs Valuation Under the UCC: Further Guidance Needed?
Authors: de Wit Walter
Published: March 2022

This article deals with the new rule on customs valuation included in Article 128 of the Union Customs Code Implementing Act which is aimed at abolishing the so-called first sale for export valuation rule. The article discusses how the new requirement, that the sale occurring immediately before the goods were brought into the customs territory of the EU is decisive, will work for determining which transaction must be used to apply the transaction value methodology for customs valuation purposes. In relation to this requirement it also discusses the introduction of the new concept of domestic sale by the European Commission in its Guidance on customs valuation of April 2016 and the many questions this concept raises.
Sales Promotion Techniques and VAT
Authors: Wittock Nathalie
Published: March 2022

Sales promotion is often a key component within a company’s promotional campaign. Sales promotion consists of the use of a number of sales promotion techniques (SPTs). Although the use of SPTs is common practice, the VAT treatment and consequences of the use of SPTs are uncertain, wherefore this often gives rise to a VAT cost. The article contents how the use of SPTs can be brought (more) in accordance with the principle of neutrality, based on which the VAT should in principle not bear on businesses, but on final consumers only. The article thereby mainly focusses on SPTs whereby a sales promoter himself offers a benefit to a customer as a SPT.
Implementing the ATADs CFC Rules by Poland Contrary to EU Primary Law: A Solitary Example or the Beginning of Infamous Trend?
Authors: Kuzniacki Blazej
Published: March 2022

This article demonstrates that after the seemingly incorrect implementation of Articles 7–8 of the ATAD, the Polish CFC rules have become blatantly incompatible with the free movement of capital to the extent of their application to companies from third countries (the Polish black list). This study, moreover, confirms the thesis that the incompatibility of the Polish CFC rules was most likely caused by two elements of the ATAD: (1) minimum level of protection in Article 3; and (2) the option under Article 7(1)(a) which leaves the decision regarding the exemption from taxation of the CFC’s income if a CFC is established outside the EU/EEA and carries on a substantive genuine business activity there to Member States themselves. The analysis also reveals that the CJEU appears to consider that the lack of a factual possibility to exchange of tax information can justify the irrefutable presumptions of tax avoidance or tax evasion by reference to the need to ensure effective fiscal supervision only in respect of the relations between the Member States and third countries. Accordingly, not only the ATAD, but also the CJEU’s case law trigger a hidden form of protectionism of Member States at the cost of third countries.
Brexit: The Road Ahead for EU-UK Trade
Authors: de Wit Walter , Vroom Martijn
Published: March 2022

The countdown to Brexit has started. Given the short timeframe to Brexit and the large trading volumes, the authors investigate which certainties and uncertainties exist regarding the future trade relationship between the European Union (EU) and the United Kingdom (UK). Certain is that the UK is leaving the EU on 29 March 2019. On the basis of the recently presented draft withdrawal agreement, however, the chances are apparent that the UK will not leave the EU Customs Union and the internal market during a transition period ending in December 2020. Taking into account a possible transition period, the authors discuss the most likely scenarios and their impact on trade between the EU and the UK, in particular from a customs perspective.
The European Commission Proposal for a 3% Call Rate as a New Suggestion for a EUCIT: An Assessment Against the Criteria for a Fair Taxation
Authors: Cerioni Luca
Published: March 2022

The European Commission’s proposal for a 3% ‘call rate’ on the Common Consolidated Corporate Tax Base (CCCTB), to be introduced after the CCCTB itself, has been submitted with the draft budget for 2021–2027 for allowing the EU to rely on a new ‘own resource’. This proposal would lead to a situation where uniform rules on the tax base at EU level would be accompanied by a uniform (however minimal) tax rate at EU level. Accordingly, without mentioning the ‘European Union Company Income Tax’ (EUCIT) suggestion which was initially put forward as one of the alternatives for a comprehensive business taxation scheme, the proposal for a 3% call rate can be considered as a step forward towards the EUCIT itself. If the 3% call rate proposal were assessed against the classical canons for ‘fair taxation’ – equity, neutrality, certainty, convenience – it could be argued that the proposal manages to a good extent to meet the equity and the certainty criteria but could still be improved to better meet the neutrality and convenience criteria too, to the benefit both of its ability to result in a new ‘own resource’ for the EU budget and of the management of the CCCTB scheme itself.
Technology: A Key to Solve VAT Fraud?
Authors: Merkx Madeleine , Verbaan Naomie
Published: March 2022

This article is a follow up on a previous article from the same authors. In that article the authors concluded that keeping the current system for intra EU trade between businesses and addressing VAT fraud by using technological solutions may be the best way forward. In this article the authors address potential technological solutions that can help to solve the issue of VAT fraud. The technical solutions that are addressed are: split payment, blockchain technology, real time reporting and SAF-T. All these solutions have or are being considered by some EU Member States or even the European Commission.
Some Thoughts to Understand the Court of Justice Recent Case-Law in the Danmark Cases on Tax Abuse
Authors: Rodríguez Juan López
Published: March 2022

Abuse of law is a general principle of EU law and has direct effect and priority over national law.National authorities have to apply it without the need of a specific provision of EU law. It is a self-protection tool and guarantees that the competences of the EU do not extend beyond their limits. This principle is the same in all areas of EU law. It has an objective and a subjective element. The beneficial owner clause addresses specific forms of tax abuse. As such, it is embraced by the more general principle of abuse of law. Under this view, there is not a need to codify the principle in a legal provision. In this case, it is required to prove the intention of abuse.When codified by law, it is transformed into a requirement to apply a specific tax regime: the tax administration must prove the objective element of abuse but not the animus fraudis. In the interest and royalties directive plays this role. In the parent-subsidiary directive can be invoked as an anti-abuse clause, but the intention to defraud has to be proved.

Abuse, general principle, EU law, EU competence, sovereignty, objective element, subjective element, proof, beneficial owner, OECD materials
The Green Deal Consultations: Well-Being Aims and Tax Related Reforms
Authors: van Hulten Mart
Published: March 2022

On 23 July 2020, the European Commission launched public consultations on two tax related proposals, namely a revision of the Energy Taxation Directive and the creation of a Carbon Border Adjustment Mechanism. These proposals are part of the European Green Deal, a strategy that aims, amongst other things, to put the well-being of citizens at the centre of economic policy.

In this article, the well-being aims put forward in the Green Deal are considered in connection with the Commission’s tax related proposals in that regard as included in the public consultations of July 2020. It is concluded that, while taking on board well-being aims may be valuable in that it obliges to consider in a broad way what is good for people, the current references to well-being by the Commission in the Green Deal lack clarity and raise a number of important questions. Recommendations are provided, also with respect to the envisaged role of taxation in tackling environmental issues.
DAC6 and the Challenges Arising from Its Disclosure Obligation
Authors: Bianco Arthur
Published: March 2022

Directive 2018/822 (‘DAC6’) aims at ensuring the exchange of information between Member States of potentially tax-aggressive arrangements. To do so, the European legislator has entrusted intermediaries across the European Union with the task of gathering and reporting a number of potentially aggressive tax arrangements to improve tax transparency and stifle tax avoidance. Unfortunately, a closer analysis of the text has revealed multiple issues that may threaten the well-functioning of the system and could impede the action of the intermediaries. From missing definitions and a lack of guidance to new concepts in dire need of proper interpretation, intermediaries are left with a daunting task to tackle. Risks of delays and over-disclosure, arising from the inconsistencies and uncertainties left by the text of the instrument, may not only undermine the effectiveness of the reporting obligation, but also that of the rest of the system altogether.

DAC6, Directive 2018/822, Disclosure, Reporting, Intermediaries, Arrangement, Tax-aggressive, Main Benefit Test, Hallmarks, Oversharing
The Comitology Proposal: Shifting the Legislative Balances in EU VAT
Authors: Merkx Madeleine , Gruson John
Published: March 2022

In this article the authors address the proposal to transform the status of the VAT Committee into a ‘comitology committee’ tabled by the European Commission in December 2020. The proposal basically confers implementation powers to the Commission via comitology in the area of EU Value Added Tax (hereinafter: VAT). If adopted by the EU Member States, this would lead to a groundbreaking situation in which for the first time in the area of taxation the decision-making based on unanimity of EU Member States is dropped in an area that does directly affect the EU Member States’ national tax revenues. The authors take this opportunity to explain the function and the consequences of the comitology procedure. After describing the core of the proposal, the authors pay a visit to other legislative areas in taxation where the comitology procedures apply before they dive deep in the scope of the powers granted under the proposal and reach a conclusion. The authors doubt whether the proposal will be adopted and whether EU Member States are prepared to confer more powers to the European Commission.

VAT (Value Added Tax), legislative process, VAT Committee, proposal, comitology, implementing powers, interpretation, QMV (Qualified Majority Voting)
The implications of adopting a European Central Bank Digital Currency: A Tax Policy Perspective
Authors: Scarcella Luisa
Published: March 2022

In the wake of growing interest around cryptocurrencies, the possible issuance by central banks of their own digital currency has been a topic of debate worldwide. However, little attention has been given to the relevancy of electronic and digital payments (including a possible digital euro) in the area of taxation, where policies limiting the use of cash are being intensively adopted all around the world. On one hand, tax policies fostering the use of electronic and digital payments as a Central Bank Digital Currency (CBDC) can help tax authorities to better monitor taxpayers’ transactions in the fight against tax evasion and fraud. On the other hand, important concerns arise in the areas of data protection and the digital divide. These two kinds of concern should be taken into account and addressed by policymakers before the adoption of both a CBDC and tax policies favouring its use at the detriment of cash.

CBDC – Digital Currencies – Cashless Payments – Electronic Payments – Tax Policy – Exchange of Information – Taxpayers’ rights – Data Protection – GDPR – Digital Divide
The GloBE Income Inclusion Rule and Its Global Character: Complexities Underlying Its Fully Effective Application
Authors: De Pietro Carla
Published: March 2022

This article focuses on the complex challenges affecting the relationship between different tax systems (national, international and EU) within a context, like the current GloBE project, which is looking for appropriate tax measures applying on a global scale. In fact, the need of developing tax measures with a global character requires specific attention to be given to issues concerning the effectiveness of these measures in light of the relationship between the relevant tax systems.

More specifically, within the framework of this article, the analysis aimed at evaluating the possibilities of guaranteeing a fully effective application of the GloBE income inclusion rule has been conducted on the basis of two crucial factors, i.e. (1) the compliance of the income inclusion rule with international tax treaty law and with EU tax law, and (2) the coordination between international tax treaty law and EU tax law.

Global Anti-Base Erosion (GloBE) project, Pillar Two, Income Inclusion Rule, BEPS, CFC legislation, Abuse, OECD/G20 Inclusive Framework, Saving Clause.
Factors Affecting the Choice of Dispute Resolution Methods in Japan (with an Emphasis on Arbitration)
Authors: Tseng I-Ching
Published: March 2022

We’ve come pretty far with having a straightforward means of dispute resolution: the courts are no longer the place for international business, it’s international commercial arbitration, with all of its flaws; at least it’s recognised, it’s uniform, it’s enforceable, it’s in place and about as fair as you can make it.
Enforcement of Foreign Arbitral Awards in the Republic of Moldova – Evolution of the Pro-Arbitration Policy in the Case Law of the Supreme Court of Justice
Authors: Svetlicinii Alexandr
Published: March 2022

This article attempts to refute common stereotypes that would characterize the legal environment in Moldova as unstable and unreliable for recognition and enforcement of foreign arbitral awards in national courts. Under analysis is the emerging judicial practice of Moldova’s highest court, the Supreme Court of Justice. The author provides a brief introduction to the establishment of continuous support for arbitration in national legislation, international agreements and national judicial practice. Judicial precedents are related to various aspects of recognition and enforcement of foreign arbitral awards in Moldova: procedures for setting aside; application of the New York Convention; treatment of arbitration clauses by national judges; procedural aspects of commercial arbitration; arbitration under bilateral investment treaties; and other aspects. Several important judgments are discussed in detail, emphasizing the procedural aspects of the enforcement and application by the national courts of international treaties, foreign substantive laws and rules of the administering arbitral institutions. The conclusion drawn on the results of the case law analysis demonstrates that despite common stereotypes supported by certain investment reports and legislation studies, Moldovan courts have always shown general support towards international commercial arbitration as a preferred method of alternative dispute resolution.
Limits to Party Autonomy in Arbitral Procedure
Authors: Pryles Michael
Published: March 2022

Who is in charge of the arbitral procedure - the parties or the arbitrator? The answer may not be readily apparent. This article explores the powers of the parties and the arbitrator to prescribe the procedure to be followed in an arbitration.
Supreme People’s Court Rules on PRC Arbitration Issues
Authors: Lin Mark
Published: March 2022

In a jurisdiction where the national legislation lays down only broad principles and where there is not yet an established and reliable court reporting system, the various explanations, interpretations or notices published by the Supreme People’s Court become a useful supplementary aid. This article looks particularly at those SPC rules touching on the validity of arbitration clauses and the enforcement of arbitral awards and identifies areas where further judicial explanations or interpretations would be welcome.
The Combination of Conciliation with Arbitration in the People’s Republic of China
Authors: Harpole Sally A.
Published: March 2022

The combination of conciliation with arbitration may offer parties the advantages that are enjoyed under both procedures. The Chinese approach to this combination is highly flexible. It favors the amicable settlement of disputes and at the same time offers the potential advantage of a consent award that is legally enforceable, where parties successfully resolve their dispute through conciliation. The Arbitration Law of the People’s Republic of China and the Arbitration Rules of the respective arbitration institutions embrace this approach with explicit provisions.
Arbitration Outside China: the Alternatives
Authors: Aglionby Andrew
Published: March 2022

When the parties to a contract connected with business in China decide to arbitrate, they sometimes select a seat of arbitration outside the People’s Republic of China. There are many factors to such a choice including the convenience of the location, the likely nationality of the arbitrators, the procedures which are likely to be adopted and the enforceability of the resulting award both in China and elsewhere. This article discusses some of those factors and how they might be applied in selecting a seat for arbitration in the arbitration agreement.
How Bilateral Investment Treaties Can Protect Foreign Investors in the Arab World or Arab Investors Abroad
Authors: Ziadé Roland , Annacker Claudia , Greig Robert T.
Published: March 2022

Bilateral investment treaties generally provide investors with neutral, effective protections when investing abroad. Arab countries have been active in entering such treaties and at present the Arab world offers one of the world’s largest bilateral investment treaty networks. This article discusses the substantive protections and the procedural remedies available to foreign investors in the Arab world or to Arab investors abroad and presents ways of structuring investments in order to maximize bilateral investment treaty protections.
Arab Arbitration v. International Arbitration? The Case for a Reconciliation
Authors: El Ahdab Jalal , Stackpool–Moore Ruth
Published: March 2022

Although discussion surrounding the issue of “Arab arbitration” and the accessibility of international arbitration to practitioners from the “Arab world” is not by any means new to practitioners in the field, aside from the publication of a handful of articles and commentaries, there is a clear lack of statistical information and sociological studies on the subject. While this article briefly sets out the contemporary significance of arbitration in the Arab world, and examines some of the issues bound up in the notion of its progression, it also aims to spark wider and renewed debate regarding issues such as (i) what is “Arab arbitration”; (ii) is there an underrepresentation of practitioners from the “Arab world” participating as both counsel and arbitrators in international commercial arbitration; (iii) is there a need for the creation of a community of Arab arbitrators in the same way as there exists a community of European arbitrators; (iv) if such a need is identified, is there a sufficient basis in the Arab world to do so; and (v) to what extent, if any, do the culture and origins of arbitrators and counsel influence the outcomes of international arbitration proceedings anyway? It is hoped that this article will renew momentum for the analysis of these issues and underscore the importance of the promotion of the participation of Arab practitioners in international arbitral proceedings and on their tribunals.
The Authenticity of Online Alternative Dispute Resolution Proceedings
Authors: Haloush Haitham A.
Published: March 2022

Electronic commerce is important, and perhaps, inevitable. Thus, consideration of the legal implications of the growth and development of electronic commerce is essential. However, the lack of suitable dispute resolution mechanisms in cyberspace will constitute a serious obstacle to the further development of electronic commerce. Bearing this in mind, this article argues that when Alternative Dispute Resolution (“ADR”), particularly arbitration and mediation, moves to cyberspace, the form of online alternative dispute resolution (“OADR”) can maximise the growth of e–commerce. Having said that, in order to be consistent with fair process rights, OADR process must guarantee the non–repudiation and integrity of the information transferred during the proceedings in order to ensure that the contents of a record have not been altered, that a file or program has been entirely transmitted, and that data really is the data that it is claimed to be. This article concludes that it is important to provide electronic authentication which guarantees the validity of virtual agreements, that is, not only the contractual clauses defining recourse to OADR, but also the contracts in which the parties decide to submit an existing dispute to OADR.
Interpretation of Article V of the New York Convention by Russian Courts Due Process, Arbitrability, and Public Policy Grounds for Non–Enforcement
Authors: Nikiforov Ilya
Published: March 2022

This article highlights the most recent trends involving the application of Article V of the New York Convention in Russia. It also considers three potential obstacles to enforcement of foreign arbitral awards in Russia, due process, arbitrability, and public policy.
Recognition and Enforcement of Awards under the New York Convention China and Hong Kong Perspectives
Authors: Yeoh Friven , Darwazeh Nadia
Published: March 2022

In this article, the authors survey the adoption and application of the New York Convention in Mainland China and Hong Kong, examining in particular whether the pro–enforcement bias that is intended by the Convention holds true in practice for these jurisdictions.
Application of the New York Convention in India
Authors: Nariman Fali S
Published: March 2022

Forty–five independent states were represented at the Conference of Plenipotentiaries held in New York in June 1958 to conclude the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. India’s representative was elected as First Vice–President of the Conference. India was not only a party to the New York Convention but had been an active participant at the deliberations that led to the Convention. To give effect to the New York Convention (often described as “the most successful of all UN Conventions”) India’s Parliament enacted the Foreign Awards (Recognition and Enforcement) Act 1961; domestic arbitrations continued to be governed by the somewhat antiquated Indian Arbitration Act 1940. The 1961 Act, along with the 1940 Act, were later repealed and replaced by a new consolidated law applicable to both domestic and international arbitrations, the Arbitration and Conciliation Act 1996. This article examines how issues arising under statutory provisions implementing Article V of the New York Convention (Recognition and Enforcement of Foreign Awards) have been dealt with by courts in India.
Antisuit Injunctions and Arbitration Proceedings: What Does the Future Hold?
Authors: Noussia Kyriaki
Published: March 2022

Antisuit injunctions restrain foreign court proceedings in case of a valid agreement for arbitration. In the common law world, it has been argued that they have contributed to London’s eminent position as a popular arbitral seat and that the opinion of Advocate General Kokott of September 4, 2008 and the European Court of Justice (E.C.J.) judgment of February 10, 2009, following the referral of West Tankers Inc. v. RAS Riunione Adriatica di Sicurta S.p.A. (The Front Comor) to the E.C.J. in December 2006, has already promulgated a change in this state of affairs.

The purpose of this article is to discuss comparatively antisuit injunctions in relation to arbitration in the United States, the United Kingdom, and in Europe, analyze the aforementioned opinion given by Advocate General Kokott and the E.C.J. judgment that followed, and the future of London’s arbitral popularity, and finally, set out the modern function and role of antisuit injunctions in light of the efforts to harmonize private international law.
Bhatia International v. Bulk Trading S.A.: Ambushing International Commercial Arbitration Outside India?
Authors: Sharma Raghav
Published: March 2022

In Bhatia International v. Bulk Trading S.A., the Indian Supreme Court ruled that the Arbitration and Conciliation Act, 1996 (“the Act”), applies to international commercial arbitrations held outside India. In its aftermath, this ruling has been misconstrued and misapplied by the Indian courts to fundamentally alter the nature of the Act and widen their jurisdiction over such international commercial arbitrations. This article critically examines the ruling, identifies the law laid down, explains the limits of its application, and offers positive suggestions for unwary foreign parties to avoid its trap.
Charting New Waters with Familiar Landmarks The Changing Face of Arbitration Law and Practice in Nigeria
Authors: Olawoyin Adewale A
Published: March 2022

Nigeria is a federation and the rising profile of arbitration law and practice has brought to the fore questions regarding the validity of a substantive federal law on arbitration. The constitutional schematic of legislative competence between the National Assembly and the State Houses of Assembly has generated judicial discourse in other areas of the law which offer an insight into the proper interpretation of the relevant constitutional provisions. This article is a critique of the various arguments in favour of a substantive federal law on arbitration. It is argued, contrary to what appears to be conventional wisdom, that arbitration is a residual matter within the legislative competence of the State Houses of Assembly. The article also reviews the laudable provisions of the current Draft Federal Arbitration and Conciliation Bill proposed by the National Committee on the Reform and Harmonization of Arbitration and Alternative Dispute Resolution (ADR) Laws in Nigeria against the background of the deficiencies in the current statutory regime under the Arbitration and Conciliation Act 1990 and the principles evolved by the courts.
Finality of Investor-State Arbitral Awards: Has the Tide Turned and is there a Need for Reform?
Authors: Clapham Jason
Published: March 2022

States have traditionally preferred the finality of investor-state awards, in preference to “consistency and correctness.” Following the decisions in SGS and Lauder, however, commentators have argued that “consistency and correctness” ought to outweigh finality. In this article, it is argued that, based on the available evidence, the “tide has not turned”: states and investors continue to prefer finality over consistency and correctness. It is further argued that, based on this position, reform ought to be considered to seek to protect the finality of investorstate arbitral awards. It is submitted that this reform can be achieved through the creation of an Additional Annulment Facility and the issuing of an “interpretive note” by the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID) Administrative Council.
Arbitrability of Corporate Disputes in Ukraine
Authors: Chernykh Yuliya S.
Published: March 2022

Recently, with the introduction of the Law No. 1076- VI dated March 5, 2009, the issue of arbitrability of corporate disputes has once again become highly controversial in Ukraine, reminiscent of the discussions which took place in 2007–2008 following the Recommendations of the High Commercial Court of Ukraine of December 28, 2007. This time corporate disputes became non-arbitrable as a matter of law. This article briefly analyzes the true reasons behind the legislative amendments as well as their particular scope. Despite the broad definition of a corporate dispute, share purchase agreements are still not covered by it and are thus fully arbitrable.
Comment on West Tankers Inc. v. RAS Riunione Adriatica di Sicurta S.p.A. (The Front Comor)
Authors: Grierson Jacob
Published: March 2022

In West Tankers Inc. v. RAS Riunione Adriatica di Sicurta S.p.A. (The Front Comor), the European Court of Justice (ECJ) held that it is inconsistent with Council Regulation 44/2001 (EC) for a court of an EU Member State to issue an antisuit injunction forbidding a lawsuit to proceed in another Member State, even if the antisuit injunction is issued in support of an arbitration agreement. This comment summarizes the ECJ’s judgment, which has given rise to considerable criticism, as well as the U.K. House of Lords’ earlier judgment, which had advocated the opposite conclusion. It also considers some of the consequences of the ECJ’s judgment, including in particular the risk that judgments rendered in disregard of arbitration agreements will have to be enforced, and proposes a possible solution to this problem.
Multi-tiered Dispute Resolution Clauses: Enforcing Obligations to Negotiate in Good Faith
Authors: Chapman Simon
Published: March 2022

A recent Australian decision enforcing a multi-tiered arbitration clause requiring the parties to hold “genuine and good faith negotiations” attempts to give legal effect to the (frequently expressed) intentions of commercial parties. However, the decision raises a number of concerns about how any obligation to negotiate in “good faith” should be defined. This article explores these issues in greater detail, contrasting the position in Australia with that in England and Wales.
Privacy and Confidentiality Obligation on Parties in Arbitration under Swiss Law
Authors: Ritz Philipp
Published: March 2022

While the privacy of arbitration proceedings is generally accepted, confidentiality is still a hotly discussed topic. After giving an overview of the legal situation on confidentiality in various jurisdictions, this article identifies the legal basis of the privacy principle under Swiss law. Thereafter, it is examined whether the parties to arbitrations in Switzerland are bound to a confidentiality obligation. This article also addresses which law applies to the questions of privacy and confidentiality in arbitrations held in Switzerland, and whether arbitral tribunals or state courts are competent to decide on the existence of a confidentiality obligation.
Challenging Arbitrators in Investment Treaty Arbitrations — A Comparative Law Approach
Authors: Rosenberg Charles B.
Published: March 2022

There has been a recent uptick in challenges to arbitrators in investment treaty arbitrations. When negotiating an arbitration agreement and/or selecting a forum to commence international arbitration, challenge procedures and the applicable standards should be taken into consideration to preserve potential strategic advantages. This article undertakes a comparative law analysis of the various standards for challenging an arbitrator and then examines some of these recent decisions.