bluuebunny/crossref_metadata_2025 huggingface dataset:
Golden Shares and Market Governance
Authors: Szyszczak Erika
Published: March 2022

Moves towards less direct State intervention in the market have been accompanied by experimentation with legal tools to allow the State to retain some control over privatised companies, especially where the supply of goods and services in sensitive sectors is involved. Recent infringement actions brought by the Commission questioning the use of golden shares in privatised companies have contributed to the developing framework of regulating State intervention in the market, revealing the growing involvement of European Community law in European public law and governance ideas. The rulings of the Court reveal a willingness to use the free movement of capital provisions of the EC Treaty to tackle restrictions on access to the market but suggest that a range of public interest justifications are available to the Member States, leaving the courts to balance a number of competing interests in the market opening process.
The Level and Composition of Executive Remuneration: a View from the Netherlands
Authors: de Groot Cees
Published: March 2022

In recent years the issue of executive directors? remuneration has attracted much attention. Against the background of the EU Commission Recommendations on non-executive directors and on directors? remuneration, this contribution focuses on a number of aspects of the regulation of executive remuneration in listed public limited companies in the Netherlands. It discusses the regulation laid down in the Dutch Civil Code and in the Dutch Corporate Governance Code.
Piercing the Myth of Managementcontrol. The Ius Commune of the Shareholders’ and Stakeholders’ Models
Authors: Schwarz Kid , Steins Bisschop Bas
Published: March 2022

This article reflects on the role of shareholders in company management against the background of recent hedge fund-triggered corporate disputes, in particular the struggle over the future policy of the Euronext Amsterdam listed company Stork NV.
A New Takeover Code in Austria
Authors: Hasenauer Clemens , Birkner Albert
Published: March 2022

The Austrian Takeover Act (Übernahmegesetz, ÜbG) entered into force on 1 January 1999. In 2006, the Takeover Act was amended by the Takeover Amendment Act (Übernahmerechts-Änderungsgesetz, ÜbRÄG) which was passed shortly after the implementation period of the Takeover Directive 2004/25/EC had expired. The Takeover Amendment Act was given retroactive effect as per 20 May 2006. A revision of the Austrian Takeover Act was not only necessary because of the Takeover Directive but also due to constitutional restraints. In particular, the Austrian Constitutional Court challenged the authorization of the Austrian Takeover Commission (Takeover Commission) to issue decrees as well as the definition of a floating ‘controlling interest’ (§ 22 ÜbG).
The New Dutch Partnership Act
Authors: Koppert-van Beek Monique
Published: March 2022

In this contribution Monique Koppert-van Beek discusses the new Dutch Partnership Act that regulates three categories of partnerships: the silent partnership, the firm and the limited partnership.
Continuation of the Legal Entity that has been Dissolved in a European Perspective
Authors: Schouten Jan
Published: March 2022

The author describes and compares the law regarding the position of a capital company that has been dissolved in a number of EU Member States and concludes that more harmonization in the EU is required for the situation where shareholders opt to continue such company.
The New Internationalization of US Securities Regulation: Improving the Prospects for a Trans–Atlantic Marketplace
Authors: Pan Eric J.
Published: March 2022

Several factors demand that the SEC relax its registration requirements and allow for open access by US and foreign investors to US and foreign securities. The author recognizes recent initiatives that he considers a good first step towards the creation of a trans–Atlantic securities market.
History and Future of Uniform Company Law in Europe
Authors: Kroeze Maarten J. , Vletter–van Dort Hélène M.
Published: March 2022

The central question of this contribution is whether the object to achieve uniform EU company law is a thing of the past or will, to some extent, remain part of future policy. A comparison is made between the European situation and that of the United States as regards regulatory competition in this field.
Companies Crossing Borders within Europe
Authors: Pellé Philippe
Published: March 2022

Pellé considers corporate mobility within the EU from a wide range of issues, including the right of establishment, the SE and the Cross–Border Mergers Directive. He then deals with the question whether there is still need for a directive on the transfer of the company’s seat.
Board of Directors or Supervisory Board: Legal Aspects of the Choice Between One-Tier and Two-Tier Management in Danish Public Limited Companies after the 2009/2010 Company Reform
Authors: Werlauff Erik
Published: March 2022

In 2009 the Danish Parliament adopted legislation that offers Danish public limited companies the choice between a two-tier management structure (in which the management board undertakes both the day-to-day and the overall management, while a supervisory board exercises control over the management board) and a one-tier management structure (in which a single company organ, the board, is divided into those responsible for the day-to-day management and those responsible for the overall management).
Environmental Piercing of the Corporate Veil: The Norwegian Supreme Court Decision in the Hempel Case
Authors: Sjåfjell Beate
Published: March 2022

In its judgment of 10 March 2010 in the Hempel case, the Norwegian Supreme Court rendered an important decision on the responsibility for pollution after decades of manufacturing of ship paint and plastic and related waste disposal against the background of the doctrine of piercing of the corporate veil.
Commentary on the EU Court’s Decision in Fujitsu
Authors: Heinsius Jan
Published: March 2022

In its Fujitsu judgment of 10 September 2009, the EU Court decided in the context of the EU Directive on collective dismissals that a parent company may only take a decision that compels one of its subsidiaries to terminate contracts of employment after the required consultation procedure within that subsidiary has been completed.
Top 10 Legal Issues with Regard to Private Equity Transactions: A Dutch Perspective
Authors: Mol Sjoerd
Published: March 2022

Private equity transactions are basically takeovers of all or a part of the shares in a non-listed company by an investor (often an investment company) that intends to resell these shares later for a profit. There are several legal issues that play a role in these transactions. Ten of those issues are discussed here.
Corporate Governance and the Protection of Stakeholder Interests in British Banks
Authors: Tomasic Roman
Published: March 2022

This paper explores how stakeholder ideas can be applied to a discussion of the corporate governance of banks and suggests that a much broader range of stakeholders need to be considered when thinking about bank governance.
Towards European Accounting Law
Authors: Hijink Steven
Published: March 2022

Listed companies based in one of the European Member States are to apply the IFRS as approved by the European Commission in their consolidated annual accounts. These accounting standards - the EU IFRS - form part of the European legal structure and are directly binding on such companies. But can they also be deemed to constitute accounting law? This may be questioned when testing the drafting process of the EU IFRS against the constitutional framework. Furthermore, there is a fragmented picture regarding the supervision and enforcement of compliance with the EU IFRS. There is room for improvement on both points.
Trading the Straightjacket for a Leotard: Introducing the New Dutch B.V. Law
Authors: Vreeman Nicole L.
Published: March 2022

The Netherlands enacted new legislation on 12 June 2012 concerning the private limited liability company, termed the B.V. (besloten vennootschap met beperkte aansprakelijkheid). This law strives to change the current straightjacket of B.V. law into a legal leotard. This has caused the new law to be referred to as the Flex(ible) B.V. law and the corporate entity of the B.V. to be referred to as the Flex B.V. The new law entered into force on 1 October 2012. Notable changes that the Flex B.V. law has brought are in the fields of capital, shares, the board of managing directors, and minority shareholders
Comprehensive Management and Financial and Extra-financial Risk Control to Overcome the Business Crisis
Authors: Ferrero-Ferrero Idoya , Fernández-Izquierdo María Ángeles , Muñoz-Torres María Jesús
Published: March 2022

The crisis is an opportunity for a change in the management models, which may contribute a greater efficiency and effectiveness of political strategies and processes in organisations. Taking into account every risk holistically and seeking a sustainable management, this article explores how an organization may include financial and extra-financial variables in the risk management in order to create sustainable value over the long term
Regulating Third Party Assurance Engagements on Sustainability Reports: Insights from the Swedish Case
Authors: Sonnerfeldt Amanda
Published: March 2022

It is a well-institutionalised notion that information subjected to assurance (audit) by third parties contributes to better quality information for decision making. In the field of sustainability reporting, who are providing assurance and how is quality regulated? What are the challenges of regulating sustainability assurance through standards? What role can hard law play to strengthen reporting and assurance as tools to support sustainable companies?
The Regulation of Crowdfunding in the German Small Investor Protection Act: Content, Consequences, Critique, Suggestions
Authors: Schilling Tobias , Hornuf Lars , Klöhn Lars
Published: March 2022

The German Bundestag has adopted the Small Investor Protection Act on 23 April 2015. This article describes the content of the act as relevant to crowdfunding, identifies its probable consequences, and examines the most important rules with respect to their regulatory effects.
The Alternative Investment Fund Managers Directive: Ten Years After
Authors: Domina Repiquet Mariia
Published: March 2022

The Alternative investment Fund Managers Directive 2011 is a first pan-European regulation of alternative investment fund industry. It establishes the set of duties for the managers that manage hedge funds and private equity funds. Adopted as a response to the 2007/8 financial crisis, its effectiveness can be questioned after almost ten years of evolving financial markets. This article thus will analyse whether the Alternative Investment Fund Managers Directive (AIFMD) still represents an effective regulatory tool from the three viewpoints: (1) prevention of future financial crises and protection of investors; (2) establishment and maintaining of single European market for financial services; and (3) accommodating for the needs of financial industry post-Brexit.

Alternative investment Fund Managers Directive
SMEs’ Equity Financing: Does Corporate Law Matter?
Authors: Pederzini Elisabetta , Toniolo Anna
Published: March 2022

Lack of appropriate financing is a major issue for European small or medium-sized enterprises (SMEs). They are highly dependent on bank lending for external funding, while there is a strong need for wider use of alternative finance, and especially of equity capital with respect to innovative and growth-oriented firms. In this Article, we explore the relationship between corporate law and SMEs’ access to equity finance, concluding that the organizational and governance structure of the enterprise is essential for making it attractive for investors.First, we provide evidence of this relationship showing the importance that US corporate law, and particularly Delaware corporate law, had in the successful funding of Silicon Valley’s startups. Second, we analyse the European framework. On one side, we address the measures adopted by the EU regulators for promoting SMEs’ alternative finance, which have been ineffective and have completely ignored business organization law. On the other side, we describe how a number of EU jurisdictions – with a focus on the Italian system – have amended their corporate law, easing access to equity finance.Finally, we discuss some empirical data and the possible implications in terms of regulatory competition among the EU Member States.

financing SMEs, alternative finance, equity finance, corporate law, business form, regulatory competition
Free Movement of Companies Under the New Trade and Cooperation Agreement Between the EU and the UK
Authors: Engsig Sørensen Karsten
Published: March 2022

The new agreement regulating the future relations between the EU and the UK entered into force by 1 January 2021. The agreement aims to allow the UK to remain on the fringe of the internal market. The agreement provides for an extensive free movement of goods, however, the free movement it provides to companies is more limited. The article outlines which companies can benefit from the right to make investments (including establishments) and to provide services, and it outlines the protection given to these companies when they perform such activities. It points out where the free movement of companies is most clearly diminished and furthermore, some issues that are likely to attract attention in the years to come.

Brexit, EU/UK Trade agreement, right to make investments, right to provide services
The Proposed EU Digital Markets Act: A New Era for the Digital Economy in Europe
Authors: Bergkamp Penelope
Published: March 2022

The analysis presented in this article suggests that the Digital Markets Act (DMA) would be a game-changer for the digital economy. From a legal perspective, the DMA should be regarded as a sector-specific, ‘ex ante’ regulation, i.e., a ‘lex specialis’ in relation to the general EU competition law, which relies on ‘ex post’ enforcement. The DMA restricts self-interested behaviour by ‘big tech’ and grants smaller competitors affirmative competitive rights, even where there is no anticompetitive behaviour by big tech under general EU competition law. By its terms, the DMA is aimed at ensuring ‘contestable and fair digital markets’, irrespective of consumer welfare. To achieve this objective, it will impose generic obligations on big tech that resemble remedies previously employed by the Commission in specific antitrust enforcement measures or that address antitrust complaints that the Commission is currently investigating.

Unlike conventional EU competition law, despite the DMA’s stated purpose, its main effect is not protection of European internet users (although they may benefit indirectly), but the protection of smaller European competitors against US ‘big tech’. These smaller competitors would no longer need to resort to the current system of ex post enforcement against abuse of monopoly power, which is believed to be insufficiently equipped to deal with digital monopoly power. Antitrust proceedings take a long time (five years or more is no exception), and in the meantime the competitive harm can increase. In many cases, the DMAwould make reliance on this slow, ex post enforcement program unnecessary. Instead, it would enable ‘ex ante’ enforcement actions to ensure competitive markets under the threat of very large fines.

Due to its far-reaching terms, the DMA would likely require changes to the business models of big tech. The DMA restates Adam Smith’s famous quip ‘[i]t is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest’. For the digital economy, the saying would be rewritten as: ‘It is not from the regard for their own interest of the gatekeepers that we expect our dinner, but from their benevolence’. Mandatory ‘big tech benevolence’ may well benefit ‘business users’, i.e., people or companies that use platforms to provide goods or services to internet users. Changes in big tech’s business models prompted by the DMA, however, might also affect free internet services. In any event, the DMAwould give rise to significant changes and friction in the operation of the digital economy, which may result in frequent disputes and enforcement actions.
Non-voting Preferred Shares in Portugal: A General Overview
Authors: Pessoa Diogo
Published: March 2022

In this article we intend to provide a general overview of the Portuguese legal framework regarding the non-voting preferred shares (NVPS). We have also highlighted some of the issues and concerns that may be the reason to justify the almost no use of such shares.

Non-Voting Preferred Shares, Preferred Dividend, Pre-Emption Right, No-Par Value Shares
Mexico (Non-)Adequacy to European Standards on Personal Data Protection in the Context of Employment
Authors: Ramírez María Solange Maqueo
Published: March 2022

This article analyses the main standards and regulations put in place by the European Union (EU) and the Council of Europe with respect to the privacy and personal data protection of workers. It demonstrates that there is a current tendency toward the establishment of specific rules aimed at strengthening employees’ rights vis-à-vis employers’ interests. It also shows that there is a preventive rather than a reactive approach in the European model. However, this article argues that, albeit strongly influenced by Europe, the Mexican legal framework on personal data protection does not follow this trend, due to legislative asymmetries between the public and private sector, as well as the lack of specific regulation in this field.

Chile, Privacy, Constitutional Law, Personal Data, Private Communications, Informational Self-Determination
Data Processors’ Liability from a Uruguayan Data Protection Perspective
Authors: Anza Sofía , Motta Josemaría
Published: March 2022

Since the processing of personal data has become global, and the presence of data processors has been increasing over time, it is of paramount importance to analyse how responsibilities are allocated among data controllers and data processors. Therefore, the aim of this article is to analyse how responsibilities and obligations of data controllers and data processors established in Uruguay – or abroad but subject to Uruguayan Data Protection Regulations due to their extraterritorial effect – are distributed and why this matter should be regulated in further detail.

Uruguay, Liability, Responsibility, Obligations, Data Controllers, Data Processors, Data Recipients, Principles, Territorial Scope
Report: Privacy in Latin America During COVID-19 Times and Reasonable Digital Security
Authors: E. Larrea Guillermo , Carlos Quinzaños Juan
Published: March 2022

The global COVID-19 pandemic has tested the business and human capacity in Latin America to adapt to the digital world. While the world has experienced similar developments in privacy and data protection, the Latin American region is rarely analysed as a whole in terms of privacy and data protection. Besides GDPR, Latin America has older and even more robust data protection regimes than the US and is now quickly shifting to cybersecurity. In this article, we provide a quick overview of the data protection regimes in Latin America to summarize representative actions that countries in Latin America took for the protection of privacy and personal data during the pandemic period. We examine the factors and circumstances that have affected the region’s privacy through this period, including unsuitable data processing, the design of new tracking technologies, teleworking, the risks of relying on digital platforms, and alleged new cybersecurity regulation. With that in mind, we are making a value proposition towards identifying common factors for a reasonable security in order to help companies preparing to confront risks. This digital trend will undoubtedly resonate on the complexity of data transfers inbound and outbound the region, and the consequences of security breaches for those improperly processing data in the region.

Mexico, Latin America, COVID-19, Digital Transformation, Cybersecurity, Personal Data, Data Processing, Incident Response, Teleworking, Reasonable Security, Privacy
The IKEA Judgment: Some Thoughts on the ECJ Ruling
Authors: Gambardella Maurizio
Published: March 2022

On 27 September 2007, the European Court of Justice (ECJ) ruled on IKEA Wholesale Ltd (hereinafter also ‘Ikea’) v.Commissioners of Customs & Excise. This ruling touches a range of matters, such as the right of importers to claim repayment of anti–dumping duties not in fact due and to which extent WTO agreements affect the European legal system.

In order to go through such matters and comment on the impact that the IKEA judgment may have, it is worth briefly summarizing the case law at stake and summarize which conclusion the Court of Justice reached, namely with regard to the right of repayment of anti–dumping duties and the direct effect of WTO law.
Sino-US Trade Frictions on Non-automatic Export Licensing under the WTO Sino-US Trade Frictions on NAEL under the WTO
Authors: Peng Junlei
Published: March 2022

Though fruitful, the World Trade Organization (WTO) Doha Round negotiations seem to be reaching a deadlock. It is hard to say when and how the next ministerial conference is to resume. The Doha Round negotiations appear extremely difficult, especially with regard to more substantial issues such as those concerning agricultural trade. This paper therefore attempts to introduce and analyze another relatively rarely touched issue in the WTO negotiations, that of non-automatic export licensing (NAEL). In the history of the General Agreement on Tariffs and Trade (GATT) and the WTO forum, these issues have been raised before, but divergence still exists in most fields. My argument is that these issues could serve as an alternative to current hot but difficult topics for the next round of negotiations in the WTO. Hopefully, a new consensus on the disciplines as to some aspects of NAEL is more likely to be achievable, and this would facilitate the further development of the WTO negotiations.
The WCO SAFE Framework of Standards: Avoiding Excess in Global Supply Chain Security Policy
Authors: Ireland Robert
Published: March 2022

Prior to the terrorist attacks of 11 September 2001, customs controls related to national security threats did not feature highly on the policy priorities of the World Customs Organization’s (WCO). After 9/11 and implementation of several US Customs programs such as the Container Security Initiative (CSI) and the Customs-Trade Partnership Against Terrorism (C-TPAT), and regulations such as the 24-Hour Rule, the WCO began to focus much more of its work on supply chain security. This transition culminated in 2005 with the adoption of the WCO SAFE Framework of Standards to Secure and Facilitate Global Trade (SAFE Framework), a non-binding instrument comprised of technical customs standards aimed at securing without impeding international trade. This article will discuss the intricacies of the SAFE Framework including its history, political context, and technical elements (especially risk management and the Authorized Economic Operator (AEO) concept) and antecedents. This article will also consider the 2007 US legislation mandating 100% scanning of US-bound cargo containers at foreign ports that clouds and constrains the SAFE Framework’s future. The article concludes that policymakers should seek to avoid excess in formulating supply chain security policies.
Trading Airport Slots: The European Perspective
Authors: Abeyratne Ruwantissa
Published: March 2022

Air transport is a beleaguered and complex business, which barely survives at the best of times. The industry differs in its commercial practices due to its own particular nature and the manner in which it is treated by States and the commercial world. One of the paradoxes faced by the air transport industry is that, while on the one hand it has to be liberalized with wellmanaged open skies agreements, on the other, unrestricted air transport services that are operated untrammelled would add to the congestion at airports, bring to bear environmental issues, and pose problems for slot allocation.

This article examines the general principles of slot allocation with a focus on Europe, through applicable treaties and regulatory recommendations of the International Civil Aviation Organization (ICAO). It also examines the trading of slots and legal nuances related thereto and makes concluding observations.
Post-Clearance Recovery of Customs Debt in Europe
Authors: Diaz Gavier Patricio , Diaz Gavier Patricio
Published: March 2022

Article 221 of the Community Customs Code sets out the process that must be followed for the postclearance recovery of customs debt. Following its instructions is critical. If the customs authorities do not play by its rules, they cannot recover the customs debt. The application of these rules has been contentious, and national courts have frequently turned to the Court of Justice of the European Union (EU) for clarification on Article 221 or its predecessor(s). During the years 2009–2010, the Court has been particularly active. The once “blurry” rules are now more clearly defined to the benefit of legal certainty, although new issues may still arise. This article provides an overview of the state of play, which is of course in the interest of importers and the trade to know well.
An Overview of the Mexico-Brazil Strategic Agreement for Economic Integration
Authors: Ramirez Turenna
Published: March 2022

In a globalized world, the negotiation of international treaties and agreements by two or more countries is more and more common. The exchange of goods, services, technology, and manufactures and the development of continental platforms for the regional distribution of products are some of the reasons countries pursue Agreements for preferential access to important markets. Some economies require a greater number of trade negotiations with various countries to increase market penetration and complement their productive sectors. This is the case of one of the trade partners of the United States of America, Mexico. Mexico started this globalization effort precisely with the North American Free Trade Agreement (NAFTA) negotiations. The governments of the three countries (Mexico, the United States, and Canada) found and encompassed in such Agreement the rules of the game to have preferential access to their markets, abiding by the provisions of the World Trade Organization (WTO) through its Marrakech Agreement and, certainly, the General Agreement on Tariffs and Trade (GATT) structure. In spite of the variety of problems generated in the member countries after the implementation of NAFTA, the benefits for the three countries have been evident. Specifically with respect to Mexico, exports increased dramatically, a productive force was created through export promotion programs, investment sectors previously closed were opened, productive and consumer sectors were complemented, etc. There may be certain areas where all expectations are not yet fulfilled, such as technology exchange. However, through the “maquila” or in-bond industry, Mexico has received technology but only to meet the manufacturing need of its productive processes. Most of the time, this technology is owned by the foreign companies in charge of the maquila activities in Mexico and remains only for a limited time in the country. Such technologies are not transferred with the purpose of being used in the development of new technology, so this is one of the goals that have not yet been achieved. The above is a good example of the need–mainly in developing countries–to complement free trade agreements with other similar agreements with different countries, offering mutual benefits and assuming shared responsibilities.
Emerging Enforcement Target: Global Commerce – Logistics and Transport Sector Targeted by Increased U.S. Export Controls and Anti-corruption Enforcement Actions: How to Protect Y
Authors: Craig Ashley W.
Published: March 2022

As a country that will import approximately 95% of all articles consumed in 2010, the sheer breadth of the U.S. importing/ exporting business means that companies of all sizes regularly interact with the complex world of integrated logistics services. The role of freight forwarders and carriers, the “agents” for the exporter, has become more central. At the same time, there has been a dramatic increase in the number and severity of U.S. export controls and anti-bribery enforcement actions against logistics providers at all levels of the supply chain. Dealing with this reality must be both strategic and tactical. These multiagency investigations clearly illustrate that logistics providers, like U.S. exporters, are expected to have effective up-to-date export compliance and anti-bribery compliance programs. Logistics providers have become a target and are seen as a last line of defense for the prevention of dangerous diversion of goods and threats to homeland security.
The Review of the WTO Dispute Settlement Process
Authors: Tejeda Marco Tulio Molina
Published: March 2022

The first request for consultations under the dispute settlement mechanism of the World Trade Organization (WTO) was filed ten days after its establishment in 1995. Thus far, more than 423 cases have been initiated under this mechanism. In addition, since 1997, Members have been engaged in a review of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), identifying areas in which the system has problems or may be improved. However, there have been difficulties in agreeing on the nature and the extent of these reforms. In the meantime, panels and the Appellate Body have resolved many of the issues under discussion in the DSU review on an ad hoc basis. There is an element of pragmatism on this approach. However, sometimes the solutions vary from case to case, adding an element of uncertainty to the handling of procedural matters in the WTO dispute settlement mechanism. Certainly, the DSU review process is an opportunity to provide consistency on these issues and is key for the enhancement of the WTO system in general. Currently, it is at risk of being left behind if the Doha Round does not move forward. This paper identifies the areas in which the dispute settlement system is being reviewed. It also identifies other areas in which no proposals have been put forward in spite of the existence of non-codified practice on those issues. Finally, the paper also identifies areas where, if not clarified or improved, would render, in the view of the authors, the DSU review negotiations meaningless.
Investment Regulation and Intellectual Property
Authors: Jozwik Katarzyna
Published: March 2022

This article discusses a consideration of the impact of investment agreements on rights and obligations of developing countries under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) regime, including general remarks about extension of investment standards to the intellectual property (IP) of covered investment.
Authorized Economic Operator (AEO) in the World
Authors: Weerth Carsten
Published: March 2022

The Authorized Economic Operator (AEO) status has been introduced by the World Customs Organization (WCO) and its Framework of Standards to Secure and Facilitate Global Trade (SAFE) in order to combat terrorism in trade. This article shows the distribution of the AEO programmes in the world.
Am I My Brokers Keeper? And Other ITAR Brokering Questions Inspired by the BAE Case
Authors: Pisa-Relli John
Published: March 2022

The U.S. State Department has regulated international defense trade brokering activities involving the United States since 1997. The brokering rules are widely viewed as inscrutable and elastic, even to the most seasoned practitioners. And though the State Department has long promised much needed regulatory clarification, little has been forthcoming. Meanwhile, in May 2011, the State Department entered into a consent agreement with global defense giant, BAE Systems plc, to settle alleged brokering violations. The settlement, which is record breaking both in terms of penalties and the volume of misconduct alleged, has sent shock waves throughout the defense industry. But while the settlement documents raise numerous interpretive questions about the brokering rules, they provide scant, if any, meaningful guidance. This article examines the BAE case and its implications for parties subject to the U.S. defense brokering rules.
Corruption and the Customs Environment: A Dual Approach of Mitigating Corruption Induced Revenue Risks in Customs Administrations
Authors: Charles Newton Chiumya Chiza
Published: March 2022

This article reviews and analyses the dual sides of corruption in Customs Administrations: that of Customs, on one hand, and its environment, on the other. Thus, efforts to mitigate corruption in Customs need to cover both sides through measures that effectively and adequately address this duality. Such measures would be highly effective if the society as a whole is deliberately targeted with an anti-corruption solution that seeks to build a good tax culture, encourages transparency and accountability in both the public and private sectors, addresses societal norms and values that often perversely act to legitimize corruption, and encourages good organizational and political leadership cultures.
The Domestic Industry Requirement of Section 337 at the US International Trade Commission
Authors: McManus Michael
Published: March 2022

In order to prevail in a section 337 action before the International Trade Commission (ITC), a complainant must first show the existence of a domestic industry relating to the protected intellectual property (IP) right. There have been a number of recent developments concerning the law of domestic industry. These concern the context of the domestic industry activities, the allocation of litigation expenses to the domestic industry, and the timing of investments that may be considered part of the domestic industry. Despite these changes, the Commission continues its practice of construing the domestic industry requirement flexibly and liberally in order to accommodate smaller complainants.
No longer Up in the Air: US Court of International Trade Decides Air Filter Media Is Classifiable as Nonwoven, Duty-Free
Authors: Rifkin Jessica R.
Published: March 2022

On 31 October 2011, the US Court of International Trade ruled that Sperifilt nonwoven air filter media is classifiable in Chapter 56 as a 'nonwoven', duty-free rather than in Chapter 59 as a textile fabric for technical use. The Government has not appealed this ruling, which has now become final. The ruling brings to a close a nine-year court dispute as to the proper classification of a textile filter medium that might be used for a technical purpose but that did not meet the requirements for classification as a fabric for technical use specified in the Harmonized Tariff Schedule of the United States. This decision may provide significant duty savings not only to importers of nonwoven air filter media but also to importers of other textile fabrics that may be used for technical purposes. Moreover, in some instances, importers may be able to recover excess duties deposited with Customs as long as seventeen months ago.
Promises Are Meant to Be Kept: A Case Comment on Attorney General of Canada v. United States Steel Corporation
Authors: Facey Brian A. , Sosnow Clifford R.
Published: March 2022

On 12 December 2011, the Canadian Minister of Industry announced that an out-of-court settlement had been reached with United States Steel Corporation (hereinafter 'US Steel') in relation to a dispute that arose from alleged non-compliance of undertakings that US Steel had given the Minister in the context of receiving regulatory approval for its acquisition of the Canadian steel manufacturer Stelco Inc. in 2007.

This case note briefly discusses the background to this first-of-its kind dispute in Canada, the settlement and the implications thereof that non-Canadian investors should be aware of when considering an investment in Canada.
Local Working Requirement: Reconciling TRIPS Agreement with the Paris Convention
Authors: Thadikkaran Manu
Published: March 2022

The current controversy regarding the validity of local working requirement in domestic legislations rises from the contradictory provisions under the Paris Convention and the Trade-Related Aspects of Intellectual Property (TRIPS) Agreement. While the former recognizes 'failure to work' as a ground for granting compulsory licenses, the latter specifically requires non-discrimination on the basis of 'whether products are imported or locally produced'. The question, then, remains whether these two provisions can be reconciled with each other as the provisions of Paris Convention were specifically incorporated in the TRIPS Agreement through reference. In this paper, I would attempt to analyse the intent, effect and legislative history of these seemingly conflicting provisions, to arrive at a plausible reconciliation of local working requirement under the Paris Convention and the TRIPS Agreement.
An African Group Perspective on the WTO Negotiations: Progress in 2012 and Looking Ahead to MC9 in 2013
Authors: Lunenborg Peter , Makong Ts’otetsi
Published: March 2022

This article provides, from an African Group perspective, a succinct update on the technical areas of the World Trade Organization (WTO) negotiations since the political guidance issued by the Eight Ministerial Conference (MC8). Finally, the article looks ahead to Ninth Ministerial Conference (MC9) in 2013 and efforts to arrive at an 'early harvest package' that might include trade facilitation, special and differential treatment (S&D) and some other elements. These efforts should be preceded by an 'early harvest framework' that includes certain safeguards and guarantees.
Tariffs as an Instrument of Trade Policy: The Unique Case of Kosovo
Authors: Creskoff Stephen , Gashi Petrit
Published: March 2022

Although all sovereign nations use import tariffs as an instrument of trade policy, most nations today are restricted by tariff bindings in trade agreements. Kosovo, a nation that has been independent for only five years, is an exception. Kosovo's only current restrictions regarding tariff increases are its tariff binding obligation in the eight nation Central European Free Trade Area (CEFTA) agreement. This gives Kosovo unusual power to vary tariff levels to carry out its economic and trade policy objectives, power that it to date has not utilized.

During Kosovo's administration by the United Nations (UN), a uniform tariff of 10% ad valorem was adopted to collect revenue for the state and for ease of administration. Trade policy concerns were not taken into consideration. This uniform 10% tariff on imports, with few exceptions, is still applied by Kosovo today in 2013. In contrast to Kosovo, other CEFTA nations and the European Union (EU) impose a widely variegated tariff structure to carry out their trade policy objectives and frequently have a higher average applied tariff rate than Kosovo's.

This article briefly reviews Kosovo's current trade regime and policy regarding trade in goods and argues that Kosovo should revise its uniform tariff of 10% on imports to carry out a trade policy based upon sound economic analysis. Four options for a new tariff policy - maintenance of the current 10% tariff with a phasing out of tariffs through the use of exemptions and new regional and bilateral free trade agreements; adoption of unilateral free trade; maintenance of the current average applied tariff rate of approximately 5.3% with adjustments to individual tariff rates to benefit consumers and local producers; and adoption of an industrialization strategy scheme - are evaluated.
Trade Remedy Actions by WTO Members: A Cause for Concern or a Reflection of Improved Market Access?
Authors: Stewart Terence P.
Published: March 2022

The first countervailing duty law dates from the late nineteenth century when the US enacted a law to address sugar subsidies provided by Russia. Canada enacted the first anti-dumping law in 1904, and the US introduced the right to use safeguard measures in the US-Mexico reciprocal trade agreement of 1942. In the late 1940s, these trade remedies were included in the General Agreement on Tariffs and Trade (GATT). Before 1995, however, their use was mainly limited to developed countries at the forefront of trade liberalization. Before the Uruguay Round, many countries had made only limited tariff bindings and had little need for trade remedies to address import problems. Since the Uruguay Round, which established the World Trade Organization (WTO) in 1995 and required all Members to bind the vast majority of their tariff lines, many more countries have found trade remedies to be a necessary tool to address import problems. Over the first eighteen years of the WTO's existence, the number of users of trade remedies (antidumping, countervailing duty, and safeguard actions) has increased and these measures are now used by both the traditional users of such remedies (e.g., US, EU, Canada, Australia) and by new users (e.g., India, Argentina, Brazil, China, Turkey, Egypt). Some ask whether the use of the internationally negotiated trade remedy tools within the WTO by a wide range of countries (both old and new users) is a cause of concern or a positive sign. In the author's view, the increased use of trade remedies within the WTO is a positive sign for the global trading system, and not a cause for concern. Resort to trade remedies is not a sign of protectionism but an integral part of the trading system which can help Member nations expand their trade liberalization. However, the WTO needs to be concerned about the abuse of trade remedies by WTO Members who appear to have used trade remedies as a form of retaliation against trading partners pursuing their WTO rights.
Italian Criminal Law and Customs Law Violations: A Brief Overview
Authors: Villante Vincenzo
Published: March 2022

Since 1992, by the entry into force of the Community Customs Code (hereinafter 'CCC'), a single customs code has been applicable throughout each of the Member States of the European Union (EU). It is well known that such customs code does cover most of customs issues but not all. In particular, it does not cover the penalty system, which relates to customs regimes. This is true both concerning administrative law/civil penalties as well as criminal law ones. The EU Member States sovereignty to implement the penalty system which they consider most effective of course has brought a quite diverse approach from Member State to Member State. In case of severe customs law violations, many EU Member States do provide for criminal prosecution along with administrative law or civil law fines and penalties. This article briefly describes the main features of the Italian criminal law system related to customs matters. It explains that the Public Prosecutor and the Customs Agency often do not coordinate, and there is uncertainty and unpredictability across the whole system. Therefore, companies face difficulties planning a proper and sound compliance mechanism.
Reforming the EU GSP in Europe: Defining the New Map of Tariff Preferences and Supply Options
Authors: Beretta Laura Carola
Published: March 2022

Tariff preferences provided by the new EU GSP regulation will be applicable as from I January 2014. Some major changes have also been introduced by the reformed EU GSP origin rules. The EU GSP scheme is first of all a unilateral concession to help countries with development and financial needs. Nevertheless, taking into account the position of EU importing companies is fundamental, in fact, the more attractive the GSP to economic operators the more they will utilize it to their advantage but also to the benefit of developing countries. The article comments the changes of both the EU GSP regulation and the applicable origin rules, and concludes that the GSP remains fundamental for the sourcing especially from Asian countries.
The Invoice in EU Customs and VAT Law: What is There to Consider?
Authors: Lux Michael
Published: March 2022

The article 'What a Customs Lawyer Should Know about EU Value Added Tax (VAT) Law' (8 GTCJ 406, 2012), provided an introduction to the basic commonalities and differences between EU customs and VAT law. Building on that work, this article deepens the treatment of these two areas with regard to a specific subject important for both: the invoice. International aspects, such as the UN Invoice Layout Key, and national aspects, are covered and in particular with regard to the VAT System Directive which leaves scope for national particularities. Although German legislation is used as an example, readers are cautioned that other EU Member States may have implemented this Directive in a different manner.
General Rule 5(b) for the Interpretation of the Tariff
Authors: Diaz Gavier Patricio
Published: March 2022

When imported goods are packed, it must be determined whether the packing is to be classified separately from the imported good, in accordance with its objective characteristics, or, conversely, in the same tariff code as the imported goods. The classification of packings is governed by General Interpretative Rule 5. In the present article, we will focus on rule 5(b) and offer guidance on the classification of packed goods.
Can a WTO Member Restrict or Regulate the Importation of E-Waste?
Authors: Brown Celeste
Published: March 2022

This article explores the controversial international trade of e-waste and investigates the possibility of whether a World Trade Organization (WTO) member can regulate or restrict the importation of e-waste. It establishes that because the e-waste is being classified as a ‘good’ the General Agreement on Tariffs and Trade(GATT) becomes applicable. By referring to previous WTO jurisprudence, specifically the Brazil-Retreaded Tyres case, this article argues that an import ban on e-waste is likely to be justified under Article XX(b), which relates to the measures that are ‘necessary to protect human, animal, or plant life or health’. This is provided the measure satisfies the two-step requirements of Article XX, particularly the arduous requirements of the chapeau.
From Standard-Takers to Standard-Makers: Developing Countries and Least-Developed Countries Perspectives in the Harmonization of Technical Regulations Through Internation
Authors: Pogoretskyy Vitaliy , Yanguas Tatiana
Published: March 2022

The Agreement on Technical Barriers to Trade (hereinafter ‘TBT Agreement’) pursues the harmonization of technical regulations – one of the most commonly used measures affecting trade – through the use of international standards. International standards are developed by international standardizing bodies outside the World Trade Organization. Developing countries and least-developed countries (LDCs), however, encounter several obstacles impeding their effective participation in international standard setting, and, as a result, tend to determine ex post, based on their trade flows, which international standards to follow. Therefore, they are often referred to as ‘standard-takers’ instead of ‘standard-makers’. This article argues that a detailed look at the text of the TBT Agreement and the TBT Committee Decision makes clear that concrete steps to remove these obstacles and to engage developing countries and LDCs in international standard setting must become a prerequisite for promoting documents prepared by standardizing bodies to the status of an international standard within the meaning of the TBT Agreement.