bluuebunny/crossref_metadata_2025 huggingface dataset:
What Is Substantial Economic Activity for Tax Purposes in the Context of the European Union and the OECD Initiatives against Harmful Tax Competition?
Authors: Santos António Carlos dos
Published: March 2022

This article deals with the substantial economic activity criterion as defined in the Code of Conduct for Business Taxation, in the Organisation for Economic Co-operation and Development (OECD) Report Harmful Tax Competition - An Emerging Global Issue and, more recently, in the item 5 of Base Erosion and Profit Shifting (BEPS) Action Plan, namely regarding, at this phase, its application to patent box tax regimes.

The author analyses the juridical and political controversy on the various approaches to determine what substantial economic activity actually means, specifically the value added approach, the transfer pricing approach and the nexus approach, this last criterion being the one preferred by the majority of the Member States of OECD and European Union (EU).

Finally the author raises some questions about the application of the recent agreement between UK and Germany concerning the British patent box regime. Is it compatible with the EU law, especially with the EU State Aid rules?
The Evolution of the Exchange of Information in Direct Tax Matters: The Taxpayers Rights under Pressure
Authors: Diepvens Niels
Published: March 2022

EU Member States are confronted with a plethora of rules regarding the international exchange of information, mostly due to the adoption of automatic exchange of information as the new standard. The authors provide an overview of the recent developments and examine the recent instruments issued by the EU, OECD and the US. Afterwards, the application and interaction between these instruments is discussed. The authors conclude by stating that the above-mentioned developments have resulted in an erosion of taxpayers’ rights. The protection offered by human rights might prove to be a counterweight in this respect, but the application of human rights to exchange of information procedures is currently still in an embryonal stage.
International Double (Non-)taxation: Comparative Guidance from European Legal Principles
Authors: Van de Vijver Anne
Published: March 2022

The principle of fairness advocates against international double taxation and international double non-taxation. Countries and international organizations (OECD, G20 and EU) have taken several initiatives against such taxation. However, these initiatives are not always effective. Also, certain legal authors question the legitimacy of the OECD and its action plan on BEPS. The essential goal of this research is to find guidelines to address international double (non-) taxation. We first argue that the principle of fairness is reflected in the legal principles of proportionality, non-discrimination and the rule of law. Subsequently, we derive guidelines from these principles. We address the research question by reference to these principles as enshrined in the European Convention on Human Rights (ECHR) and in the constitutional orders of Belgium, France, Germany and the United Kingdom. Our main conclusion is that excessive international double taxation and unintended international double non-taxation do not sit well with a comprehensive approach as advocated by the legal principles. We also argue that the rule of law requires the national states to guarantee the balancing of all relevant national interests through in-depth parliamentary debate. Finally, we submit that cross-pollination between international organizations and national parliaments would contribute to the legitimacy of those organizations.
Kieback: When Schumacker Emigrates . . .
Authors: Peeters Bart
Published: March 2022

When taxing a non-residents income, a source state does not have to grant tax correctives on account of civil status or family responsibilities, applicable for its own residents, unless the income is the almost exclusive taxable income of the non-resident. This socalled Schumacker-principle, although dating from 1995, still raises questions. This article critically analyses the judgment of the Court of Justice in the Kieback-case, where the Court had to decide about its application for the deduction of costs, linked to a foreign immovable property, in case of a non-resident earning all his taxable income during a part of a tax year in the source state and then moving to a third state. The court insisted that the Schumacker-principle can include costs which, according to the tax legislation of the source state, are in particular linked to foreign income, the possibility of discrimination has to be considered exclusively from a tax perspective, but the comparison can be made taking into account an entire tax year. Based on these premises the Court concluded that the foreign negative income did not have to be taken into account in the source state.
The Switch-Over Provision in the Proposal for an Anti-tax Avoidance Directive and Its Compatibility with the EU Treaty Freedoms
Authors: de Groot Isabella
Published: March 2022

In this article, the author discusses the switch-over provision for shareholders of low-taxed entities in third countries in the proposal for an Anti-tax Avoidance Directive. She discusses some policy aspects and subsequently assesses whether the measure is in accordance with the EU Treaty Freedoms.
The European Commissions Idea of Small Business Tax Neutrality
Authors: Bogenschneider Bret N.
Published: March 2022

The European Commission recently announced a competition policy of what might be called ‘small business tax neutrality’ in several of its state aid rulings. Simply put, states may not grant tax benefits that create a tax advantage to multinational firms in comparison to small and medium enterprises (SMEs). As explained in detail here, the United States (US) is engaged in tax competition yielding a structural advantage in favour of US multinationals against European SME’s including by facilitating the avoidance of European tax, which also notably reduces the foreign tax credit offset upon repatriation of earnings to the US. Also, US tax laws grant US multinationals tax incentives on US earnings including special incentives for R&D and domestic manufacturing which are incremental to the lax enforcement of US tax laws on corporate audits especially with respect to transfer pricing. The anticompetitive effect is that US multinationals enjoy a significant trade advantage against their competitors of all stripes and are able to seize market share from European SME’s (just as also occurred in US domestic markets where SME’s were significantly reduced as competition in the US domestic markets over the past decade). Several policy options are provided herein to reduce the competitive advantage of US multinationals in the respective European markets and particularly with respect to European SMEs.
Towards an [Unlawful] Modernized EU VAT Rate Policy
Authors: Schofield Max , de la Feria Rita
Published: March 2022

In late 2015, the European Commission announced a monumental U-turn on Value Added Tax rates policy. After decades of advocating the benefits of harmonization of VAT rates across the EU Member States, and after many failed legislative attempts at achieving it, the Commission declared its intention to do the opposite, namely to disharmonize VAT rates across Europe. The announcement was followed by a VAT Action Plan, and a public consultation on the reform of VAT rates, which, under the guise of modernization and consistency with the destination principle, presented two options for reform, both of which would give Member States further freedom and flexibility in the application of reduced rates. Against this background, the aim of this article is not to restate the benefits of VAT rate harmonization, but to assess whether the EU has legislative competence to approve disharmonizing VAT legislation. The article concludes that Article 113 TFEU could not be used as a legal basis for a Directive aimed at disharmonizing VAT rates, and that any such Directive, would lack legal basis and, consequently, be unlawful under the EU constitutional principle of conferral of powers.
Exit Taxation: From an Internal Market Barrier to a Tax Avoidance Prevention Tool
Authors: Peeters Steven
Published: March 2022

Article 5 of the Anti-Tax Avoidance Directive (ATAD) seems at first glance to be a codification of the exit taxation case law developed by the Court of Justice of the European Union, mainly in the landmark judgments in the cases National Grid Indus (C-371/10, 29 November 2011) and DMC (C-164/12, 23 January 2014).

And yet this provision constitutes a major development within EU tax law, which is illustrated by the fact that the deadline for transposition falls one year later than the one applicable to the other provisions of the ATAD. The main reason is without doubt the shift from case law regarding the question whether and under which conditions Member States may impose exit taxes on unrealized capital gains, to a directive prescribing that the Member States have to subject such unrealized capital gains to exit taxation (although it is not determined how the capital gains should be taxed and how the applicable tax rate should be determined). Additionally, the exit taxation provision includes a ‘step-up’ for tax purposes in order to avoid double taxation of the unrealized capital gains on the assets that are transferred across the border.

This contribution analyses the structure of the exit taxation provision of the ATAD in the light of the existing case law in this domain.
Case C-648/15 Austria v. Germany: Jurisdiction and Powers of the CJ to Settle Tax Treaty Disputes Under Article 273 TFEU Article
Authors: Luts Joris , Kempeneers Caroline
Published: March 2022

On 12 September 2017, the Court of Justice ruled in Case C-648/15 Austria v. Germany on the interpretation and application of the double taxation convention between Austria and Germany on the basis of Article 273 TFEU; a provision which allows the Member States to submit to the Court of Justice (CJ) a dispute between them concerning a matter related to the EU Treaties. In this contribution, the authors focus on some selected (EU law) aspects of the judgment of the CJ under Article 273 TFEU, i.e. (1) the scope of the CJ’s jurisdiction under Article 273 TFEU, (2) the effects of a CJ ruling under such provision as regards the Member States and within the EU as a whole, (3) the application of the rules of interpretation proper to international law (i.e. the Vienna Convention on the Law of Treaties) by the CJ in the context of an Article 273 TFEU-based procedure and (4) issues of overlap with the recently adopted Directive on Tax Dispute Resolution Mechanisms in the European Union.
EU Citizenship and Direct Taxation The European Court of Justice in the Era of Public Decline for a Citizens Europe
Authors: Ros Erik
Published: March 2022

The Treaty of Maastricht introduced the status of EU citizenship to the nationals of Member States. Central to that status is the right to move and reside freely within the territory of the Member States, in combination with the right to non-discrimination on the ground of nationality. This contribution discusses, amongst others, whether or not the ECJ has been immune for the decline of the enthusiasm for a citizen’s Europe as a result of the economic crisis since the late 2000s. The contributions centres on the development of the ECJ’s case law on EU citizenship until now and compares it with case law in which the influence of the notion of EU citizenship on the interpretation of the traditional economically based free movement rights on the free movement of persons (‘market freedoms’) is acknowledged. The contribution also discusses whether the ECJ’s changed perspective on the scope of the treaty freedoms for economically active persons is recognized in the ECJ’s Schumacker case law.
Tax Transparency for Intermediaries: The Mandatory Disclosure Rules and Its EU Impact
Authors: Cachia Franklin
Published: March 2022

Tackling tax avoidance and evasion is among the political priorities in the EU, with a view to creating a deeper and fairer single market. In this context, the European Commission (EC) has presented in recent years a number of initiatives in order to promote a fairer tax system. Enhancing transparency is one of the key pillars in the EC’s strategy to combat tax avoidance and evasion. In particular the exchange of information between tax administrations is crucial in order to provide them with the necessary information to exercise their duties efficiently. Recent leaks, including the Panama Papers and Paradise Papers, have highlighted how certain intermediaries appear to have actively helped their clients to make use of aggressive tax planning schemes in order to reduce the tax burden and to conceal money offshore. Whilst some complex transactions and corporate structures may have entirely legitimate purposes, it is also clear that some activities, including offshore structures, may not be legitimate and in some cases, may even be illegal. The proposed legislative framework complements the series of legislative acts that were passed at the level of the EU over the previous years in implementation of some of the conclusions in the context of the BEPS project of the OECD/G20 and the work of the Global Forum in the field of transparency. The main aim remains linked to curbing tax evasion and avoidance through capturing aggressive tax planning schemes. The initiative generally envisages that potentially aggressive cross-border tax planning schemes be disclosed to the authorities.
Cross-Border Loss Compensation and EU Fundamental Freedoms: The Final Losses Doctrine Is Still Alive!
Authors: Cordewener Axel
Published: March 2022

In a recent judgment the Grand Chamber of Court of Justice of the European Union (CJEU) has given new impetus to its case law on the impact of the fundamental freedoms of the Treaty on the Functioning of the European Union (TFEU) on domestic tax systems as regards the cross-border relief of ‘final losses’ suffered abroad. The present contribution looks into the different phases of development of the relevant CJEU decisions and submits a first evaluation of the new judgment and its potential consequences.
The Court of Justice EU Pulls Down Dutch Interest Limitation Rule (Case X BV, C-398/16)
Authors: Smit Daniël S.
Published: March 2022

On 22 February 2018, the CJ rendered its decision in the X BV case (C-398/16). The CJ held a specific Dutch interest limitation rule discriminatory, as a result of the effects of the Dutch group consolidation rules. The CJ’s decision creates a significant gap in the Dutch interest limitation and group consolidation rules. The author critically assesses the CJ’s decision and concludes that the decision is based on an erroneous understanding of the Dutch rules. The author also critically assesses the Dutch legislator’s response to reduce the benefits of the group consolidation regimes in domestic situations. According to the author, the preferable approach would be to extend (wholly or partially) the benefits of this regime to cross-border situations in order to resolve the discrimination.
The Energy Transition and Fiscal Policy
Authors: Kogels Han
Published: March 2022

The aim of the Paris Agreement of 4 November 2016, meanwhile ratified by 184 countries, is to strengthen the global response to the threat of climate change by keeping a global temperature rise this century well below 2 degrees Celsius above the pre-industrial levels and to pursue efforts to limit the temperature increase even further to 1.5 degrees. In order to achieve this, a drastic energy transition ‘from fossil to nonfossil’ is required in order to mitigate anthropogenic emissions of greenhouse gases (hereinafter: ‘GHG’) by the mid of this century.

  In this editorial I will go into the ambitious targets the EU has set itself for reducing its GHG emissions progressively up to 2050, and make some remarks on the consequences for fiscal policy in the EU.
The Polish Clearing House System: A Stirring Example of the Use of New Technologies in Ensuring VAT Compliance in Poland and Selected Legal Challenges
Authors: Papis-Almansa Marta
Published: March 2022

Effective and deterrent methods of combating VAT fraud are crucial for the undisturbed functioning of EU internal market, provision of sound legal framework for taxpayers and protection of the integrity of the fiscal systems of the Member States. Artificial intelligence, algorithms and other technological developments involving big data analysis provide potent tools, which can assist tax administrations in enforcing taxpayers’ compliance and preventing fraudulent activities with an unprecedented efficiency and effectiveness. However, reliance on such tools in exercise of State’s powers must respect fundamental rights of taxpayers, such as the right to fair trial. This article examines the potential risks and necessary guarantees for the consistency with the provision of the VAT Directive and for the protection of the right to fair trial in the context of new technologies and enforcement of tax laws. The issue is analysed from the perspective of European Union Law and is based on an example of a Polish algorithm-based automated system of detection of VAT fraud.
The Relevance of the Procedural Framework Principles in the Direct Tax Cases of the CJEU
Authors: Garbarino Carlo
Published: March 2022

The European Court of Justice (hereinafter the ‘CJEU’ or the ‘Court’) has developed a judicial approach in which it has judged whether domestic direct tax measures (income or corporate taxes) violate the principle of non-discrimination found in the Treaty, as reflected in the so called fundamental freedoms: free movement of goods, free movement of workers, freedom of establishment, free movement of services, and free movement of capital. Commentators have developed an in-depth analysis of tax discrimination or restrictions, but have devoted scant attention to procedural non-tax issues that play a very important role in shaping the actual decisions of the Court in tax matters. Te Court has relied on its judicial tradition in the broad sense, particularly in respect to procedural issues. This process resulted in a discernible set of criteria that are defined here as ‘framework principles’. The first of these principles is that in spite of the fact that Member States retain their tax sovereignty, there can be actual breaches of EU tax law that are sanctioned by the Court. The second principle is that, in spite of the fact that there are national tax interpretive traditions, there are indeed common guidelines for uniform interpretation in tax cases. A third framework principle is that national courts have a monopoly over relevant tax questions which must be referred to the CJEU, a principle that results in a judicial network that connect different adjudicative agents. A final framework principle in tax cases is that Member States as a result of rulings by the Court must refund taxes to taxpayers and this poses major problems particularly in the current climate of budget restrictions.
The Scope of the Transfer of a Totality of Assets in EU VAT
Authors: Cornielje Simon
Published: March 2022

Recently, in the Mailat-case, the Court of Justice of the European Union (CJEU) ruled that the lease of a restaurant business does not fall within the scope of the concept of the transfer of a totality of assets in the sense of Article 19 VAT Directive. Although this outcome was hardly a surprise, the Mailat-case shows that the CJEU has been imprecise in its conceptual approach to the interpretation of the concept of the transfer of a totality of assets in its case law on the matter. In this article, the author presents different conceptual approaches available for answering questions regarding the interpretation of the concept of the transfer of a totality of assets in EU Value Added Tax (VAT). On the basis of an analysis of the CJEU’s judgment in the Mailat-case in light of previous judgments, it is concluded and substantiated in what way the CJEU’s approach lacks conceptual clarity and thus gives rise to confusion for taxpayers and tax authorities.
The Recent Restrictive ECJ Approach to Exit Tax and the ATAD Implementation
Authors: Letizia Giulia
Published: March 2022

The article discusses the development of the European Court of Justice approach to exit tax and the perspective adopted by ATAD (Anti-Tax Avoidance Directive) exit tax provisions.

Following a first European Court of Justice (ECJ) orientation according to which Member States were allowed to tax corporations on latent capital gains at the time of the transfer of the place of effective management to another Member State, but deferring the collection until the actual realization of the assets to five yearly instalments, the more recent ECJ approach allows an exit tax imposed upon the transfer regardless of the actual realization, payable over a five-year period.

On the lines of the second ECJ approach, ATAD provides a mandatory harmonized exit tax imposed at the moment of the exit, allowing a deferral over five yearly instalments. It represents the first form of income taxation provided by a EU Directive, which does not take into account if some EU Member State did not have any exit tax.

The ECJ shifting and the restrictive ATAD approach on exit tax may determine a wider rethinking of the movement of companies within the EU having the ATAD exit tax provision partially emptied the content of the freedom of establishment principle.

Mandatory harmonized exit tax, ATAD, Corporate taxpayers, Latent capital gains, Freedom of establishment principle, ECJ shifting, Income taxation, Deferral of taxation, Discrimination, Income inclusion approach
Evaluation of the Earnings Stripping Rules
Authors: Stevens Stan A.
Published: March 2022

Member States had to have implemented the anti-earnings stripping rules by 1 January 2019. In this article these rules are evaluated from an economic and EU law perspective. The author concludes that the rules are probably not in breach of EU law because they are implemented without distinction between domestic and cross border situations. In addition there is little room to assess rules which are the result of (full) harmonization. Nevertheless some risks exist in particular with regard to the interaction between the group regimes and the earning stripping rules and the design of the standalone exception. An important drawback of the earnings stripping rules is the risk of double taxation. This could have been avoided by the EU legislator.

Earnings stripping rules, EBITDA, interest, thin capitalization rules, manifest error, ATAD-Directive, Equity escape, BEPS, Minimum standard
New VAT Rules for E-Commerce: The Final Countdown Has Begun
Authors: Merkx Madeleine
Published: March 2022

In 2021, the VAT rules for e-commerce will change. As a result, virtually all supplies of goods to private individuals will be subject to VAT in the EU Member State of arrival of the goods. The declaration of VAT on distance sales of goods originating from third countries or third territories will be simplified under the Import One-Stop-Shop (I-OSS). It is also possible to make use of an exemption on import under that scheme. This simplified scheme will be attractive to both honest traders and fraudsters. In this contribution Madeleine Merkx examines the complications of this new system.

E-commerce, distance selling, VAT, customs, one stop shop, importation, platform, liability, customs controls, fraud
Progressive Turnover-Based Taxes and Their Legal Repercussions Under EU Law
Authors: Károlyi Balázs
Published: March 2022

In recent tax policy trends, the introduction of turnover-based progressive taxes can be observed. However, the structure of these taxes raise various legal concerns under EU law. These taxes can be challenged under both EU State aid rules and the fundamental freedoms. Both the State aid and fundamental freedom questions are swirling around a similar issue: whether the different treatment of undertakings, caused by the progressive rate structure of those taxes, on the grounds of the level of their turnover can be justified by the ability to pay principle. This article will point out the problems of the application of this principle in the field of turnover-based taxation.

In addition, under the fundamental freedoms, it must also be ascertained that the differentiation based on the level of turnover indirectly disadvantages foreign-owned undertakings. In this contribution, the author argues in favour of a stricter indirect discrimination test than the one that can be currently inferred from the CJEU’s case law.

The compatibility of turnover-based business taxes with Article 401 of the VAT Directive has been confirmed by the CJEU, however, such a stance should also be questioned in light of the objective of this provision of the VAT Directive, namely to safeguard the goals of the common VAT system from interference by other domestic taxes.
The Unsettled Business of the Fixed Establishment in EU VAT
Authors: Cornielje Simon , Slegtenhorst Peter
Published: March 2022

Ever since the change in the place of supply rules in the EU VAT Directive in 2010, the outline of the concept of the fixed establishment in EU Value Added Tax (‘EU VAT’) has been unclear and cause for confusion. The recent Dong Yang-case, in which the Court of Justice of the European Union (‘CJEU’) ruled that a subsidiary may well qualify as a fixed establishment for VAT purposes, can be seen to propel this conceptual obscurity to new heights. Based on an analysis of the CJEU’s judgment in the Dong Yang-case in light of the Council Implementing Regulation and previous judgments, the authors substantiate in what way the fixed establishment lacks conceptual clarity and thus gives rise to consequences that are directly contrary to its purpose: to prevent jurisdictional disputes between Member States.
Tax Consolidation Regime in European Union: Towards One Unified Approach Among All Member States?
Authors: Jankowski Jakub
Published: March 2022

The article presents the current scope of harmonization of tax consolidation systems within European Union. On the grounds of the Court of Justice of the European Union (CJEU) judgements author identifies the issues of group taxation that are already actually harmonized despite the lack of formal directive or ordinance. The conducted analysis confirm that the Member States (MS) do not have currently the full discretion in construction of their domestic tax consolidation regimes. The country lawmaker will have to rethink once again such elements as the eligible entities, the types of tax integrations or the scope of tax advantages granted solely to the companies acting as a single tax entity.

Corporate income tax, tax consolidation, single tax entity, horizontal tax integration, tax losses, tax avoidance, parent company, fiscal unity, freedom of establishment, common tax base
The Comparability Analysis of the Court of Justice of the European Union in the Light of the Aures Case
Authors: Mittendorfer Markus , Riedl Mario
Published: March 2022

The comparability analysis plays an important role in the Court of Justice of the European Union (CJEU)’s case law on the fundamental freedoms: if the situations examined are not objectively comparable, a violation of the fundamental freedoms is not possible. However, the CJEU does not follow a clear line in its decisions with regard to the comparability analysis, which makes it difficult to understand the decision-making process. Legal uncertainty is the result. In its last decision, Aures, in which the Court had to deal with a loss utilization rule, it exceptionally denied the comparability of the situations. Due to the increasing significance of losses in international tax law, the authors analyse the different methods of comparability analysis in cross-border loss utilization used by the CJEU and highlight the associated problematic areas.

Comparability Analysis; Loss Utilization; Freedom of Establishment; Aures; Discrimination; Fundamental Freedoms; Double Tax Conventions; CJEU; Final Losses; Subject to tax
Unlawfully Obtained Evidence: Follow the Court of Justice of the European Union if You Please
Authors: Richardson Mirugia
Published: March 2022

This contribution addresses the case-law of the Court of Justice of the European Union (CJEU) on the issue of the use of unlawfully obtained evidence by the tax authorities in an administrative procedure. In 2015 in the value added tax (VAT) case WebMindLicences the CJEU has set the conditions for excluding evidence in an administrative procedure if that evidence was obtained or used in violation of the law. The highest courts of the neighbouring European Union (EU) Member States Belgium and the Netherlands had already developed in their case-law before the CJEU’s judgment in WebMindlicenses their own legal standard on the exclusion of unlawfully obtained evidence in tax cases. The author contributes to the discussion on whether national courts can maintain their own viewpoint or have to conform to the CJEU’s legal standard for excluding evidence in administrative procedures concerning tax, for the harmonized VAT as well as for the non-harmonized taxes.

unlawfully obtained evidence, VAT fraud, fundamental rights, rights of the defence
Arbitration and the World Trade Organization—The Forgotten Provisions of Article 25 of the Dispute Settlement Understanding
Authors: Malkawi Bashar H.
Published: March 2022

This article explores one of the most forgotten provisions in the World Trade Organization’s (WTO’s) large body of agreements, namely, Article 25 of the Dispute Settlement Understanding (DSU) and considers the use of arbitration as an alternative means of dispute settlement under the DSU. Given the intense interest in the WTO dispute settlement mechanism and the unique importance of arbitration, Article 25 is worthy of study. It is a highly useful provision, which, were it invoked more often, could ease the dispute settlement process for the parties involved. This examination of Article 25, its genesis, and current usage patterns, also takes in a background look at the WTO dispute settlement mechanism through a procedural lens and pays particular attention to Arab countries’ participation (or non-participation) in WTO dispute settlement proceedings.
The Interplay of International, Federal and State Law in US Arbitration
Authors: Joelson Mark R.
Published: March 2022

The US legal rules governing arbitration must be distilled from a potent mixture of international law, federal law and local (state) law. Congressional legislation implements the New York Convention treaty obligations of the United States with respect to the enforcement of international arbitration agreements. The federal legislation also expresses a strong national policy favoring arbitration which pre-empts contravening state laws and court decisions. Nonetheless, state legal rules remain critical in providing the essence of arbitral contract law. This article discusses the interaction among these different principles as they have developed in specific cases, many of them decided by the US Supreme Court.
Colloquium of Young Arbitrators
Authors: Ponty Laurence
Published: March 2022

This article reports on the discussions led at the Colloquium of Young Arbitrators held in Paris on 22 January 2007. Those discussions focused on three main issues in the light of the ICC practice, namely the joinder of third parties to an arbitral proceeding, the consolidation of arbitration proceedings, and the issue of awards by consent. This Colloquium allowed the ICC to present its position and experience as to those questions. It also encouraged the participants to express their expectations on the evolution of such position. Lastly, it gave them the opportunity to consider the rules of conduct designed to help arbitrators facing delicate situations raised by complex arbitrations and the issue of consent awards.
The Decision-making Mechanism of the Arbitrator vis-à-vis the Judge
Authors: Rubino-Sammartano Mauro
Published: March 2022

The mechanism by which judges make their decisions is one of the mysteries of the legal world. This raises the natural query whether the mechanism by which arbitrators make their decisions is the same or different from that of the judges. That mechanism is the same in the abstract, but different in practice. This article analyses the reasons for such differences.
Arbitration in Jordan: From Old to New
Authors: Aljazy Omar
Published: March 2022

There has been a significant change in arbitration in recent years and most of the Arab countries have changed or amended their arbitration laws and continue to do so in response to the needs of the business community. This article examines the extent to which the Arab laws and courts have adopted and accommodated international and modern standards of international commercial arbitration within their own legal environment, bearing in mind that the Arab legal systems have been mainly influenced by Shari?a. Specifically this article sheds light on the use of arbitration in Jordan and makes reference to the Egyptian law for comparison.
Confidentiality in English Arbitration Law: Myths and Realities About its Legal Nature
Authors: Thoma Ioanna
Published: March 2022

Confidentiality in the English law of international arbitration is not an undisputed feature as one would think. The present article aims to define the legal nature of the purported “duty” of confidentiality in English law. With reference to the landmark decisions of the English courts in this area, the article critically assesses whether confidentiality is or should be implied as a term in fact, in law, or by custom. The article also addresses the particularities pertaining to the interpretation of express confidentiality agreements that were traditionally thought to provide a secure solution to confidentiality–related concerns. Finally, criticisms and reluctance voiced against confidentiality by English courts are assessed and considered for the purpose of completing the analysis on the issue of legal nature.
Case Note: Termorío S.A. E.S.P. et al. v. Electranta S.P. et al.
Authors: Mantilla-Serrano Fernando
Published: March 2022

The Termorío decision rendered in May 2007 by the United States Court of Appeals for the District of Columbia Circuit has provoked justified concerns in the international arbitration community. The decision purports to rely on the New York Convention but fails to reason on the basis of the enforcement and recognition of the award, instead relying exclusively on the recognition and deference due to foreign judgments on arbitral awards. Indeed, it places undue emphasis on the place of arbitration, and it misreads Article V(1)(e) of the New York Convention, as if it were a provision distributing international jurisdiction among judicial authorities. The decision, failing to articulate any meaningful standard for the principle of favorability of Article VII of the New York Convention, represents a missed opportunity to clarify the U.S. approach toward the enforcement of awards previously set aside at the place of arbitration.
Integrating Mediation into Arbitration:Why It Works in China
Authors: Kun Fan , Kaufmann-Kohler Gabrielle
Published: March 2022

Despite the divergent views on the acceptability of arbitrators facilitating settlement in a pending arbitration, a merged system seems to work well in Asia, especially in China due to its legal culture that emphasizes mediation. This article examines the reasons why mediation has been successfully integrated into arbitration in China from its specific historical, cultural and political perspectives, and analyzes how it could impact the contemporary practice of integrating mediation into arbitration in the world.
Commentary on the Indian Supreme Court Judgment in Venture Global Engineering v. Satyam Computers Services Ltd
Authors: Zaiwalla Sarosh
Published: March 2022

The Indian Supreme Court set aside the order of the lower court and granted leave to challenge an LCIA final award, which was concerned with the transfer of shares in an Indian company. If the foreign award required performance in India, but was seen to have disregarded or breached Indian laws and regulations, the Indian court would grant leave to challenge the award under section 34 of the Arbitration and Conciliation Act, 1996.The award was one to which the New York Convention would apply.
Finality over Choice:Hall Street Associates, L.L.C. v.Mattel, Inc.(U.S. Supreme Court)
Authors: Parasharami Archis A. , Tyler Timothy
Published: March 2022

In Hall Street Associates, L.L.C. v. Mattel, Inc., the U.S. Supreme Court held that, under the Federal Arbitration Act, parties to an arbitration agreement may not contract for broader judicial review of arbitral awards than the grounds provided for in the FAA itself. The Supreme Court’s decision resolved a disagreement on this point among lower courts in the United States. The Court’s decision will have no effect on international arbitration agreements in which the parties did not seek to expand judicial review. But it seems highly unlikely that courts will enforce provisions of arbitration agreements that do call for broader review by courts. The decision in Hall Street sought to resolve a tension between two competing values in arbitration law: the desire for quick and final decisions versus the goal of enforcing the contractual choices of parties. In Hall Street, finality won out over party autonomy. In the course of reaching its decision, the Supreme Court discussed, but left untouched, “manifest disregard of the law,” an important common law ground on which an arbitration award may be vacated. The lower federal courts that have considered the issue all agree that arbitral awards are subject to review for manifest disregard of the law, though they differ on the nature and extent of that review. While the Supreme Court rejected the notion that the existence of the “manifest disregard” doctrine opened the door for private parties to expand judicial review by contract, it did not alter pre–existing case law on the availability of review of arbitral awards for “manifest disregard”of the law.
Recent Arbitration–related Developments in the UAE
Authors: Mohtashami Reza
Published: March 2022

This is an important year for arbitration in the U.A.E. following the release of draft arbitration laws by the U.A.E. federal government and by the Dubai International Financial Centre, and the establishment of a new arbitration centre located in Dubai in a joint venture between the Dubai International Financial Centre and the London Court of International Arbitration. Following an overview of these three important developments,this article assesses their likely impact for arbitration in the U.A.E. and the wider region.
Application of the New York Convention A Report from Denmark, Finland, Norway, and Sweden
Authors: Magnusson Annette
Published: March 2022

The interpretation by courts and legislators in Denmark, Finland, Norway, and Sweden of arbitrabiliy, procedural due process, and public policy under the New York Convention corresponds to internationally accepted standards. Although cases are relatively few, the preparatory works reveal that standards are stricly applied and only exceptional circumstances will lead to refusal of enforcement.
Application of Article V of the New York Convention in the Netherlands
Authors: Schluep Alexandra , King D. Brian
Published: March 2022

The enforcement of a foreign arbitral award in the Netherlands is rarely refused by the Dutch courts. In applying Article V of the Convention, the Dutch courts tend to interpret restrictively the grounds for refusing recognition and enforcement; in particular, application of the public policy exception contained in Article V(2)(b) is limited to violations of international public policy, most notably substantial due process violations in the underlying arbitration proceeding or violations of European competition law.
Application of the New York Convention in Austria and Eastern Europe
Authors: Liebscher Christoph
Published: March 2022

This article deals with the interpretation of Article V of the New York Convention in Central and Eastern Europe. Although in many countries in Eastern Europe there is a scarcity of decisions based on the New York Convention, research in the following countries showed decisions based on an interpretation of Article V: Austria, Belarus, Bulgaria, Czech Republic, Hungary, Lithuania, Poland, Romania, and Ukraine. A brief synopsis of the relevant decisions is provided. The most prevalent topic appearing in many decisions was public policy. The article contains a brief analysis of the approach adopted by the different countries to public policy.
Hybrid Efficiency in Arbitration: Waiving Potential Conflicts for Dual Role Arbitrators in Med–Arb and Arb–Med Proceedings
Authors: Rosoff Jacob
Published: March 2022

Having the same person act as both arbitrator and mediator to resolve a dispute may be an effective means of dispute resolution but is not without pitfalls for the unwary. There are many inherent problems with this combination that, if left unresolved, can jeopardize the arbitration proceedings or the enforceability of any resulting arbitration award. This article examines the conduct that may give rise to a successful challenge of a dual role arbitrator for his/her conduct during the arbitration or mediation proceedings and how such a challenge may be avoided. Specifically, this article demonstrates how parties can explicitly or implicitly waive their rights to challenge the dual role arbitrator in this regard.
International Commercial Arbitration in Ukraine: Details Do Matter
Authors: Chernykh Yuliya S.
Published: March 2022

Being a UNCITRAL Model Law country and a signatory to the New York Convention, Ukraine has a regime generally favourable to international commercial arbitration. However, some peculiarities outside of the original scope of the UNCITRAL Model Law and the New York Convention do exist in Ukraine, which may surprise foreign practitioners. The present article briefly discusses those special features of international commercial arbitration in Ukraine relating to arbitrability, evidentiary practice, recognition and enforcement of awards.
Enforcement of Arbitral Awards in Indochina—Law, Practice, and Alternatives
Authors: Henderson Alastair
Published: March 2022

This article surveys the enforcement of arbitration awards in five Southeast Asian nations: Vietnam, Laos, Cambodia, Thailand, and Myanmar. Each has large and urgent needs for foreign investment but each presents a legal system with a less than spotless record for effective and transparent investment protection. The article reviews current laws and the extent to which practice follows the law. In light of the conclusion that law and practice are often not aligned across the region, it concludes with a short discussion of the implications and possible alternatives for those affected.
Waiver of Sovereign Immunity from Execution: Arbitration is Not Enough
Authors: Pengelley Nicholas
Published: March 2022

A continuing controversy in international commercial arbitration concerns the right of a private party to an arbitration to execute an award against a recalcitrant state party, despite the advent of the doctrine of restricted immunity, which seemingly applies only to waiver of jurisdiction, not execution. The problematic issue is the extent to which, if at all, a state that has waived sovereign immunity from jurisdiction has also waived immunity from execution—in effect from enforcement of an arbitral award by attachment of its sovereign assets. In a sign that the old order may be changing, some courts have been willing to hold that consent by a state to arbitration implies waiver of immunity from execution as well as from jurisdiction. The issue was recently tackled by the Hong Kong Court of First Instance, in FG Hemisphere Associates L.L.C. v. Democratic Republic of Congo. Reyes, J. looked at what might constitute waiver of sovereign immunity, particularly with respect to immunity from execution in the context of enforcement of an arbitral award against a state, finding that participation in an arbitration, including agreement to arbitral rules requiring satisfaction of an award, was not sufficient to constitute waiver of immunity from execution in itself. Taking that decision as a useful starting place, this article discusses the issue of waiver of sovereign immunity from execution with respect to arbitral awards.
Swedish Court Decisions on Arbitration, 1999 to 2008
Authors: Jarvin Sigvard
Published: March 2022

During the ten years that followed the enactment of the Arbitration Act 1999, the Swedish Supreme Court and courts of appeal have rendered a number of decisions in arbitration-related matters. This article comments on selected cases of particular interest to the international practitioner, including, inter alia, the Swedish doctrine of assertion, the law applicable to an agreement to arbitrate, arbitrability of competition law issues, review of arbitrators’ fees, confidentiality, reasons in arbitral awards and the jurisdiction of Swedish courts in international matters.
Enforcement of Arbitral Awards Annulled in Russia – Case Comment on Court of Appeal of Amsterdam, April 28, 2009
Authors: Van Den Berg Albert Jan
Published: March 2022

By a decision dated April 28, 2009, the Court of Appeal in Amsterdam granted enforcement of four arbitral awards annulled by the Russian courts under the New York Convention of 1958. The Court of Appeal’s principal reason was: “[S]ince it is very likely that the judgments by the Russian civil judge setting aside the arbitration decisions are the result of a dispensing of justice that must be qualified as partial and dependent, said judgments cannot be recognized in the Netherlands. This means that in considering the application by Yukos Capital for enforcement of the arbitration decisions, the setting aside of that decision [sic] by the Russian court must be disregarded.” In the author’s opinion, the Court of Appeal’s reasoning is at odds with the New York Convention of 1958.
The Revised UNCITRAL Arbitration Rules Seen through the Prism of Electronic Disclosure
Authors: Kozlowska Daria
Published: March 2022

The newly revised United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules came into force on August 15, 2010. The main aim of the revision was to rejuvenate the Rules so that they catch up with the dynamic changes in arbitration practice. This article analyses the revised Rules from the perspective of electronic disclosure, focusing on changes aiming at, inter alia, fighting delays and growing costs of the arbitration process, supporting early cooperation of the parties or limiting the possibility of U.S.-style discovery.
Non-signatories’ Right to Appeal the Denial of a Stay of Litigation: Arthur Andersen L.L.P. v. Carlisle
Authors: Strong S.I.
Published: March 2022

In Arthur Andersen L.L.P. v. Carlisle, the U.S. Supreme Court held that any litigant—even a party who has not signed an underlying arbitration agreement—who seeks a stay of litigation pending arbitration under the U.S. Federal Arbitration Act (FAA) is entitled to an immediate appeal from a denial of that motion. This highly disturbing decision fails to engage with important principles of arbitration law and creates a clear, but ultimately problematic, rule for future litigants.
Does Bifurcation Really Promote Efficiency?
Authors: Greenwood Lucy
Published: March 2022

On its face, bifurcating the proceedings is usually an attractive proposition. It ought to make sense in most proceedings to hive off certain discrete issues for early determination by the tribunal in the hope of streamlining the process or, possibly, eliminating the arbitration entirely. The generally accepted view is that bifurcation of proceedings promotes efficiency. However, an examination of the limited available empirical data on bifurcation of disputes shows that, contrary to this view, bifurcation does not always necessarily result in the tribunal issuing a final award more promptly.

In this article, the author challenges the assumption that bifurcation always promotes efficiency and emphasizes the need to examine each case on its own merits before ordering bifurcation.