bluuebunny/crossref_metadata_2025 huggingface dataset:
The Effect of the Rome I Regulation upon the Choice of Non-State Law and Amiable Composition by Parties in Arbitration
Authors: Al-Hawamdeh Ahmed Mohammad
Published: March 2022

This study aims to explore the effect of the Rome I Regulation upon the choice of non-state law or resolving the dispute "amiable composition" by parties in arbitration. Although it is argued by some commentators that these concepts cannot be applied to arbitration as an effect of the Regulation, nevertheless the study concludes that the parties are allowed to choose the application of non-state law and arbitrators are obliged to accept the parties' choice. Although the Rome I Regulation does not have any effect in choice of law rules in arbitration, this does not mean that the arbitration system is completely free of the Rome I Regulation. For example, arbitrators, like judges, are obliged to apply the mandatory rule of law within Europe.
Has the Court of Justice of the European Union Marked the End of Indemnity Payments to Commercial Agents?
Authors: Morgan Christopher
Published: March 2022

An agent is entitled to compensation on termination of the agency relationship unless an indemnity payment is specified in the contract. This article examines the calculation of indemnity under the relevant EU Directive and case law.
Competition Law and Financial Crisis
Authors: Olivares-Caminal Rodrigo
Published: March 2022

Competition legislation contemplates certain exceptions to its main aim of promoting and ensuring competition by curtailing anticompetitive behaviour. These exceptions are rare and when allowed are usually for the benefit of consumers. The aim of this article is to provide a legal analysis of the exceptions to competition law and policy, particularly in the context of a financial crisis. An analysis on how legal restrictions can be slackened for greater benefit - which implies setting aside long-standing principles of law - is provided. Of particular interest is the bank merger activity during periods of financial distress, which can be seen as an example of a more lenient approach towards competition policy.
The Rise of Europes Independent Professionals: But Why the Reluctance to Embrace Them?
Authors: Leighton Patricia
Published: March 2022

This article addresses, on the basis of European-wide research, whether society accepts that independent professionals (iPros), working as an increasing proportion of the workforce, are not only legitimate but add any value. Are they self-reliant? Should iPros themselves (and their professional bodies) clarify who, precisely, they are, what defines them, what are their priorities and needs and how best those are met.
A Comparative Study of Automatically Renewable Contracts in Europe
Authors: Dodsworth Timothy J. , de Medeiros Dagmar Topf Aguiar , Baltrusch Victoria S. , Dallemagne Ugo
Published: March 2022

This article provides a bird's eye view of the different positions taken in several jurisdictions with regard to automatically renewable contracts. It also takes into account the different approaches to the provider's possibility of changing the terms of the contract and shows that, in some cases, the approaches may not yield the results expected in practice. This research also evaluates which EU Member States provide the highest level of consumer protection.
Legal and Economic Considerations on the Efficacy of the Civil Law Fiduciary System Compared to the Common Law Trust under the Debates on the Dual Property System
Authors: Benli Hande Emin , Benli Erman
Published: March 2022

Fiduciary is a better alternative than real securities in many respects. However, it has critical legal and economic disadvantages that cause inefficient consequences. Drawbacks of fiduciary outweigh its advantages compared to Common Law Trust. Since, Trust is based on a distinction of legal ownership and equity ownership which is compatible with the distinction of legal rights and economic rights in the economic theory of property rights. This compatibility between Trust and economic theory makes the Trust economically efficient. On the other hand, the economic rights and legal rights distinction is an unfamiliar issue to the civil law of property system. The civil law of property system covers limited real rights in accordance with the principle of numerus clausus that historically includes legal ownership as legal rights and to repudiate economic rights. In this paper, we analyse how to eliminate legal and economic drawbacks of fiduciary in order to make it as efficient as Trust in the light of transaction cost theorem. The dual property system in the Trust and economic theory should not be totally injected into the civil law of property system. However, the dual property system or a system may have legal consequences as quasi-dual property systems might be injected into a specific field like fiduciary transactions in civil law based capital markets. This argument has been legalized under the EC/2002/47 Financial Collateral Directive and Article 47 of the new Turkish Capital Markets Act.
On the CPR's Tridentian Fig Leaf and the Commercial Court's Judicial Veil  Part I
Authors: Soto-Miranda Diego F.
Published: March 2022

In this first section of a two-part article the author expresses the opinion that the domestic (English) judicial system fails to acknowledge the Strasbourg court’s accepted opinion that, the right ‘ . . . to a fair [ . . ..] hearing . . .’, as per the right of access to Court, should be differentiated as between: (i) ‘physical’; and, (ii) ‘remedial’; access to the court.

The second section will deal with two cases illustrating the points the author makes regarding access to the court. The first arises from a Spanish domicile (instructing on DPA terms), abattoir hygiene consultant’s claims for: (a) breach of his former company’s articles of association; and, (b) fraudulent misrepresentation, by his then English domiciled business partner. The second arises from a Paraguayan domiciled, international businessman’s claims for breach of a: (c) multi-jurisdictional crossborder credit transfer agreement; and, (d) company director’s personal guarantee, secured on two real property mortgages (in Brazil), as well as other UK based assets.

A jurisprudence-based analysis of the potential justice deficit resulting from the judiciary’s seemingly automaton perceptions of their common law and statutory obligations under the Civil Procedure Act 1997 and the consequential Civil Procedure Rules. Accordingly, it is suggested that the premature applicability of (1) the CPR 3.4(2) Strikeout and CPR 24(2) Summary Judgment procedures, as well as (in the domestic litigation context), (2) the CPR 11(1) (including CPR PD 6B para. 3.1(6)) Challenge to Jurisdiction procedure, not only (a) fetter and wrongfully infringe the Respondent’s right to fully test the Applicant’s evidence contrary to Articles 6(1), 6(3) and 13 ECHR, as the astute Applicant acts before disclosure, but also (b) flouts the court’s and judiciary’s section 6(3)(a)-(b) Human Rights Act 1998 public authority duties, failing to note that they: ‘ . . . must consider all matters capable of having a bearing on that judgment, must act equitably as between [the parties], and must [find] accordingly.’ Thus, the court and judiciary acting as decision makers must not follow rules blindly: (i) irrespective of the weight of (I suggest misconstrued) precedent; and, (ii) in light of the degree of discretion purportedly given by Parliament.
UK Financial Services Sectors Future on Leaving the European Union
Authors: Yeoh Peter
Published: March 2022

The United Kingdom is now in preliminary discussions with the European Union (EU) on the terms of its exit from the EU. It has yet to invoke Article 50 of the Lisbon treaty. Nevertheless, this article will identify and assess the possible impact of the UK’s departure from the EU on the financial services sector. The analysis relies on primary data from relevant statutes and secondary data from the public domain including commentaries from various interested parties and experts.
Innovations in Financial Services: Regulatory Implications
Authors: Yeoh Peter
Published: March 2022

Innovations in the financial services sector have been going on for a very long time. They gained tremendous momentum subsequent to the 2007 global financial crisis (GFC) because of accessibility difficulties, general distrust of the formal banking system, and phenomenal advances in digital and related technologies. Enhanced applications of technology in the sector with minimum regulatory constraints are now attracting regulatory attention because of perceived risks and the need to balance the interests of different market players who are subjected to different compliance costs and different business model freedoms. This article examines critically the regulatory implications of these developments with focus on the situations in the United Kingdom and the United States.
Exclusive Dealing: Loyalty Discounts Should Always Be Legal, Except in the Case of High Entry Barriers
Authors: Laskowska Magdalena
Published: March 2022

Recently, there has been growing literature on exclusive dealing and loyalty discounts. I posit that any exclusive dealing should be per se illegal, except in the case of loyalty discounts, as it excludes competition at least for the time of its duration. Contrary to the legal and economic literature, I state that loyalty discounts should always be legal, except in the case of high entry barriers (or high barriers to expansion). If high entry barriers (or high barriers to expansion) occur, I confirm that the US antitrust jurisprudence is appropriate: unless a reference market is foreclosed about over 40%, loyalty discounts are legal. Owing to the legal solution I propose in this article, that enhanced economic results may be achieved: competition becomes intensified, and any exclusion of rivals that may arise would result from a strong competitive process.
The Proper Purpose Rule and the Exercise of Directors Power in the Context of a Takeover Battle
Authors: You Chuanman
Published: March 2022

This article examines the Proper Purpose Rule and the Exercise of Directors’ Power in the recent JKX case as decided by the UK Supreme court. The decision of the JKX case now represents the leading Common law authority on the interpretation and application of the Proper Purpose Rule (the Rule or the PPR) in the Context of a Takeover Battle. As codified in section 171(b) of the UK Companies Act 2006, the Rule requires directors to exercise their powers only for the purposes for which the powers are conferred, either by statutory documents or by corporate constitutional documents. The decision makes clear that the PPR is pervasive and should be considered whenever a board is exercising the powers conferred upon it. The decision is also significant in re-affirming the conventional approach of an English takeover regime towards restricted power of a target board of directors when a company becomes the subject of a corporate raid, or a hostile takeover; an approach adopted also by many European Union (EU) countries following the transposition of the Takeover Directive 2004/25/EC.
What Does Corporate Governance Regulation in Hong Kong Teach Us About Incremental Legal Change?
Authors: Goo Say , Michael Bryane
Published: March 2022

Why does regulatory change occur much more slowly in some jurisdictions than in others? In this article, we look at the gradualist pace of Hong Kong’s corporate governance-related regulatory reform – particularly with regard to shareholder protection. We extend the concept of ‘legal transactions costs’ to explain such slow change. Costs of learning, experimenting and satisfying various constituencies about the advantages to their own interests of such reform represent some of these legal transactions costs. We describe how such legal transactions costs have worked against the creation of a minority shareholders’ association, the professionalization of board-directorships and the incorporation of soft law provisions in the Hong Kong Stock Exchange’s Listing Rules into hard law. We describe what the end result of such reform might look like – to assess the gap between current and possibly reformed corporate governance.
The Consequences of the Brexit Vote on Management Attitudes to Recruitment in the Hospitality Industry
Authors: Marson James , Cameron Derek , Jenkins Andrew
Published: March 2022

This article investigates the perceptions of managers in the hospitality industry to the Brexit vote and its implications for their recruitment strategies. A survey instrument was used to ascertain perceptions of challenges and opportunities around key themes including current recruitment; the implications of removal of free movement principles on immigration, employment and retention; the effects of the decision on salaries, supplier contracts and renegotiations, and its effects on non-national staff. The article presents the findings of the surveys and offers suggestions as to issues the Brexit negotiating team might take into consideration when determining the British withdrawal strategy.
A Critical Survey of the Rules Determining Jurisdiction in a Conflict of Laws Case and Its Impact on Parties Convenience in the Resolution of International Commercial Disputes
Authors: Oraeto Amucheazi Chibike
Published: March 2022

Conflict of laws, more often than not arises as a procedural hitch in determining the substantive elements of a case with international facets and in every conflict of laws situation. There are three core decisions to be made before such a case can be considered appropriately dealt with: viz. choice of jurisdiction, choice of law and enforcement of judgment. In determining the choice of jurisdiction in any case, it is very apposite to take certain factors, which would have otherwise amounted to hindrances if disregarded or glibly treated, into consideration. More so, since international commercial transactions pose a likelihood of a conflict of laws situation, it will be in the best interests of parties to appreciate the factors that may determine a forum court’s jurisdiction and consequently cause the parties to foresee the convenience or otherwise of forums for dispute resolution. This article seeks to critically analyse those factors that could determine how a court may acquire jurisdiction in a conflict of laws case before the English/European and Nigerian courts.
MiFID II Opportunities and Regulatory Challenges
Authors: Yeoh Peter
Published: March 2022

The Markets in Financial Instruments Directive Version I (MiFID I) was adopted primarily to promote competition in financial services in the EU as a core component of the single market agenda. But its implementation, in the midst of the 2007 global financial crisis, uncovered several flaws negatively impacting investor protection and market efficiency. This inspired a review of its impact that subsequently led to MiFID II. MiFID II that came into effect on 3 January 2018 combined the revamped MiFID I and the Markets in Financial Instruments Regulation (MiFIR). Financial services market participants under its purview, while envisaging the opportunities unfolding, would also need to contend with several key challenges.
The Importance of European Company Law for Intra-EU Investments After Achmea
Authors: Papadopoulos Thomas
Published: March 2022

This article discusses the importance of European company law for intra-EU investments after the recent decision of the CJEU in Achmea.In Achmea,1 the Court of Justice of the European Union (hereinafter, ‘CJEU’) examined bilateral investment treaties (hereinafter, ‘BITs’) concluded between EU Member States in the light of EU law. This case concerned a BIT concluded in 1991 between the Kingdom of the Netherlands and the Czech and Slovak Federative Republic and still applicable between the Kingdom of the Netherlands and the Slovak Republic. More specifically, the CJEU scrutinized the compatibility of BITs’ provisions enabling an investor from one contracting party to bring proceedings before an arbitral tribunal in the event of a dispute with the other contracting party with Articles 18, 267 and 344 TFEU.
The CISG and Croatian Courts
Authors: Slakoper Zvonimir
Published: March 2022

SUMMARY

 

 

The United Nations Convention on Contracts for the International Sale of Goods (hereinafter: the CISG) is undisputedly one of the most important and successful achievements in the global harmonization and unification of the law of contract. Eighty-nine states became parties to the Convention to support this claim which proves this fact (http://www. uncitral.org/uncitral/en/uncitral_texts/sale_goods/ 1980CISG_status.html.). The CISG had been applied by Croatian courts even before 1991, when the Republic of Croatia became the subject of (public) international law, because Croatia was part of the former Socialist Federative Republic of Yugoslavia, that ratified the CISG on 27 March 1985 with entering into force on 1 January 1988. After gaining independence, the Republic of Croatia notified its succession and the CISG entered into force in relation to Croatia on 8 October 1991 (Official Journal of the Republic of Croatia, No. 15/98).

Without any exaggeration and based on facts, it can be said that the CISG is a particularly important source of sales law for Croatian companies. This conclusion can be derived from the scope of application of the CISG as defined under Article 1, the number of states that had adopted it, and the fact that companies located in the Member States are the most important foreign trade partners of Croatian companies (According to the data of the Croatian State Statistics Bureau, in 2017 Croatian companies were exporting an overwhelming value of goods to Austria, the Czech Republic, France, Italy, Hungary, the Netherlands, Germany, Slovenia, Great Britain, Bosnia and Herzegovina, Serbia, Russia, Japan and the USA (https://www.dzs.hr/Hrv_ Eng/publication/2017/04-02-01_01_2017.htm). Although not all of them are Member States of the CISG, the applicable law for sales contracts is regularly the law of the state where the seller is located and this leads to the application of the CISG as the source of Croatian law.). This in turn led Croatian legal literature to pay special attention to the CISG, which resulted in numerous papers dedicated to the CISG (For an exhaustive list of papers published in Croatia see Tepeš, Nina: Mehanizam popunjavanja pravnih praznina u Konvenciji Ujedinjenih naroda o ugovorima o meðunarodnoj kupoprodaji i unifikacija prava meðunarodne kupoprodaje (Gap-filling mechanism in United Nations Convention on Contracts for International Sale of Goods and Unification of Law on International Sale of Goods), u Zbornik Pravnog fakulteta u Zagrebu 62, (1–2) (2012), page 670), but also to the application of the CISG by Croatian Courts. Although court disputes are undesirable, the number of disputes where the CISG was applied is proportional to the number of sales contracts to which the CISG has been applied.
International Commercial Courts: Similarities and Disparities
Authors: Urquidi Herrera Juan Carlos
Published: March 2022

Among the leading jurisdictions, there is an increasing realization that something has to be done to arrest the alarming decline in litigation before the courts. State-funded courts, too, have to innovate and adapt if they wish to remain relevant players in transnational commercial dispute resolution. And so we will see the rise of international commercial courts. (V. K. Rajah, W(h)ither Adversarial Commercial Dispute Resolution, 33(1) Arbitration International 17, 26 (2017).)
The Global Digital Currency Brouhaha
Authors: Yeoh Peter
Published: March 2022

This article traces the evolution of private currencies as they evolve as complementary currencies into global digital currencies, the latest of which being Facebook Libra. The focus is on the legal and regulatory perspective surrounding these private currencies.
Legal, Political and Economic Role of Transnational Corporations
Authors: Nwafor Ndubuisi , Nwafor Morning-Glory , Nwabueze Edeh Kingsley , Josiah Alozie Onyedikachi
Published: March 2022

Economically, division of labour brings about greater output of production. In transnational corporations individuals, government and countries could combine to bring about an enterprise. Where such exist, economic advantage will have been greatly achieved. In transnational corporations enterprises exist outside the country in which the entrepreneurs are based. This article introduces the subject matter, gives a brief historical development of transnational corporations, and examines the global environmental crises. The legal, political and economic roles of transnational corporations come under review.Also the article examines the United Nations Code of Conduct for Transnational Corporations and concludes that transnational corporations have made the world an easy market and countries have benefited from their roles, and the world looks forward to even further benefits of corporations.

Transnational corporations, political roles, global environmental crisis, United Nations, Developing countries
Understanding, Preventing and Fighting Administrative Corruption in the Business Registration Regime in Ghana
Authors: Beeri Kasser-Tee Clara Kowlaga
Published: March 2022

The greatest challenge identified in the business registration regime in Ghana is the delays in obtaining the requisite permits, licences and certificates to enable one to commence business in Ghana. Research conducted under the Strategic Partnerships to Prevent and Fight Administrative Corruption in Ghana Project, (the ‘FSPPFACP’) reveals that these delays are primarily the root cause of administrative corruption in the business registration regime in Ghana (PEF, Feb. 2020. Research Report Identifying and Detailing the Cost Implications the Gaps, Delays and Other Inefficiencies. https://www.pef.org.gh/index. php/en/2015-11-04-19-46-07/pef-research-reports/item/ download/31_8f1e597e6b231bc2c38e0b94c6294864.). This article provides context and statistics to understand the cause of administrative corruption in the business licensing, permit and certification regime in Ghana. The article submits that the fight against administrative corruption in the business registration regime in Ghana will be a mirage unless it is targeted at eliminating unnecessary delays in the business registration regime. The article further makes recommendations on eliminating the delays in the business registration regime and on preventing and fighting administrative corruption in the business registration regime in Ghana through the effective implementation and use of service delivery charters and automation of services among others.

Administrative Corruption, Administering Agency, Bribes, Business Registration Regime, FSPPFACP, GIPC, RGD, Service Delivery Charter, TIN.
Overseas Direct Investment from India: Setting Up of Step-Down Subsidiaries
Authors: Maheshwari Shubhangi
Published: March 2022

The Indian legal framework regulating overseas direct investment from India is evolving to adapt to the challenges put forth by the increase in outward investment. In this context, the Foreign Exchange Management (Transfer or Issue of Any Foreign Security) Regulations, 2004 govern the setting up of step-down subsidiaries by an overseas Joint Venture (JV) or Wholly Owned Subsidiary (WOS) of Indian residents. The Regulations, while prohibiting the setting up of step-down subsidiaries by an overseas JV/WOS of an individual, allow the same in the case of overseas JV/WOS of other entities. This article argues that the reasons for this differential treatment include the historically restrictive approach of the Reserve Bank of India towards individuals and its concerns against the roundtripping of funds. The article lays down the context in which the Regulations operate by looking at the reasons that influence outward direct investment in India. It then analyses the regulatory approach governing the setting up of overseas step-down subsidiaries vis-à-vis individuals and other entities, highlighting the underlying concerns of curbing the menace of round-tripping of funds. The article concludes with critiquing the differential treatment between individuals and entities, and the restrictive approach taken in curbing the problem of round-tripping of funds.

Indian overseas direct investment, step-down subsidiary, outward Indian investment, multi-layered corporate structure, round-tripping, Reserve Bank of India, Foreign Exchange Management Act.
A Sustainable and Inclusive Capitalist’s Epoch: A Modern Economic and Investment Theory for the Benefit of Our Common Future?
Authors: Srivastava Paridhi
Published: March 2022

Re-allocation of capital in the economy is important to align the attention of the economic and investment environment from short-term profit generation at the cost of sustainable development to long-term value creation amidst the greatest social and environmental changes of our time. This article is set in the context of the growing awareness amongst economic actors, such as institutional investors who play an important role in the allocation of capital in the economy in the first place, on the need to encourage sustainable and inclusive capitalism using an Environmental, Social and Governance centric (ESG) investing approach to help achieve the goals of sustainable development. Nevertheless, a majority of institutional investors across the world consider ESG investing as a sheer moral obligation, which often creates a conflict with their fiduciary duties. This article seeks to analyse the conflict between the fiduciary duty (before and according to law) of loyalty and care owed to beneficiaries and a correlative duty (beyond and besides the law) of loyalty and care to promote sustainable development owed to future generations. An investor’s palpable dilemma: How does one draw a line between this duty and that duty? This article argues for application of the casuistry theory, an antiquated and uncredited art of moral reasoning, to reinterpret the modern prudent investor rule and bring the duty to promote sustainable development within the framework of the legally binding fiduciary duty owed to beneficiaries. This article will further scan the evolving legal jurisdiction of India, an important player in achieving the goals of sustainable development, on the adequacy of disclosures of ESG risks and performance indicators in the Indian capital markets compared to the developments in the UK, EU and USA, so as to disentangle the blurred lines between the causation and correlation of ESG performance with the financial performance of a company.

environmental, social and governance centric investing approach (ESG investing), sustainable development, fiduciary duty of loyalty and care, correlative duty of loyalty and care, casuistry theory
An International Regulatory Perspective of Digital Banks
Authors: Yeoh Peter
Published: March 2022

This article reviews regulatory approaches for digital or virtual banks in Anglo-Saxon economies and selected fast-growth Asian Fintech hubs.

Digital banks, Anglo-Saxon economies, fast-growth Asian Fintech hubs, regulatory approaches, electronic online banking, Fintech start-ups
Schrems II: Commission 0
Authors: Sloan Alistair
Published: March 2022

On 16 July 2020, the European Court of Justice (‘ECJ’) issued its judgment in Data Protection Commissioner v. Facebook Ireland Limited, Maximillian Schrems C-311/18 (‘Schrems II’). The case concerned a request for a preliminary ruling by the ECJ pursuant to Article 267 of the Treaty on the Functioning of the European Union (‘TFEU’) made by the Irish High Court. The reference was made in respect of a longrunning complaint made by Mr Schrems to the Irish Data Protection Commissioner in 2013 concerning the transfer of personal data by Facebook Ireland Limited to its parent company, Facebook Inc, in the United States of America (‘US’).
Case for Review of Laws on Foreign Business Participation in Nigeria
Authors: E. Nlerum Francisca
Published: March 2022

In Nigeria, the question is whether laws on foreign business participation are simple, clear and coherent in relation to implementation and the ability of a foreign company to navigate the process? This article advocates the review of laws on foreign business participation in Nigeria. Foreign businesses, unless exempted, are required to be registered under the Companies and Allied Matters Act (CAMA), 2020 in addition to registrations and obtaining of permits, licences and approvals under several laws and agencies of government. The paper argues that the laws pose large and unclear compliance requirements and peculiarities and thus produce administrative and bureaucratic bottlenecks. The lack of cohesion among the agencies in implementation creates a cumbersome, lengthy process and an inadequate environment resulting in navigation challenges for foreign companies. There is a need for the development of a simple and clear digitized process automation for registrations, applications and approvals. The recent development of a digital process at the Corporate Affairs Commission (CAC) must be clear, seamless and in existence in all agencies, especially in the era of the Coronavirus diseases 2019 (COVID-19) pandemic. Also, coherence among the agencies and collaboration between the agencies and the foreign companies is required.

advocacy, review, laws, foreign, company, business, participation, implementation, digitization, Nigeria
Whistleblower Protection in the UK: A Case for Reform
Authors: Nwoha Onyeka
Published: March 2022

Whistleblowing in the UK is regulated by the Public Interest Disclosure Act 1998 (PIDA). The primary purpose of this article is to critically examine the position of whistleblowers in the UK. This article argues that notwithstanding the attempt to amend the PIDA with the Enterprise and Regulatory Reform Act 2013, the provision of adequate protection for whistleblowers has not been sufficiently addressed and there is need to consider reforms to the present whistleblowing law in the UK. This article also proffers some suggestions to mitigate the weaknesses inherent in the PIDA.

PIDA, Whistleblowing, United Kingdom, Law Reform
The Controversy of Executive Remuneration: Pay Ratios and Other Approaches
Authors: Arsalidou Demetra , Labi Clement
Published: March 2022

The regulation of executive pay needs a radical rethinking. Due to the current emphasis on the consequences of the pandemic on companies, and the calls for fairer pay designs, increased scrutiny of pay, pay gap reporting and accompanying narratives is inevitable. Adopting a clear policy on pay can prove a solid tool in promoting positive perceptions and encouraging a persuasive response to any adverse scrutiny of pay issues. Yet, regulating executive pay is a balancing act. Societies and the law must preserve companies’ freedom to decide their own executives’ pay whilst safeguarding fairness within pay structures. Clearly, in making laws on executive pay, governments in western economies must accommodate for many conflicting policy views and variables: whether to allow company boards to exercise their powers of management free of (further) government limitation, or to extend regulation in order to tackle the general public’s concern over executive greed and unethical pay structures.

Criminal and civil enforcement, Fraud, Game theory, HMRC, Tax returns.
Highlights of Nigeria’s Federal Competition and Consumer Protection Act 2018: An Overview
Authors: Adetoro David Oluwadare
Published: March 2022

The Federal Competition and Consumer Protection Act 2018 (FCCPA) was eventually signed into law in April 2019 and same is to be known as the Federal Competition and Consumer Protection Act. The Act repealed the Consumer Protection Act, Cap. 25, laws of the Federation of Nigeria, 2014 and established the Federal Competition and Consumer Protection Commission (FCCPC) and the Competition and Consumer Protection Tribunal for the development and promotion of fair, efficient and competitive markets in the Nigerian economy. This prized enactment came after a painstaking drafting process, which was saddled with many drafts, seminars, debates, and ‘behind-the-scenes maneuvers’. It remains to be seen whether it is now respite to the consumers or yet another regulatory hype. (There are yet to be any real judicial proceedings in this matter save for some administrative measures that have been taken in recent times.)

Consumer Protection, competition law, Nigeria, commercial transactions, Federal Competition and Consumer Protection Act.
European Commission Competence in Reviewing Direct Business Tax Measures
Authors: Rossi-Maccanico Pierpaolo
Published: March 2022

Direct taxation is the quintessential national prerogative in the EU, although it shall be exercised in conformity with Community law obligations, the European Court of Justice (ECJ) says. The ECJ has upheld the Commission action in reviewing direct business tax rules, directly infringeing against the exercise of fundamental economic freedoms protected by the Treaty and with respect to State aid rules. Distinct infringements proceedings relating to business tax measures for breach of fundamental freedoms, harmful tax competition, or State aid may proceed in parallel as each one is autonomous on its own right.

The role of State aid and discrimination reviews has become critical for direct business taxation, as with the expansion and consolidation of the common market the effects of host and residence taxation are found to distort the location of new undertakings and investments. On the one hand, the prohibition to fiscally discriminate against host undertakings or to limit foreign investments leads towards equalization between more favourable residence taxation and source imposition. On the other hand, fiscal aid review demands that preferential taxation for host undertakings is brought in line with standard residence taxation. This unresolved tension between residence and source taxation is the source of unsettled jurisprudence of the ECJ.

Against this background, the article offers a critical analysis of the ways by which the Commission exercises its competences to review direct tax measures, through its prerogatives under Article 226 EC, the Code of Conduct and State aid rules, by outlining the notions of tax discrimination, restriction and selectivity in the different contexts in which they have developed under the Commission review practice and the interpretation provided by the European judicature, with a view to establishing possible parallels and distinctions between such notions.
Limiting Benefit Shopping: Outline of a Measure to Counter Erosion of the Dividend Tax Base in the EU
Authors: de Graaf Arnaud
Published: March 2022

Triptych: Shopping for tax advantages: what can (and cannot) be done to prevent it. The following article is the final part of a triptych, each panel of which is independent of but also complements the other two. The theme of the triptych is what measures are possible – and impossible – in combating conduit arrangements under EU law. The first panel was published in EC Tax Review 2009/6 and deals with the issue of when Member States – specifically in their capacity as source state – can deny advantages to conduit companies under the EU freedom of establishment. The second panel, which was published in EC Tax Review 2010/5, examines the measures applied by four large Member States to combat dividend tax-saving arrangements involving EU conduit companies. In this third and final panel, the authors make recommendations to the Member States as regards the tools they can use to combat such arrangements.
Is There Still Room Left in EU Law for Tax Autonomy of Member States’ Regional and Local Authorities?
Authors: Traversa Edoardo
Published: March 2022

This article aims at determining the conditions under which local and regional authorities may exercise their taxing powers while fulfilling their obligations under European Union law. Furthermore, it seeks to assess the possibility of combining new transfers of tax competences within Member States a(MS) with the achievement of the internal market. It results from the analysis of the EU legislation and case law that, in many respects, EU law not only restricts the exercise by regional and local authorities of the autonomous taxing powers that have been allocated to them in the internal legal order but also limits the autonomy of the MS to organize the allocation of taxing powers between different levels of power.
Assessment of Taxes in Cross-Border Situations: The New EU Directive on Administrative Cooperation in the Field of Taxation
Authors: van Thiel Servaas , Vascega Marius
Published: March 2022

This article discusses a recently adopted European Union (EU) Directive that, from 1 January 2013, will gradually introduce important changes to the EU regulatory framework on cross-border mutual assistance in the assessment of taxes. The new Directive broadens the scope of mutual assistance and improves its efficiency, notably as regards information exchange on request and automatic exchange of information. It also introduces comitology for the first time in the area of direct taxation.
The Ins and Outs of Classifying Turnover for VAT
Authors: Nathoeni Sandhya , Bernaerts Yves
Published: March 2022

This article provides a brief insight into various topics. As a starting point, it describes which transactions form an economic activity for value-added tax (VAT) and are therefore within the scope of VAT. This is then put into the context of the economic reality of a business, whereby is assessed how turnover should be classified and what the effect is for VAT of such classification. In a nutshell, classification as usual turnover leads to deduction of VAT based on the general deduction rules. The classification as unusual turnover should not have any impact on the deduction of a company. Detailed guidance and the relevant ECJ case law on how to classify turnover are provided in this article. The final section of this article describes what the VAT treatment is of the sales of shares in the context of classification of turnover as well as the related consequences for the deduction.
The Cross-border Taxation of Dividends in the Case of Individual Portfolio Investors: Issues and Possible Solutions
Authors: Evers Lisa
Published: March 2022

So far, the field of cross-border taxation of dividends paid to individual investors in the European Union (EU) Member States has not been subject to harmonization. The differences in the Member States' tax systems give rise to obstacles to the internal market. As a consequence, individual investors may be discouraged from investing in shares of foreign corporations. Hence, the benefits of international risk diversification are not fully exploited. The discussion of possible solutions to these issues has recently received a new impetus as the European Commission held a consultation on the issues of cross-border dividend taxation in Spring 2011.

In this article, we discuss the alternative solutions pointed out by the European Commission and present our genuine proposal. We show that dividends paid to individual investors should not be taxed at source by drawing on a set of normative criteria comprising conformity with European Law, efficiency, simplicity, and equity considerations. We furthermore argue that the abolition of withholding taxes should be accompanied by introducing automatic exchange of information. The analysis of alternative reform options is preceded by a brief, yet comprehensive summary of the taxation of dividends in the EU Member States highlighting the shortcomings of the current dividend taxation.
Story and Fundamentals of Direct Taxation at Work in the EU
Authors: Hinnekens Luc
Published: March 2022

Going back to the European Union (EU) fundamentals is an interesting and useful exercise. That is the case of the contribution of early history to EU foundations, objectives, and legal principles and values. It is also the case of its constutional paradigm and fiscal trends in the evolving tax case law of the European Court of Justice (ECJ) and the less successful positive tax integration by the Council and Commission. The experience with past and present thus brings us to the question of the evolution of future taxation in the EU and its internal market. Quo vadis Europe in fiscalibus after the current Euro crisis? Will the political Union still be the same Union with the fiscal policies applied under the rule of strengthened coordination and surveillance under Article 136 TFEU, the legislative Six-pack pact, and the decisions and procedures of the Commission thereunder? This is a controversial issue that leaves us on tenterhooks wondering how it will all end.
Harmonization of VAT in the EU: Back to the Future
Authors: Aujean Michel
Published: March 2022

The Neumark Report was the point of departure of one of the most exciting fiscal experience: the worldwide expansion of VAT as the turnover tax. Despite having initiated this process, laid down and implemented the principles of VAT, the EU has failed to substantially improve and adapt its own model to a true single market in modern economies. The consequence is a large number of difficulties with this VAT system, huge compliance costs and a degree of dissatisfaction. This paper is reviewing these situations. Moreover, the transitional VAT regime for intra-EU transactions with its weaknesses has lasted for too long, and it is now unable to cope up with the development of fraud. Reforming is always more difficult than to start from scratch; nevertheless, there are a number of ideas and experiences, including where VAT was introduced more recently in the rest of the world, which offer interesting solutions for a modern VAT system. Suggestions are made that conform to the fundamental principles of VAT and provide notably the degree of neutrality and efficiency that contributed to make VAT such a success. It is time to return to these fundamentals and the objective of a better coordination of economic and notably tax policies may offer the right occasion.
The European Foundation Proposal: A Shift in the EU Tax Treatment of Charities?
Authors: Stevens Stan A. , Hemels Sigrid J.C.
Published: March 2022

On 8 February 2012 the European Commission proposed a Statute for a European Foundation. In this article the Proposal is discussed in the broader context of government support for foundations in the European framework. Therefore, before the Proposal is discussed, the position of foundations in Europe and their role in the Member States' welfare states is briefly analysed. FEs situated in another Member State must be entitled to the same tax treatment as resident foundations. The authors briefly discuss the European case-law with regard to charities and donors. This review is necessary to investigate in what way the Proposal deviates from the current case-law and what the possible implications are for charities, donors and the policy of Member States. The authors conclude that the Proposal for a European Foundation could enhance the cross-border development of charities within the EU and help building a European civil society. Case-law leaves much room for Member States to regulate the tax laws for charities in a non-discriminatory way. The Proposal restricts the autonomy of Member States to define the concept of public benefit. Furthermore, Member States cannot supervise FEs registered in other Member States. The FE might become a vehicle for abuse of tax incentives for charitable giving. In that case, it would be a step back for the European civil society.
EU Cross-Border Leasing and Double Non-taxation
Authors: Kudert Stephan
Published: March 2022

Taxing the leasing of movable assets causes significant practical problems already at the national tax level. Far more complicated taxation problems arise in the scope of cross-border transactions. Regarding the Organisation for Economic Co-operation and Development (OECD) Model Tax Convention on Income and on Capital (OECD Model Treaty), the contracting states have a broad discretion for classifying leasing agreements under the respective treaty articles. Besides, it can be found that actual taxation of leasing transactions often differs from the principles of the OECD Model Treaty. Considering the applicable secondary law within the European Union, in case of international leasing transactions a double non-taxation may occur. The present contribution aims at showing such a taxation gap and indicates possible ways for closing it.
VAT, Vouchers, Rights and Payments: The VAT Treatment of Vouchers
Authors: Bijl Jeroen
Published: March 2022

In this article, the author examines the phenomenon 'voucher' from a Value Added Tax (VAT) perspective. Recently, the European Commission published a proposal addressing the VAT treatment of vouchers. The proposal contains a number of relatively far-reaching changes to the current system.

The author comments on the proposal and provides an alternative approach to solving the VAT issues concerning voucher transactions. In the view of the author, not all measures in the Commission's Proposal are effective or necessary. He takes a step back from the proposal and analyses the relevant VAT issues that characterize voucher transactions: the distribution model, the question whether payment for a voucher is a prepayment, payment for a right to a supply, payment for a right as such or payment of a deposit, whether an exemption applies to voucher transactions, and whether a definition of 'voucher' is necessary. The author applies his findings to three scenario's regarding voucher transactions, demonstrating that all VAT issues can be solved by applying existing VAT rules and CJEU case law. Some specific issues need clarification, but according to the author, this can be done in a Regulation.
EU Citizenship and Taxation Is the European Court of Justice Moving Towards 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 argues that the European Court of Justice (ECJ) is in the process of reconceptualizing the economically based treaty rights on the free movement of persons into a right that is becoming more and more disconnected from the EU's objective of the realization of the internal market. That perspective is also recognized in the ECJ's direct tax case law on the free movement of economically active persons and has caused for expansion of the influence of EU law on the direct tax autonomy of Member States. This contribution argues that EU citizenship can be viewed as the normative treaty justification underlying that new perspective.
A Lot Ado About Reduced VAT Rates
Authors: Kogels Han
Published: March 2022

Although prima facie the EU harmonization rules for VAT rates look quite simple, the EU-rules on the use of reduced VAT rates are contaminated with numerous derogations and special regimes for individual Member States. Several attempts by the European Commission to get a more transparent harmonization in this field have not yet led to success. Will Member States be prepared to find a solution?