bluuebunny/crossref_metadata_2025 huggingface dataset:
Project Merlin and Regulatory Threat over the UKs Banks
Authors: Rodríguez Pablo Iglesias
Published: March 2022

Project Merlin - the agreement between the UK Government and some major banks - has started the move towards the reform of important banking issues in the UK. One of the reasons for opting for a non-binding agreement instead of hard law is the assumption that the banks may perceive high probabilities of regulation if they do not comply with the provisions of the agreement and, hence, they will have an incentive to comply with it. However, a regulatory threat would require two elements to be credible and to influence the behaviour of the banks as regards compliance with the agreement.

The first required element is a real commitment and clarity by the regulator, in this case the UK Government, in relation to regulatory targets. This article outlines the agreement, then questions whether it succeeds in properly providing clear rules by setting very general principles and by granting banks discretion in the interpretation of compliance.

The second condition is that the costs associated with the imposition of regulation - for the banks - are lower than the benefits related to being incorporated in the UK. The article considers the possible reaction of the banks to excessive pressure.

The author finally looks at whether legislative initiative or regulation would be a likely future response by the UK Government should the banks not comply with the agreement.
The Legal Procedures for Authenticating Electronic Commerce Contracts in the Light of the Jordanian Electronic Transaction Law: A Comparative Study
Authors: Al-Dalalah Samir
Published: March 2022

E-commerce contracts have recently become one of the means in terms of following the new developments in the commercial acts through the electronic means. This led to the necessity to look at the legal means that could achieve practising such commercial acts without any obstacles. Consequently, many different countries have taken into consideration this issue and passed legislation for organizing transactions in the digital environment.

Since the documentation in e-contracts in the internet environment is not less important than the documentation in the traditional environment, the core aim of this article is to examine the legal solutions that have been used within comparative legislations, including Jordanian law, in order to assess the legislative efforts that protect such transactions.
A Theoretic Study in Light of the Jordanian Arbitration Law: The Problem of Arbitration Clauses
Authors: Al-Sofani Abdullah Khaled
Published: March 2022

Despite the novelty of adopting arbitration clauses by the Jordanian legislator as a tool to resolve disputes, and despite expansion in this field, this indeed led to developing a business transactions system, which positively affected the promotion of the Jordanian economy through the resolution of disputes arising between investors within the required time frame. This expansion could be a threat to arbitrating parties who, with an arbitration clause omitting the reference to courts, the latter providing securities that arbitrating parties cannot avoid this risk unless they are aware of the results of contracting to an arbitration clause, which means omitting the option of referring to courts going through arbitration proceedings, starting with the appointment of an arbitral tribunal, until the issuance of the arbitration verdict. Thus this condition becomes a means of pressure in favour of the powerful party in contracting, since the weaker party, in anticipation of contracting, accepts all the terms and conditions stipulated in the contract without discussing the stipulations of the arbitration clause on how to appoint the arbitrators, the method of arbitration, and the procedures adopted in arbitration, etc., which are usually endorsed by the stronger party in his favour, which harms the interests of the weaker party.
Effects of an Arbitral Award Appeal Case
Authors: Otean Omar F.
Published: March 2022

This article examines the sequences of a rule-out case submission and the authority of the court that considers the rule-out case in Jordanian law.
Business and Human Rights and the Anthropomorphic Errors
Authors: Soto-Miranda Diego F.
Published: March 2022

A jurisprudence-based analysis of the judiciary's seemingly mistaken anthropomorphizing of commercial entities through self-misconceived perceptions of their statutory obligations under ss 2 and 3 HRA 1998 which might in fact be a clever mechanically convenient subterfuge, designed to both: (a) appease and appear to conform to the 'elective dictatorship' of their parliamentary masters; and, (b) implement their personal prejudgment of what the individual judge 'in good conscience', perceives as being the best interest outcome for the social majority. Irrespective of the reader's philosophical perspective, a more transparent alternative is offered, safeguarding the fundamentally important principle of justice through certainty.

This first part of a two-part article examined all the human rights cases reported in Lloyd's Law Reports and the (commercial) All England Law Reports from October 2000 to December 2010 and analyzes them.

This second part of the article contains the author's conclusions.
The Cost of Manual Handling
Authors: Barrett Brenda
Published: March 2022

This article relies heavily on statistics and other information published online by the Health and Safety Executive to draw attention to the number of people suffering work-related accidents and long-term ill-health as a result of manual handling at work. It outlines the legislation which places a duty on employers to avoid their employees undertaking manual handling wherever reasonably practicable and the guidance designed to demonstrate the safest ways of moving loads. It reviews some of the prosecutions brought by the enforcement agency and considers whether the enforcement policy could be more effective, questioning whether the regulations enabling the inspectorate to charge for 'interventions' are likely to impact adversely on the prevention of manual handling injuries. It concludes by acknowledging that the cost of manual handling is far too great but can provide no easy solution to this problem.
The Control of Community Concentrations Under Regulation No. 139/2004  Part II
Authors: Laskowska Magdalena
Published: March 2022

‘( . . .) what matters for economic development most is the quality of institutions in different countries. The biggest explanatory factor of income differences between countries, of productivity differences between countries, is the way people interact with each other, is the way they trust each other, is the way competition works.’**
On the CPRs Tridentian Fig Leaf and the Commercial Courts Judicial Veil  Part II
Authors: Soto-Miranda Diego F.
Published: March 2022

In the first section of this two-part article the author expressed 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.

This 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 English 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.
Good Faith: English Hostility, Unworkable Obligations for Commerce, or a Healthy Development? What to Expect in Canada?
Authors: Fomcenco Alex
Published: March 2022

On 30 October 2016, a significant new landmark in international trade was reached by the signing of the Comprehensive Economic and Trade Agreement, the CETA, between the European Union, the EU, and Canada.

In an over 1,000 pages long document, the parties outline details on how to ‘strengthen their close economic relationship, … create an expanded and secure market for their goods and services through the reduction or elimination of barriers to trade and investment, [and] establish clear, transparent, predictable and mutually advantageous rules to govern their trade and investment’.

In accordance to the Joint Interpretative Instrument on the CETA the agreement ‘embodies the shared commitment of Canada and the European Union and its Member States to free and fair trade’ and ‘creates new opportunities for trade and investment for Europeans and Canadians’.

In respect to small- and medium-size enterprises, ‘for whom trying to meet the cost requirements of customers is a constant challenge’ the document specifically states that the CETA will allow ‘virtually all manufactured goods to be exported duty-free’.

Notwithstanding the severe opposition that signing of this agreement has met on both sides of the Atlantic, the initiative is also met with positive tones. Although it is too early to say, as to what extend the CETA will contribute to the expansion of trade between the signing parties, it is expected that far more contracts will be signed and agreements entered into between businesses incorporated in Canada and the EU, respectively.

Businesses in the civil law continental Europe are used to the concept of good faith in negotiations and subsequent performance of their contractual obligations. Businesses in the common law jurisdictions, however, have a quite different view to that regard.

Canada has inherited its contract law principles from the United Kingdom. On the question of good faith, however, it seems like the jurisdiction is departing – albeit cautiously – and moving away from the traditional English hostility towards good faith in contractual obligations, thus, creating its path and a unique conception of it.

This article will attempt to elucidate some important aspects of the current developments in connection to good faith in Canada. Hopefully, the article will provide some guidance in how to understand good faith and what to expect in a Canadian business and legal environment to avoid misunderstandings and unpleasant consequences that potentially could arise from that.
Cybersecurity Insurance and New EU Cybersecurity and Data Protection Rules
Authors: Grigoriadis Lazaros G.
Published: March 2022

In today’s marketplace where businesses are constantly being threatened by data breaches and cyberattacks, it is imperative that a global company obtain cybersecurity insurance. This article highlights the importance of cybersecurity insurance in light of the forthcoming security obligations imposed by the General Data Protection Regulation (GDPR) and the Network and Information Security Directive (NIS Directive). In particular, it mentions some cases showing that even wellknown multi-billion dollar companies are vulnerable to cyberattacks and data breach incidents. Also, it describes the types of damage that may be caused by such cyber events and the reasons why many companies have not yet considered cybersecurity insurance to be part of their overall strategy to mitigate cyber risk. Further, it examines the new cybersecurity and data protection requirements established by the GDPR and the NIS Directive. Finally, it evaluates the role that insurance can play as an effective risk mitigation tool, taking into consideration some recent US courts’ judgments in cyber insurance cases.
A Critical Analysis of Usual Authority in Agency Contracts
Authors: Amucheazi Chibike
Published: March 2022

The nature of usual authority has been on focus and, in fact, has occasioned much debate in the law of agency particularly as a result of unfolding arguments relating to its scope. The fundamental point is whether usual authority emanates from the other known types of authority an agent may possess in order to effectively represent a principal. Again, it is unsettled whether usual authority can exist in its own independent right as a category of authority. This article attempts a critical analysis on usual authority based on a review of a plethora of decided cases. In particular, the locus classicus case of Watteau v. Fenwick is examined and further analysed in the light of the legal views of judges, scholars and several commentators and cases subsequently decided; all of which attempt to uncover when a principal can be held liable for the acts of an agent that are customary to the particular position occupied by the agent.
Business Ethics, Contractarianism, and (Optional?) Fiduciary Duties in Corporate Law
Authors: Ghahramani Salar
Published: March 2022

Fiduciary law is in a perpetual state of evolution – yet its application to corporate law remains a constant. This article examines the role of fiduciary law in limited liability companies (LLCs) and advances the view that the examination of the LLC/fiduciary nexus may instruct legal theorists as to whether fiduciary law has ethical origins or is strictly contract based. The analysis, the article concludes, helps understand whether fiduciary duties exist only if denoted in a contract, or whether there are overarching ethical and judicial principles that render certain business relationships fiduciary by nature.
A Continuity of Confusion Rather than a Helpful Synthesis: The UK Supreme Courts Failure to Clarify the Correct Approach to Contract Interpretation
Authors: Mason Lee
Published: March 2022

This article considers a recent statement from the UK Supreme Court concerning the purported continuity of the judicial approach to contract interpretation. The author argues that, rather than one of continuity, the approach has been one of inconsistency and remains unclear.
Tax Efficient and Tax Secrecy Destinations: Legal, Okay or Not?
Authors: Yeoh Peter
Published: March 2022

Summary

 

This article examines revelations of the Panama Papers and Paradise Papers that suggest the controversial roles of offshore financial centres for tax avoidance, tax evasion, and money laundering manoeuvers. It follows through with a review of suggested remedial responses.
Illegality of Contracts: A Critical Analysis of Agreements in Breach of Articles 101 and 102 of the Treaty on the Functioning of the European Union
Authors: Ekwenze S.A.M , Nwafor Ndubuisi , Nwafor Morning-Glory
Published: March 2022

SUMMARY

This research paper is the result of an effort to critically evaluate the position of the European Union competition law on the legality of an agreement which contravenes Articles 101 and 102 of the Treaty for the Functioning of the European Union (TFEU). It is within the ambit of this article to analyse the elements of the provisions of Articles 101 and 102 of the TFEU and also to inquire whether agreements in breach of these provisions MUST, in accordance with Article 101(2) of the TFEU, be pronounced void and if not, whether there is other ancillary legal relief that can apply on the face of such infringing agreements. In this research paper, the litmus test of illegality is viewed from the common law perspective, though a more uniform outlook and balance will be achieved by drawing arguments and conclusions from European Union case law and legal literature.
Institutional Framework for Public-Private Partnerships in Nigeria: Is It a Case of Too Many Cooks for One Pot of Broth?
Authors: Arimoro Augustine Edobor
Published: March 2022

SUMMARY

 

Public-Private Partnerships (PPPs) are long-term contracts between the government and the private sector with the aim of delivering cost-effective, efficient and well maintained infrastructure facilities. The PPP arrangement makes room for the private sector to tap into private capital and expertise to drive economic growth and development. This is largely due to the huge infrastructure deficit that has been the bane of both developed and developing and emerging economies in contemporary times. The regulation of the PPP is to ensure that there is a balance between the goals of the public sector and the private sector partners to a PPP transaction. Regulation is the tool for monitoring the market place, ensuring protection for the private investor and ensuring that the project meets with public policy, including environmental protection. The article argues that the regulation of PPPs in Nigeria should be made less complex to achieve the above objectives.
Comparative Corporate Governance and Transaction Costs: Implications for China
Authors: Zhang Lin
Published: March 2022

Comparative study is significant for the reform of corporate governance in transitional economies like China. Influenced by the Berle- Means problem, this kind of study is usually under the auspices of the agency theory. However, besides the agency theory, another important theoretical framework to examine corporate governance is transaction cost economics. Based on transaction cost economics, it demonstrates that the governance structure of Japanese vertical keiretsu may promote the enforcement of relational contract other than the function to monitor the performance of managers. This understanding has positive implications for the Venture Capital (VC)-backed strategic alliances in China.
Timis v. Osipov: Personal Liability? Decision Makers and Advances in Whistleblowing
Authors: Jefferson Michael , Ferris Katy , Marson James
Published: March 2022

Much has been written recently about employment status including bogus self-employment, atypical workers, zero hours contracts and about vicarious liability in the law of torts and employment law. The case under discussion does not deal with these issues but with related interesting issues involving categorization of working people into employees and workers so as to determine the remedy for whistleblowing under statute and with whether liability in that area of law can be both direct and vicarious. To understand the case one needs to appreciate that the law of unfair dismissal as set out in the Employment Rights Act 1996 applies only to ‘employees’ and therefore both those classified as ‘workers’ and as independent contractors do not; however, workers, though not independent contractors dismissed solely or principally for one of the reasons which would be potentially unfair (prima facie invalid) may have a different remedy when the claim is one of whistleblowing. In relation to vicarious liability under the relevant statute, the Employment Rights Act 1996, there was on the facts of the case to be discussed no doubt that the employers were vicariously liable, but could they also be directly liable? The authority below demonstrates that because of the scheme of the Act both that a worker dismissed for whistleblowing has a remedy not for unfair dismissal because he is not an employee but for ‘detriment’, the detriment being put through a disciplinary process. This preserves the law since 1 January 1972 that remedies for unfair dismissal are granted only to those classed as employees. In respect of vicarious liability, as this commentary shows, both direct and vicarious liability are available against employers in a whistleblowing case. The consequences of these decisions are noted at the end.

Personal liability, whistleblowing, unfair dismissal, compensation, termination.
Leveraged Buy-Outs: Developing a Conducive Framework for Domestic Leveraged Buy-Outs in India: Lessons from the UK and South Africa
Authors: Mandal Rudresh , Aiyanna Siddharth
Published: March 2022

This article argues that the rigidity of the rule on ‘financial assistance’ in India must be relaxed to foster leveraged buy-outs. Section 2 traces the development of the provisions of the Indian Companies Act, 2013 concerning ‘financial assistance’, locating its roots in the House of Lords’ decision in Trevor v. Whitworth, and subsequently the UK’s Greene Committee Report. Section 3 analyses the dilution of the capital maintenance rule, a pillar of Trevor v. Whitworth by the UK in her Companies Act, 1981 and 1985, and by South Africa in her Companies Act, 2008. Based on the findings in section 3, that stakeholder interests can be preserved without prohibiting ‘financial assistance’, this section hopes for its transplantation into the Indian legal framework.

leveraged buy-outs, financial assistance, articles of association, lenders, Trevor v. Whitworth.
News for Trademark Owners
Authors: Flint David
Published: March 2022

On 30 June 2020, the United States Supreme Court issued an Opinion (Patent and Trademark Office v. Booking.com B. V., No. 19–46 (US 30 June 2020)) which has the potential to extend the value of generic trademarks beyond their theretofore value.
Regulating Advisory Boards for Australian SMEs in the Global Supply Chain
Authors: Rahim Mia Mahmudur
Published: March 2022

The context of this article, in general, is small and mediumsized enterprises (SMEs’) governance and regulation in Australia and, in particular, their need for the inclusion of advisory boards to meet the lack of their knowledge-based skills. It presents the core of the meta-regulation approach and proposes how such an approach can incorporate advisory boards into SMEs without altering much of their governance framework.

SMEs, corporate governance, regulation in Australia, advisory boards, governance framework
Digital Antitrust: The Google (Android) Decisions in Russia, Turkey and India
Authors: Malinauskaite Jurgita , Erdem Fatih Bugra
Published: March 2022

Digital markets and new business models in multi-sided markets with certain market peculiarities (i.e., network, scale, lock-in effects) have challenged the traditional competition tools. National competition authorities (NCAs), especially younger authorities, across the globe have struggled with the investigations of anticompetitive practices in those markets. Specifically, the paper will use Google (Android) as a case study to explore the approaches taken by three competition authorities, based in Russia, Turkey and India, leading to the prohibition decisions of their national competition laws. Discussions centred on the nationalGoogle Android decisions will be placed in a broader context underpinned by recent ongoing developments of competition laws in Russia, Turkey and India.

The Google Android case, digital markets, Turkish competition law, Russian competition law, Indian competition law
Beneficial Ownership and Corporate Governance in Ghana
Authors: Amarh Gertrude Amorkor
Published: March 2022

One of Ghana’s most recent innovations in corporate law is the introduction of a statutory beneficial ownership disclosure regime. This article explores the contribution of the regime to corporate governance in Ghana. The article examines whether the disclosure regime would in any way enhance the relationship among the various stakeholders in both listed and private companies. It is argued that while the newly introduced statutory disclosure regime is likely to contribute towards promoting good corporate governance of companies in Ghana, that alone may be insufficient to protect the interests of a company’s stakeholders in the absence of other safeguards.

Ghana, beneficial ownership disclosure, corporate governance, Act 992, Act 920, financial and economic crimes, central register, anti-money laundering, abuse of the corporate form
Outbound establishment revisited in Cartesio
Authors: Deák Dániel
Published: March 2022

In the pending case with Cartesio, the national court raises the question whether the right of a business to transfer its seat to another Member State is covered by Community law even in the absence of the comprehensive harmonisation of national company laws. The Advocate General of this case concludes that the Republic of Hungary is not able to justify the absolute restriction on the right of establishment where a Hungarian–registered business is not allowed to transfer its seat to another Member State (whether remaining resident in Hungary or not), without being dissolved. It is problematic, however, that Cartesio is a ‘moving out’ case like Daily Mail (outbound establishment), and Centros and like cases are ‘moving in’ issues (inbound establishment).
A European Perspective on Tax Recovery in Cross-Border Situations
Authors: De Troyer Ilse
Published: March 2022

The growing mobility of persons and capital leads to recovery problems for tax authorities, whose competence is limited to their national territory. Taxpayers may be resident or holding assets in another country than the State where they have tax debts. States may try to overcome these problems by unilateral measures to guarantee the payment of taxes in cross-border situations or by international recovery assistance. The first part of this article comments on the conformity of such unilateral measures with the EC Treaty. The second part focuses on some aspects of the recent Commission proposal to improve the mutual recovery assistance on EC level.
Taxation of Cross-Border Dividends in the European Union from Past to Future
Authors: Tenore Mario
Published: March 2022

The article aims at achieving consistency in the case law of the European Court of Justice (ECJ) on the taxation of dividends from the perspective of the Home State and that of the Host State. Based on the assumption that EU Member States are obliged to ensure the neutrality with regard to inbound dividends and outbound dividends, the author demonstrates that schedular tax systems are nowadays the ones that comply with EU Law while keeping its effective exercise of national taxing rights upon dividends.

The article also deals with the application of the pan-European approach (also known as ‘overall approach’), which, in the author’s view, is by far the most controversial current issue in relation to the taxation of dividends. The ECJ in Commission v. Italy correctly limited the application of the pan-European approach though without entirely removing the uncertainties that derive from its application to the taxation of cross-border dividends.
Tax Aid and Non-profit Organizations
Authors: Stevens Stan A.
Published: March 2022

Many services and goods are supplied by non-profit organizations. These social enterprises have a hybrid character, because they possess characteristics of governmental and commercial organizations. Therefore, these social enterprises are also called private-public sector enterprises (PPSEs). Very often PPSEs will qualify as an undertaking within the meaning of the European Union (EU) Treaty, and as a consequence, the EU completion rules will be applicable.

On grounds of the non-profit character and/or the activities of the PPSE in the general interest, PPSEs also often benefit from a special tax regime: (partial) exemption or other tax provision. The question arises then whether that regime qualifies as a preferential tax measure that constitutes fiscal State aid. In this analysis, special attention must be paid to the fact that in many cases PPSEs will operate a service of general economic interest, which could justify tax aid. However, in this article, it will be argued that it is very difficult to design tax measure in a way that they are compatible with the strict conditions that the European Court of Justice (ECJ) applies.
VAT Grouping versus Freedom of Establishment
Authors: Eskildsen Casper Bjerregaard
Published: March 2022

According to Article 11 of the EC VAT Directive, Member States may regard as a single taxable person any persons established in the territory of that Member State who, while legally independent, are closely bound to one another by financial, economic, and organizational links. This provision requires that the undertakings in question are established in the same Member State, for which reason it is not possible to form a cross-border VAT group. In the doctrine, it has been argued that this territorial restriction is in breach of the rules on freedom of establishment in the Treaty on the Functioning of the European Union (TFEU). In the present article, this issue will be analysed further.
The Dutch VAT Compensation Fund: a Critical Assessment
Authors: Wassenaar Mattheus
Published: March 2022

As in the European Union the activities of public sector bodies are not subject to full taxation, the Value Added Tax (VAT) regime may cause distortions in their decision-making, in particular with respect to the choice between self-supply and contracting out of services to the private sector. Several European countries have addressed this distortion via a budgetary solution. In the Netherlands, such a refund scheme was introduced in 2003. This article provides an integral analysis of this scheme based on a broad range of evaluations.

As this study shows, VAT only plays a minor role in considering whether to outsource and the introduction did not cause a significant increase in contracting out. Motives other than the budgetary effects might be more relevant. Besides, contracting out was already a trend, regardless of the costs of VAT. The introduction had a number of negative side effects, such as the administrative burden and the budgetary effects, leading to a rather negative opinion of the participating public sector bodies.

Therefore, an introduction of compensation schemes in other Member States or a change in EU-VAT law as discussed in a recent Green Paper of the European Commission should be assessed thoroughly, to decide whether the remedy is worse than the disease.
Report EC Tax Reviews Twentieth Anniversary Seminar 31 May 2012 Fiscal Autonomy in a Changing EU
Authors: Evers Maikel
Published: March 2022

On 31 May 2012, EC Tax Review organized a seminar on 'Fiscal Autonomy in a Changing EU' as a pre-event to the 2012 EATLP Congress in Rotterdam, the Netherlands. This note summarizes the proceedings of the conference.
EU State Aid Rules Applied to Indirect Tax Measures
Authors: Englisch Joachim
Published: March 2022

Indirect taxes account for roughly half or even more of the tax revenue in most Member States of the European Union (EU). Most of those taxes are riddled with exemptions, reduced rates, or other preferential regimes which could potentially constitute State aid within the meaning of Treaty on the Functioning of the European Union (TFEU) Article 107(1). Despite their fiscal relevance, the State aid implications of such tax benefits were largely ignored for decades. The EU Commission has increasingly become aware of them only in the last ten years, and there is still not much case law clarifying the standards to be applied to indirect tax measures in order to identify them as State aid. This article therefore attempts to shed some light on the application of Article 107(1) TFEU in the field of indirect taxation. While an appropriate approach is certainly embedded in the general concept of fiscal aid, the criteria developed by the European courts so far need to be refined and adapted to some particularities of this type of tax. This concerns the determination of the beneficiary of a tax advantage, who matters for assessing its selectivity and the extent of an eventual recovery, the distinction between State aid and Union aid regarding harmonized indirect taxes, and the assessment of distortive effects of an aid scheme.
EU Tax Issues Arising from Croatias Accession to the EU: Dividend Taxation
Authors: Mavricek Morana
Published: March 2022

The following document will examine the position of Croatian tax system in relation to the EU tax system. The issues that the document will concentrate on are dividend taxation issues. First, the gradual development of the European Union landmark judgments will be examined, from the first, Verkooijen case, to the current situation in the The Test Claimants in the FII Group Litigation v. The Commissioners for HM Revenue and Customs (FII GLO) case. Second, dividend taxation in other Member States in Croatia's region (Eastern Europe) will be looked at together to see what hurdles they had to overcome when entering the EU while examining how comparable Croatia is to them. Third, the text will assume a critical approach of the new system of dividend taxation adopted in Croatia in March 2012 and its subsequent implementation.

At the end of the paper, it will be discussed whether the changes made by Croatia are sufficient to make it compliant with EU law on dividend taxation.
VAT Taxation of Gold in the European Union
Authors: Capaccioli Stefano
Published: March 2022

Council Directive 98/80/EC introduced a Special VAT Scheme for Gold, granting some options to Member States. This article, starting from an analysis of the text of the Directive, takes into consideration the various VAT Acts in twenty-seven Member States, as obtained from the Government websites, to identify differences and to try to offer a common interpretation.
Transfer Pricing of Mayor EC Member Countries with Reference to the 2014 Corporate Income Tax Burden of the Thirty-Four OECD Member Countries  Germany, France, United Kingdom, and Italy Compared
Authors: Zielke Rainer
Published: March 2022

In the February 2014 issue of the EC Tax Review, the author compared the anti-avoidance legislation in the mayor EC Member Countries Germany, France, United Kingdom and Italy and suggested some international tax planning strategies - without regard to transfer pricing (part 1). The author now considers transfer pricing involving these mayors EC Member Countries Germany, France, United Kingdom, and Italy and suggests further transfer pricing strategies also with regard to the up-to-date CIT rates in OECD countries (part 2).

As stated, despite continuous instability in the European Community (EC) its mayor countries Germany, France, the United Kingdom, and Italy exhibit continuously economic growth and stability. According to the International Monetary Fund these European countries have - in this order - the highest gross domestic product in the European Community in 2012. In this article transfer pricing rules of - according to the gross domestic product - the four most important EC Member Countries will be reviewed with reference to the OECD's perspective of Base Erosion and Profit Shifting (BEPS) and to the up-to-date tax differential to the thirty-four OECD Member Countries.

The pivotal question is, to what extent can internal tax planning with mayor EC Member Countries be optimized by inclusion of transfer pricing. This article outlines the primary corporate objective and key concepts of international tax planning with regard to transfer pricing and discusses the corporate income tax burden in the thirty-four OECD Member Countries analysing the tax differential as incentive in relation to transfer pricing, the reduction in ETR as the primary corporate objective and key concepts and the he importance of current and reliable information. After that transfer pricing in the mayor EC Member Countries Germany, France, United Kingdom, and Italy is presented and transfer pricing strategies with relation to mayor EC Member Countries are developed. Afterwards this is evaluated from the OECD's perspective of BEPS. Finally the concluding remarks are presented.
Fighting Tax Fraud and Tax Evasion in the EU: The 2012 Action Plan
Authors: Richardson Mirugia
Published: March 2022

On 6 December 2012, the European Commission of the European Union (the Commission) presented its Action Plan to strengthen the fight against tax fraud and tax evasion (the Action Plan). The Action Plan contains measures aimed at supporting the Member States of the European Union in the fight against tax fraud and tax evasion. The launch of the Action Plan has already been given attention in the editorial of EC Tax Review, vol. 22, 2013-2.1 This article points out that there are, from a legal point of view, certain shortcomings in the Action Plan, which concern the criminal law aspects of tax fraud and tax evasion and value added tax (VAT) fraud. This article seeks to explore how the Action Plan can recover from these defects. Some suggestions are offered for repairing the shortcomings.
Tax Law of the Eurasian Economic Union: Substance and Ways of Using of the European Experience
Authors: Ponomareva Karina
Published: March 2022

The study considers principal features of the Treaty on Eurasian Economic Union (hereinafter – EAEU) in the light of modern international tax law, its legal nature, its place and functions in the regulation of Eurasian integration. The study describes the main features of tax law under the EAEU Treaty as the foundation treaty of two kinds: establishing international organization for integration (EAEU) and the economic and legal space (the Customs Union and the Common economic space). The important aspect of the proposal is the comparative study of development of tax law in the EAEU and the European Union (EU) as a model of integration which has already shown great results during decades.

The objective of this study is to provide an evaluation of development of tax law in EAEU in comparison with EU. The EAEU and the European Union have incomparable historical experience: ten and sixty years respectively.

We suppose that some elements of EAEU are similar to EU, and namely the next ones: the unity of institutional structure; aims of vanguard countries correspond to basic direction of development of the whole Union; there is a possibility for rearguard countries to join vanguard countries in case they are ready to carry out extra obligations.

The scope of the study is closely connected to the following evaluation problems: tax sovereignty; the effects of the major recent tax policy initiatives for the Union and Member States; ways of tax harmonization in the EAEU and the role of the Court of the EAEU (with using of experience of the European Court of Justice in the area of European tax law); ways of absorbing the enlargement of the EAEU.
Taxes, Duties, Levies and Charges as Part of the Taxable Amount for Value Added Tax
Authors: van Doesum Ad , van Kesteren Herman
Published: March 2022

Article 78(a) VAT Directive clearly states that taxes, duties, levies and charges must be included in the taxable amount for Value Added Tax (VAT). The Court of Justice of the European Union (CJEU) has substantially mitigated the scope of this rule. Following the CJEU’s ruling in Lisboagás, the amount of a tax, duty, levy or charge may need to be included in the taxable amount under Article 73 if it cannot be included in the taxable amount on the basis of Article 78(a). A fair amount of uncertainty still exists as to the relation between Article 73, Article 78(a) and Article 79(c) VAT Directive is unclear. This interrelationship is the main topic of this article. The authors provide for criteria to establish whether (amounts of) taxes, duties, levies or charges are to be included in the taxable amount. They show that – contrary to CJEU case law – Article 78(a) cannot be interpreted in the light of Article 73 VAT Directive. Also, they clarify that if the amount of a tax, duty, levy or charge must be included in the taxable amount on the basis of Article 73, it cannot be excluded from it on the basis of Article 79(c). Furthermore, they conclude that the reference in Article 84 to Article 78(a) VAT Directive has become outdated.
International Income Allocation under EU Tax Law: Tinker, Tailor, Soldier, Sailor
Authors: Smit Daniël S.
Published: March 2022

The current European approach to tackle tax avoidance by multinational firms focuses too much on treating the symptoms instead of the causes of Base Erosion and Profit Shifting. Under the current rules, business profits should ultimately be taxed once somewhere. But in which country, that doesn’t always really seem to matter. This is not in line with the principle embraced by the EU and the OECD that companies should be taxed in the country where the profit-generating activities take place. In the author’s opinion, a different approach should be developed. A more fundamental approach to the root causes of corporate tax avoidance is needed. In taxing multinationals, there should be more focus on economic reality in which multinationals operate. To that end, one would need to determine in which place the activities take place and which value one should attribute to them, based on the arm’s length standard. Such an approach would do more justice to the principle that profit should be taxed where it is generated.
Environmental Tax Harmonization and Competition-Centred Legal Practice of EUCJ
Authors: Deák Dániel
Published: March 2022

The subject of the article is, in general, the explanation and justification of environmental taxes that appear in the EU in the light of the current ecological crisis. In particular, the article is going to assess European developments and examine the practice of the EU Court of Justice, pursued in this field. As discussed in the article, environmental tax legislation of the Member States may get stuck due to the EU Court that is committed to the fundamental freedoms. Such a failure may happen because the Member State’s environmental taxes are not targeted enough or they establish the special treatment of a group of taxpayers that cannot be upheld before ECJ in the light of the non-discrimination principle. The article seeks to give an account of the problems as depicted above.
Rise and Decline of the Westphalian Principle in Taxation: The Web Tax Case
Authors: Greggi Marco
Published: March 2022

The article analyses the crucial impact that the digital economy is having on international taxation and argues that the traditional taxing rules are inadequate to address the way that multinational enterprises are conducting business on the Internet and how value is created on the Web. The cornerstone of this analysis consists of the observation that, while the power of the states to tax is intrinsically connected to territory (thus, to a physical element), the Internet economy is not as it takes places in a virtual space (a Terra Incognita) which is, in legal terms, still uncharted.

This situation is challenging the intimate connection between the power to tax and the territory state Sovereignty can be exercised on, superiorem non recognoscens. This is the Westphalian Principle, as commonly understood in History, and it is the pillar states have been built on since the mid-seventeenth century, in Europe. This article eventually considers the most recent development to overtake this empasse, in particular, the digital tax proposal as suggested by the European Commission in 2018. In this respect, it concludes that, while the European strategy is positive in terms of policy, in a purely legal perspective, it might initiate possible retaliation from qualified international stakeholders (including States such as the US) that would see their potential taxable base eroded by foreign unilateral measures and without any previous agreement in this sense.

e-commerce, digital taxation, territoriality, income taxation, net neutrality, double taxation, tax competition, sovereignty, base erosion, BEPS.
Cross Border Qualification Problems Between Social Security and Supplementary Pension: More Guidance Needed?
Authors: Didden Bastiaan M. M.
Published: March 2022

The encouragement of the accrual of an adequate retirement income has the attention, not only of national governments, but also of the European Commission (EU Member States have initiated reforms of their pension systems, amongst others to provide an adequate pension income. The European Commission stated in 2017 that as part of social protection, every EU citizen should be entitled to an adequate pension, see: European Commission, Commission Recommendation on the European Pillar of Social Rights, C (2017) 2600 final, 26 April 2017, page 8. The European Commission has already expressed this ambition in its White Paper – An Agenda for Adequate, Safe and Sustainable Pensions, published in 2012, see: European Commission, White Paper – An Agenda for Adequate, Safe and Sustainable Pensions, 16 February 2012, COM (2012) 55, page 12. The broadly supported endeavour to achieve an adequate pension income also implies that a multi-pillar approach is recognized by Member States, whereby not only the statutory pension, but also other forms of retirement savings (such as supplementary pension) has to ensure an adequate income after retirement. With regard to promoting cross border labour mobility, reference can be made to the ‘Europe 2020 strategy’.). In cross border situations, a mobile employee may be confronted with various legal obstacles that may hinder an adequate pension accrual and cross border labour mobility. In this article the so-called cross border qualification problems between social security and supplementary pension will be addressed. It is examined how the three qualification problems are recognized in a European law context and to what extent more guidance can be provided on a European level to eliminate the negative consequences of the present qualification problems.

cross border pensions, social security, supplementary pensions, accrual of pensions, qualification, mobile employee, double taxation, mutual recognition, European Pension Register, pension premium provision, soft law
Certain Procedural Issues in Arbitrating Competition Cases
Authors: Liebscher Christoph , Levin Richard , Sommer Patrick
Published: March 2022

Arbitrations of competition cases are a relatively new phenomenon. The authors of this work were members of the ICC’s recent Task Force on Arbitrating Competition Disputes and this note is taken in large part from their report to the Task Force on procedural issues. This work touches on many procedural issues, including those that are somewhat predictable in arbitrations of competition disputes and those that are not. These include the power of the arbitrator to rule on the competition issue, the burden of proving a violation, as well as educating the tribunal on different competitive impacts in different jurisdictions, and the duty to render an enforceable award and how that plays in an arbitration of a competition case given the important public policy issues at stake. The effect of a ruling of a state competition authority is analyzed. Discovery issues are discussed as well, given their importance in complex disputes, and the note concludes with a discussion of the dispositive motion in competition disputes and how that type of motion might square with the policy of arbitration as well the enforceability issues it presents.
Two Nebulous ICSID Features: The Notion of Investment and the Scope of Annulment Control – Ad Hoc Committee’s Decision in Patrick Mitchell v. Democratic Republic of Congo
Authors: Hamida Walid Ben
Published: March 2022

More than forty years after the conclusion of the Convention on the Settlement of Investments Disputes between States and Nationals of Other States, a number of rules concerning the jurisdiction of ICSID tribunals and the nature of ICSID’s internal annulment mechanism control remain controversial. The Patrick Mitchell v. Democratic Republic of Congo ad hoc committee decision addressed two much-debated ICSID arbitration issues: first, the definition of investment under the Convention; and second, the scope of the review to be carried out by ICSID ad hoc committees.
California and Arbitrator Failure to Disclose
Authors: Donahey M. Scott
Published: March 2022

California statutes contain some of the most stringent standards for arbitrator disclosure found anywhere. While those standards are not applicable to international arbitration, the statutory provision requiring mandatory vacatur of an award for failure to disclose is. California case law currently provides that a general choice of law provision calling for the application of California law includes the application of California procedural law, including its unique arbitration provisions. Parties are advised to specifically exclude California arbitration law when agreeing to a California choice of law provision and to enforce their arbitration agreement and any ensuing award in federal, rather than California State, court.