bluuebunny/crossref_metadata_2025_split huggingface dataset:
Distressed Mergers and Acquisitions: Price Adjustment Mechanisms in the Context of Distress
Authors: Garcia Fuentes Mateo 
Published: February 2023

In crisis contexts, distressed Mergers and Acquisitions (M&amp;A) arise as viable options for companies under severe financial pressure seeking to avoid bankruptcy. However, distressed M&amp;A transactions are accompanied by multiple complexities that turn the process of merging or acquiring a financially distressed company or asset into a risk-driven business activity.
The impossibility to conduct a thorough due diligence due to pressing time constraints, the lack of extensive warranty and indemnity protection, and the impact of these two factors on the target’s valuation, constitute core features of distressed M&amp;A transactions. Circumstances that can be addressed by means of opting for the appropriate pricing mechanism that best adjusts to the characteristics of the deal.
However, the available pricing mechanisms might not suffice per se. Therefore, parties should consider the inclusion of additional contractual resources to mitigate the identified risks and challenges. Otherwise, instead of reducing the risk exposure from a distressed target, a failed M&amp;A that does not properly address the particularities that come along with doing business in contexts of distress might consequently put the acquirer under great pressure.
Corporate Governance, Corporate Social Responsibility, CSR, Directors’ Duties, Equator Principles, ESG, Greenwashing, Risk Management, SDG, Sustainable Banking, Sustainability Reporting
Part II: Parent Company Liability and the Idea of Statutory Due Diligence
Authors: Chilson Gregory 
Published: February 2023

Recent case law in the UK courts has established the possibility for the parent companies of multi-national corporations to hold liability in tort negligence for harms caused by their foreign based subsidiaries. The UK’s approach – a general duty of care for cross-border torts – is noteworthy in that it has developed organically through the common law. One possible tension this duty raises, may be with established principles of company law, affirmed at common law. By comparison, European neighbours such as France, Switzerland and Germany, have addressed the same issue of corporate accountability by developing statutory regulatory regimes which utilize due diligence obligations reflective of the recent trend toward international accountability standards, such as the UN Guiding Principles for Business and Human Rights (UNGPs) of the late John Ruggie.
This work serves as an in-depth investigation for scholars of tort law, company law, private international law, and human rights, who are interested in understanding this rapidly developing area of practice from an English perspective. This work is offered in two parts. This second part offers an overview of UK statutory and case law as it may relate to parent company liability. A critical analysis of recent case law, seeks to understand the characteristics of parent company liability, as developed by the Courts in securing fair remedy for corporate misfeasance. With reference to comparative regimes observed in the aforementioned neighbouring European countries, this work further considers what limitations the current law has, and what benefits could be realized through the introduction of reporting requirements.
Parent Company, Corporate Groups, English Company Law, Human Rights Due Diligence, UNGPs, Okpabi, Vedanta, Mass Torts, Supply Chain Liability, Limited Liability
Article: Free Movement of Persons Between the EU and Switzerland: Quo Vadis?
Authors: Ros Erik 
Published: February 2023

Relations between Switzerland and the European Union (EU) have been shaped by various (bilateral) agreements. This contribution discusses one of the most important agreements between Switzerland and the EU; the agreement on the free movement of persons (AFMP). The AFMP does not have its own dispute settlement mechanism or supervisory body. Dispute resolution is now left to independent Swiss courts and the Court of Justice of the European Union (ECJ). On 23 November 2018, a first draft of an institutional framework agreement between Switzerland and the EU was published. The aim of this proposed framework agreement was partly to simplify the complex relations between Switzerland and the EU. In May 2021 the Swiss government pulled the plug on the institutional framework agreement because of concerns about migration, labour rights, and worries about the judicial authority the institutional agreement would give to the ECJ. The EC is however clear about what it wants. Amongst others, the dynamic alignment of Swiss law to EU law and a functioning dispute settlement mechanism are issues the EC wants to see solved. In this article the author explores, among other things, what the consequences could be for Swiss fiscal autonomy if Switzerland would follow the EC. The author also reflects in more detail on the ECJ’s case law on frontier workers and the final settlement on capital gains from shareholdings upon emigration to Switzerland.
Free movement of persons, Switzerland, taxation, bilateral agreements, Wächtler judgment.
Article: New Tendencies Regarding the Relevance of Formal Requirements in VAT Law
Authors: Hummel David 
Published: February 2023

Back in 1858, Rudolf von Jhering, a well-known German legal scholar, said: ‘Form is the sworn enemy of arbitrariness, the twin sister of freedom’. Perhaps this is why Value Added Tax (VAT) law includes many formal requirements before the taxpayer can exercise his right of deduction or can opt for taxation, for example. Concerning these formal requirements, it is not disputed that the Court of Justice of the European Union (CJEU or Court of Justice) has put a stop to excessive formalism in VAT law. However, there are some interesting recent decisions of the Court of Justice, which were dealing with the question as to whether the lack of formal requirements allows the financial administration to deny the right of deduction or the right to opt for taxation, even if the material conditions are fulfilled. This article shows that there is a recent tendency in the jurisprudence of the CJEU to take more into account the function of formal conditions in the field of VAT law. It seems that the Court has found now a better balance between the rights of the taxable person and the principle of proportionality, on the one hand, and the principle of neutrality and the uniform and simple application of VAT law, on the other.
VAT law, formal requirements, VAT identification number, Invoice, Registration as taxable person, formal and material conditions, sens of form, no right to deduction without an invoice, necessary content of an invoice
Article: When Securitization Spills over Across EU Borders: A Quantitative Mapping of the External Dimension of EU Migration and Asylum Policies
Authors: Longo Francesca , Fontana Iole 
Published: February 2023

This article provides new empirical insights on the external dimension (ED) of European Union (EU) migration and asylum policies (MAPs) as a case of securitization, by mapping its policy tools across time and space. More specifically, the goal of the article is two-fold. It engages into a new mapping exercise that enables an understanding of how ‘geographically spread’ the ED of EU policies on migration and asylum is, as well as providing insights into ‘where’ and ‘what’ the EU has externalized in the last twenty years. Second, it assesses to what extent the number, type and distribution of ED policy tools reflect dynamics of the securitization of migration and asylum. The article builds upon the literature on securitization and externalization, looking at it afresh by adopting a perspective focused on policy tools. Empirically, the analysis is based upon a new comprehensive database containing data on 153 ED tools according to their characteristics and regions. The article argues not only that policy tools characterize the ED as a further feature of the securitization of migration, but also that externalization through practices of securitization has not been limited to the EU immediate borderlands but has rather spilled over across regions and frontiers.
Externalization; migration policies; securitization; policy tools; border control; return and readmission; asylum
10 Years of Application of the Polish Act on Private International Law of 2011
Authors: Twardoch Paulina , Kozioł Agata 
Published: February 2023

The article presents the Polish courts’ application of the national Private International Law Act 2011 (PIL 2011) during the 10 years it has been in force. The analysis of jurisprudence is supplemented with observations on recent developments in Polish doctrine.
The authors discuss correct and erroneous solutions adopted by courts, which are illustrated by provided examples of judgments regarding diverse legal issues. The article deals with mistakes consisting in ignoring the need to search for the applicable law. It also concerns, on the one hand, faulty perceptions and applications of newly introduced instruments (such as the so-called informative provisions or new conflict rules concerning issues that have not been regulated before in the conflictof- laws sphere) or of instruments shaped differently than in the past (such as renvoi). On the other hand, it considers problems that emerged in relation to mechanisms that are well known to Polish judges (such as the public policy exception). Challenges relating to delimiting PIL 2011 from other sources of PIL are also discussed.
Article: The Age-Old Distinction Between Public and Private Limited Liability Companies: Should It Stay or Should It Go?: A figment of academics’ imaginations
Authors: Van Delft H. P. E. , Renssen S. 
Published: February 2023

This article attempts to answer the question whether the distinction between public and private companies is still needed or whether it is outdated. The question will be answered from an EU perspective, while taking the Dutch legal system as a leading example. In the Netherlands, there was a huge time-gap between the introduction of the public company in 1811 and the introduction of the private company in 1971, 160 years later. This seems to justify the question whether we needed the private company at all.
Public company, private company, minimum capital requirement, capital maintenance rules, bearer shares, registered shares
Article: Report on the CELIS Forum on Investment Screening
Authors: Hindelang Steffen 
Published: February 2023

On 1–3 June 2022, the Common European Law on Investment Screening (CELIS) Institute organized its fourth annual conference ‘2022 CELIS Forum on Investment Screening’ (CFIS22). The Conference was held in Sweden, at Uppsala University. The CELIS Institute is an independent non-profit, non-partisan research enterprise dedicated to promoting better regulation of foreign investments in the context of security, public order, and competitiveness. It was set up in 2020 by Steffen Hindelang and J. Hillebrand Pohl, the convenors of this year’s conference, as a permanent successor to the ‘International Conference on a Common European Law on Investment Screening (CELIS)’, convened by Professor Hindelang and Andreas Moberg in 2019. The aim of CFIS 22 was to debate European investment screening on national security grounds from a strategic perspective on the theme ‘The Emerging Law of Investment Control in Europe: Screening, Sanctions and Subsidies’. CFIS was a major event which brought together, not just leading academic scholars, EU officials, national experts, diplomats, and policymakers, but also business leaders, think tankers, and representatives of the investment community and civil society, as well as the media from across Europe and beyond. The three-day event was generously funded by Riksbankens jubileumsfond, the Center for International Private Enterprise, the Swedish Institute of International Law, Datenna, Blomstein, and the Institute for Democracy Societas
investment screening, foreign investments, CELIS, FDI, ESG, national security, public order, sovereign-driven investment.
Article: The German Supply Chain Law: A First Step Towards More Corporate Sustainability
Authors: Rühmkorf Andreas 
Published: February 2023

The German supply chain law ( Lieferkettensorgfaltspflichtengesetz, abbreviated: LkSG) which enters into force on 1 January 2023 is part of the developing legal framework for human rights in global supply chains. Like the French vigilance law, it represents a new generation of supply chain laws which impose mandatory human rights due diligence obligations. The LkSG requires enterprises to exercise a number of due diligence obligations – from conducting risk analysis to undertaking preventive measures or remedial actions. The law is based on public enforcement via a competent authority, the Federal Office for Economic Affairs and Export Control (BAFA). The BAFA monitors and enforces compliance with the due diligence obligations. Non-compliant enterprises can be fined with up to 800,000 Euros and, in some cases, up to 2% of the annual turnover. Whilst the LkSG is an important step towards achieving greater corporate sustainability, it also has limitations. It was a political compromise and, as such, it does not include a new civil liability for non-compliance. Moreover, by default, it only applies to the enterprise’s own business area and its direct suppliers, whereas indirect suppliers are only included where the enterprise has substantiated knowledge that an obligation has been violated.
Supply chain law, Germany, Lieferkettensorgfaltspflichtengesetz, LkSG, business, human rights, home state laws, human rights due diligence, UN Guiding Principles
A European Resolution Regime for Central Securities Depositories? Some Reflections
Authors: L. Athanasiou Phoebus 
Published: February 2023

This article explores the case for, and the possible contents of, a European resolution regime for Central Securities Depositories, and examines developments in the course of the last decade that may have reinforced the case for reflection on the need for its eventual introduction. The article also explores accessory policy objectives whose eventual achievement could be facilitated by the existence of a harmonised resolution regime for European Central Securities Depositories.
Central Securities Depositories, resolution, legal and policy considerations, resolution objectives, interaction with CSDR and other harmonisation initiatives
Subsidiarity v. Autonomy in the EU
Authors: Panara Carlo 
Published: February 2023

The principle of subsidiarity as construed by the Court of Justice and the Advocates General (AG) is not an autonomy clause. Article 5(3) Treaty on the European Union (TEU) aims to promote the efficiency of governance rather than the autonomy of the Member States (MSs) and of the subnational governments. Although a number of scholars emphasize the potential role of federal proportionality for the protection of the autonomy, the effectiveness of this principle is limited in practice due to the Court’s judicial self-restraint. In the EU the autonomy of national and subnational governments is protected primarily by the legal bases in the Treaty. The reasoning of the Court to delimit these legal bases largely overlaps with and absorbs considerations of subsidiarity that acquire a merely ancillary role.
Subsidiarity, Court of Justice of the European Union, legislative competences of the European Union, legislative autonomy of the Member States, legal bases for the actions of the European Union, regions and local authorities in the European Union, efficiency of governance, federal proportionality
The Revised Enforcement Regulation (No 2021/167) and Some Possible Effects on EU Trade Disputes
Authors: Graafsma Folkert 
Published: February 2023

The European Union has enacted revisions to its previous Enforcement Regulation. This overview will describe some of the main changes introduced by the amendments and their possible effects on trade disputes between the EU and its opposing party.
The Revised Enforcement Regulation has filled some lacuna in the aftermath of the decapitation of the Appellate Body and has broadened the scope of the previous Enforcement Regulation. Areas such as services and intellectual property rights have now come into the Regulation’s ambit. The Revised Enforcement Regulation is a part of the EU’s ‘Carrot and Stick’ strategy, which seeks to promote the use of the Multiparty Interim Appeal Arbitration Arrangement (MPIA) rather than parties escaping their responsibilities in the aftermath of a Panel report by appealing into ‘the void’. The Regulation has also expanded towards bilateral and regional trade agreements, including where provisions of Trade and Sustainable Development (TSD) are at stake.
This overview will also briefly discuss the compatibility of the Revised Regulation with the EU’s World Trade Organization (WTO) obligations. The fact that other Members may be incentivized to join a rational and alternative means of dispute resolution is a successful outcome in itself. Whether the Revised Enforcement Regulation will ever be used is another question altogether. The lesser need for its use may actually signify the success of its existence.
EU, Trade, Revised Enforcement Regulation, Disputes, WTO, MPIA, Regulation 2021/167, Appellate Body, Panel, Article 25 DSU, Implementation And Retaliation, Suspension of Concessions, International Law, Bilateral Trade Agreements, TSD
Application of Dispute Settlement in Free Trade Agreements (FTAs’): A Cross Country Analysis of Modern FTAs’
Authors: Ray Ronjini , Meena Rishabha 
Published: February 2023

Most modern free trade agreements (FTAs’) include chapters on a variety of topics such as investment, digital trade, labour, gender, environment and small-medium enterprises. These new issues are often addressed in FTAs’ as there is a lack of development of multilateral rules on these areas at the World Trade Organization (WTO). Further, many of these aspects are non-trade issuesviz. environment, labour, competition policy, and investment. These areas are contentious and often face opposition from the Global South and are frequently excluded from the scope of dispute settlement. Against this background, this article examines the trends with respect to the application of the dispute settlement across recent FTAs’ concluded by certain developed countries such as the United States, Canada, Australia, the European Union (EU) and the United Kingdom (UK). This article examines recent FTAs’ and categorizes its chapters as follows: (1) Chapters always subject to dispute settlement, (2) Chapters not subjected to dispute settlement and (3) Chapters that have inconsistent recourse to dispute settlement. Accordingly, the article provides a cross country assessment of the FTA chapters with dispute settlement provisions and the rationale behind such divergent practices.
FTA, developed, non-trade, dispute settlement, sustainable trade, USMCA, gender, environment, labour, multilateralism.
Emerging Trends in Investor-State Dispute Settlement in New Free Trade Agreements
Authors: Ranjan Prabhash 
Published: February 2023

The Investor-State dispute settlement (ISDS) mechanism is going through a churning. Several countries, developed and developing, have started contesting the ISDS regime. This is reflected in the treaty practice of these countries. This article studies some of the recently signed free trade agreements (FTAs’) that contain an investment chapter to find out if there are broad discernible trends in the treaty practice of countries on ISDS reflected in these FTAs’. The article argues that there are three broad trends that one can decipher. First, some FTAs’ do not contain an ISDS provision. Second, some contain a limited ISDS provision. Third, the FTAs’ signed by the European Union shows a departure from the traditional ISDS mechanism toward an investor court system to settle international investment law disputes. These trends in FTAs’ on ISDS are part of the global practice that is not reposing the similar faith in ISDS as was the case in the last few decades.
ISDS, FTAs’, investment treaties, RCEP, CPTPP, investor-State dispute settlement
The Use of International Trade Mechanisms by the Brazilian Agribusiness
Authors: Grytz Vera Kanas , Guero Isabelle Ruiz 
Published: February 2023

The Agribusiness is one of the pillars of the Brazilian economy, and it represented 43% of the Brazilian exports in 2021. Moreover, Brazil is a net importer of inputs that are fundamental for the agriculture, such as fertilizers and equipment. Despite of being competitive by nature, it is of utmost importance that the players understand the mechanisms provided by the Brazilian legislation related to international trade. The purpose of this article is to call the attention of the Brazilian Agribusiness to several tools related to foreign trade, and how useful they can be.
In this context, the article first approaches the use of tariff modification mechanisms that could be useful to boost competitiveness by the Agribusiness by reducing costs of imported inputs or protecting against foreign competitors by means of reducing or increasing tariff rates. Then, the article calls the attention to Free Trade Agreements involving Brazil that promote trade in the agricultural sector. The article also highlights the use of trade remedies to protect the Agribusiness against unfair trade. The article finishes with a brief the analysis on how the Brazilian Agribusiness is affected by economic sanctions imposed by third countries, demonstrating the importance of understanding the new reality of global trade.
Brazil, Agribusiness, agriculture, International Trade, tariff, Free Trade Agreements, Mercosur, antidumping, sanctions, imports
The development of arbitration involving State Parties in Brazil: comparative remarks with Latin America
Authors: Pereira Cesar , F. Souza-McMurtrie Leonardo 
Published: February 2023

Arbitration involving state entities in Brazil has a long history. This paper analyses how this type of arbitration arose in Brazil, what were the strategies that Brazilian courts and legislative bodies employed to make it work and how do they compare to the rest of Latin America. This paper shows what were the key legal issues associated with resolving commercial conflicts with state parties in Brazil, how they were regulated and, most importantly, why arbitration became so relevant for state parties in Brazil, while other countries in Latin America avoid using the method.
State entities; arbitration; Brazil; development; public.
Article: Pillar Two and African Countries: What Should Their Response Be? The Case for a Regional One
Authors: Titus Afton 
Published: February 2023

As the OECD’s efforts to implement Pillar Two become more concrete, it becomes more important to understand the implications of this instrument for African developing countries. This article considers the possible responses available to a grouping of African countries in a bid to ensure that their corporate income tax policies are not undermined. In doing so, this article analyses the feasibility of these countries imposing a domestic minimum tax, adapting their tax incentives to non-tax incentives and whether African countries should support the proposal for a United Nations international tax forum. This article argues that it may be feasible for African countries to introduce a targeted domestic minimum tax that would apply to in-scope multinational enterprises (MNEs). Moreover, it may be possible for African countries to adapt their tax incentives to non-tax subsidies although this would involve some costs. It is heartening to see the proposal for a United Nations international tax forum, and it may be in the best interest of African countries to support such an initiative. Pillar Two has far-reaching implications for developing countries and it is important that African countries consider adopting regional responses to it. This article endeavours to create the space for such discussions.
Pillar Two, developing countries, Africa, domestic minimum taxes, non-tax subsidies, United Nations, corporate income tax