bluuebunny/crossref_metadata_2025_split huggingface dataset:
Disclosure, and challenge of arbitrators under the Indian Model BIT: A step towards enhancing the legitimacy of investment arbitration?
Authors: Subramanian S.R. 
Published: February 2023

Legal provisions for disclosure and challenge of arbitrator are very crucial to restore the confidence of the parties in the arbitral process when it is upset by complaints of lack of independence or impartiality of arbitrators. However, detailed and binding rules on the challenge and disqualification of arbitrators are not forthcoming. Against this backdrop, the revised Indian Model Bilateral Investment Treaty (BIT) of 2015, as a first-of-its-kind, has taken the initiative of including a detailed framework in the form of treaty rules to address the disclosure requirements and the grounds and procedure for challenge of arbitrators. In this connection, the article attempts to determine how the disclosure and arbitrator challenge mechanisms are structured across the leading international (investment) instruments and later use this as a benchmark to evaluate the disclosure obligations of arbitrators and their challenge under the Indian Model BIT.
disclosure, challenge of arbitrators, Indian Model BIT, independence and impartiality, code of conduct, justifiable doubts standard, CC/Devas v India.
Enforcing Foreign Awards Against Non-signatories: Analysis of Gemini Bay Transcription Pvt Ltd. v. Integrated sales service Ltd
Authors: Singh Shreya 
Published: February 2023

Even though non-signatories to an arbitration may be affected by the outcome of an arbitration, they are often treated as strangers in the process. However, non-signatories can seek their involvement in an arbitration from the stage of reference to an arbitration, till enforcement of the arbitral award. The Supreme Court in its recent judgment of Gemini Bay Transcription Pvt. Ltd. v. Integrated Sales Service Ltd. &amp; Ors. has clarified the position of non-signatories to the extent of enforcement of foreign awards by allowing the same.
non-signatories, group of companies, arbitration, intention, enforcement.
Regulatory Convergence of Consumer Protection in the Single African Air Transport Market: How Far, How Well?
Authors: O. Adediran Adejoke 
Published: February 2023

The Single African Air Transport Market (SAATM) kicked off in 2018 and there are currently thirty-five Member States. The legal framework for consumer protection in the SAATM comprises the Yamoussoukro Decision (YD) and the consumer protection regulatory texts which Member States are required to harmonize with their national laws. This article examines the regulatory convergence of consumer protection in Member States of the SAATM. While observing that the extent of the required harmonization is not specified, the article notes that the consumer protection regime is basically passenger rights oriented and there is need for uniformity and consistent implementation in all Member States so as to prevent conflict of laws as well as legal uncertainty for passengers. The article analyses the consumer protection regulatory framework of the SAATM and that of selected Member States and notes the divergences that can impede the operationalization of the SAATM.
Africa, air transport, Yamoussoukro Decision, consumer protection, harmonization, airlines, SAATM
Article: Space Dispute Settlement in Asia in the Context of the Belt & Road Initiative: An Appraisal from China’s Perspective
Authors: Yu Huan , Nie Mingyan 
Published: February 2023

Conducting a space cooperation program in the context of the Belt &amp; Road (B&amp;R) initiative provides China opportunities to further extend the scale of space cooperation in Asia and break through the current predicament of the Asia-Pacific Space Cooperation Organization (APSCO). A more comprehensive mechanism to address the potential state-to-state and commercial space disputes is essential. To efficiently avoid and resolve disputes among the Member States, APSCO needs to improve the ‘fair return’ principle and the dispute settlement arrangement contained in its Convention. As to conflicts between APSCO and the non-Member States, dispute settlement clauses are obliged to be reached between APSCO and China. For commercial disputes, China should establish a specialized arbitration branch as a constituent of the B&amp;R comprehensive dispute settlement mechanism. Disputes arising in space infrastructure investments need to be treated separately. For this reason, a special branch for settling investor-state disputes should be created under the Asian Infrastructure Investment Bank (AIIB) as advocated in this article.
B&R Initiative, B&R-SIC, Space Disputes in Asia, Asian Space Cooperation, APSCO, Commercial Space Activities
Case Laudamotion: The CJEU Rules that Severe Mental Injury Equals Bodily Injury Under the 1999 Montreal Convention
Authors: Grigorieff Cyril-Igor 
Published: February 2023

Breaking with international jurisprudence, the Court of Justice of the European Union ruled that pure psychological injuries could be compensated under the 1999 Montreal Convention in Laudamotion (C-111/21). Claimants would have to demonstrate, however, that the psychological injury seriously affects their state of health and needs medical treatment.
Montreal Convention, Accident, Bodily Injury, Mental Injury, CJEU, Uniformity, Travaux preparatoires
The Two Faces of Severability: A Study in International Contracting
Authors: M. Winkler Matteo , Kohli Romit 
Published: February 2023

This article represents a unique attempt in academic literature to develop an all-comprehensive framework of severability in international contracts. After defining severability as a mechanism due to which a specific contract provision is insulated from the remainder of the contract, this article examines both the transactional and procedural variations of this notion. It prescribes a set of tools for maximizing the utility of transactional severability, on the one hand, and a set of rules for reinforcing the integrity of international adjudication through procedural severability, on the other. At the same time, this article critically analyses the downsides of these variations, proposing possible corrections to their application in international contracting.
severability doctrine, severability clauses, international contracting, dispute resolution, contract negotiation, international business, business transactions
What Went Wrong With Wrongful Trading?
Authors: Arora Yatin 
Published: February 2023

In seeking to combat the abuse of limited liability, the wrongful trading provision under section 214 of the Insolvency Act 1986 has long formed part of the UK’s ex post facto creditor protection strategy. However, despite being introduced nearly forty years ago, claims for wrongful trading have been far and few, raising key questions over the provision’s potential. In light of these low numbers, this article assesses the effectiveness of section 214, by examining whether it achieves its underlying objectives. It is argued that, as the regime’s development has been riddled with a lack of clarity, judicial discretion, and inconsistency, officeholders currently face a number of difficulties. These difficulties mean there is currently insufficient incentive for officeholders to bring an action and thus section 214 is not achieving its objectives. However, the provision’s effectiveness can be improved by introducing an ex-ante measure into the ex post facto regime. Premised upon the idea that prevention is better than cure, this author proposes a new model for compulsory preappointment director education. By targeting potential troublemakers from the outset, this eliminates, or at least drastically reduces, the need to rely on section 214 in the first place.
wrongful trading, limited liability, company law, insolvency, creditor protection, directors’ duties
Parental Corporate Liability as Tort in the United Kingdom Part I: How the Past Informs the Challenge of Contemporary Regulation
Authors: Chilson Gregory 
Published: February 2023

Recent case law in the UK courts has established the possibility for the parent companies of multinational corporations (MNCs) 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 despite conflicting with established principles of company law. By comparison, European neighbours such as France, Switzerland and Germany have developed statutory regulatory regimes which utilize due diligence obligations that appear more reflective of recent 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 first part contextualizes the current law within contemporary academic discourse and offers a historically informed explanation for the conceptual underpinnings of the unique approach currently taken within English jurisprudence and their coherence with the broader principles of domestic UK company law.
The second part offers an analysis of UK law as it stands including the caselaw that builds the corpus of parent company liability in England and Wales. It analyses how effective the current liabilities identified by the Courts are in securing fair remedy for corporate misfeasance. It identifies and categorizes its key features and contrasts them with comparative elements of statutory due diligence approaches adopted by France and Germany or pursued as in the case of Switzerland. It will finally consider whether they offer any concepts worthy of consideration for the regulation of parent company liabilities in future.
Parent Company, Corporate Groups, English Company Law, Human Rights Due Diligence, UNGPs, Okpabi, Vedanta, Mass Torts, Supply Chain Liability, Limited Liability
Pre-emptive Rights of Shareholders: An Indian Perspective
Authors: Ritika K. 
Published: February 2023

Pre-emptive rights are legal relationships either created by a statute or through a contract. By the exercise of these rights, priority is given to the right holder over and above others as regards the potential acquisition of the relevant subject matter. Only upon refusal by such right holder, is this opportunity given to a third party to negotiate.
In India, the statutory pre-emptive rights of a shareholder in a company have been recognized statutorily through the Companies Act, 2013, as well as by the extant security exchange laws. Whereas, in the case of contractual pre-emptive rights, they are enforced as per the Indian Contract Act, 1872.
As per the statutorily recognized pre-emptive rights, the rights are held by the shareholders of a corporation by virtue of which additional shares shall not be issued by the company to a third party, without the shares first being offered to all its existing shareholders.
In the case of the contractual pre-emptive rights, they are, typically, an arrangement between the shareholders of the corporation that, in the case of transfer of shares, the exiting shareholder shall first offer those shares to the non-exiting one.
It leads to great confusion for many, as the context in which the term is used statutorily and contractually varies to a great degree. Through this article, an attempt is made to discuss the concept of pre-emptive rights in a company, its statutory and contractual presence in companies regulated as per the laws of India and review judicial developments and understand its relevance in today’s time.
Rights Issue, Companies, Public Company, Private Company, Indian Companies Act, 2013, Indian Contract Act, 1872, Pre-emptive Rights, Statutory Pre-emptive Rights, Contractual Pre-emptive Rights, Right of First Refusal, Right of First Offer
Start-ups to the Test of the New Italian Crisis and Insolvency Code
Authors: Spiotta Marina 
Published: February 2023

With this article, the author intends to outline a systematic framework of the long-standing issue relating to the delicate relationship between innovative start-ups and the (different) insolvency procedures. First, the report attempts to provide the subjective and objective elements by which a start-up can actually be framed as ‘innovative’. Secondly, the article analyses the successive regulations on insolvency matters aimed – sometimes at inclusion, sometimes at exemption – at regulating the procedures that can be carried out voluntarily by the innovative startup or those to which, in any case, it shall be subjected. In the following, the author tries to highlight the case law framework in fieri that occurred in the context of insolvency in relation to the aforementioned companies. Finally, the article, analysing some of the recent rulings occurred, attempts to represent the state of the art of the quaestio iuris and how this may affect the application of the new provisions on insolvency matters, governed by the new Corporate Crisis and Insolvency Code (breviter, CCII).
Innovative start-ups, bankruptcy, objective and subjective requirements, five-year term
Article: Abuse of Law by a Member State When Designing a Tax Measure
Authors: Stevens Stan 
Published: February 2023

When Member States design tax measures, they have to comply with EU law. In this article the question is discussed whether a Member State has the liberty to intentionally design a domestic rule so that it falls outside the scope of the freedom of capital and prevent scrutiny in respect of third states by the Court of Justice of the European Union (CJEU). This question is investigated by using two Dutch rules as a case study. The author argues that the legislature walks a thin line. On the one hand there is a risk that the legislature is circumventing the application of the fundamental freedoms in an abusive way while on the other hand using an arbitrary criterion in a rule to distinguish between comparable cases could lead to the conclusion that a Member State has implemented a selective tax measure and thus granted state aid. The author concludes that the Dutch liquidation loss rule infringes EU law.
Abuse of law, Liquidation loss, Withholding tax, State aid, Sincere cooperation, Freedom of capital
Article: ‘Provisions Primarily of a Fiscal Nature’: Time to Dispel Doubts
Authors: Scuderi Erika 
Published: February 2023

The concept of ‘provisions primarily of a fiscal nature’ is not defined in the EU Treaties. Despite the absence of an exact definition, such expression has been so far understood as including the adoption of all types of environmental taxes. But is this interpretation correct? And is it the only possible one? This article aims at answering the question of whether environmentally driven fiscal measures that have primarily regulatory goals can be introduced via the ordinary legislative procedure as per Article 192(1) Treaty on the Functioning of the European Union (TFEU). In doing so, this contribution firstly describes why Article 192(2)(a) TFEU was introduced as an exception to paragraph 1. Secondly, it analyses the concepts of ‘primarily’ and ‘fiscal nature’ and assesses whether the different language versions of the TFEU dispel doubts about their meanings or increase the level of uncertainty. In light of this scrutiny, the author proposes a potential new interpretation that would bring the adoption of environmentally driven taxes under the umbrella of Article 192(1) TFEU.
Environmental taxes, fiscal nature, unanimity, qualified majority voting, special legislature procedure, ordinary legislative procedure, passerelle clause
Forum: Case C-368/21: A New Definition of Importation in the Sense of VAT Law?
Authors: Ojak Sven 
Published: February 2023

Since the Eurogate II and DHL decision (CJEU, Judgment of 2 June 2016, EU:C:2016:405), it has been clear that importation in the VAT context means ‘the entry of goods into the economic network’ of the Union. However, it is problematic that neither the EU VAT Directive nor the CJEU provide a distinct definition of what is meant by this term. This article deals with the main existing theories on the interpretation of this indeterminate legal concept in the German-language literature and by the German fiscal courts. It is concluded that these theories unfortunately ignore the exposed consumption tax character of (import) VAT and therefore deliver inconsistent results in contradiction to the recent decisions of the CJEU.
importation, import VAT, customs, economic network, economic cycle, consumption tax, EU VAT Directive
Article: Reaching Cross-Border Tax Certainty With Joint Audits
Authors: Zimmerl Isabella 
Published: February 2023

The last few years have seen an increasing cooperation between tax authorities of Member States of the European Union by way of joint audits. This article shows how joint audits can provide an efficient solution to double taxation issues faced by internationally active companies. It centres on ways to amend and effectuate existing procedures of international tax law in light of experiences made with joint audits, focusing in particular on potential ways for more cross-border tax certainty. Furthermore, the article illustrates that an effective und legally certain reduction of international double taxation can best be reached by a stronger cooperation of tax authorities and the taxpayer/s. Finally, the author takes a look at recent developments in the field as well as the potential future of joint audits, emphasizing the need for more legally binding solutions.
joint audit; joint tax audit; mutual agreement procedure; advance pricing agreement; tax certainty; cross-border tax certainty; dispute prevention; double taxation; transfer pricing; administrative cooperation
Forum Contributions: CJEU Case Law on Exercising Rights Under EU VAT: Is There a Golden Thread in the Distinction Between Substantive and Formal Conditions?
Authors: Barth Fabian 
Published: February 2023

Exercising rights under EU Value Added Tax (‘VAT’) law (for example recovering input tax) is often subject to certain conditions. A distinction however exists between substantive and formal requirements: Non-fulfilment of the latter does not need to be fatal for a taxpayer’s claim. That being the case, the question arises how a condition can be classified as either ‘substantive’ or ‘formal’. The author summarizes the case law of the Court of Justice of the European Union (‘CJEU’) in the area and notes that the Court has so far refrained from providing an all-encompassing test. The article therefore explores whether a golden thread can be identified and analyses if the Court may have had a general principle in mind when labelling conditions as ‘formal’ in judicial precedent.
VAT, CJEU, substantive, formal, invoice, intra-Community supply
Article: EU Species Protection Law and Wind Energy: Current Challenges and Danish Experiences
Authors: Anker Helle Tegner , Olsen Birgitte Egelund 
Published: February 2023

This article highlights certain challenges as regards the reconciliation between concerns of climate change, energy security and biodiversity protection, drawing on case law of the Court of Justice of the European Union (CJEU) and the Danish experiences regarding onshore wind energy installations. The EU species protection rules are by many perceived as an obstacle to wind energy development as also reflected in the 2022 Commission proposal to amend the Renewable Energy Directive. However, it is not evident that the proposal will solve the challenges of accommodating the strict direct species protection of, in particular, Annex IV species and birds against deliberate killing or disturbance as determined by the CJEU. The article suggests that rather than setting aside the general environmental impact assessment (EIA) and appropriate assessment requirements for Natura 2000 sites, there is a need to revisit the Birds and Habitats Directives, in particular as regards ‘deliberate killing or disturbance’ caused by non-intentional activities with a view to the population level as opposed to the individual specimen level.
European Union, Species protection, Biodiversity, Renewables, Wind energy
Article: Arms Transfers and Human Rights: Assessing the Impact and Enforcement of the EU Common Position on Arms Exports in a Multilevel Analysis
Authors: Bonaiuti Chiara 
Published: February 2023

Arms export control measures are an important tool to defend the universality of human rights, democracy and to prevent conflicts. The European Union (EU) has a long tradition in striving towards these goals.One of the most important outcomes regarding such is the 2008 Council Common Position (CP) defining Common Rules Governing Control of Exports of Military Technology and Equipment Common Foreign and Security Policy (CFSP). This article focuses on the implementation and effectiveness of this CP. In particular, it investigates whether EU countries have applied and enforced human rights principles in arms export practices following the approval of the CP or whether a promarket and pro-export approach have prevailed. In this way, it fills a lack of organic analysis on the impact of the CP. Secondly, for the first time, it compares EU-level regulation impact with that at the global level, in order to assess the ‘net value’ of the EU regulation at the international level also from a diachronic perspective. Lastly, a comparison with the national level offer suggestions for mutual reinforcing. By using quantitative methods, the research aims to offer empirical evidence concerning the EU arms export control regimes and their effectiveness and to contribute to the present debate about the means at the EU’s disposal to defend the universality of human rights and promote democracy.
EU Common Foreign and Security Policy, human rights, arms trade, arms exports control and disarmament, normative power, democracy, autocracy, sanctions, arms embargo
Good or Bad Robots? Responsible Robo-Advising
Authors: Salo-Lahti Marika 
Published: February 2023

FinTech has changed the way financial services are produced and delivered.1 As the Digital Finance Strategy for the EU put it: the future of finance is digital. Digital finance has also helped people and businesses tackle the unprecedented challenges caused by the COVID-19 pandemic. We increasingly rely on digital and remote technologies. The role of regulation is to make sure that these technologies are used in a responsible way.2 Robo-advising is one of the innovations relating to FinTech. This article addresses central challenges and risks in robo-advising, and the regulatory means to tackle them. When these challenges are resolved, robo-advising can provide customers with an easy-to-use, cost-effective and flexible service.
FinTech, Investment advising, Robo-advising, MiFID II, Responsibility, Algorithm, Information security, Cybersecurity, Financial literacy, Legal Design