bluuebunny/crossref_metadata_2025_split huggingface dataset:
Vulnerability in Financial Regulation: The Case of SMEs
Authors: Keller Anat 
Published: February 2023

SMEs are the driving force of economies. For many years, this supported, somewhat ironically, the neglect in designing a coherent regulatory framework to ensure their fair treatment. But the reality is that many SMEs face information asymmetries, lack resources and negotiation power and in the absence of regulatory protection are exposed to harm. In recent years, mounting ad-hoc, eclectic responses have mushroomed to address various aspects of appropriate conduct standards, dispute resolution and accountability. While these mechanisms allow for adaptability and dynamism, they may prove to be inadequate to achieve the FCA’s consumer protection objectives. This article proposes to broaden the application of vulnerability, which was initially designed with natural persons in mind, to guide the fair treatment of SMEs. It argues that expanding the application of vulnerability to SMEs would reflect the hybrid nature of this business model which is often akin to that of individual consumers.
Conduct of business, Vulnerability, SMEs, FCA perimeter, Regulated activities, Commercial lending, Industry codes of conduct, Senior Managers and Certification Regime, Dispute resolution and redress, The Financial Markets Test Case Scheme, Business Lending Standards
Pat on the Shoulder or Real Empowerment? New ESMA Jurisdiction in No-Action Letters Compared with the SEC Experience
Authors: Atak Etka 
Published: February 2023

No-action letters have been in use in the US by the Securities and Exchange Commission (SEC) for over 50 years. Intrigued by the usefulness and the agility provided by the no-action letters, market participants have made calls to introduce a similar competence/power for the European Securities and Markets Authority (ESMA). ESMA was eventually given the possibility to issue no-action letters. Arguably, the new power stands to be an amalgam of the already existing powers of ESMA brought together under one article. This article proposes that the new power is not free from accountability and efficacy problems and that some amendments are needed to address this dangerous lack.
The dearth of scholarship on the no-action letters in the EU coupled with ESMA starting to issue its first no-action letters makes analysing this issue all the more pressing. In setting the scene, the article describes the no-action letters used by the SEC. The article then analyses ESMA as an EU agency and sets out its regulatory remit. Thereafter the new no-action power of ESMA is explained and compared with the established practice in the US. The article finally concludes by pointing out the deficiencies of the new power of ESMA and makes suggestions to improve its efficacy and accountability.
Central Securities Depositories, resolution, legal and policy considerations, resolution objectives, interaction with CSDR and other harmonisation initiatives
From an Illiberal Posture to an Anti-liberal Other: The Changing Composition and Jurisprudence of the Turkish Constitutional Court
Authors: Yolcu Serkan , Bahceci Baris 
Published: February 2023

This article reveals the change in the Turkish Constitutional Court’s (TCC/Court) jurisprudence due to the transformation in its structure. We develop our arguments on the assumption that the Court’s ideological attitude is determined according to interaction with political actors and argue that from 1980 onwards, two facts were determinant: (1) the role of the constitutional amendment in 2010 in relation to court-packing aim and (2) the role of President of Turkish Republic due to his appointment power. To this end, we examine the changing ideological line of the TCC by focusing on selected rulings delivered during Court’s two eras divided by 2010 constitutional amendments. We argue that the TCC dramatically changed direction from liberal towards anti-liberal line in its decisions and structure. Before 2010, members who did not act in line with the president who appointed them and did not have a sharp ideological stance were encountered. This situation was reflected in the voting behaviour of the members and brought ambivalent attitudes. After 2010, this situation was reversed and especially as of 2017, some members became loyal to the president, and it was seen that the court acted with a sharper division in critical decisions and transform into an anti-liberal stance in its jurisprudence.
constitutional review, Turkish Constitutional Court, judicial behaviour, constitutional judges, decision-making in constitutional courts
Civil Society and Rule of Law Backsliding in the EU
Authors: Christopoulou Antonia-Evangelia 
Published: February 2023

In the realm of the rule of law crisis taking place in several Member States of the European Union (EU), illiberal governments attempt to dilute institutional and non-institutional checks and balances with the aim to unrestrainedly exercise the state power. In this context, civil society, a sphere autonomous from the state where public interests are being expressed and formulated, is constantly undermined. This article tries to illustrate the relation between civil society and the rule of law and its backsliding. In this regard, a theoretical framework indicating the connections of the dominant civil society theories with core rule of law elements will be developed and the points of friction with rule of law backsliding will be indicated. This theoretical framework will, then, be tested in EU institutional practice through the examples of the EU Annual Rule of Law Report and the case Commission v. Hungary (Transparency of Associations, C-78/18).
civil society, rule of law backsliding, fundamental rights, participation in decisionmaking, Annual Rule of Law Report
‘Respect for Religious Feelings’: As the Italian Case Shows, Fresh Paint Can’t Fix the Crumbling Wall of Blasphemy
Authors: Virgili Tommaso 
Published: February 2023

This article examines the relation between free speech and blasphemy laws and assesses whether the latter may still have a place in secular, liberal democracies. After a theoretical introduction on free speech, its function in a liberal society and the possible grounds for restrictions, the analysis will focus on Italy – prototypical case of a country that has experimented with diverse ways of outlawing blasphemy. The article argues that blasphemy laws, even when wrapped in the new clothes of the ‘protection for religious feelings’, perpetuate a favour toward institutionalized religions that is hardly justifiable today from a constitutional or even logical perspective. The privilege enjoyed by stronger religious denominations, the discrimination between different expressions of individual conscience, the chilling effect on free speech in the name of dogmas – these are all issues of serious concern inextricably linked to blasphemy laws that are intolerable in secular, liberal democratic societies.
blasphemy, free speech, freedom of expression, religious feelings, religious sensibilities, freedom of religion, Italy
Legal Development for Privacy and Data Protection in Bangladesh
Authors: Islam M. Toriqul 
Published: February 2023

The growing advancement and dependence on the internet of things (IoT) beget the notion of ‘digitalization’, a widely used phenomenon in contemporary Bangladesh. The phrase ‘Digital Bangladesh’ was first pronounced by Bangladesh Awami League (BAL) in 2008 as a promise of the Election Manifesto. With ‘Digital Bangladesh’, BAL aimed at establishing a corruption and poverty-free knowledge-based society by employing information and communications technology (ICT). Accordingly, the Bangladesh government undertook numerous ICT-friendly initiatives, and eventually, the usage and dependence on ICT became rampant in Bangladesh and increased exceedingly during the COVID-19 period. This digital landscape makes life easier, faster, and smarter but poses tremendous privacy challenges. As in all digital communications, many actors collect, store, and share our valuable personal data with third parties, mostly without our knowledge. In response, states are generally emphasizing the enactment of omnibus data privacy legislation, but Bangladesh is lagging. This background impels the current researcher to search for answers to two vital questions – whether there is any legal development for the protection of privacy in Bangladesh, and whether the existing privacy-protective measures are adequate compared to relevant global standards. Such kind of research work is lacking, and hence, this study aims to fill that gap using doctrinal legal research methodology. The research outputs will enlighten all stakeholders in understanding the current legal development for privacy in Bangladesh and facilitate them to map their future policies and strategies accordingly.
Bangladesh, Data Protection, Privacy
Brace! Brace! Brace! The Wave of Incoming CJEU Decisions
Authors: Van Overstraeten Tanguy , Cumbley Richard 
Published: February 2023

This article considers the large number of pending decisions on data protection matters in front of the Court of Justice of the European Union (CJEU). The CJEU places great weight on protecting the rights of individuals and has not shied away from decisions that create significant practical difficulties for businesses. Businesses operating in the European Union should therefore brace for significant change ahead. The article also considers the extent to which the courts of the United Kingdom will continue to follow decisions of the CJEU.
GDPR, Court of Justice, Brexit, Data Protection, CJEU
Case Note: People v. Buza
Authors: Kolovos Athanasios , Brewer Janet K. 
Published: February 2023

This case note discusses People v. Buza, the US State and federal Constitutional issues that it raises, and the potential societal impact from an ethical standpoint. Specifically, this case involving DNA collection of California arrestees raises issues as to the Fourth Amendment which protects against unreasonable searches and seizures. The note also examines Buza's progeny which, aside from the DNA collection itself, raises privacy concerns as to the uploading of actual DNA profiles to a common database. Ethical concerns raised include future societal constructions of social class and genetic engineering. The note concludes that the judiciary is lax in its interpretation of cases involving DNA as technological advancements continue to hurdle forward.
Privacy, DNA Profile, Fourth Amendment, DNA Identification, Genetic Engineering
Binational Panel Review of Trade Remedies Determinations: Prospects for Exporting the USMCA’s Unique Procedure
Authors: VanDuzer J. Anthony 
Published: February 2023

The United States-Mexico-Canada Agreement (USMCA) contains a distinctive procedure under which anti-dumping and countervailing duty determinations by national agencies can be reviewed by an ad hoc binational panel established under the treaty as an alternative to domestic court review. Binational panel review was first adopted in the Canada-US Free Trade Agreement (Canada-US FTA) to respond to Canada’s concern that the administration of the US anti-dumping and countervailing duty laws by the US agencies was biased in favour of the US domestic industries and the review of agency determinations by the US courts was inadequate to address that bias. Continuing Canadian concerns, shared by Mexico, resulted in binational panel review being included in the USMCA, even though the US had sought to eliminate it. Compared to US judicial review, binational panels under the Canada-US FTA and its successor, the North American Free Trade Agreement (NAFTA), have resulted in more frequent remands of the US agency determinations often leading to lower (or even zero) duties in anti-dumping and countervailing duty cases. As well, the prospect of rigorous panel review has discouraged the filing of anti-dumping and countervailing duty cases, the commencement of anti-dumping and countervailing duty investigations, and the imposition of duties in relation to imports from Canada and Mexico. Adopting binational panel review in other treaty contexts would be most attractive where significant concerns about domestic agencies comparable to Canada’s are present and national anti-dumping and countervailing duty regimes in participating countries have similar structures and procedures for judicial review.
anti-dumping, countervailing duty, trade remedies, free trade, North America, dispute settlement
Dispute Settlement in Indian FTAs’: Shaping the Future with Lessons from the Past
Authors: Singh Shailja 
Published: February 2023

India is no stranger to free trade agreements (FTAs), having notified seventeen of them as ‘in force’ to the WTO. In the last six months, India has concluded two new FTAs and is also actively engaged in the process of negotiating major ones with its key trading partners such as the UK, EU and Canada. With the WTO’s Appellate Body still non-functional, the spotlight is now on the dispute settlement mechanisms under the FTAs and their potential to be a viable alternative to the multilateral mechanism. Hence, an analysis of the select practices in the existing Indian FTAs is not just timely but also critical. This short article attempts to evaluate five specific elements pertaining to dispute settlement in Indian FTAs, namely the scope, the choice of forum, the structure of the dispute resolution mechanism, the process of the appointment of arbitrators/panellists and the case of non-implementation/retaliation. Through this examination, the article attempts to identify and propose specific elements for any future dispute settlement framework in India’s upcoming FTAs.
dispute settlement mechanism, Indian FTAs, WTO, free trade agreements, choice of forum, appointment of arbitrators, arbitration, negotiations, panel
Rules of Origin in the EU-UK Trade and Cooperation Agreement: Conceptual and Practical Challenges
Authors: Chornyi Vasyl 
Published: February 2023

In the context of preferential trade agreements, Rules of Origin have attracted negative attention for their propensity to serve protectionist objectives. Against this background, the author seeks to shed light on several conceptual and practical challenges in connection with the Rules of Origin negotiated in the EU-UK Trade and Cooperation Agreement. The discussion proceeds from two basic propositions: first, the Rules of Origin included in this agreement resemble, in essential terms, those included in other modern EU trade agreements with advanced-economy partners; and second, preferential Rules of Origin, such as those agreed between the EU and the UK, embody the outcome of reconciling the divergent interests of import-competing and export industries by the negotiating partners. The author has identified and analysed the following specific challenges posed by the Rules of Origin in the EU-UK Trade and Cooperation Agreement: (1) limited possibilities for origin cumulation; (2) protectionist potential of transitional origin requirements and origin quotas; (3) trade-hindering effect with respect to Northern Ireland; and (4) chilling effect of the potential review of inward processing schemes on trade. Based on the analysis conducted, the author concludes that these challenges negatively affect trade because they operate to foreclose the expansion of legitimate trade opportunities under the EU-UK Trade and Cooperation Agreement.
Origin, Rules of Origin, Preferential Origin, Free Trade Agreements, EU-UK Trade and Cooperation Agreement, Brexit, Inward Processing, Returned Goods, Diagonal Cumulation, Origin Quotas
The Time Factor in the MFN Obligation in Services Trade: Will the Lion Ever Roar?
Authors: Adlung Rudolf , Natens Bregt 
Published: February 2023

Trade disciplines under the General Agreement on Trade in Services (GATS) apply to the treatment of products (i.e., services) and to that of producers (i.e., service suppliers). Unlike rules on merchandise trade, the GATS thus covers the conditions governing a producer’s commercial establishment and, hence, its competitive position. That raises the question whether Members are free to modify these conditions over time or, instead, whether they are required under the GATS Most-Favoured-Nation (MFN) obligation to provide newly arriving producers with the most attractive conditions they accorded in the past. In the latter case, Members might shy away from launching trade-promoting initiatives beyond their existing GATS commitments, which have remained quite modest overall. As a way forward, Members could consider an informal understanding, possibly inspired by recent regional trade agreements (RTAs), to clarify the application of the GATS MFN obligation over time.
services, trade in services, GATS, RTAs, most-favoured nation, MFN, discrimination, time factor, temporal effect
Article: A European Internet Access Tax
Authors: Rozas José-Andrés , Pownall Joshua 
Published: February 2023

The OECD’s plans to address the challenges posed by the digitalization of the economy are progressing towards a complex system. The work of this international organization is based on two pillars – reallocation of rights and global minimum taxation on corporate profits – which should lead to the adoption of a common international model. Its outcome is uncertain; however, its implementation could require a significant amount of reliable information on the size and territorial distribution of the digital market.
This purpose – the configuration of a digital tax census – could be fulfilled by the introduction of a European internet access tax that is a registration tax. Its taxpayers would be the holders of network access rights through telecommunication infrastructures located in the EU territory, and the service providers would function as substitutes for the taxpayers with the right – but not the obligation – to pass on the tax debt to the user. It would necessarily have to be a reduced tax with the objective of census purposes and a tax period of no less than three months. Based on a Catalan experience, which was unsuccessful due to its scope and characteristics, this article explores its possible implementation in the EU, within the framework of the search for solutions to the tax challenges posed by the digitalization of the economy.
Digital taxation, internet access, European taxation, EU budget, EU own resources, EU fiscal policy, EU tax harmonization, EU taxation, EU tax harmonization.
Case Law Trends: Chargeable Events and Chargeability of VAT in the Context of Successive Payments: Comments in the Light of the Judgments in Cases C-324/20 and C-9/20
Authors: Bartosiewicz Adam 
Published: February 2023

The moment of accounting for Value Added Tax (VAT) is determined by the moment when the chargeable event occurs. In some cases, this moment may be linked to the date of payment of remuneration, including when it is paid in instalments. Does splitting the remuneration into parts (instalments) always affect the moment when the chargeable event occurs, or is it relevant only for services which are by their nature performed in parts? These questions are answered by the Court of Justice of the European Union (CJEU) in the rulings presented here.
Chargeable event, VAT chargeability, successive payments, instalments, one-time service, continuous services, repetitive services
Article: Tax Competition and the EU Anti-money Laundering Regime
Authors: Denk Peter 
Published: February 2023

Member States engage in tax competition to expand their tax bases thereby risking a ‘race to the bottom’ in corporate tax revenues. The global minimum tax under Pillar Two is expected to contribute significantly to curbing this practice. Assuming that minimum taxation eliminates competition in statutory tax rates, tax competition is likely to continue. This is because countries then lower their effective tax rates by reducing tax enforcement. As audit strategies, unlike statutory tax rates, are not publicly observable, other countries cannot easily observe and can never verify them. However, countries reducing their tax enforcement adhere to a policy that implicitly encourages tax evasion. Hence, enforcement and observability problems can also be addressed indirectly by targeting their outcome – tax evasion. In most Member States, tax evasion is a predicate offence for money laundering that effectuates a very effective EU anti-money laundering (AML) regime. Its instruments cannot only serve as a tool to adequately address foreign tax evasion but also to reveal, monitor, and control, at least indirectly, other Member States’ efforts in the fight against tax evasion. AML legislation can therefore help to close a still unnoticed loophole in curbing tax competition that will not be addressed by introducing minimum taxation.
Tax competition, money laundering, tax evasion, tax avoidance, tax enforcement, predicate offence, dual criminality, FATF, AMLA
Tax In History: Some Notes on Luigi Einaudi and the Legacy of His ‘Principles of Public Finance’. A Fiscal Mythoclast in Retrospect
Authors: Turina Alessandro 
Published: February 2023

This year marks the ninetieth anniversary of Principî di scienza della finanza by Luigi Einaudi. This work is one among many by this prominent Italian fiscal polymath, yet it is especially illustrative of many of his more remarkable contributions to the public finance and tax law discourse. As such, it can be considered an important chapter in Einaudi’s work if not a milestone. In this respect, the book offers the opportunity to revisit some of his most well-known and influential contributions along with a reconsideration of certain idées reçues that appear to surround his legacy. In either direction along these reading itineraries, it is impressive how many of the propositions emerging from the pages of the Principî appear to be topical and, in some way, refreshing in connection with much of the ongoing (international) tax policy debate. Einaudi actually had a penchant for debunking myths and illusions, an exercise which has not lost its topicality and relevance.
Luigi Einaudi, History of Economic Thought, Public Finance, Optimal Theory of Taxation, Capital Taxation, Tax Amortization, International Double Taxation, Exchange of Information
Article: Do GILTI + BEAT + BMT = GloBE?
Authors: Herzfeld Mindy 
Published: February 2023

The enactment by the United States in August 2022 of a minimum tax on the global book earnings of large corporations (the book minimum tax, or BMT) raises the question of how the US minimum taxes – including the global intangible low-taxed income (GILTI), the base erosion and anti-abuse tax (the BEAT) and the BMT – interact with the global minimum tax, or GLoBE, agreed to by over 135 countries under an OECD framework. Particularly important are questions regarding the hierarchy in application of different regimes. In the context of multiple agreements for global minimum taxes, how to determine who gets priority of taxing rights?
To answer these types of questions it’s helpful to parse the technical differences between the different minimum taxes outlined in the GLoBE model rules and the US GILTI, BEAT, and BMT. The GLoBE model rules fail to provide clear guidance as to whether or not either GILTI or the BMT will provide the United States with the first right to tax the earnings of US companies’ foreign subsidiaries and whether enactment of the BMT will shield US companies from having other countries impose additional taxes on their domestic earnings. But there are good reasons to conclude that taken as a whole, the panoply of minimum taxes enacted by the United States are at least equivalent to the regime for taxing multinationals’ global earnings proposed by the OECD.
International tax, tax policy, OECD, minimum taxes, global minimum tax, alternative minimum tax, book minimum tax, pillar 2, GILTI.