bluuebunny/crossref_metadata_2025_split huggingface dataset:
Changes and Challenges of the Role of a Trustee in a Commercial Context: Does this Separate Commercial Trusts from Trusts?
Authors: Zhang Ruiqiao 
Published: March 2022

As well as acting as a guardian of family assets, trusts have increasingly become a commercial device to manage portfolios of financial assets. One of the most dramatic transformations of a role that has accompanied the evolution of trusts has been that of the trustee. The objective of this article is to examine the key changes and challenges that the commercial use of trusts has brought to the trustee’s role and to answer whether or not those changes or challenges suggest the separation of commercial trusts from trusts. I argue that the role of a trustee in a commercial context has developed in various ways from that of a traditional family trust so that it accommodates the complex commercial uses of trusts; however, the fundamental rules of trusts and the essential duties of trustees have remained the same, and the trust law itself has continually developed to resolve problems that arise in the commercial uses of trusts. Thus, it is neither correct nor necessary to separate a commercial trust from a traditional trust in order for it to be an independent legal vehicle; this would consequently require the establishment of a new set of rules.
Trust law, commercial trust, evolution of the role of a trustee, rule of law, whether a commercial trust is in the essence of a trust
EU Review of Direct Tax Measures: Interplay between Fundamental Freedoms and State Aid Control
Authors: Rossi-Maccanico Pierpaolo 
Published: March 2022

The State aid review of business tax measures under Article 108 TFEU (Treaty on the Functioning of the European Union) essentially concerns tax advantages which favour certain undertakings or productions, without there being a justification from the nature or scheme of the system. The presence of unjustified discriminations caused by national tax measures affecting the functioning of the Internal Market is also the condition for the Commission to promote infringement procedures, pursuant to Article 258 TFEU. The case law relating to the joined review of national tax measures both under the application of State aid and the elimination of discriminations contrary to other Treaty rules is scarce but significant. Typically, the review of State aids and discriminatory tax measures is disjoined because the incompatibility of the latter measures, unlike State aids, is directly enforceable by national courts. Moreover, not all forms of discriminatory taxation are also State aid and the Commission has exclusive competence to review the compatibility of State aids, including fiscal aids. However, the State aid review can sometimes lead to contextually determine, besides the selective nature of a tax advantage in favour of certain undertakings, the presence of additional market effects of a discriminatory tax system measure, without prejudice however to the separate examination of its justification for overriding reasons of public interest which can only take place in the framework of the more protective procedure pursuant to Article 258 TFEU. The assessment of the selective nature of a tax measure under State aid rules remains, however, separate from the one to ascertain possible tax restrictions or discriminations. A Joint review provides for a complex framework by which when an aid measure is also discriminatory in a sense prohibited by other Treaty rules, the existence of a link between the discrimination and aid under review obliges the Commission to take into account the ulterior effects of the measure in assessing its compatibility with the Internal Market.
The Interaction between the Interpretation of Article 24 OECD MC and the Non-discrimination Standard Developed by the CJEU
Authors: Bammens Niels 
Published: March 2022

This article discusses whether national courts in EU Member States, when interpreting tax treaty non-discrimination provisions, are influenced by the CJEU's case law on the fundamental freedoms. Because these non-discrimination standards are very similar, and because there is a perception that the non-discrimination standard developed by the CJEU outperforms the tax treaty nondiscrimination standard, those national courts could be tempted to draw inspiration from the CJEU's case law. However, this article concludes that, even though some examples are apparent in a number of recent cases, such an influence is currently not widespread in the reported case law. In addition, this article considers whether European law requires national courts of EU Member States to draw inspiration from the case law of the CJEU. In this regard, the article concludes that the principle of legal certainty requires tax treaty non-discrimination provisions to be interpreted uniformly by all national courts, without any influence from specific legal instruments aimed at regional market integration.
What Is Substantial Economic Activity for Tax Purposes in the Context of the European Union and the OECD Initiatives against Harmful Tax Competition?
Authors: Santos António Carlos dos 
Published: March 2022

This article deals with the substantial economic activity criterion as defined in the Code of Conduct for Business Taxation, in the Organisation for Economic Co-operation and Development (OECD) Report Harmful Tax Competition - An Emerging Global Issue and, more recently, in the item 5 of Base Erosion and Profit Shifting (BEPS) Action Plan, namely regarding, at this phase, its application to patent box tax regimes. The author analyses the juridical and political controversy on the various approaches to determine what substantial economic activity actually means, specifically the value added approach, the transfer pricing approach and the nexus approach, this last criterion being the one preferred by the majority of the Member States of OECD and European Union (EU). Finally the author raises some questions about the application of the recent agreement between UK and Germany concerning the British patent box regime. Is it compatible with the EU law, especially with the EU State Aid rules?
Exit Taxation: From an Internal Market Barrier to a Tax Avoidance Prevention Tool
Authors: Peeters Steven 
Published: March 2022

Article 5 of the Anti-Tax Avoidance Directive (ATAD) seems at first glance to be a codification of the exit taxation case law developed by the Court of Justice of the European Union, mainly in the landmark judgments in the cases National Grid Indus (C-371/10, 29 November 2011) and DMC (C-164/12, 23 January 2014). And yet this provision constitutes a major development within EU tax law, which is illustrated by the fact that the deadline for transposition falls one year later than the one applicable to the other provisions of the ATAD. The main reason is without doubt the shift from case law regarding the question whether and under which conditions Member States may impose exit taxes on unrealized capital gains, to a directive prescribing that the Member States have to subject such unrealized capital gains to exit taxation (although it is not determined how the capital gains should be taxed and how the applicable tax rate should be determined). Additionally, the exit taxation provision includes a ‘step-up’ for tax purposes in order to avoid double taxation of the unrealized capital gains on the assets that are transferred across the border. This contribution analyses the structure of the exit taxation provision of the ATAD in the light of the existing case law in this domain.
The Energy Transition and Fiscal Policy
Authors: Kogels Han 
Published: March 2022

The aim of the Paris Agreement of 4 November 2016, meanwhile ratified by 184 countries, is to strengthen the global response to the threat of climate change by keeping a global temperature rise this century well below 2 degrees Celsius above the pre-industrial levels and to pursue efforts to limit the temperature increase even further to 1.5 degrees. In order to achieve this, a drastic energy transition ‘from fossil to nonfossil’ is required in order to mitigate anthropogenic emissions of greenhouse gases (hereinafter: ‘GHG’) by the mid of this century. In this editorial I will go into the ambitious targets the EU has set itself for reducing its GHG emissions progressively up to 2050, and make some remarks on the consequences for fiscal policy in the EU.
The Recent Restrictive ECJ Approach to Exit Tax and the ATAD Implementation
Authors: Letizia Giulia 
Published: March 2022

The article discusses the development of the European Court of Justice approach to exit tax and the perspective adopted by ATAD (Anti-Tax Avoidance Directive) exit tax provisions.
Following a first European Court of Justice (ECJ) orientation according to which Member States were allowed to tax corporations on latent capital gains at the time of the transfer of the place of effective management to another Member State, but deferring the collection until the actual realization of the assets to five yearly instalments, the more recent ECJ approach allows an exit tax imposed upon the transfer regardless of the actual realization, payable over a five-year period.
On the lines of the second ECJ approach, ATAD provides a mandatory harmonized exit tax imposed at the moment of the exit, allowing a deferral over five yearly instalments. It represents the first form of income taxation provided by a EU Directive, which does not take into account if some EU Member State did not have any exit tax.
The ECJ shifting and the restrictive ATAD approach on exit tax may determine a wider rethinking of the movement of companies within the EU having the ATAD exit tax provision partially emptied the content of the freedom of establishment principle.
Mandatory harmonized exit tax, ATAD, Corporate taxpayers, Latent capital gains, Freedom of establishment principle, ECJ shifting, Income taxation, Deferral of taxation, Discrimination, Income inclusion approach
Evaluation of the Earnings Stripping Rules
Authors: Stevens Stan A. 
Published: March 2022

Member States had to have implemented the anti-earnings stripping rules by 1 January 2019. In this article these rules are evaluated from an economic and EU law perspective. The author concludes that the rules are probably not in breach of EU law because they are implemented without distinction between domestic and cross border situations. In addition there is little room to assess rules which are the result of (full) harmonization. Nevertheless some risks exist in particular with regard to the interaction between the group regimes and the earning stripping rules and the design of the standalone exception. An important drawback of the earnings stripping rules is the risk of double taxation. This could have been avoided by the EU legislator.
Earnings stripping rules, EBITDA, interest, thin capitalization rules, manifest error, ATAD-Directive, Equity escape, BEPS, Minimum standard
New VAT Rules for E-Commerce: The Final Countdown Has Begun
Authors: Merkx Madeleine 
Published: March 2022

In 2021, the VAT rules for e-commerce will change. As a result, virtually all supplies of goods to private individuals will be subject to VAT in the EU Member State of arrival of the goods. The declaration of VAT on distance sales of goods originating from third countries or third territories will be simplified under the Import One-Stop-Shop (I-OSS). It is also possible to make use of an exemption on import under that scheme. This simplified scheme will be attractive to both honest traders and fraudsters. In this contribution Madeleine Merkx examines the complications of this new system.
E-commerce, distance selling, VAT, customs, one stop shop, importation, platform, liability, customs controls, fraud
Progressive Turnover-Based Taxes and Their Legal Repercussions Under EU Law
Authors: Károlyi Balázs 
Published: March 2022

In recent tax policy trends, the introduction of turnover-based progressive taxes can be observed. However, the structure of these taxes raise various legal concerns under EU law. These taxes can be challenged under both EU State aid rules and the fundamental freedoms. Both the State aid and fundamental freedom questions are swirling around a similar issue: whether the different treatment of undertakings, caused by the progressive rate structure of those taxes, on the grounds of the level of their turnover can be justified by the ability to pay principle. This article will point out the problems of the application of this principle in the field of turnover-based taxation.
In addition, under the fundamental freedoms, it must also be ascertained that the differentiation based on the level of turnover indirectly disadvantages foreign-owned undertakings. In this contribution, the author argues in favour of a stricter indirect discrimination test than the one that can be currently inferred from the CJEU’s case law.
The compatibility of turnover-based business taxes with Article 401 of the VAT Directive has been confirmed by the CJEU, however, such a stance should also be questioned in light of the objective of this provision of the VAT Directive, namely to safeguard the goals of the common VAT system from interference by other domestic taxes.
Tax Consolidation Regime in European Union: Towards One Unified Approach Among All Member States?
Authors: Jankowski Jakub 
Published: March 2022

The article presents the current scope of harmonization of tax consolidation systems within European Union. On the grounds of the Court of Justice of the European Union (CJEU) judgements author identifies the issues of group taxation that are already actually harmonized despite the lack of formal directive or ordinance. The conducted analysis confirm that the Member States (MS) do not have currently the full discretion in construction of their domestic tax consolidation regimes. The country lawmaker will have to rethink once again such elements as the eligible entities, the types of tax integrations or the scope of tax advantages granted solely to the companies acting as a single tax entity.
Corporate income tax, tax consolidation, single tax entity, horizontal tax integration, tax losses, tax avoidance, parent company, fiscal unity, freedom of establishment, common tax base
The Comparability Analysis of the Court of Justice of the European Union in the Light of the Aures Case
Authors: Mittendorfer Markus , Riedl Mario 
Published: March 2022

The comparability analysis plays an important role in the Court of Justice of the European Union (CJEU)’s case law on the fundamental freedoms: if the situations examined are not objectively comparable, a violation of the fundamental freedoms is not possible. However, the CJEU does not follow a clear line in its decisions with regard to the comparability analysis, which makes it difficult to understand the decision-making process. Legal uncertainty is the result. In its last decision, Aures, in which the Court had to deal with a loss utilization rule, it exceptionally denied the comparability of the situations. Due to the increasing significance of losses in international tax law, the authors analyse the different methods of comparability analysis in cross-border loss utilization used by the CJEU and highlight the associated problematic areas.
Comparability Analysis; Loss Utilization; Freedom of Establishment; Aures; Discrimination; Fundamental Freedoms; Double Tax Conventions; CJEU; Final Losses; Subject to tax
Unlawfully Obtained Evidence: Follow the Court of Justice of the European Union if You Please
Authors: Richardson Mirugia 
Published: March 2022

This contribution addresses the case-law of the Court of Justice of the European Union (CJEU) on the issue of the use of unlawfully obtained evidence by the tax authorities in an administrative procedure. In 2015 in the value added tax (VAT) case WebMindLicences the CJEU has set the conditions for excluding evidence in an administrative procedure if that evidence was obtained or used in violation of the law. The highest courts of the neighbouring European Union (EU) Member States Belgium and the Netherlands had already developed in their case-law before the CJEU’s judgment in WebMindlicenses their own legal standard on the exclusion of unlawfully obtained evidence in tax cases. The author contributes to the discussion on whether national courts can maintain their own viewpoint or have to conform to the CJEU’s legal standard for excluding evidence in administrative procedures concerning tax, for the harmonized VAT as well as for the non-harmonized taxes.
unlawfully obtained evidence, VAT fraud, fundamental rights, rights of the defence
Does Bifurcation Really Promote Efficiency?
Authors: Greenwood Lucy 
Published: March 2022

On its face, bifurcating the proceedings is usually an attractive proposition. It ought to make sense in most proceedings to hive off certain discrete issues for early determination by the tribunal in the hope of streamlining the process or, possibly, eliminating the arbitration entirely. The generally accepted view is that bifurcation of proceedings promotes efficiency. However, an examination of the limited available empirical data on bifurcation of disputes shows that, contrary to this view, bifurcation does not always necessarily result in the tribunal issuing a final award more promptly. In this article, the author challenges the assumption that bifurcation always promotes efficiency and emphasizes the need to examine each case on its own merits before ordering bifurcation.
International Investment Protection Regime and Criminal Investigations
Authors: Mirzayev Ruslan 
Published: March 2022

Over the past few years there have been many allegations that states abuse their police powers to escape their international obligations before foreign investors. In particular, it has been alleged that states initiate criminal proceedings in order to escape payment of compensation for expropriation, hamper arbitral hearings or punish foreign investors. This article attempts to find a solution to the problem of the abuse of police powers. Such a study is important, because the abuse of police powers can damage the whole international framework for protecting foreign investments. The findings from this article provide evidence that there are many principles of international law that international arbitral tribunals have applied when dealing with criminal proceedings initiated by host states against foreign investors. This article draws a conclusion that the principles of international law can substantially prevent the abuse of police powers by states when dealing with foreign investors. This article recommends that arbitral tribunals need to determine the intent of states initiating criminal proceedings against foreign investors. After arbitral tribunals determine that the states initiated criminal proceedings in good faith, they should balance the legitimate interests of the international investment protection regime and the arbitral proceedings against the rights of the host states to investigate crimes within their territories.
Equity-Based Discretion and the Anatomy of Damages Assessment in Investment Treaty Law
Authors: Elrifai Silke Noa 
Published: March 2022

This article looks at the manifestation of equity-based arbitrator discretion as a tool to balance treaty-based investor rights with extrinsic public law obligations of states. The article breaks down the process of damages assessment into four separate decision stages and analyses at each stage (1) a dataset of previous International Centre for the Settlement of Investment Disputes (ICSID) awards; (2) the answers to a survey of arbitrators, jurists and practitioners; as well as (3) scholarly opinion. The article argues that equity-based discretion happens at each stage of the conceptualized decision-making chain and contributes to the incoherence of damages awards. The author argues that although arbitrators’ resort to discretion must remain unfettered, it is preferable for vague concepts such as equity to be kept to a minimum to protect the continued legitimacy of the investment treaty system. Instead, it is the language of investment treaties that needs to be adapted in the long-term, thus keeping pace with developing international investment law standards.
International Arbitration and EU Competition Law Complement Rather than Contradict One Another
Authors: Seow Amy , Ilie Lucian 
Published: March 2022

The relationship between international arbitration and EU competition law is of practical importance because of the increasing number of cases in which arbitrators are called on to apply competition rules. This article addresses both the theoretical and practical aspects of arbitrating competition law disputes, to give an overall picture of the relationship between international arbitration and competition law. This article shows that the two are not in conflict. Rather, they complement each other, and arbitration can be a method of resolving competition law disputes. This article considers the arbitrability of competition law disputes (section 2); the powers and duties of arbitrators in applying competition law (section 3); the relationship between arbitrators and public enforcers of competition law (section 4); and the scrutiny of awards in which competition law issues are implicated, under both the New York Convention and the International Centre for Settlement of Investment Disputes (ICSID) Convention (section 5).
The Medium Is the Message: Establishing a System of Business and Human Rights Through Contract Law and Arbitration
Authors: Blair Cherie , Vidak-Gojkovic Ema 
Published: March 2022

This article seeks to paint a picture of an emerging system of business and human rights (BHR) law by following certain developmental trends across normative, substantive and procedural realms. These trends show that there is acknowledgment for the concept of corporate responsibility for BHR, and that the lines between ‘soft’ and ‘hard’ law are becoming blurred. Through contractual and arbitral mechanisms, a binding system of law is taking shape. At the forefront of recent trends, international arbitration is increasingly becoming a procedural venue of choice for BHR disputes. Furthermore, arbitration promises to offer an environment that will both kindle the evolution of substantive rights and permit their enforcement and effective redress. The medium, indeed, is the message.
How to Obtain Evidence from Third Parties: A Comparative View
Authors: Bradshaw Robert 
Published: March 2022

Obtaining evidence from third parties poses a unique problem in international arbitration. Unlike litigation, the consensual and private nature of arbitration means that tribunals lack the authority to compel third-party disclosure given to many State courts. Yet even if they are not subject to the tribunal’s jurisdiction, third parties to the proceedings may still possess valuable evidence. This article considers the practical options for obtaining evidence from third parties, whether through requests by the arbitral tribunal itself or judicial assistance from State courts. In the latter case, national laws must balance the interest of supporting arbitration against the risks of judicial interference and the potential burden of disclosure on third parties, and resolve this dilemma in very different ways. Given the lack of uniformity on judicial assistance, and the fact that evidence is frequently located in a different jurisdiction to the arbitral seat, practitioners may make strategic use of procedures such as those under US federal law to gain the benefit of third-party evidence