bluuebunny/crossref_metadata_2025_split huggingface dataset:
LOB Clauses and EU-Law Compatibility: A Debate Revived by BEPS?
Authors: Van Braband Pieter , Vandenberghe Jan , Scornos Dina 
Published: March 2022

In the light of the much-discussed BEPS report, the OECD proposes to implement more effective anti-avoidance measures to be included in international instruments. Limitations on Benefits (LOB) rules are mentioned as one of the possible anti-treaty abuse rules. The compatibility of these clauses with the EU law can be questioned. The purpose of this article is to provide for an in depth analysis regarding the compatibility of the OECD LOB clause with the Fundamental Freedoms. The authors will first briefly set out the context in which LOB clauses are generally inserted (Part 1). Thereafter, the existing CJEU case-law on LOB clauses will be discussed (Parts 2-4). Lastly, the tests contained in the OECD LOB clause will be assessed in the light of the prevention of tax avoidance as a possible justification ground (Part 5). Assuming that the OECD LOB clause is considered to only target 'wholly artificial arrangements', the authors are of the opinion that a correctly applied discretionary relief clause can lead to the fact that the LOB clause is proportionate to attain the aim of combating tax avoidance and evasion. In this respect, it is important that no undue administrative constraints are imposed on the taxpayer.
BEPS Action 16: The Taxpayers Right to an Effective Legal Remedy Under European Law in Cross-Border Situations
Authors: Baker Philip , Baker Philip 
Published: March 2022

This article starts from the reasonable assumption that the implementation of the base erosion and profit shifting (BEPS) project increases legal uncertainty in tax matters. The shift from the isolated and bilateral exercise of taxing jurisdiction to international tax coordination in the framework of the BEPS project is not accompanied by a corresponding global convergence in the exercise of legal remedies, which remain confined to their national boundaries. In line with their previous research, the authors address hereby the right of taxpayers to an effective legal remedy under European tax law, taking into account the dialogue among Courts in respect of legal values contained in national Constitutions of European Union (EU) Member States, the EU Charter of Fundamental Rights and the European Convention on Human Rights. The focus is on the right to an effective legal remedy in cross-border tax procedures, with special emphasis on mutual agreement procedures and mutual assistance. The authors suggest a two-tier mechanism with the involvement of taxpayers and tax authorities, which allows for an effective exercise of the right of defence and does not require major changes in the wording of treaty clauses modelled after Articles 25 and 26 OECD MC. Hopefully, something that other international institutions, including the United Nations, may consider for the future. The authors suggest filling this gap with their proposal for a BEPS Action 16.
The Reflection of Data-Driven Value Creation in the 2018 OECD and EU Proposals
Authors: Sinnig Julia 
Published: March 2022

Is the current corporate tax system fit for the digitalized economy? The 2018 interim report of the OECD and the proposals of the European Commission on the introduction of significant digital presence and a digital services tax give new insights into policymakers’ perception of ‘value creation’ and income generation in digitalized business models. Although the right way to tax digitalized business models seems disputed with regard to the diverging outcomes of the OECD’s and European Commission’s work so far, it seems to be of common understanding that user data are susceptible of establishing a taxable nexus. In a first step, this article aims at analysing how the collection and processing of user data may create such genuine link between an income generating activity and a state territory enabling this state to exercise its taxing right. In that respect, the concept of value creation, a driving concept in the discussion on how to tax digitalized businesses, is critically reviewed and an attempt to understand its real meaning is presented. In a second step, the article analyses to which extent the long- and short-term proposals of the European Commission reflect such data-driven (taxable) value creation, critically highlighting their main characteristics and flaws.
Does the European Union Primary Law Require Member States to Make Corresponding Adjustments?
Authors: Soom Annika 
Published: March 2022

Although for the time being the directive on tax dispute resolution mechanisms in the European Union has been transposed to the national legislation of majority of Member States and there is an effective solution for transfer pricing disputes, the taxpayers may need a faster solution for double taxation arising from transfer pricing adjustments.
As the double tax burden undermines the internal market, this article analyses whether the European Union primary law could provide taxpayers with a solution. The potential requirement to make a corresponding downward adjustment is analysed in the light of freedom of establishment; moreover, considering the Belgium excess profit scheme, it is also examined whether State aid rules might require a corresponding upward adjustment.
Transfer pricing, corresponding adjustment, Belgium excess profit, Article 9, upward adjustment, downward adjustment, profit shifting, double taxation, European Union primary law, OECD
The European Union’s List of Non-Cooperative Jurisdictions for Tax Purposes
Authors: Koutsouva Alexandra 
Published: March 2022

In December 2017, the European Union published for the first time a list of non-cooperative jurisdictions for tax purposes aiming at creating a dynamic tool in the battle against tax avoidance, whilst promoting worldwide tax good governance. This article aims to examine the efficiency of this blacklist through analysing the process followed for its compilation and the particular objectives that the EU wanted to achieve through this initiative. The main focus will be on categorizing the blacklisted countries and on finding the rationale behind each jurisdiction’s inclusion. However, after analysing the cases of the jurisdictions that are included in the list, questions will be raised over the efficiency and adequacy of the EU blacklist as a tool against tax evasion and avoidance. The fact that the creation of the blacklist can be characterized as a political process driven by specific interests and subject to the states’ power imbalances tarnishes its effectiveness and covers its positive externalities.
Tax havens, EU blacklist, BEPS, Tax transparency, Preferential Tax Regimes, data leaks, defensive measures, information exchange, fair taxation, golden visas
A New (Circular) Economy: A New Special Arrangement for Second-Hand Goods!
Authors: Merkx Madeleine 
Published: March 2022

The EU’s ambition is to achieve a fully circular economy by 2050. The aim of a circular economy is to generate as little waste as possible. A circular organization of the production and distribution chain does not fit well within the European VAT system, which takes the linear production and distribution chain as its starting point. A special VAT regime, the special arrangement for secondhand goods, is necessary to deal with the return of products from the consumer sphere to the productive sphere. Since within a circular economy goods return more often from the consumer sphere to the productive sphere, the special arrangement for secondhand goods is likely to become more important. In this article the author addresses the special arrangement for second-hand goods both in a domestic and an international situation. The author addresses issues within the current arrangement and discusses solutions to improve the special arrangement to make it a better fit for the circular economy.
second-hand goods, circular economy, special arrangement, accumulation, movable property, distance sales, intra-Community acquisition, taxable dealer, profit margin, one Stop Shop
Financial Transaction Tax in Europe
Authors: Rodríguez Gabriela Lagos 
Published: March 2022

Over the last two decades, the European Union (EU) and various European States have proposed or created several taxes aimed at increasing the overall tax burden to which the financial sector is currently subject. The interest in new taxable events and the need to regulate financial markets’ functioning are two powerful reasons that support the application of this type of tax.
This article details both the European Commission’s Proposals for Directives on Financial Transaction Tax, and the related taxes currently in force in Europe. Evidence shows that the goal of harmonized taxation in this area is far from being achieved and that national decisions are based on two different models: a tax on the registration of certain transactions and a tax on financial transactions levied on the financial intermediaries involved in such transactions.
This article focuses on the comparative experience of European States in the adoption of this type of tax. This review will highlight the differences and similarities between different national taxes, and ultimately the possibilities of the EU’s Financial Transaction Tax Proposal becoming effective.
Transaction Tax, Stamp Duty, European Commission’s Proposals, Harmonization, Financial Transactions, High, frequency Operations, Taxation Trends
Non-harmonized Implementation of a GloBE Minimum Tax: How EU Member States Could Proceed
Authors: Englisch Joachim 
Published: March 2022

Since July 2021, more than 130 member countries of the G20/OECD Inclusive Framework (IF) have committed themselves to pursuing a ‘common approach’ on an international effective minimum tax regime. This political agreement implies that member countries who wish to implement such a tax regime have to streamline its design by modelling it after the so-called Global Anti-Base Erosion Proposal (‘GloBE’) that the IF has developed as ‘Pillar 2’ of its work program on tax challenges arising from the digitalization of the economy. This article explores how individual EU Member States could implement this agreement in conformity with EU fundamental freedoms also absent – or ahead of – harmonizing EU legislation to this effect. It is demonstrated that design alternatives to the often proposed extension of the carve-out for ‘substance-based’ activities exist and should be pursued. In particular, EU Member States could extend the minimum top-up tax approach to domestic entities of in-scope multinational enterprises (MNEs). Alternatively, they could also convert GloBE into a form of unitary minimum taxation.
minimum taxation, GloBE, Pillar 2, fundamental freedoms, de facto discrimination
The Design of Covid-19 Recovery Contributions: Taxes or Social Security Contributions?
Authors: Peeters Bruno 
Published: March 2022

To cover the large financial spending caused by the Covid-19 pandemic, countries worldwide are forced to take substantial fiscal actions. This contribution takes a closer look at the extent to which EU law has an influence (restrictive or otherwise) on the freedom of Member States to opt for (additional) taxes and/or social contributions as a means to finance the (additional) deficits in their social security system. First, a brief numerical overview will be given of the various sources of financing and expenditures of social security in the European Union (II). Subsequently, the question will be addressed to which extent the concept of social security contributions under European Union law interferes with the national definition of taxes (III). The most relevant rulings of the European Court of Justice (CJEU) in this respect will be discussed (IV) followed by a number of final considerations (V).
Covid-19 Recovery Contributions, Concept of tax, Social Security Contribution, Wealth Tax, Tax on (Real) Estate, Financing of Social Security, Regulation (EC) No 883/2004, Double Tax Convention, National (Tax) Sovereignty, Annual Tax on Securities Accounts
Article 6 ATAD and ‘Non-genuineness’ of Arrangements
Authors: Iaia Roberto 
Published: March 2022

Article 6 Anti-Tax Avoidance Directive (ATAD) provides a General anti-abuse rule (GAAR), applicable to all taxpayers subject to corporate tax in one ormore EUMember States.TheGAAR refers to ‘non-genuine’ arrangements.However, it is unclear whether ‘non-genuineness’ describes real and/or simulated arrangements. The article aims to analyse this issue, in light of a literal, multilingual approach and through a teleological and historical-systematic interpretation of the provision.
ATAD, Corporate tax, GAAR, Tax avoidance, Simulation Test, Reporting, BEPS, Union concepts, quasi-Union concepts, autonomy of Member States, Interpretation of Directives, EU Guidance
The (Absence of) Member State Autonomy in the Interpretation of DAC6: A Call for EU Guidance
Authors: Weber Dennis , Steenbergen Jorn 
Published: March 2022

DAC6 concerns the spontaneous exchange of information on potentially aggressive tax arrangements. With the implementation of DAC6 into the national laws of the Member States comes a lot of uncertainty, along with diverging interpretations among Member States. In this article, the authors analyze the autonomy of Member States in the definition and interpretation of the concepts used in DAC6. The authors also analyze the relevant sources of the interpretation of DAC6, such as the relevant BEPS reports. The authors argue that DAC6 lays down a uniform framework for the spontaneous exchange of information of potentially aggressive tax arrangements. Member States do not have a margin of discretion regarding the interpretation of the concepts that are essential to the uniform framework. Other concepts may leave a margin of discretion for the Member States, such as several concepts used in the Hallmarks. In their margin of discretion, the Member States must ensure the full effectiveness of Union law. On the basis of that, the concepts must be defined (and interpreted) in line with the object and purpose of the Directive. Member States should use BEPS Action 12 as a source of interpretation and illustration insofar DAC6 is based on this report.
DAC6, Directive 2018/822, Main Benefit Test, Reporting, BEPS, Union concepts, quasi-Union concepts, autonomy of Member States, Interpretation of Directives, EU Guidance.
The Necessity for Discovery of Evidence in the Fact-Finding Process of International Tribunals
Authors: Marossi Ali Z. 
Published: March 2022

One of the key aspects of national and international arbitrations is the manner in which evidence is gathered and presented to the arbitral tribunal or panel. The collaboration of parties in these matters can shape the outcome of almost every dispute. However, the approach of international courts and tribunals such as the Iran-United States Claims Tribunal (IUSCT) toward the concept of presenting and producing evidence is subject to many issues, for example, the rules of evidence, applicable law, the arbitrators’ legal background, the inherent power of courts and tribunals and the principle of fair trial. Truly, no aspect of international arbitration has caused as much friction as the issue of discovery. The scope of discovery available to parties varies, and is often a delicate issue in international disputes as parties from different legal backgrounds frequently have very different expectations as to how the evidence-gathering process should be conducted.
In brief, this article does not promote the notion that liberal discovery is a fundamental right, rather it focuses on developing a model that treats cost effectiveness as a fundamental issue which should be examined when drafting procedural rules.
Proper Notification: A Crucial Element of Arbitral Proceedings
Authors: Dahlberg Hans , Öhrström Marie 
Published: March 2022

Everyone experienced in international arbitration knows how important it is to ensure that the respondent is properly notified of the arbitration. No mistakes can be afforded at this crucial stage of the proceedings. Should the notification fail, the arbitral award cannot, and should not, be enforced. If the notification is inadequate, and the respondent fails to take part in the arbitral proceedings (so-called ex parte proceedings), there will unquestionably be difficulties in enforcing the arbitral award if the respondent chooses not to comply with it.
It is very rarely that Swedish courts deny recognition and enforcement of foreign arbitral awards. However, in a recent case from the Swedish Supreme Court, enforcement of an award was denied in Sweden due to lack of proper notification. The case clearly illustrates how critical and important proper notification is in cross-border disputes. Moreover, the case raises questions about the arbitral institutions’ responsibility and practices in this regard.
Investment Protection of Sovereign Debt and Its Implications on the Future of Investment Law in the EU
Authors: Strik Daniella 
Published: March 2022

Since late 2009, an EU sovereign debt crisis has been lingering. The ability of most of the so-called PIIGS States ( Portugal, Ireland, Italy, Greece and Spain) to fulfil their obligations under bonds issued to private investors is still unclear. In case Bilateral Investment Treaties (BITs) entered into by these States cover claims in connection with the default on or restructuring of such instruments, this could give rise to unequal positions of creditors, depending on their home State. Not only could this give rise to inequality between non-EU and EU investors, such different positions could also occur between investors in different countries of the EU and even of the Eurozone. This Article reviews the scope (ratione materiae) of existing intra-EU BITs of the PIIGS States with respect to sovereign debt instruments and restructuring of sovereign debt. The author advocates in this Article a need to amend BITs of EU countries to unambiguously allow for lawful sovereign debt restructuring without compensation being due to investors and to consider the desired scope of a possible new EU investment protection instrument on this subject. Moreover, in view of the 'no bail-out clause' in the Treaty on the Functioning of the EU (TFEU), sovereign debt instruments issued by individual EU Member States should be excluded from the protection under Foreign Trade Agreements to be entered into by the EU and third countries.
Defining Investors: Who Is Eligible To Claim?
Authors: Romanetti Antoine 
Published: March 2022

This article sets out the basic concepts of investors in investment arbitration and analyses a selected number of decisions of arbitral tribunals in light of some objections to jurisdiction which are frequently raised by respondent States. More specifically, the article deals with the thorny legal question of the extent to which a national of a host State can sue its own State before an international tribunal, such as the International Centre for Settlement of Investment Disputes (ICSID)Tribunal. In particular, the article touches upon two recent cases in which the author was involved as co-counsel (in a team of several lawyers) for the States: a treaty-based case, Rompetrol v. Romania, on the issue of shell companies, and an unpublished contract-based case involving a West African State and a joint venture, on the issues of control and the interpretation of the term 'under foreign control' contained in Article 25(2)(b) of the ICSID Convention.
Voluntary Third-Party Intervention in International Arbitration for Construction Disputes: A Contextual Approach to Jurisdictional Issues
Authors: Mitchenson Jason , Kim Keechang 
Published: March 2022

In arbitration, the ability to take part in proceedings is exclusively determined by evidence of the parties' 'consent' to arbitrate. However, this approach is unable to accommodate modern construction projects which have become increasingly complex and require the participation of multiple parties for their completion. Despite playing active roles in construction projects and having substantial legal and financial interests in the outcome of disputes, third parties may not take part in arbitral proceedings between two contracting parties who have consented to an arbitration agreement. This may result in an inequitable and commercially undesirable situation not only for third parties but often for one of the contracting parties who may require the third party's participation to assert certain claims or defences. This article suggests that where multiple parties are involved in one construction project a contextual approach should be used to determine arbitral jurisdiction. Where a third party voluntarily submits to arbitral jurisdiction upon invitation of one of the contracting parties and where the intervention is to assist the inviting party's claims or defences, a contextual approach would provide a more effective means of resolving the disputed issue of third-party intervention without offending the principle of party autonomy or arbitration's consensual origins.
Greek Debt Restructuring and Investment Treaty Arbitration: Jurisdictional Stumbling Blocks for Bondholders
Authors: Mitsou Anna O. 
Published: March 2022

The recent award of an International Center for the Settlement of Investment Disputes (ICSID) tribunal in Poštová banka a.s. and ISTROKAPITAL SE v. Hellenic Republic came as an unpleasant surprise for holders of Greek sovereign debt, who suffered losses because of the sovereign debt restructuring (SDR) that took place in February 2012, since it seems to be at odds with past case law on the matter. The tribunal found that it did not have jurisdiction to hear the dispute, inter alia, because the acquisition of Greek sovereign bonds by Poštová banka did not constitute an ‘investment’ under Article 1(1) of the Greece-Slovakia Bilateral Investment Treaty (BIT). At any rate, according to the tribunal, transactions over sovereign bonds on the secondary markets do not fall within the definition of ‘investment’ under Article 25 of the ICSID Convention. In this article, the author questions the narrow interpretation of the definition of ‘investment’, as set forth in Article 1(1) of the Greece-Slovakia BIT, adopted by the tribunal. In declining jurisdiction, the tribunal looked through the provisions of Greek law so as to ascertain whether the claimants had rights protected under the BIT. The author advocates a different interpretation of the relevant provisions of Greek law in accordance with legal doctrine in Greece concerning the rights of investors over dematerialized government debt. The author also supports a wide meaning of the term ‘investment’ under Article 25 of the ICSID Convention, so that sovereign bonds are included in the definition.
Like Oil and Water? Human Rights in Investment Arbitration in the Wake of Philip Morris v. Uruguay
Authors: Feria-Tinta Monica 
Published: March 2022

Whether considered ‘wholly distinct, autonomous, or even antagonistic legal domains’, or seen as two sets of legal regimes belonging to the same legal system with ‘meaningful relationships between them’, the international law of investments and the law of human rights appear to have, in the practice of arbitration, an uneasy, tense, strained relationship. For some commentators, public international law (of which human rights is a part) and international investment law would have ‘structural differences’, which have ‘led investment tribunals to grant precedence to the contractual rules that have been agreed upon by host states and investors’. For others, human rights are ‘a marginal issue in investment law’, ‘peripheral at best’, to fulfil ‘no more than an ancillary role in the settlement of investorstate disputes’. This article looks into the fundamental relationship between human rights and investment law in the wake of the recent Philip Morris v. Uruguay and Urbaser v. Argentina cases. In doing so it addresses questions such as: Are human rights and investment arbitration animals of a different nature? Are human rights arbitrable within an investment claim?