bluuebunny/crossref_metadata_2025_split huggingface dataset:
The Doctrine of Corporate Opportunity: A Comparative Analysis  Part I
Authors: Chawla Varnika , Kher Nimoy 
Published: March 2022

SUMMARY In this article, the authors aim to answer the often-asked question when do the fiduciary duties of a director cease to exist, in order to allow him to undertake ventures for personal interest? This has not yet been conclusively answered by the courts, and upon conducting a detailed case law analysis, we conclude that there exist two primary approaches, which the courts have relied upon in arriving at their decisions. These have been laid down in the landmark English cases of Bhullar and Foster. These two cases are indicative of these two largely different approaches, and therefore, while not conflicting, and easily distinguishable on the basis of the facts themselves, can be said to be conflicting with respect to the difference of approach adopted by the Court of Appeals in England. This article endeavours to elucidate upon these two approaches, in light of Bhullar and Foster. Accordingly, the paper has been divided into various sections, which aim to elaborate on the law relating to the fiduciary duties of directors, in the particular context of use of corporate opportunity. Firstly, the authors have provided a jurisprudential background of the law on fiduciary duties of directors in common law. The statutory law, as followed in the UK and India,, and common law, as followed in the USA, with respect to the same, have been discussed, keeping in mind common law principles which have developed as a result of detailed judicial analysis. Secondly, having analysed the law on directors’ fiduciary duties in different common law jurisdictions, the authors have conducted an in-depth analysis of the two primary cases, i.e. Bhullar and Foster, highlighting the discussion on issues involved in the same, and examining the difference in the approach adopted by the court, pre and post the enactment of the Companies Act, 2006. Subsequently, the two approaches, namely the American Model and the English Model which were utilized by the courts in arriving at greatly varying decisions in the two cases have been studied. Lastly, in light of such analysis, the authors have compared and contrasted Bhullar and Foster and highlighted the inherent difference in approach between the two. The Indian position with respect to fiduciary duties of directors has been simultaneously discussed and compared in every section.
Say It All If It Is New and Get a Patent Right: A Comparative Analysis of the Requirement of Disclosures in Patent Laws
Authors: Amucheazi Chibike 
Published: March 2022

SUMMARY This article attempts to draw some factual and authoritative parallels to establish the law of intellectual property with respect to patents as it is in some selected forums. Several principles of patents generally, and ENABLING PUBLIC DISCLOSURE as it relates to NOVELTY are discussed in comparison with applicability of these principles in other territories and countries, such as the United States of America, Japan and Nigeria. The requirement of ENABLING DISCLOSURE during application is discussed with regards to previous applications and its effect on novelty, as well as the effect of a disclosure to the public before application. Relevant decided cases have been employed to clearly view ENABLING PUBLIC DISCLOSURE and an attempt is made to effectively analyse, critique, and propose steps for better application.
Taxing the Sale of Software: Revisiting the Definition of ‘Royalty’ Under the DTAAs
Authors: Makkar Kashish 
Published: March 2022

The characterization of payments, for taxation, in the hands of, non-resident payees arising out of a cross-border sale of software, has always remained controversial in India. While the Revenue, contends that such payments are ‘Royalties’ for Licensing of, Copyrights, the taxpayers argue that these payments are merely, Proceeds on the Sales of Copyrighted Articles. There have been, several conflicting decisions by different Income Tax Tribunals, and High Courts that have legitimized each of these characterizations., While the Courts and Tribunals led by the Delhi, HC held for the taxpayers by characterizing these payments as, Proceeds of Sales, the Courts and Tribunals led by the, Karnataka HC held for the Revenue. Therefore, albeit in, different jurisdictions within the country, a dichotomy persisted.
In an attempt to resolve this dichotomy, the Government, of India introduced a clarificatory amendment to the Indian, Income Tax Act, 1961 in 2012. However, the conflict persisted, as the amendment did not clarify and could not have, clarified the status of these payments under the Double, Taxation Avoidance Agreements (DTAAs) As a result, the, dichotomy, now limited to Non-Resident Payees whose resident, jurisdiction has a DTAA with India, still prevailed. These, jurisdictions include several Commonwealth nations such as the, UK, Australia, Malaysia, Canada, etc. and Ireland, which is, the most preferred jurisdiction to operate from for almost all the, tech corporations in the world. Therefore, this dichotomy still, affects the tax liability of the residents of these jurisdictions and, their ease of doing business with India.
In this article, the author will highlight that the dichotomy,, though existent, has no basis in law. The author will, highlight that the characterization of these payments as has been, contended by the Revenue is the only legitimate characterization., This characterization not only draws support from the, established Rules of Statutory Interpretation but also promotes, the ease of doing business in India.
Agreement, Consideration, Copyright, Double-Tax, Income Tax, Licensing, Literary, Payment, Royalty, Resident
Failure to Prevent Market Abuse: A Potential New Corporate Criminal Offence?
Authors: Swift Neil , Hogg Craig , Jones Katie 
Published: March 2022

On 7 April 2020, the Financial Conduct Authority (FCA) published its 2020/21 Business Plan, in which the regulator renewed its commitment to developing clean markets, robust in their resistance to the threat of market abuse (FCA Business Plan 2020/ 21 accessible athttps://www.fca.org.uk/publication/businessplans/ business-plan-2020-21.pdf.). In its statement, the regulator, facing growing instability in the markets brought about by the COVID-19 pandemic, warned against the risk posed by the ‘opportunity for poor behaviour’, cautioning that where the FCA finds poor practice it would ‘clamp down with all relevant force’.
This posturing is not new: rooting out and punishing market abuse has consistently been a high priority for the regulator in meeting its key statutory objectives of protecting consumers, enhancing market integrity and promoting competition (Financial Services and Markets Act 2000, section 1b.). Set against the increasing likelihood that the UK economy is about to enter a deep phase of recession, this focus shows no sign of abating.
However, there remains ongoing debate over the most effective means of neutralizing the threat posed by market abusers. One potential model, already developed in other areas of economic crime – specifically in the area of corporate bribery and tax offending – is an extension of the so-called failure to prevent (‘FTP’) model of corporate liability (3 April 2019, Lisa Osofsky ‘Fighting fraud and corruption in a shrinking world’ available at https://www.sfo.gov.uk/2019/ 04/03/fighting-fraud-and-corruption-in-a-shrinking-world/.). This approach would see a shift away from the ‘identification’ principle, in which corporate criminal liability is predicated on establishing a ‘directing mind and will’ of the company and towards a focus on wider corporate malfeasance.
While the desire for such an extension of liability is easy to understand from a regulatory perspective, the existing FTP model in force in this country, in the area of corporate bribery and tax offending, requires close examination before serious consideration is given to such a course, as well as careful consideration given to the effectiveness of the FCA’s existing policy of personal accountability, given effect through the Senior Managers Certification Regime (‘SMCR’).
Market abuse, corporate criminal offence, failure to prevent, EU Market Abuse Regulation 2014, whistleblowers.
Delivery of Electronic Products in Electronic Sale Contracts Under Jordanian Law: An Overall Comment
Authors: Ali S. Al-Qassaymeh Maen Mohammad 
Published: March 2022

Delivery of the item in a contract of sale is an important obligation which should be fulfilled by the seller. The rules which regulate this obligation in Jordanian Law do not touch on the issue of delivery of an electronic product (such as epictures, e-programs, e-files, films, movies, music, games and others), which come from the electronic contract. However, this issue is regulated indirectly in some provisions in the Jordanian Electronic Transaction Law (JETL).( Jordanian Electronic Transaction Law, 2015 (Act No. 15 of 2015).) This Article is assigned to disclose these indirect rules and to discuss the extent of appropriateness of them to regulate all aspects of delivery of the electronic products.
Contract of sale, electronic product, Jordan, place and the time of delivery
Impact of the COVID-19 Outbreak on Minority Shareholder Protection
Authors: Kaya Meltem Karatepe 
Published: March 2022

The COVID-19 outbreak, which was announced by the World Health Organization (WHO) as a global outbreak on 11 March 2020, comprises a risk not only for human health, but also for the whole world including society, business and the global economy. During lockdowns caused by the COVID-19 virus, the general atmosphere of companies changed. The significant restrictions and measures announced by the countries in order to deal with the COVID-19 crisis had serious economic outcomes for companies. The crisis environment has been used by some managers, who are also majority shareholders in the company or influenced by majority shareholders, for their own interests to oppress minority shareholders and to remove them from the company and management. Protection of shareholders matters for the facility of companies to raise the capital required to grow, innovate, diversify and compete. Thus, in these difficult COVID-19 times, it is more important to provide protection for minority shareholders. That will develop the level of confidence, trust and finally the levels of investment, which would result in a healthy and robust countries’ economy. Based on that, this article uniquely contributes to minority shareholder protection during the COVID-19 outbreak by focusing on corporate governance and also primary remedies that may be obtained by shareholders during the current pandemic.
COVID-19 outbreak, Corporate governance, Minority shareholder protection, Derivative action, Unfair prejudice petition
Blockchain Technology and Law: Lessons for Law Firms
Authors: Wang Dan 
Published: March 2022

The advancement of technology brings tremendous challenges and opportunities to the legal industry. This article will examine the blockchain technology, in particular the decentralized autonomous organization (DAO) and its unique governance features compared with traditional companies. This article also intends to provide recommendations for law firms to prepare for the challenges brought by blockchain technology.
Blockchain, challenges, decentralized autonomous organization, DAO, governance, law firm
What If DABUS Came to Africa? Visiting AI Inventorship and Ownership of Patent from the Nigerian Perspective
Authors: Oriakhogba Desmond Osaretin 
Published: March 2022

Dr Stephen Thaler’s artificial intelligent machine – DABUS (Device for the Autonomous Bootstrapping of Unified Sentience) recently created two patentable devises that were the subject of patent applications in the European Patent Office (EPO), the United Kingdom Intellectual Property Office (UKIPO), the United States Patent and Trademark Office (USPTO) and other patent offices, including under the Patent Cooperation Treaty system. Thaler named DABUS as the inventor in the applications and claimed to have acquired the right to patent from DABUS as its owner, employer and successor in title. The EPO, UKIPO and USPTO recently rejected the applications on the ground of non-compliance with the formal requirements of their respective patent legislation for failing to name a natural person as inventor. Based on a comparative study conducted as a desk research, the paper reviews the EPO, UKIPO and USPTO decisions against the backdrop of the ongoing policy and academic conversations on AI and patent policy. It then situates the decisions within the African context, especially under the Nigerian patent regime, and determines whether the Nigerian patent office will reach a different conclusion from those made by the EPO, UKIPO and USPTO should a similar patent application be considered in Nigeria.
Artificial Intelligence, Inventorship, Patent Regimes, DABUS, EPO, UKIPO, USPTO, Nigeria
Multinational Corporate Group Governance After Vedanta: The Obligations of Parent Company Directors
Authors: Hamzah Sendut Jefferi 
Published: March 2022

In Vedanta v. Lungowe, the UK Supreme Court established that a UK-based parent company can owe a duty of care in negligence to third parties harmed by the conduct of an overseas subsidiary. The key issue is whether there is sufficient intervention on the part of the parent company, a position subsequently reaffirmed by the Supreme Court in Okpabi v. Shell. This article argues that a full understanding of Vedanta and related jurisprudence requires the consideration of the duties owed to parent companies by their directors. It first highlights that such a consideration is timely (section 2). Parent company directors face significant uncertainty over the appropriate management of multinational corporate groups (MCGs). While it is recognized that parent companies owe certain responsibilities for the adverse impacts of their overseas subsidiaries, Vedanta pushes in the opposite direction. In light of such uncertainty, this article then explores how parent company directors’ decision-making post- Vedanta might be affected by their duties to promote the success of the company, and to act with reasonable care, skill and diligence, under sections 172 and 174 of the UK Companies Act 2006 (section 3). While these duties do not restrict parent company directors from adopting a hands-off approach to overseas subsidiary regulation, they should not be ignored.
multinational corporate groups, parent company directors, overseas subsidiaries, tort, directors duties
Sale in the Ordinary Course of Business Under Ghana Law: Recent Developments and Lessons from the UK
Authors: Yidana Nuhu 
Published: March 2022

The Sale of Goods Act 1962 (Act 137) put a statutory footing on implied conditions for the quality and fitness of goods in every contract involving the sale of goods in Ghana. The functionality of the implied conditions of quality and fitness of goods hinges on the sale of goods taking place in the ordinary course of the seller’s business. This article evaluates the concept of the sale in the ordinary course of business under which the implied conditions of quality and fitness of goods apply in Ghana. The paper argues that the current definition of sale in the ordinary course of business under the law in Ghana, is narrow to the disadvantage of buyers of goods. Consequently, this article advocates that the definition of the sale in the ordinary course of business needs to be broadened along the lines of the English law to help enhance the degree of protection of buyers of goods in Ghana. The paper further submits that the courts should consider distinguishing consumer matters in widening the scope as the current definition is mainly the product of non-consumer case law.
implied conditions, quality of goods, fitness of goods, sale in the course of business, buyers of goods, sellers of goods, distinguishing, consumers, and non-consumers
The Influence of Game Theory in HM Revenue and Customs’ Choice of Civil or Criminal Enforcement
Authors: Marson James , Khan Hamza 
Published: March 2022

This article outlines the method by which self-employed individuals assess and fulfil their income tax obligations. The civil and criminal investigative powers available to Her Majesty’s Revenue and Customs (HMRC) are analysed, adopting a comparative approach, following which we present an application of game theory in determining the strategy for the most advantageous options available to both the taxpayer and HMRC for payment and recovery, respectively. Game theory provides an explanation for the conscious and purposeful decision-making of competing parties, based often on incomplete information and/or the intentions of the parties. This is particularly apt given the nature of the self-assessment tax regime in England and Wales with the choice of the taxpayer to fairly and honestly disclose their income and the tax to be paid, and equally HMRC with its choice to accept or challenge the details in the taxpayer’s return. As such, we use game theory as a means for determining optimal behaviours in difficult circumstances.
Criminal and civil enforcement, Fraud, Game theory, HMRC, Tax returns.
Fiscal State Aid and Real Estate
Authors: Vermeulen Hein 
Published: March 2022

State aid is an issue that does not immediately come to mind on the topic of real estate collective investment vehicles (CIVs). Nevertheless the question of state aid plays an important role. Last year, the European Commission charged with the monitoring of state aid has taken an important decision on this matter. The Finland government had asked the European Commission for a judgment on a fiscal regime for Real Estate Investment Trusts (REITs) to be implemented by Finland. In this paper, I will focus on this decision and the effect it may have on the Dutch fiscal regimes for real estate CIVs. In paragraph 1, I will describe the rationale for fiscal regimes of CIVs: fiscal neutrality. Then in paragraph 2, I will make some basic remarks on state aid. Paragraph 3 contains an outline of the Dutch fiscal regimes for real estate CIVs. In paragraph 4, these Dutch fiscal regimes for real estate CIVs are examined in the light of state aid. The decision of the European Commission with respect to Finnish REITs is discussed in paragraph 5. I end in paragraph 6 with the significance of this decision for the Dutch fiscal regimes for real estate CIVs as well as with a conclusion.
Cross-Border Loss Relief in the EU: Implications of Recent Developments in Germany Regarding Outbound Permanent Establishments
Authors: Quilitzsch Carsten , Gebhardt Ronald 
Published: March 2022

Even though the European Court of Justice (ECJ) had been forming the basic framework of cross-border relief of final losses in the EU, the issue was widely disputed among commentators. For this reason, the German Federal Finance Court (BFH) in 2010 had been given the chance to further concretize the concept of 'final losses'. The primary focus of the present article is to illustrate the BFH's ruling as well as to extract possible implications including tax planning opportunities. Implications contain comments on the criteria to constitute a final loss, since the BFH decided to differentiate between legal and de facto reasons. Once a loss has to be considered final, the question has to be answered when it is to be relieved (retroactive versus shifted approach). Eventually the authors discuss the matter on whether the concept of cross-border loss relief has to be applied to taxes following the principle of territoriality. The latter question is of utmost interest, as the BFH approved to deduct final losses not only from the domestic (corporate) income tax base but also from the German trade tax base.
The Courts Position on Cross-Border Losses: A Quest for the Well-Being of EU Citizens?
Authors: Kiers Martje , Monteiro Roel 
Published: March 2022

On 6 September 2012, a new chapter was added to the cross-border loss relief litigation saga with the European Court of Justice's (the Court) ruling in Philips Electronics. This case concerned the compatibility of the British group relief regime with the freedom of establishment. Under this regime, a loss sustained by a permanent establishment in the United Kingdom (UK) which corresponds to any foreign tax is not eligible for group relief. As such a requirement does not exist for losses sustained by resident companies, the Court ruled that it infringed the freedom of establishment and could be justified by neither the objective of preventing the double use of losses or the objective of preserving a balanced allocation of the power to impose taxes between Member States, nor by a combination of two the grounds. The next chapter in the cross-border loss relief saga is soon to be written as the Finish Supreme Administrative Court has requested guidance on the explanation of the meaning of the 'final loss' jurisprudence of Marks & Spencer in A Oy which is still pending. In this contribution, the authors review the consequences of Philips Electronics and the possible outcome of A Oy. This will involve the question whether the need to prevent the double use of losses, introduced in Marks & Spencer but in that case 'taken together' with the need to preserve the balanced allocation of taxing powers between Member States and the risk of tax avoidance, can now qualify as a stand-alone justification. Furthermore, we will look into the application and scope of the 'Marks & Spencer exception' for final losses. This will be done by taking a critical look at the position of and tasks of the Court within the EU legal order. Furthermore, the authors will look into future of cross-border loss relief and assess what would be desirable from the perspective of the aim of the European Union (EU) to achieve an internal market and the interests of the Member States.
Overview of New Paths and Patters in EU Tax Development with Focus on EU Soft Law and External Factors (Part 1)
Authors: Hinnekens Luc 
Published: March 2022

EU Tax Law - as other legal systems - relies on formal law established or recognized by the competent governmental authority. But shouldn't there also be 'good law' in order to be obeyed? That goes as well for its provisions making up EU Hard Law as for its nonbinding legal acts of the Commission making up EU Soft Law. In our recent book on EU Tax Law, we told - as most other tax commentators do - extensively the hard tax law story of EU Treaties, EU-legislation, non-written EU tax principles and ECJ fiscal case law. Accordingly, we used to touch only briefly on the other legal source of EU Soft Law - mainly Commission tax initiatives - arguing that they do not deserve the same attention and recognition for lack of a legally binding power, resulting in a low degree of tax efficiency and failure of harmonious connection with the EU-process of tax cooperation. Today we see a distinctive internal shift in the legal premises and status of EU Soft Tax Law. The shift is reflected in recognized stepped-up levels of effectiveness and wider scope of the steering functions of the Commission effectively of raising the legal process of European tax cooperation.