bluuebunny/crossref_metadata_2025_split huggingface dataset:
Security Review in the Evolution of Foreign Investment Law with Chinese Characteristics: Part II
Authors: Liu Ziyu 
Published: March 2022

Without detailed regulations on security review in China’s Foreign Investment Law, this article suggests a promising but challenging future of security review, from the perspective of institutional design. Based on the bureaucratic hierarchy between the central government and local governments which hindered the formulation and enforcement of security review in Free Trade Zones, it is promising that the central government will retain control over formulating and enforcing security review through inter-ministerial Joint Conference. However, the uncertain roles of central ministries will cause potential challenges. Based on the logic of the latest institutional reform led by the Chinese Communist Party, this article suggests the possible position of the National Development and Reform Commission in security review, is a sole coordinator rather than a substantial leader. It also points out that the rising role of other institutions, such as the newly-established State Administration for Market Regulation, will bring challenges in the further formulation and enforcement of security review in the Foreign Investment Law ( FIL).
Security review, Foreign Investment Law, institutional design, Chinese Communist Party, Joint Conference, National Development and Reform Commission, Ministry of Commerce, State Administration for Market Regulation
A Gap Analysis of Enforcing FCPA-compliant Codes of Conduct in Low- and Middle - Income Countries
Authors: Sahu Ritankar 
Published: March 2022

Recent quantum of FCPA (US ‘Foreign Corrupt Practices Act, 1977’) settlements reveal eye-popping numbers. It has brought to light that superficial anti-bribery enforcement mechanisms are still being deployed as order of the day across many large enterprises. It seems that even after a decade of balance-sheet busting Deferred Prosecution Agreements, Non- Prosecution Agreements and other resolutions, corporations are still taking anti-bribery enforcement efforts lightly. The FCPA compliance industry is a multi-billion-dollar industry and is growing in leaps and bounds, and there is a wide variety of expertise available at all price-bands; that being so, how is it that codes of conduct and anti-bribery policies fail to prevent and/or detect misconduct for years before it spirals out of control?
In this article, I will be going over a few select elements of drafting and enforcing an effective code of conduct, which under ‘normal’ operating protocols may be perceived to be too ‘tight’ for well-lubed enterprises, but the tried and tested methods will ensure that the corporation is combat ready in the event of a breach. I will be focusing on FCPA compliant codes but will also cross-refer other legislation like the UKBA (‘Bribery Act 2010ʹ). The fact that conduct enforcers are faced with the fact that extra-territorial laws lack public assent in most low- and middle-income countries is something that I will assess in significant detail. I will be covering behavioural dynamics influenced by socio-cultural and socio-economic parameters of employees and institutions, and how pre-conceived notions of what ‘misconduct’ is, impact actual compliance efforts. Whilst the focus will be on using an effective code of conduct which works in practice, I will draw in other issues like hotline distrust, procurement integrity, economic disruption stemming from anti-bribery investigations, merits of self-reporting violations and perceptions about compliance enforcers, and how they impact organizational behaviour and institutional culture. I will be drawing cues from select high-profile resolutions like Airbus, Rolls-Royce, Odebrecht and Ericsson.
I will be talking about the usual suspects inside institutions, who suddenly become sensitive to issues of compliance after a regulator has expressed interest in a subject company. I will also look at pressure points after it is imminent that there would be enforcement action, or an investigation has already begun. A lot of my content will be focussing on the Asian strand but theobservations and intrinsic assessments, albeit picked up from actual conduct in emerging markets in Asia, will apply to a universal set of problems in most low- and middle-income countries.
Conduct, culture, socio-economic parameters, FCPA, UKBA, internal controls
Can Regulatory Intervention Save the Sustainability Rating Industry?
Authors: Cash Daniel 
Published: March 2022

Relatively speaking, the so-called sustainability rating industry has been witnessing rapid growth since the Financial Crisis. More recently, the industry is continually reorganizing through a series of mergers and acquisitions. However, recent research has slowly turned away from what the sustainability rating industry can do, and moved towards what the investor base wants from them. In this direction, the findings are becoming particularly clear. The concept of a ‘mainstream’ investor base, and its growing tolerance of sustainability as a concept, is leading towards a defining point. That defining point is whether the sustainable-related service marketplace is suitable for the mainstream marketplace. By utilizing recent research into this junction, the article will consider both whether the industry can meet the needs of the marketplace as it continues to grow, and also whether any regulatory intervention could assist with the achieving of this hypothesized goal.
Sustainability, rating industry, ESG-related information, sustainabilityrelated investment
The Increasing Prevalence of Class Actions in the UK
Authors: Davies Martin , Middleton Oliver , Watret Tom 
Published: March 2022

This article explains the factors behind the increasing prevalence of class actions in the UK, the procedural mechanisms available for bringing such claims, and one particularly popular form of class action: the ‘stock drop’ shareholder action brought against issuers for allegedly misleading statements or omissions.
Class actions, procedural mechanisms, the ‘stock drop’ shareholder action, UK, third party funding, ‘opt in’ and ‘opt out’ regimes
The Effectiveness of Blockchain Smart Contracts in Reshaping the Business Landscape in Nigeria
Authors: E. Nwafor Ifeoma 
Published: March 2022

The Corona Virus Disease 2019 (COVID-19) pandemic has had, and continues to have, a stark economic impact/aftermath on all sectors of life, particularly the health and business sector. Businesses across the globe were compelled to shut down and drastically reduce operations. The impact of commercial transactions coming to a halt resulted in changes that have affected commercial transactions and consumer behaviour. Reported sharp declines in businesses across the globe are unprecedented. At challenging times like this, information technology can come to the rescue to shape world trade and the future economy. Technological mechanisms, such as blockchain smart contracts, can be implemented to avoid economic uncertainty since physical contacts in contract formation and execution are almost impossible during a pandemic. Smart contracts are automation applications that run on blockchain platforms to digitally accelerate the authentication, control, or performance of contract agreements. It is faster, cheaper, accurate and provides a secure environment in multiple fields, from financial services, healthcare, voting and energy resources. This article adopts a doctrinal approach. It highlights the role and convergence of technology, law and commercial transactions under COVID-19 and beyond. It explores the benefits of smart contracts and canvasses for legal measures to regulate/supervise blockchain technology in Nigeria effectively.
The Google Android case, digital markets, Turkish competition law, Russian competition law, Indian competition law
Tracing the Duty of Directors in India: Wilful Drift Towards Insolvency?
Authors: Chaliya Gaurav , Mukherjee Akash 
Published: March 2022

As we tread towards overcoming the Covid-19 pandemic, the world is gearing up to face the challenges of a post-Covid era. The Insolvency and Bankruptcy Regime has already armed itself to tackle this challenge in the form of pre-packs. However, there are still a few concerns that need to be ironed out. In this article, we expound upon the ambiguity and the adverse effect of the directors’ duty towards creditors that is manifested under section 66 of the Insolvency &amp; Bankruptcy Code, 2016 (‘the Code’). In this regard, we discuss the jurisprudence in the UK and the US on the shift in the directors’ duty from being shareholder-centric to creditor-centric. Further, the article places an insight into the safe harbour approach employed by the Australian legislators to deal with the ambiguities associated with this duty. And finally, we posit that providing safe harbour to directors, in India, is essential to fulfil the objectives set to be achieved through the Code.
Director’s duty towards creditors, safe harbour approach, India, Insolvency & Bankruptcy Code, 2016, corporate insolvency
Externalizing Indian Startups: Exploring the Flip Side
Authors: Bhattacharya Ayesha 
Published: March 2022

The practice of externalization, whereby an Indian company houses its shareholding, intellectual property and other assets in an overseas firm, thereby relegating the local enterprise to a subsidiary, has gained traction over the last decade. Its increasing popularity, particularly amongst startup companies, is attributable to the desire to adopt growth-enabling strategies, access to foreign funding, fewer regulatory requirements and a better tax regime. This article explores the concerns faced by founders of an Indian startup company and considers the viability of flipping the corporate structure overseas, in light of round-tripping restrictions under the Foreign Exchange Management Act (FEMA) 1999, and various tax considerations under the Indian Income Tax Act 1961. It attempts to resolve the question regarding whether the different corporate and tax law concessions introduced by the Indian Government have succeeded in providing a conducive ecosystem for startups. The article also examines various investor-friendly jurisdictions which startups migrate towards, with special emphasis on the State of Delaware in the United States of America. Finally, the author concludes that each enterprise must individually analyse its business structure to determine whether flipping acts as an aid or an impediment to growth, as externalization is not a onesize- fits-all approach.
Externalization, overseas investment, Delaware holding company, foreign institutional investors, flip structure, venture capital, Foreign Exchange Management Act 1999, round tripping, share swap, Income Tax Act 1961.
The Sustainability of Environmental, Social and Governance (ESG) Reporting in the US and the UK
Authors: Yeoh Peter 
Published: March 2022

Regardless of the controversy over the impact of environmental, social and governance (ESG) issues on the fates or fortunes of business corporations, calls whether from policymakers (I. Mirza, ‘Congress a step closer to making corporate ESG disclosure mandatory’ (2021), JD Supra, 28 June 2021, https://www.jdsupra.com/legalnews/congress-a-step-closer-tomaking- 9721287/ (accessed 8 Aug. 2021), social advocates (J. Jaeger, ‘Activist investor win at ExxonMobil should be wake-up call for companies’ (2021), Compliance Week, 15 June 2021, https://www.complianceweek.com/boards-andshareholders/ activist-investor-win-at-exxonmobil-should-bewake- up-call-for-companies/30475.article (accessed 8 Aug. 2021), and from businesses itself (A. Murray &amp; K. Dunn, ‘CEOs are calling for more regulation-of ESG standards’, Fortune, 12 August 2021, https://fortune. com/2021/08/12/ceos-are-calling-for-more-regulationof-esgstandards/ (accessed 12 Aug. 2021), are increasingly made throughout the course of the present COVID-19 pandemic cycle for regulatory actions (C.A. Adams &amp; S. Abhayawansa, ‘Connecting the COVID-19 pandemic, environmental, social and governance (ESG) investing and calls for “harmonisation” of sustainability reporting’, Critical Perspectives on Accounting, https://doi.org/10.1016/j.cpa. 2021.10230908/08/21 (accessed 9 Aug. 2021). Various facets of the COVID-19 pandemic have been blamed for their impacts on the lives and livelihoods of people across the world (OECD, ‘Coronavirus: The world economy at risk’ (2020), OECD Interim Economic Assessment (2 Mar. 2020), https://www.oecd.org/berlin/publikationen/Interim- Economic-Assessment-2-March-2020.pdf (accessed 8 Aug. 2021), including those in the US and the UK, but equally business corporations (E. Reicin, ‘Businesses should be held accountable for their ESG claims’ (2021), Forbes (23 Mar. 2021), https://www.forbes.com/sites/forbesnonprofitcouncil/ 2021/03/23/businesses-should-be-held-accountable-for-theiresg- claims/?sh=67265fd25679 (accessed 8 Aug. 2021) and governments (K.P. Pucker, ‘Overselling sustainability reporting’ (2020), Harvard Business Review, May–June 2020, https://hbr.org/2021/05/overselling-sustainability-reporting (accessed 8 Aug. 2021) have also been blamed for their respective failures to do their parts in addressing ESG challenges that have become more prominent.
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
Freedom of establishment tax jurisprudence: Avoir Fiscal re–visited
Authors: O’Shea Tom 
Published: March 2022

This paper examines the tax jurisprudence of the ECJ relating to the freedom of establishment from the perspective of a ‘host’ Member State and from that of an ‘origin’ Member State. The Court’s Avoir Fiscal decision is revisited and reconsidered. The Court’s subsequent case law is analysed. The paper highlights that a ‘national treatment’ test is applied by the Court from both perspectives.
The paper also demonstrates that the reasoning used in Avoir Fiscal, an establishment case, has been used analogously by the Court in relation to the other fundamental freedoms and that the Court’s application of the concept of comparability has been deeply influenced by this seminal and landmark judgment.
The Negative Harmonization Process of Losses in Foreign EU Subsidiaries: The Swedish Case
Authors: Gerson Anna 
Published: March 2022

Negative harmonization within the EU is an ongoing challenge that needs to be taken seriously. This is particularly evident in areas where it can be established that (legal) persons are faced with problems related to their cross-border activities and where there exist case law from the Court of Justice holding a key to a solution to the problem or at least parts of the problem. This is, for example, the case regarding the issue of treatment of losses in foreign group companies within the EU. Since the Marks & Spencer case, the negative integration process has evolved differently at the national level in Member States. Approximately a year ago, Sweden introduced new rules regarding compensation of terminal losses in foreign subsidiaries. The rules are a consequence of the case law from the Court of Justice but also from the Swedish Supreme Administrative Court. The legislative process as well as the interpretation of the matter by the Swedish national courts raises several questions related to the negative integration process within the EU that will be dealt with in this article.
Double Taxation of Inheritances and the Recommendations of the European Commission
Authors: van Vijfeijken Inge J.F.A. , van der Weerd-van Joolingen Hedwig F. 
Published: March 2022

In December 2011 the European Commission ('EC') adopted a package of instruments to tackle the difficulties regarding cross-border inheritance tax. One of these difficulties concerns the existence of unrelieved double or multiple taxation. Tax treaties (if present) and unilateral systems of relief do not always effectively prevent this. By means of a Recommendation the EC suggests how Member States could improve their unilateral systems of relief and presses them to do so. The article starts by examining the possible causes of double or multiple taxation. In general there is an enormous variety of rules in Member States' inheritance tax systems; they all connect to a different factor for applying inheritance tax and use different concepts of residence and situs assets. Subsequently the international order of priority of taxing rights is discussed. The State of situs normally has the strongest taxation rights, followed by the State in which the deceased was domiciled or resident. This order of priority can also be found in the EC Recommendation, which finally is considered and evaluated.
The Concept of Value in Tax Law and Customs Law
Authors: Vieira Iure Pontes 
Published: March 2022

The economic value for tax and customs purposes is probably one of the most important subjects in the modern tax system, where the assessment of most taxes is based on monetary wealth. Despite its importance, different studies have been carried through of a fragmented form (the methods of tax assessment, transfer pricing, customs valuation, market value, . . .) without striking directly the definition of the economic value for tax and customs purposes. Thus, the first main issue examined in this article is built on a concept of value, starting from the recognition of the reasons of the difficulties to establish an unique concept due to the nature of the subject touching philosophical, economical and juridical fields. Therefore, the difficulties have been overcome by the examination of the two elements of economic value (the exchange-value / usevalue) and the market value. The second part is focused on the measurement of the value, based on the concept developed in the first part. Each aspect of evaluation, starting from the survey of the manipulations of value by the individuals, the influence of the time, place, material, motivations of the parts, passing by on the rules and methods of valuation based on contractual logic have been examined.
Balanced Allocation and Coherence: Some Thoughts in Light of Argenta and K
Authors: Neyt Robert 
Published: March 2022

The Court of Justice of the European Union (hereinafter the 'Court') generally refuses justifications put forward by the Member States for restrictions of the four freedoms which are based on the need to prevent the loss of tax revenue. In its case law, the Court made limited exceptions to this general principle by allowing Member States to safeguard the coherence of its tax system and to preserve the balanced allocation between the Member States of the power to tax. The scope of the coherence argument is limited by the (traditionally) strictly interpreted requirement to have a 'direct link' between a tax advantage and a subsequent tax levy. The justification ground balanced allocation is generally only accepted if the restriction is a necessary measure taken by the Member State to avoid the (risk of) shifting of profit or losses by taxpayers. In its recent judgments in the cases Argenta (C-350/11, rendered on 4 July 2013), and K (C- 322/11, rendered on 7 November 2013), the Court applied both justifications grounds. Although the facts of both seem (at first sight) to be similar, the Court reached a completely different outcome. The article critically discusses and compares both recent cases in light of the Court's previous case law.
A Common GAAR to Protect the Harmonized Corporate Tax Base: More Chaos in the Labyrinth
Authors: Aramayo Silvia Velarde 
Published: March 2022

The analysis of the general anti-avoidance tax rule in five countries of the European Union (United Kingdom, Austria, Germany, Sweden and France) shows clearly the frailty and weakness of the theoretical and jurisprudential constructions designed to fight this international problem. The research also displays a high degree of judicial discretionary, a worrying level of legal uncertainty – as a result of the introduction of tax rules linked to vague and imprecise concepts – and an inefficiency in the revenue collection unacceptable. Furthermore, the article analyses the structure and function of the common general anti-avoidance rule (EU-GAAR) approved by the European Parliament, its scope and the problems that it’s possible interaction with another anti-avoidance rules (introduced by the domestic law, community law and conventional law) could generate. The author considers that the labyrinth which derives from the principle of non-discrimination on which the ECJ is trapped is also the labyrinth on which is trapped the cross-border application of the Member States GAAR’s and SAAR’s. The adoption of an EU-GAAR not solves the problem and only increases the chaotic juxtaposition of ineffective anti-avoidance rules.
The Impact of European Union Law on the Interaction of Members States Sovereign Powers in the Policy Fields of Social Protection and Personal Income Tax Benefits
Authors: Peeters Bruno , Peeters Bruno 
Published: March 2022

In almost all Member States social security benefits are financed by a mix of social security contributions and taxes, albeit with great differences between the Member States regarding the share and the design of each of these methods of financing. As to the benefits, social benefits are traditionally defined by the various social security branches. But sometimes tax systems provide for certain advantages with a social goal, such as tax reductions for children or for disability. In all these cases Member States conduct their social policy partly through tax measures. This article explores these interactions between social and tax policy from the perspective of Member States’ sovereignty. To which extent does European Union (EU) law limit the powers of Member States to decide for themselves which policy field (social or tax) is used to obtain social goals? And how can EU law be applied and interpreted to respect or to restore this sovereignty? The article firstly outlines the basic features of EU social security coordination and EU personal income tax law. It then analyses how EU law and in particular case law of the Court of Justice deals with situations where these policy fields interact and how it impacts on Member States’ choices to integrate elements of social policy in their tax policy. Finally it draws some conclusions.
The Interest Limitation Rule in the Anti-Tax Avoidance Directive (ATAD) and the Net Taxation Principle
Authors: Dourado Ana Paula 
Published: March 2022

This article discusses the rationale for limiting the income tax deduction of interest payments, taking into account the net taxation principle, as well as the compatibility of Article 4 of the Anti-Tax Avoidance Directive (ATAD) with the Treaty on the Functioning of the European Union (TFEU). It also discusses the compatibility of a national provision that is similar to Article 4 of the ATAD, with a national constitution. Assuming that such national interest limitation rule is declared unconstitutional, but, in turn, Article 4 of the ATAD is not declared incompatible with the TFEU, a conflict with EU Law will arise. This is so, because European Union (EU) Law is to be given full effect by EU Member States.