bluuebunny/crossref_metadata_2025_split huggingface dataset:
Tax Aid and Non-profit Organizations
Authors: Stevens Stan A. 
Published: March 2022

Many services and goods are supplied by non-profit organizations. These social enterprises have a hybrid character, because they possess characteristics of governmental and commercial organizations. Therefore, these social enterprises are also called private-public sector enterprises (PPSEs). Very often PPSEs will qualify as an undertaking within the meaning of the European Union (EU) Treaty, and as a consequence, the EU completion rules will be applicable.
On grounds of the non-profit character and/or the activities of the PPSE in the general interest, PPSEs also often benefit from a special tax regime: (partial) exemption or other tax provision. The question arises then whether that regime qualifies as a preferential tax measure that constitutes fiscal State aid. In this analysis, special attention must be paid to the fact that in many cases PPSEs will operate a service of general economic interest, which could justify tax aid. However, in this article, it will be argued that it is very difficult to design tax measure in a way that they are compatible with the strict conditions that the European Court of Justice (ECJ) applies.
The Dutch VAT Compensation Fund: a Critical Assessment
Authors: Wassenaar Mattheus 
Published: March 2022

As in the European Union the activities of public sector bodies are not subject to full taxation, the Value Added Tax (VAT) regime may cause distortions in their decision-making, in particular with respect to the choice between self-supply and contracting out of services to the private sector. Several European countries have addressed this distortion via a budgetary solution. In the Netherlands, such a refund scheme was introduced in 2003. This article provides an integral analysis of this scheme based on a broad range of evaluations. As this study shows, VAT only plays a minor role in considering whether to outsource and the introduction did not cause a significant increase in contracting out. Motives other than the budgetary effects might be more relevant. Besides, contracting out was already a trend, regardless of the costs of VAT. The introduction had a number of negative side effects, such as the administrative burden and the budgetary effects, leading to a rather negative opinion of the participating public sector bodies. Therefore, an introduction of compensation schemes in other Member States or a change in EU-VAT law as discussed in a recent Green Paper of the European Commission should be assessed thoroughly, to decide whether the remedy is worse than the disease.
EU Tax Issues Arising from Croatias Accession to the EU: Dividend Taxation
Authors: Mavricek Morana 
Published: March 2022

The following document will examine the position of Croatian tax system in relation to the EU tax system. The issues that the document will concentrate on are dividend taxation issues. First, the gradual development of the European Union landmark judgments will be examined, from the first, Verkooijen case, to the current situation in the The Test Claimants in the FII Group Litigation v. The Commissioners for HM Revenue and Customs (FII GLO) case. Second, dividend taxation in other Member States in Croatia's region (Eastern Europe) will be looked at together to see what hurdles they had to overcome when entering the EU while examining how comparable Croatia is to them. Third, the text will assume a critical approach of the new system of dividend taxation adopted in Croatia in March 2012 and its subsequent implementation. At the end of the paper, it will be discussed whether the changes made by Croatia are sufficient to make it compliant with EU law on dividend taxation.
Transfer Pricing of Mayor EC Member Countries with Reference to the 2014 Corporate Income Tax Burden of the Thirty-Four OECD Member Countries  Germany, France, United Kingdom, and Italy Compared
Authors: Zielke Rainer 
Published: March 2022

In the February 2014 issue of the EC Tax Review, the author compared the anti-avoidance legislation in the mayor EC Member Countries Germany, France, United Kingdom and Italy and suggested some international tax planning strategies - without regard to transfer pricing (part 1). The author now considers transfer pricing involving these mayors EC Member Countries Germany, France, United Kingdom, and Italy and suggests further transfer pricing strategies also with regard to the up-to-date CIT rates in OECD countries (part 2). As stated, despite continuous instability in the European Community (EC) its mayor countries Germany, France, the United Kingdom, and Italy exhibit continuously economic growth and stability. According to the International Monetary Fund these European countries have - in this order - the highest gross domestic product in the European Community in 2012. In this article transfer pricing rules of - according to the gross domestic product - the four most important EC Member Countries will be reviewed with reference to the OECD's perspective of Base Erosion and Profit Shifting (BEPS) and to the up-to-date tax differential to the thirty-four OECD Member Countries. The pivotal question is, to what extent can internal tax planning with mayor EC Member Countries be optimized by inclusion of transfer pricing. This article outlines the primary corporate objective and key concepts of international tax planning with regard to transfer pricing and discusses the corporate income tax burden in the thirty-four OECD Member Countries analysing the tax differential as incentive in relation to transfer pricing, the reduction in ETR as the primary corporate objective and key concepts and the he importance of current and reliable information. After that transfer pricing in the mayor EC Member Countries Germany, France, United Kingdom, and Italy is presented and transfer pricing strategies with relation to mayor EC Member Countries are developed. Afterwards this is evaluated from the OECD's perspective of BEPS. Finally the concluding remarks are presented.
Tax Law of the Eurasian Economic Union: Substance and Ways of Using of the European Experience
Authors: Ponomareva Karina 
Published: March 2022

The study considers principal features of the Treaty on Eurasian Economic Union (hereinafter – EAEU) in the light of modern international tax law, its legal nature, its place and functions in the regulation of Eurasian integration. The study describes the main features of tax law under the EAEU Treaty as the foundation treaty of two kinds: establishing international organization for integration (EAEU) and the economic and legal space (the Customs Union and the Common economic space). The important aspect of the proposal is the comparative study of development of tax law in the EAEU and the European Union (EU) as a model of integration which has already shown great results during decades. The objective of this study is to provide an evaluation of development of tax law in EAEU in comparison with EU. The EAEU and the European Union have incomparable historical experience: ten and sixty years respectively. We suppose that some elements of EAEU are similar to EU, and namely the next ones: the unity of institutional structure; aims of vanguard countries correspond to basic direction of development of the whole Union; there is a possibility for rearguard countries to join vanguard countries in case they are ready to carry out extra obligations. The scope of the study is closely connected to the following evaluation problems: tax sovereignty; the effects of the major recent tax policy initiatives for the Union and Member States; ways of tax harmonization in the EAEU and the role of the Court of the EAEU (with using of experience of the European Court of Justice in the area of European tax law); ways of absorbing the enlargement of the EAEU.
Rise and Decline of the Westphalian Principle in Taxation: The Web Tax Case
Authors: Greggi Marco 
Published: March 2022

The article analyses the crucial impact that the digital economy is having on international taxation and argues that the traditional taxing rules are inadequate to address the way that multinational enterprises are conducting business on the Internet and how value is created on the Web. The cornerstone of this analysis consists of the observation that, while the power of the states to tax is intrinsically connected to territory (thus, to a physical element), the Internet economy is not as it takes places in a virtual space (a Terra Incognita) which is, in legal terms, still uncharted.
This situation is challenging the intimate connection between the power to tax and the territory state Sovereignty can be exercised on, superiorem non recognoscens. This is the Westphalian Principle, as commonly understood in History, and it is the pillar states have been built on since the mid-seventeenth century, in Europe. This article eventually considers the most recent development to overtake this empasse, in particular, the digital tax proposal as suggested by the European Commission in 2018. In this respect, it concludes that, while the European strategy is positive in terms of policy, in a purely legal perspective, it might initiate possible retaliation from qualified international stakeholders (including States such as the US) that would see their potential taxable base eroded by foreign unilateral measures and without any previous agreement in this sense.
e-commerce, digital taxation, territoriality, income taxation, net neutrality, double taxation, tax competition, sovereignty, base erosion, BEPS.
Cross Border Qualification Problems Between Social Security and Supplementary Pension: More Guidance Needed?
Authors: Didden Bastiaan M. M. 
Published: March 2022

The encouragement of the accrual of an adequate retirement income has the attention, not only of national governments, but also of the European Commission (EU Member States have initiated reforms of their pension systems, amongst others to provide an adequate pension income. The European Commission stated in 2017 that as part of social protection, every EU citizen should be entitled to an adequate pension, see: European Commission, Commission Recommendation on the European Pillar of Social Rights, C (2017) 2600 final, 26 April 2017, page 8. The European Commission has already expressed this ambition in its White Paper – An Agenda for Adequate, Safe and Sustainable Pensions, published in 2012, see: European Commission, White Paper – An Agenda for Adequate, Safe and Sustainable Pensions, 16 February 2012, COM (2012) 55, page 12. The broadly supported endeavour to achieve an adequate pension income also implies that a multi-pillar approach is recognized by Member States, whereby not only the statutory pension, but also other forms of retirement savings (such as supplementary pension) has to ensure an adequate income after retirement. With regard to promoting cross border labour mobility, reference can be made to the ‘Europe 2020 strategy’.). In cross border situations, a mobile employee may be confronted with various legal obstacles that may hinder an adequate pension accrual and cross border labour mobility. In this article the so-called cross border qualification problems between social security and supplementary pension will be addressed. It is examined how the three qualification problems are recognized in a European law context and to what extent more guidance can be provided on a European level to eliminate the negative consequences of the present qualification problems.
cross border pensions, social security, supplementary pensions, accrual of pensions, qualification, mobile employee, double taxation, mutual recognition, European Pension Register, pension premium provision, soft law
Techniques and Tradeoffs for Incorporating Cost- and Time-Saving Measures into International Arbitration Agreements
Authors: Profaizer Joseph R. , Weiss Adam J. , Klisch Erin E. 
Published: March 2022

Empirical research reveals that users of international arbitration view undue time and cost as international arbitration’s worst attributes. This article offers some potential solutions to combat this increasing dissatisfaction, focusing on a prophylactic approach in which parties are encouraged to negotiate and incorporate cost- and time-saving measures directly into the arbitration clause of their underlying contract. In the early stages of a commercial relationship, parties operate behind a ‘veil of ignorance’, a concept derived from modern social philosophy in which members of a nascent society are prevented from knowing what position they will occupy in that society. Without the knowledge of how the future society’s rules and policies might affect them personally, each participant will be naturally inclined to promote, agree to, and implement rules and policies that are fair and advantageous to all. Likewise, if parties to a nascent commercial relationship address cost- and time-saving techniques during the earliest stages of that relationship, they will be incentivized to agree to a dispute resolution framework that reduces time and costs more effectively than if they sought to implement those measures after a dispute has arisen. This article discusses several suggested measures designed to increase the economy and efficiency of international arbitration, along with a discussion of the respective tradeoffs and practical limitations of including those measures in the parties’ arbitration agreement.
Two Steps Forward, One Step Back: A Report on the Development of Arbitration in the United Arab Emirates
Authors: Farhad Alain N. 
Published: March 2022

Optimists will note that arbitration in Dubai has made great progress in the past decade. Thus, the United Arab Emirates acceded to the New York Convention in 2006 and the number of arbitration cases relating to the economy of the United Arab Emirates (UAE) has increased significantly. Pessimists will retort that much of this progress has been overshadowed by a small number of incongruous court decisions disregarding the New York Convention or revealing an overly formalistic approach to arbitration. The most recent developments in the practice of arbitration in the UAE, addressed in this report, confirm that development is not always linear. It is sometimes a succession of steps forward and steps back. But beyond these ups and downs, observers of arbitration in the UAE should not lose sight of the bigger picture: arbitration in the UAE has made significant progress in a very short period of time. A much awaited and much debated new arbitration legislation, which reportedly has been in preparation for years, would be helpful to consolidate this progress and give the UAE the place it deserves on the global map of international arbitration.
An Anti-Enforcement Bias? The Application of the Substantive Public Policy Exception in Polish Annulment Proceedings
Authors: Koepp Johannes , Ason Agnieszka 
Published: March 2022

This article examines how Polish courts have dealt with annulment applications based upon purported violations of substantive public policy and measures the Polish jurisprudence against the standards developed by the national courts in England, France, Switzerland and Germany. It identifies an anti-enforcement bias of the Polish courts which, in sharp contrast to their European counterparts, still favour an expansive interpretation of the public policy exception and have surprisingly little qualms in engaging in a thinly veiled merits review with unclear boundaries. The markedly interventionist approach of the Polish judiciary encourages annulment applications, which both ill-serves the arbitral process generally and undermines recent efforts to promote Poland as a desirable seat for international arbitration specifically. A solution to these ills can only be found in a narrower interpretation of the substantive public policy exception, in harmony with the standards developed by the national courts in the major European arbitration centres.
Striking a Balance Between Assistance and Interventionism: The Role of Courts in Rwanda-Seated Arbitrations
Authors: Muganga Didas Kayihura , Mwemezi Rutta John , Munyentwari Claire Umwali 
Published: March 2022

The African Arbitration Association was established in 2018 and its headquarters is in Kigali, Rwanda. This choice of location signals that Rwanda has made meaningful strides in improving its arbitration environment, at least in the opinion of African states. Many questions will arise as to whether Rwanda-seated arbitrations do indeed rest in a legally friendly environment, and receive optimum support of courts which act to foster the efficiency and effectiveness of arbitrations. The interplay between courts and arbitral tribunals in dealing with Rwanda-seated arbitrations is the subject of this article. Party autonomy, which broadly underscores the freedom of the parties to decide how their disputes should be resolved, is one of the most important principles in arbitration. This principle naturally translates to the autonomy of the arbitral process and notably the freedom of this process from undue judicial interference. While courts are indispensable in the success equation of the arbitral process, too much judicial intervention in matters of arbitration may have serious repercussions on the efficiency of arbitration. This article examines the autonomy of the arbitral process under the law and practice of arbitration in Rwanda. In doing so, the article discusses different practices in the leading places of arbitration on the interplay between courts and arbitral tribunals in dealing with matters of arbitration and compares these with the corresponding law and practice governing Rwanda-seated arbitrations. It concludes that, with the pro-arbitration stance often demonstrated by the courts in Rwanda and their sparing involvement in the arbitral process, the arbitration environment is as friendly as it is in most other states that are signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention, 1958).
Rwanda-Seated Arbitrations, Mandatory Provisions, Party Autonomy, Jurisdictional Challenges, Kompetenz-Kompetenz, Negative Effect of Kompetenz-Kompetenz, Manifestly Void, Stay of Court Proceedings, Judicial Non-Interference, Pro-Arbitration Stance, One-Stop Adjudication
An Arbitral Tribunal’s Dilemma: The Plea of Financially Impecunious Parties
Authors: Teng Jun Gerome Goh 
Published: March 2022

An arbitral tribunal faces a unique dilemma when a party to an arbitration agreement asserts that it is financially impecunious. While the principle of pacta sunt servanda justifies binding parties to arbitrate regardless of their financial situation, this is challenged by practical access to justice concerns resulting from impecuniosity. A party’s impecuniosity may result in serious consequences such as the inability to vindicate its rights or effectively present its defence in the arbitration. It is questionable whether an arbitration agreement can still be fairly performed in those situations. While there have been conflicting national jurisprudence regarding the impact of impecuniosity on the validity of an arbitration agreement, there is a lacuna in arbitral jurisprudence on this point. This article seeks to fill that lacuna by suggesting a principled approach that arbitral tribunals and institutions should follow in the face of such pleas. While impecuniosity should not render an arbitration agreement automatically ‘incapable of being performed’, an exception should be recognized when the impecuniosity results in a breach of the rules of natural justice. However, the party asserting impecuniosity must prove its impecuniosity on a high threshold and show that it has alternative recourse to national courts.
Financial impecuniosity, Invalidity of arbitration agreements, Incapable of being performed, Effective defence, Unable to present its case, Access to Justice, Natural Justice, Pacta Sunt Servanda, Inseparability of counterclaim, Separate Advances on Costs
The Abuse of Process Doctrine Extended: A Tool for Right Thinking People in International Arbitration
Authors: Branson John David 
Published: March 2022

The abuse of process doctrine is a recognized principle of public international law that prohibits the exercise of a procedural right in contravention of the purpose for which that right was established. This doctrine has been applied in context of investment arbitration where investors manipulate their corporate structure to gain access to jurisdiction after a dispute has become foreseeable. However, while abuse of process has become synonymous with corporate restructuring in investment arbitration, the doctrine is by no means limited to that application. Indeed, more recently, the doctrine has gained momentum as a mechanism to address the problem of multiple and successive arbitrations filed by investors against Sovereigns. This trend culminated in the Orascom v. Algeria decision, recently affirmed by an ad hoc Committee on annulment, that dismissed an investor’s claim ‘in relation to the same investment, the same measures and the same harm’. The application of abuse of process in this context, however, remains unsettled. After review, this article concludes that when an investor initiates multiple arbitrations for the sole purpose of maximizing the chances of success, investment tribunals should consider abuse of process as a means to protect the legitimacy of their proceeding and the Investor-State Dispute Settlement system as a whole.
abuse of process, parallel proceedings, treaty interpretation, res judicata/collateral estoppel, lis pendens
The Canary Is Dead: Arbitration and Climate Change
Authors: Greenwood Lucy 
Published: March 2022

As international lawyers, arbitration practitioners are at the forefront of global issues, yet in relation to climate change and its impact on our practices, we have been slow to act. This article considers the role that arbitration should play in determining climate change disputes and the role that arbitration practitioners could play in shaping and adapting international law to respond to the climate crisis. The pandemic has driven significant behavioural change in the arbitration community. Now is the time to reflect on our practices to ensure that arbitration remains relevant and fit for purpose in a world where climate change will impact every area of our lives.
Climate change, Climate emergency, Arbitration, Protocol, Investment Arbitration, Commercial Arbitration, Dispute Resolution, Paris Agreement, Greener Arbitrations, Green Pledge
Limits to Party Autonomy in Appointing Counsel in International Commercial Arbitration
Authors: Batsura Mikhail 
Published: March 2022

The right of a party to appoint its own counsel is an integral aspect of party autonomy and one of the fundamental rights enjoyed by the parties in international arbitration. However, party autonomy is not absolute and has its limitations. This article discusses whether the parties are free to appoint their legal counsel or face any applicable restrictions when making such appointment. The article invites a discussion on an existence of the immutability principle in international commercial arbitration and its tension with party autonomy in the selection of legal counsel (if any). Finally, the article proposes possible solutions for regulation of a party’s right to appoint a counsel of choice.
international commercial arbitration, party autonomy, due process, right to appoint a counsel, arbitral tribunal, immutability principle, inherent powers, IBA Guidelines on Party Representation in International Arbitration, LCIA Rules: General Guidelines for the Authorised Representatives of the Parties, disqualificationMikhail Batsura