bluuebunny/crossref_metadata_2025_split huggingface dataset:
European Commission Competence in Reviewing Direct Business Tax Measures
Authors: Rossi-Maccanico Pierpaolo 
Published: March 2022

Direct taxation is the quintessential national prerogative in the EU, although it shall be exercised in conformity with Community law obligations, the European Court of Justice (ECJ) says. The ECJ has upheld the Commission action in reviewing direct business tax rules, directly infringeing against the exercise of fundamental economic freedoms protected by the Treaty and with respect to State aid rules. Distinct infringements proceedings relating to business tax measures for breach of fundamental freedoms, harmful tax competition, or State aid may proceed in parallel as each one is autonomous on its own right.
The role of State aid and discrimination reviews has become critical for direct business taxation, as with the expansion and consolidation of the common market the effects of host and residence taxation are found to distort the location of new undertakings and investments. On the one hand, the prohibition to fiscally discriminate against host undertakings or to limit foreign investments leads towards equalization between more favourable residence taxation and source imposition. On the other hand, fiscal aid review demands that preferential taxation for host undertakings is brought in line with standard residence taxation. This unresolved tension between residence and source taxation is the source of unsettled jurisprudence of the ECJ.
Against this background, the article offers a critical analysis of the ways by which the Commission exercises its competences to review direct tax measures, through its prerogatives under Article 226 EC, the Code of Conduct and State aid rules, by outlining the notions of tax discrimination, restriction and selectivity in the different contexts in which they have developed under the Commission review practice and the interpretation provided by the European judicature, with a view to establishing possible parallels and distinctions between such notions.
The Cross-border Taxation of Dividends in the Case of Individual Portfolio Investors: Issues and Possible Solutions
Authors: Evers Lisa 
Published: March 2022

So far, the field of cross-border taxation of dividends paid to individual investors in the European Union (EU) Member States has not been subject to harmonization. The differences in the Member States' tax systems give rise to obstacles to the internal market. As a consequence, individual investors may be discouraged from investing in shares of foreign corporations. Hence, the benefits of international risk diversification are not fully exploited. The discussion of possible solutions to these issues has recently received a new impetus as the European Commission held a consultation on the issues of cross-border dividend taxation in Spring 2011. In this article, we discuss the alternative solutions pointed out by the European Commission and present our genuine proposal. We show that dividends paid to individual investors should not be taxed at source by drawing on a set of normative criteria comprising conformity with European Law, efficiency, simplicity, and equity considerations. We furthermore argue that the abolition of withholding taxes should be accompanied by introducing automatic exchange of information. The analysis of alternative reform options is preceded by a brief, yet comprehensive summary of the taxation of dividends in the EU Member States highlighting the shortcomings of the current dividend taxation.
VAT, Vouchers, Rights and Payments: The VAT Treatment of Vouchers
Authors: Bijl Jeroen 
Published: March 2022

In this article, the author examines the phenomenon 'voucher' from a Value Added Tax (VAT) perspective. Recently, the European Commission published a proposal addressing the VAT treatment of vouchers. The proposal contains a number of relatively far-reaching changes to the current system. The author comments on the proposal and provides an alternative approach to solving the VAT issues concerning voucher transactions. In the view of the author, not all measures in the Commission's Proposal are effective or necessary. He takes a step back from the proposal and analyses the relevant VAT issues that characterize voucher transactions: the distribution model, the question whether payment for a voucher is a prepayment, payment for a right to a supply, payment for a right as such or payment of a deposit, whether an exemption applies to voucher transactions, and whether a definition of 'voucher' is necessary. The author applies his findings to three scenario's regarding voucher transactions, demonstrating that all VAT issues can be solved by applying existing VAT rules and CJEU case law. Some specific issues need clarification, but according to the author, this can be done in a Regulation.
Welmory: A Recipe for VAT Avoidance?
Authors: Jovanovic Nebojša 
Published: March 2022

The judgment of the CJEU in the Welmory case attracts particular attention. This is due to the fact that the CJEU had to apply the concept of fixed establishment, which originated from the context of traditional economy, for the first time to the digital economy. In this article the authors discuss the more general considerations of the CJEU in respect of the scope and status of the VAT Implementing Regulation and the fixed establishment concepts described therein as well as the interpretation of the concept of fixed establishment in relation to the digital economy. The main question of the article is whether the CJEU with its judgment in the Welmory case proves to be able to deal with the VAT challenges of the digital economy or whether it is a recipe for VAT avoidance.
One Inheritance, One Tax
Authors: van Vijfeijken Inge J.F.A. 
Published: March 2022

The problem of double inheritance tax is caused by a lack of tax treaties, diverging Succession Law and diverging Inheritance Tax. In December 2011 the European Commission (EC) adopted a package of instruments to deal with the difficulties regarding cross-border inheritances, but nothing really happened since then. The European Court of Justice (ECJ) can prevent double taxation in some cases, but the scope of effect of the TFEU is limited. In 2014 an expert group was installed by the EC to identify tax problems faced by individuals who move from one EU country to another. The expert group had to provide independent solutions for these problems. The advice of the expert group can be summarized as ‘one inheritance, one tax’. This motto will be discussed in this article.
Some Thoughts to Understand the Court of Justice Recent Case-Law in the Danmark Cases on Tax Abuse
Authors: Rodríguez Juan López 
Published: March 2022

Abuse of law is a general principle of EU law and has direct effect and priority over national law.National authorities have to apply it without the need of a specific provision of EU law. It is a self-protection tool and guarantees that the competences of the EU do not extend beyond their limits. This principle is the same in all areas of EU law. It has an objective and a subjective element. The beneficial owner clause addresses specific forms of tax abuse. As such, it is embraced by the more general principle of abuse of law. Under this view, there is not a need to codify the principle in a legal provision. In this case, it is required to prove the intention of abuse.When codified by law, it is transformed into a requirement to apply a specific tax regime: the tax administration must prove the objective element of abuse but not the animus fraudis. In the interest and royalties directive plays this role. In the parent-subsidiary directive can be invoked as an anti-abuse clause, but the intention to defraud has to be proved.
Abuse, general principle, EU law, EU competence, sovereignty, objective element, subjective element, proof, beneficial owner, OECD materials
The Green Deal Consultations: Well-Being Aims and Tax Related Reforms
Authors: van Hulten Mart 
Published: March 2022

On 23 July 2020, the European Commission launched public consultations on two tax related proposals, namely a revision of the Energy Taxation Directive and the creation of a Carbon Border Adjustment Mechanism. These proposals are part of the European Green Deal, a strategy that aims, amongst other things, to put the well-being of citizens at the centre of economic policy.
In this article, the well-being aims put forward in the Green Deal are considered in connection with the Commission’s tax related proposals in that regard as included in the public consultations of July 2020. It is concluded that, while taking on board well-being aims may be valuable in that it obliges to consider in a broad way what is good for people, the current references to well-being by the Commission in the Green Deal lack clarity and raise a number of important questions. Recommendations are provided, also with respect to the envisaged role of taxation in tackling environmental issues.
DAC6 and the Challenges Arising from Its Disclosure Obligation
Authors: Bianco Arthur 
Published: March 2022

Directive 2018/822 (‘DAC6’) aims at ensuring the exchange of information between Member States of potentially tax-aggressive arrangements. To do so, the European legislator has entrusted intermediaries across the European Union with the task of gathering and reporting a number of potentially aggressive tax arrangements to improve tax transparency and stifle tax avoidance. Unfortunately, a closer analysis of the text has revealed multiple issues that may threaten the well-functioning of the system and could impede the action of the intermediaries. From missing definitions and a lack of guidance to new concepts in dire need of proper interpretation, intermediaries are left with a daunting task to tackle. Risks of delays and over-disclosure, arising from the inconsistencies and uncertainties left by the text of the instrument, may not only undermine the effectiveness of the reporting obligation, but also that of the rest of the system altogether.
DAC6, Directive 2018/822, Disclosure, Reporting, Intermediaries, Arrangement, Tax-aggressive, Main Benefit Test, Hallmarks, Oversharing
The Comitology Proposal: Shifting the Legislative Balances in EU VAT
Authors: Merkx Madeleine , Gruson John 
Published: March 2022

In this article the authors address the proposal to transform the status of the VAT Committee into a ‘comitology committee’ tabled by the European Commission in December 2020. The proposal basically confers implementation powers to the Commission via comitology in the area of EU Value Added Tax (hereinafter: VAT). If adopted by the EU Member States, this would lead to a groundbreaking situation in which for the first time in the area of taxation the decision-making based on unanimity of EU Member States is dropped in an area that does directly affect the EU Member States’ national tax revenues. The authors take this opportunity to explain the function and the consequences of the comitology procedure. After describing the core of the proposal, the authors pay a visit to other legislative areas in taxation where the comitology procedures apply before they dive deep in the scope of the powers granted under the proposal and reach a conclusion. The authors doubt whether the proposal will be adopted and whether EU Member States are prepared to confer more powers to the European Commission.
VAT (Value Added Tax), legislative process, VAT Committee, proposal, comitology, implementing powers, interpretation, QMV (Qualified Majority Voting)
The implications of adopting a European Central Bank Digital Currency: A Tax Policy Perspective
Authors: Scarcella Luisa 
Published: March 2022

In the wake of growing interest around cryptocurrencies, the possible issuance by central banks of their own digital currency has been a topic of debate worldwide. However, little attention has been given to the relevancy of electronic and digital payments (including a possible digital euro) in the area of taxation, where policies limiting the use of cash are being intensively adopted all around the world. On one hand, tax policies fostering the use of electronic and digital payments as a Central Bank Digital Currency (CBDC) can help tax authorities to better monitor taxpayers’ transactions in the fight against tax evasion and fraud. On the other hand, important concerns arise in the areas of data protection and the digital divide. These two kinds of concern should be taken into account and addressed by policymakers before the adoption of both a CBDC and tax policies favouring its use at the detriment of cash.
CBDC – Digital Currencies – Cashless Payments – Electronic Payments – Tax Policy – Exchange of Information – Taxpayers’ rights – Data Protection – GDPR – Digital Divide
The GloBE Income Inclusion Rule and Its Global Character: Complexities Underlying Its Fully Effective Application
Authors: De Pietro Carla 
Published: March 2022

This article focuses on the complex challenges affecting the relationship between different tax systems (national, international and EU) within a context, like the current GloBE project, which is looking for appropriate tax measures applying on a global scale. In fact, the need of developing tax measures with a global character requires specific attention to be given to issues concerning the effectiveness of these measures in light of the relationship between the relevant tax systems.
More specifically, within the framework of this article, the analysis aimed at evaluating the possibilities of guaranteeing a fully effective application of the GloBE income inclusion rule has been conducted on the basis of two crucial factors, i.e. (1) the compliance of the income inclusion rule with international tax treaty law and with EU tax law, and (2) the coordination between international tax treaty law and EU tax law.
Global Anti-Base Erosion (GloBE) project, Pillar Two, Income Inclusion Rule, BEPS, CFC legislation, Abuse, OECD/G20 Inclusive Framework, Saving Clause.
Antisuit Injunctions and Arbitration Proceedings: What Does the Future Hold?
Authors: Noussia Kyriaki 
Published: March 2022

Antisuit injunctions restrain foreign court proceedings in case of a valid agreement for arbitration. In the common law world, it has been argued that they have contributed to London’s eminent position as a popular arbitral seat and that the opinion of Advocate General Kokott of September 4, 2008 and the European Court of Justice (E.C.J.) judgment of February 10, 2009, following the referral of West Tankers Inc. v. RAS Riunione Adriatica di Sicurta S.p.A. (The Front Comor) to the E.C.J. in December 2006, has already promulgated a change in this state of affairs.
The purpose of this article is to discuss comparatively antisuit injunctions in relation to arbitration in the United States, the United Kingdom, and in Europe, analyze the aforementioned opinion given by Advocate General Kokott and the E.C.J. judgment that followed, and the future of London’s arbitral popularity, and finally, set out the modern function and role of antisuit injunctions in light of the efforts to harmonize private international law.
International Arbitration in a Global Economy: The Challenges of the Future
Authors: Hanotiau Bernard 
Published: March 2022

The forces of globalization have generated an increased number of international contracts, which in turn have resulted in an enormous increase in complex commercial disputes. These forces have fueled the development of international arbitration as the preferred choice of businessmen for the resolution of their disputes. They have further led to a denationalization of arbitration, both procedurally and substantively, as well as to a convergence of national legislation and institutional rules, based on a consensus on a greater liberalization of the process. The forces of globalization have also opened the door to the application by arbitral tribunals of general principles of international commercial law, common to all nations, and have contributed to the development of an international arbitration culture. Beyond its success, international arbitration is facing today many challenges. There is an increased concern over its judicialization, its time and cost efficiency, and various ethical issues. What can be done to overcome these challenges, and make sure that arbitration will continue to offer the qualities and advantages that have been the keys to its success?
Costs Awards in Arbitration
Authors: Rubino-Sammartano Mauro 
Published: March 2022

The arbitral tribunal deals with costs after deciding the jurisdictional and preliminary issues and after dealing with the merits of the dispute, which may involve going through thick files of documents. In other words, dealing with costs takes place after the making of an effort which may occasionally exhaust the energies of the arbitral tribunal. This may be accompanied by a tendency to consider costs as a minor and non-intellectually stimulating issue. The result of this combined approach may be that the arbitral tribunal does not devote to the costs award the time and attention which is required in circumstances where one party is not fully awarded its claim and the other party does not entirely fail.
The General Principles of Islamic Law as the Law Governing Investment Disputes in the Middle East
Authors: Badawy Tarek 
Published: March 2022

The recent collapse of certain Arab regimes and the subsequent rise to power of Islamic parties that call for the general application of Islamic law (sharia) will certainly generate debates about the compatibility of sharia with modern principles of justice. The uncertainty surrounding the seriousness of these politicians' calls and the general lack of knowledge about sharia among western lawyers and investors increase the worries of foreign companies regarding their projects in the Middle East. This article provides its readers with information about the principles of contract law under sharia, and demonstrates how investors who are forced to accept sharia as the law governing their disputes - either in the context of an international arbitration or a regular state court - will likely receive equal, if not more, protection than the safeguards offered by international law. The article starts by demonstrating how the sources of Islamic law sanction arbitration. It further explores some of the unique rules of contract law under sharia (e.g., lack of procedural formalities, and the negation of state immunity), that give certain privileges to foreign investors. Such particular rules allow investors to resort to legal tricks - known as hiyal - to circumvent certain prohibitions pertaining to the charging of interest. The article's main conclusion is that should the principles of sharia be properly applied to investment disputes in the Middle East, foreign investors will likely receive more protection against abusive nationalization than they would under international law. Having said that, the possible application of Islamic law to state contracts remains uncertain at this stage, albeit not unlikely.
The 2012 ICC Rules of Arbitration  An Accelerated Procedure and Substantial Changes
Authors: Goller Karin Calvo 
Published: March 2022

The 2012 International Chamber of Commerce (ICC) Rules of Arbitration pave the way for more expeditious arbitral proceedings since under the added requirements, the parties are to provide more extensive information during the initial stages of the proceedings. The delays caused by further submissions are thereby avoided. A wider approach towards the case, may enable the joinder of additional parties, to address claims between multiple parties and multiple contracts ab initio, and to consolidate arbitration proceedings. The new Rules establish an emergency arbitrator procedure for urgent interim or conservatory measures, as well as case management techniques to reduce the costs. The work of the members of the ICC Commission of Arbitration, the ICC National Committees, the International Court of the Arbitration, the representatives of the National Committees, and selected counsels and arbitrators, over a two-year period bore results: in June 2011 in Mexico City, a revised version of the 1998 ICC Rules of Arbitration was adopted by The World Council of the ICC (hereinafter 'the 2012 ICC Rules' and/or 'the new Rules').
New Belgian Arbitration Law of 24 June 2013 and New CEPANI Arbitration Rules of 1 January 2013
Authors: Verbist Herman 
Published: March 2022

The new Belgian arbitration law of 24 June 2013 provides a modern framework for arbitration based on the UNCITRAL Model Law on International Commercial Arbitration. It is applicable to both national and international arbitration. The new Belgian arbitration law replaces the previous arbitration law which was introduced in 1972 and amended in 1985 and 1998.The new law provides broader criteria for arbitrability, increases party autonomy and the efficiency of arbitration, provides new provisions on provisional and conservatory measures, and sets fundamental principles for the conduct of arbitration proceedings. The arbitration law no longer allows an appeals procedure against the decision taken by the Belgian courts on a claim for annulment of an arbitral award, while permitting only an application for 'cassation' to the Supreme Court against the decision. Foreign parties continue to have the possibility to explicitly exclude claims for annulment of arbitral awards. On 1 January 2013, new Rules of Arbitration of CEPANI (the Belgian Centre for Arbitration and Mediation) entered into force, replacing the previous Rules of 2005.The 2013 CEPANI Rules introduce a number of new provisions concerning multiparty arbitration and also provide for the possibility of an 'emergency arbitration' prior to the constitution of the arbitral tribunal. This article examines the important changes made to the Belgian Arbitration Law (Part 1) and to the CEPANI Arbitration Rules (Part 2).
Enforcing Arbitrators Obligations: Rethinking International Commercial Arbitrators Liability
Authors: Alessi Dario 
Published: March 2022

Liability of arbitrators touches the heart of the concept of arbitration as it affects the legal relationship between the arbitrators and the parties and concerns some essential issues on the nature of the arbitrator's mandate. This article intends to propose an alternative conceptual approach to the immunity-based theories, endorsing the suggestion that the arbitrator shall be liable as any normal intellectual service provider for breach of her obligations. Regarding the regime of liability, a systematization is proposed whereby strict liability, fault-based liability and tortious liability cohabitate. This relationship is argued being contractual. The existence of an objective contractual exchange underlies contractual liability for breach. As a consequence, the thesis proposed in this article is that the arbitrator shall be liable for breaches of the obligations contractually incurred. These contractual obligations can be divided into two main clusters, namely, the obligation to decide the dispute submitted and the obligation to provide a fair and equal adjudication. Thus, a dual regime of contractual liability for arbitrators is proposed. A separate set of obligations is represented by the pre-contractual duties of disclosure, which are tort-based. The plain existence of a contractual relationship between the arbitrator and the parties automatically sets aside all those theories claiming that because of the status or for some policy argument, the arbitrator must be immune from liability. As a consequence, any immunity or qualified immunity-based theory is rebutted in favor of a full liability-based conceptual scheme.