bluuebunny/crossref_metadata_2025_split huggingface dataset:
The Right to Be Forgotten in the European Union: Towards a Uniform Approach?
Authors: Zelger Bernadette 
Published: May 2022

This article aims to shed light on the application of the ‘right to be forgotten’ in the case law of the Court of Justice of the European Union (CJEU or Court) as well as the German Highest Courts, that is, the German Federal Constitutional Court (Bundesverfassungsgericht) and the German Federal Court of Justice (Bundesgerichtshof) from a fundamental rights perspective, thereby also considering the principles established by the European Court of Human Rights (ECtHR). While the CJEU in its decision in Google Spain (Case C-131/12) established a rebuttable presumption of supremacy in favour of the right to privacy, the German Highest Courts have ever since acknowledged the equal weight of fundamental rights in order to ensure a fair balancing of the latter against each other. However, considering the CJEU’s decision in GC and Others (Case C-136/17), the Court has arguably shifted its approach, thereby getting closer to an actual fair balancing of fundamental rights. It will be argued that such change in paradigm arguably provides for an approximation of the latter approaches in favour of the approach of the German Highest Courts. Such development is welcome, not only because it is in line with the principles established by the ECtHR and thus provides for a uniform standard of protection of fundamental rights within the EU, but also because of the existing lack of a hierarchy of the respective fundamental rights concerned which, as a consequence and matter of principle, obstructs the presumption of supremacy of one over the other.
artificial intelligence, GDPR, digital humanism, rule of law, human dignity, constitutionalism
Cross-Border Data Flows: An Evolving Multi-Layered Regulatory Approach Required!
Authors: Walters Robert 
Published: May 2022

This article will discuss the increasing importance of the multi-layered approach that personal data is taking in transnational cross-border data flows. It examines the role personal data plays in the evolving digital economy. The article will address a further accentuating question as to how far, if at all, the cross-border data flows are being considered in the area of national security. Throughout the outbreak of coronavirus, technology has been used by nation states to trace and collect health data of its citizens, in the interest of the broader national interest/security of individual states. Some states in developing the technology to track and trace their citizens went one step further and established bilateral agreements to share some of the data, such as Australia and Singapore. What emerged, was the evolving complex layers regulating while enabling data flows. The dichotomy facing governments and regulators is to allow for the free flow of personal data, while ensuring data subjects do not relinquish their privacy. To achieve this, I propose a Theory Of Action (TOA). Such an approach is widely accepted in other industry sectors where governments regulated a minimum standard, such as primary, human health and food production.
Cross-Border Data Flows, Data Transfers, Digital Economy, National Security, Trade in Data
Australia-China Dispute Over Barley Trade at the WTO: Challenges Ahead and Possible Outcomes for Australia
Authors: Islam M. Rafiqul , Zaman Khorsed 
Published: May 2022

In mid-December 2020, Australia sought WTO intervention in its dispute over Chinese anti-dumping duties on its barley export. Upon a critical analysis of the relevant applicable provisions of the WTO Dispute Settlement Understanding (DSU), the potential challenges ahead and likely outcome for Australia, this article argues that the dispute is unlikely to be resolved expeditiously and in favour of Australia due to several caveats and contradictions in the DSU, which seemingly favour China more than Australia. Even if Australia prevails and the outcome of its lamb meat dispute with the US is any guide, the prospect of a procrastinated implementation of the outcome may not be gainsaid. Australia will be the ultimate loser at least in the substantial part, if not the full five-year tenure, of the imposed anti-dumping restriction on its barley imports in China. The article concludes that resort to the WTO by Australia appears to be as difficult as its diplomatic pursuit to resolve this barley trade impasse. Nonetheless, a bilaterally negotiated settlement may be a more palatable option for Australia than any legalistic intervention by the WTO. Highlighting the cracks of the DSU, the article reinforces the urgency of long overdue reforms of the DSU.
Australia-China Barley Dispute, Anti-dumping, WTO Dispute Settlement, DSU Reform
Transfer Pricing and Business Restructuring in the Manufacturing Industry: A Study of Korean and Indonesian MNEs
Authors: Rosdina Haula , Tambunan Maria R.U.D. 
Published: May 2022

This research considers business restructuring and transfer pricing behaviour of Korean principal multinational manufacturers and Indonesian subsidiary manufacturers by applying the polycorporate network of Gunther Teubner’s view of hybrid relational contracts. Under this view, the agent acts in its own interest, but at the same time it attaches and performs its business on its duty and loyalty to its principal. Korean multinational firms create a transaction price with their subsidiaries that in most cases is based on non-market prices. On the other hand, Indonesian subsidiaries act less independently in most of their business activities, and the decisions taken are highly depend on their principal. Regarding the transfer pricing issue, it shows that the common disputes of both types of manufacturer are quite similar; payments for the use of intangible property and the technical aspects of assessing the arm’s length nature of the price, such as the use of comparables, the most appropriate method to assess comparability and the proof of economic benefit arising from the transaction performed. The differences between the two types of business entities concern the ability to bear the business risk in light of their manufacturing characteristics.
transfer pricing, business restructuring, polycorporate network, international tax, supply chain
The WTO’s Collapsing Judicial and Legislative Wings: Is ‘Consensus’ the Real Elephant in the Room?
Authors: Bahri Amrita , Boklan Daria 
Published: May 2022

The World Trade Organization (WTO) has three main functions: (i) it provides a negotiation forum where Members can negotiate new agreements and understandings, (ii) it provides a judicial forum where trade disputes between countries can be settled, and (iii) it acts as an executive forum for the administration and application of the WTO agreements, including capacity-building and training in this respect. Currently, it is only performing its executive function, as the other two functions remain stalled. The authors in this article analyse two challenges that have contributed to paralysing the WTO’s legislative and judicial functions. With this assessment, the authors suggest that the ‘real elephant in the room’, i.e., the root-cause behind these challenges, is the avoidable ‘consensus-based decision-making’.
World Trade Organization, National Security Exception, Appellate Body, Consensus, Decision-Making
Promoting Circularity in Transition Economies: The Role of Trade and Economic Cooperation
Authors: Tuerk Elisabeth , Sporysheva Nadezhda 
Published: May 2022

In a global economy, interconnected through international and regional value chains, there are strong links between international trade and circular economy. During the post COVID-19 recovery phase, it is particularly important to make circular economy and trade policies mutually supportive. This paper provides novel evidence on how trade and economic integration has a potential to contribute to shifting to the circular economy in the transition economies of the Eurasian region. While being significantly dependent on finite resources, this region has a big potential of transitioning to more sustainable approaches. The region has strong regional links and is actively involved in liberalizing trade at the multilateral level through acceding to the World Trade Organization (WTO), which entails undergoing significant reforms, and thus constitutes an opportunity for shifting to circular economy principles.
Circular economy, trade, UNECE, WTO, Eurasian region, transition economies, UN SDGs, post COVID-19 recovery, sustainability
Meeting the Challenges of Customs Compliance in a Post TFTEA and Reinvigorated Trade Enforcement Environment: Go Beyond by Returning to Basics
Authors: Bell Sandra L. , Anene Amadi 
Published: May 2022

In the international trade environment, basic import issues have always presented challenges for customs compliance because each import issue represents a distinct custom law discipline. For importers into the US, compounding the pre-existing challenges are the enhanced enforcement tools enacted in 2016 under the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), which is now being fully implemented by US Customs and Border Protection. Through self-assessment questions, this article examines how companies may use trade compliance risk assessment to confront these increased customs compliance challenges in a reinvigorated US trade enforcement paradigm.
Transaction value, Tariffs, Penalty, EAPA, Country of origin, WRO, Prior Disclosure, Trade compliance, Importer, Risk assessment
The COVID-19 Pandemics’ Impact on Customs Valuation and Import Duties: An Israel Perspective, and a Wider Comparison
Authors: Wagner Omer 
Published: May 2022

In the past year, due to the Coronavirus disease 2019 (COVID-19), sea freight prices and domestic transportation costs have risen sharply, an increase that has not been seen for many years. This leads to a change in customs valuation. In most countries worldwide, collection of duties is based on the cost, insurance and freight (CIF) value of goods, there, any increase in transportation costs, lead to additional collection of import duties. The United States, Canada, Australia, New Zealand and South Africa, however, impose duties on the free on board (FOB) value of goods, meaning, therefore, transport costs changes do not lead to additional import duties in those countries. COVID-19 effects on transportation costs are a global issue and may last for a long time. Therefore, governments that impose customs on the CIF value, should consider waiving the COVID-19 extra shipping costs, for customs valuation purposes, until we are back to a ‘normal’ period.
customs, valuation, transport, Incoterms, CIF, FOB, covid19, Israel
‘Shaken Not Stirred’: WTO as a Ground for Plurilateral Initiatives
Authors: Biryukova Olga 
Published: May 2022

The negotiation work of the WTO is in the grip of the requirement that decision-making take place by consensus among all 164 members. At the same time, the shift in the political economy of trade negotiations towards plurilateralism is becoming increasingly evident. This begs the question of the perspectives of joint statement initiatives (JSI) on services domestic regulation, investment facilitation and e-commerce. This article discusses how to give legal effect to the negotiation outcomes in the WTO, with a particular focus on plurilateral initiatives. The need for additional ‘flexibilities’ that expand the ways to include plurilateral outcomes in WTO law is now more urgent than ever. At the same time, if plurilateralism is to be effective and sustainable, it must be linked to multilateral principles and norms.
WTO, plurilateral outcomes, joint statement initiatives, trade rules, consensus
Dual Use Items: A Whole New Export Regulation in the European Union
Authors: Fruscione Alessandro 
Published: May 2022

On 9 September 2021, Regulation (EU) no. 821/2021, of the European Parliament and of the Council, of 20 May 2021, relating to the control of exports, brokering, technical assistance, transit and transfer of dual-use items, i.e., all those products, including software and technologies, which can be used for both civil and military purposes, came into effect. The new Regulation has as its main objective (see in particular ‘Whereas (5)’ in the preamble to the Regulation) that of making the common system for the control of exports of dual-use items even more effective, to ensure compliance with the commitments and responsibilities of the Member States and of the Union, particularly in the fields of non-proliferation, regional peace, security and stability and respect for human rights and international humanitarian law. For these purposes, the definitions of ‘dual-use products’ and ‘exporter’ have been expanded and, moreover, a specific Article (8) is dedicated to the issue of technical assistance, which in the previous Regulation (428/2009) was covered exclusively in certain explanatory notes in the Annexes. The changes in this Regulation also concern the authorizations for the export from the European Union of ‘dual-use’ goods: a whole new ‘large project authorization’ (Article 2 (14) of the Regulation) has been created, which consists of an individual export authorization or a global export authorization granted to one specific exporter for a type or category of dual-use items, which may be valid for exports to one or more specific end-users in one or more specified third countries for the purpose of a specified large-scale project. This permission can relate to intra-group technology transfers and cryptography. Also with regard to the procedures for the export of dual-use items, the European Union decided to make use of the ‘Internal Compliance Programmes’, already present in other legislative sectors of the Union.
Dual use export controls, authorizations, civil, military, technologies, compliance, exportation, controls, Regulation
The EU-UK Investment Regime After Brexit: In Search of an Equilibrium?
Authors: A. Barr Noah 
Published: May 2022

On 30 December 2020, after eight months of negotiations, the European Union (EU) and the United Kingdom (UK) signed the EU-UK Trade and Cooperation Agreement (TCA). The TCA governs their relationship after Brexit and was provisionally applied from 1 January 2021 until its entry into force on 1 May 2021. It provides for inter alia free trade in goods, limited mutual market access in services, and investment protection. Given the ‘radical shift’ in investment protection at EU level, which materialized in its most recent free trade agreements, foreign investors may have expected clarity as to what type of investment protection would apply post Brexit. This article analyses the investment provisions of the TCA and argues that the UK has embraced the EU ‘new-generation’ approach to international investment protection, by preserving the right to regulate and redefining investment standards and dispute settlement mechanisms. Nevertheless, the TCA remains silent regarding bilateral investment treaties (BITs) between the UK and Member States (former intra-EU BITs), which contain old-generation investment provisions. While some have argued that these BITs may provide the UK with a distinct advantage to structure investments in the EU, their validity remains uncertain, which may potentially generate friction in the EU-UK relations.
Brexit, international investment arbitration, WTO dispute settlement system, state-to-state disputes
Improving Trade Competitiveness Through a Risk-based Approach: Post-clearance Audits in Bangladesh Customs
Authors: Alam Shawkat , Uddin Ahammad Saif 
Published: May 2022

To create new development opportunities in the Global South, developing countries must enable greater trade facilitation with the global economy. Customs officials, who are at the front line and act as gatekeepers for market access, must often balance competing priorities between ensuring regulatory compliance and efficient processing of a high volume of consignments and goods. Currently, customs processes in developing countries often act as bottlenecks in the global supply chain which create undue costs for exporters and traders, yet these countries must also tackle the growing problem of illegal or unlawful trade. Post-clearance audits (PCAs) provide an effective risk management technique that can be used in conjunction with automated risk-based selectivity. This approach provides a holistic, risk management approach to customs processing. PCAs can also assist customs to promote an expedited release of goods without compromising the control of high-risk consignments. This article examines the weakness and the challenges of implementing PCAs within the domestic regulatory framework of Bangladesh. To achieve this objective, this article has obtained primary evidence from key stakeholders including Bangladesh Customs to develop insight and analysis into implementing PCA into the Bangladeshi regulatory framework. As this article will explore, these challenges include implementing an automated risk-based selectivity approach, online connectivity among relevant agencies, customs-to-customs cooperation, customs-to-business cooperation and developing greater technical capacity through skilling-up the workforce.
Post-clearance Audit, Risk Management, Customs Control, Trade Facilitation, Bangladesh Customs
Is Soft Law Making Hard Law Too Hard?
Authors: Lasinski-Sulecki Krzysztof 
Published: May 2022

Soft laws are created for many reasons to serve various purposes. This article focuses on acts of soft law that are adopted to facilitate the process of applying hard law (or complying with it) and to standardize the understanding of international agreements. In the field of customs law, one can point, for instance, to opinions adopted by the World Customs Organisation. The Organisation for Economic Co-operation and Development (the OECD) Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations and the Commentary to the OECD Model Tax Convention on Income and on Capital are globally recognized examples of the tax arena. The side effects of the application of acts of soft law in the fields of tax law and customs law are presented and analysed. Interpretative problems are observed at the international level, whereas clear-cut side effects often occur domestically.
customs classification – World Customs Organisation (WCO) – double taxation conventions – Organisation for Economic Co-operation and Development (the OECD) – Model OECD – OECD Transfer Pricing Guidelines – OECD Commentary – interpretation
Basics and Practical Overview of VAT Management in the EU: Spotlight on the French Practice a Few Months After the Adoption of the Reverse Charge of VAT on Imports
Authors: Bellescize Gaspard de 
Published: May 2022

Value-Added Tax (hereinafter VAT) is due on importation together with customs duties and other import taxes, including assigned taxes. In France, since 1 January 2022, Customs is no longer in charge of the management and collection of import VAT, which has been transferred to the Treasury Department of the French state. VAT is recoverable under the principle of «tax neutrality». The generalization of the import VAT reverse charge in France (Law n°2019-1479 of 28 December 2019 – Article 181) since 2022 appears to be a welcomed simplification. The import VAT reverse charge is one of the four main arrangements for the management of import VAT settled in the VAT Directive (Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax). French Customs considers that certain French taxes no longer follow the VAT regime. However, this rupture point does not come without legal difficulties.
VAT, customs, import VAT reverse charge
The Lost Precedents of Arbitration
Authors: Ford Cameron 
Published: May 2022

Concerns have been expressed that commercial common law is not developing as it should due to disputes being resolved by confidential international commercial arbitration where the majority of awards are not published, and the resultant lack of precedents. This has contributed to questions of the legitimacy of international commercial arbitration and whether the rule of law is being undermined by the non-publication of awards or by the diversion of disputes to arbitration rather than litigation. This article examines the meaning of precedents in this context and the approximate number being ‘lost’ to international commercial arbitration compared to those made in authoritative common law superior courts of record. It suggests that the number of awards of precedential value (APV) is small compared to the volume of commercial judgments of those courts, and that the perceived loss of precedents does not support either publication of awards nor determination of disputes by courts rather than by tribunals. Precedent might instead be enhanced by a wider right of appeal from awards and by publication of the appeal decisions.
precedent, precedential value, award publication, arbitration appeals, law development, settlement pressures, litigation vs arbitration, court reporting, Lindley principles, rule of law
Arbitration in Derivatives Contracts
Authors: Leonard Patrick , O’Donnell Hayley 
Published: May 2022

In recent years, the International Swaps and Derivatives Association (ISDA) has increasingly facilitated the use of arbitration as a means of resolving disputes arising out of derivatives transactions. Although the financial services industry is said to have traditionally preferred court-based dispute resolution, a number of factors suggest that market participants ought to consider the particular advantages of arbitration for such disputes. In particular, factors such as the ability of arbitration to mitigate enforcement risks in the absence of the mutual recognition of judgments and to deal with competing regulatory standards both in European and international derivatives suggest that arbitration should play an important role in the resolution of such disputes.
This article reviews the history of arbitration in derivatives disputes and considers the recent moves by ISDA to facilitate the use of arbitration as a means of dispute resolution. It also considers the various options now available in this regard to market participants who seek to use ISDA standard form documentation, and the factors affecting the use of arbitration as a dispute resolution mechanism. It concludes that more research and data is required to monitor the use of arbitration in this area.
Arbitration – arbitral rules and institutions – ISDA – Derivatives – financial services – arbitral award, recognition and enforcement – enforcement – choice of law