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Article

Access_open The Singapore International Commercial Court: The Future of Litigation?

Journal Erasmus Law Review, Issue 1 2019
Keywords international commercial court, Singapore, dispute resolution, litigation
Authors Man Yip
AbstractAuthor's information

    The Singapore International Commercial Court (‘SICC’) was launched on 5 January 2015, at the Opening of Legal Year held at the Singapore Supreme Court. What prompted the creation of SICC? How is the SICC model of litigation different from litigation in the Singapore High Court? What is the SICC’s track record and what does it tell us about its future? This article seeks to answer these questions at greater depth than existing literature. Importantly, it examines these questions from the angle of reimagining access of justice for litigants embroiled in international commercial disputes. It argues that the SICC’s enduring contribution to improving access to justice is that it helps to change our frame of reference for international commercial litigation. Hybridisation, internationalisation, and party autonomy, the underpinning values of the SICC, are likely to be the values of the future of dispute resolution. International commercial dispute resolution frameworks – typically litigation frameworks – that unduly emphasise national boundaries and formalities need not and should not be the norm. Crucially, the SICC co-opts a refreshing public-private perspective to the resolution of international commercial disputes. It illuminates on the public interest element of the resolution of such disputes which have for some time fallen into the domain of international commercial arbitration; at the same time, it introduces greater scope for self-determination in international commercial litigation.


Man Yip
BCL (Oxon).
Article

Access_open The Conduit between Technological Change and Regulation

Journal Erasmus Law Review, Issue 3 2018
Keywords technology, socio-technological change, money, windmill, data
Authors Marta Katarzyna Kołacz and Alberto Quintavalla
AbstractAuthor's information

    This article discusses how the law has approached disparate socio-technological innovations over the centuries. Precisely, the primary concern of this paper is to investigate the timing of regulatory intervention. To do so, the article makes a selection of particular innovations connected with money, windmills and data storage devices, and analyses them from a historical perspective. The individual insights from the selected innovations should yield a more systematic view on regulation and technological innovations. The result is that technological changes may be less momentous, from a regulatory standpoint, than social changes.


Marta Katarzyna Kołacz
Marta Katarzyna Kołacz, Ph.D. Candidate in the Department of Private Law, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.

Alberto Quintavalla
Alberto Quintavalla, LL.M., Ph.D. Candidate in the Rotterdam Institute of Law and Economics, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.
Article

Access_open Legal Legitimacy of Tax Recommendations Delivered by the IMF in the Context of ‘Article IV Consultations’

Journal Erasmus Law Review, Issue 2 2017
Keywords legitimacy, International Monetary Fund (IMF), Article IV Consultations, tax recommendations, global tax governance
Authors Sophia Murillo López
AbstractAuthor's information

    This contribution examines the legal legitimacy of ‘Article IV Consultations’ performed by the IMF as part of its responsibility for surveillance under Article IV of its Articles of Agreement. The analysis focuses on tax recommendations given by the Fund to its member countries in the context of Consultations. This paper determines that these tax recommendations derive from a broad interpretation of the powers and obligations that have been agreed to in the Fund’s Articles of Agreement. Such an interpretation leads to a legitimacy deficit, as member countries of the Fund have not given their state consent to receive recommendations as to which should be the tax policies it should adopt.


Sophia Murillo López
Sophia Murillo López, LL.M, is an external PhD candidate at the Erasmus University Rotterdam and a member of the ‘Fiscal Autonomy and its Boundaries’ research programme.

Arnaud de Graaf
Professor of International Policy and Fiscal Autonomy. The author is on the staff of the Erasmus School of Law (Erasmus University Rotterdam) and the Netherlands Ministry of Finance. His contribution, as guest editor, to this special issue of Erasmus Law Review was undertaken as part of the ESL research program on ‘Fiscal autonomy and its boundaries’.
Article

Access_open The Questionable Legitimacy of the OECD/G20 BEPS Project

Journal Erasmus Law Review, Issue 2 2017
Keywords base erosion and profit shifting, OECD, G20, legitimacy, international tax reform
Authors Sissie Fung
AbstractAuthor's information

    The global financial crisis of 2008 and the following public uproar over offshore tax evasion and corporate aggressive tax planning scandals gave rise to unprecedented international cooperation on tax information exchange and coordination on corporate tax reforms. At the behest of the G20, the OECD developed a comprehensive package of ‘consensus-based’ policy reform measures aimed to curb base erosion and profit shifting (BEPS) by multinationals and to restore fairness and coherence to the international tax system. The legitimacy of the OECD/G20 BEPS Project, however, has been widely challenged. This paper explores the validity of the legitimacy concerns raised by the various stakeholders regarding the OECD/G20 BEPS Project.


Sissie Fung
Ph.D. Candidate at the Erasmus University Rotterdam and independent tax policy consultant to international organisations, including the Asian Development Bank.
Article

Access_open The Peer Review Process of the Global Forum on Transparency and Exchange of Information for Tax Purposes

A Critical Assessment on Authority and Legitimacy

Journal Erasmus Law Review, Issue 2 2017
Keywords Global Forum on Transparency and Exchange of Information, exercise of regulatory authority, due process requirements, peer review reports, legitimacy
Authors Leo E.C. Neve
AbstractAuthor's information

    The Global Forum on transparency and exchange of information for tax purposes has undertaken peer reviews on the implementation of the global standard of exchange of information on request, both from the perspective of formalities available and from the perspective of actual implementation. In the review reports Global Forum advises jurisdictions on required amendments of regulations and practices. With these advices, the Global Forum exercises regulatory authority. The article assesses the legitimacy of the exercise of such authority by the Global Forum and concludes that the exercise of such authority is not legitimate for the reason that the rule of law is abused by preventing jurisdictions to adhere to due process rules.


Leo E.C. Neve
Leo Neve is a doctoral student at the Erasmus School of Law, Rotterdam.
Article

Access_open Legality of the World Bank’s Informal Decisions to Expand into the Tax Field, and Implications of These Decisions for Its Legitimacy

Journal Erasmus Law Review, Issue 2 2017
Keywords World Bank, legality, legitimacy, global tax governance, tax policy and tax administration reforms
Authors Uyanga Berkel-Dorlig
AbstractAuthor's information

    The emergence of global tax governance was triggered by common tax problems, which are now still being faced by international society of nation-states. In the creation of this framework, international institutions have been playing a major role. One of these institutions is the World Bank (Bank). However, those who write about the virtues and vices of the main creators of the framework usually disregard the Bank. This article, therefore, argues that this disregard is not justified because the Bank has also been playing a prominent role. Since two informal decisions taken in the past have contributed to this position of the Bank, the article gives in addition to it answers to the following two related questions: whether these informal decisions of the Bank were legal and if so, what implications, if any, they have for the Bank’s legitimacy.


Uyanga Berkel-Dorlig
Ph.D. candidate in the Department of Tax Law, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.
Article

Access_open Evaluating BEPS

Journal Erasmus Law Review, Issue 1 2017
Keywords tax avoidance, tax evasion, benefits principle
Authors Reuven S. Avi-Yonah and Haiyan Xu
AbstractAuthor's information

    This article evaluates the recently completed Base Erosion and Profit Shifting (BEPS) project of the G20 and OECD and offers some alternatives for reform.


Reuven S. Avi-Yonah
Reuven Avi-Yonah is Irwin I. Cohn Professor of Law, the University of Michigan.

Haiyan Xu
Haiyan Xu is Professor of Law, University of International Business & Economics, Beijing; SJD candidate, the University of Michigan.

    The OECD BEPS Action 6 report contains a principal purpose test rule (PPT rule) for the purpose of combating abuse of tax treaties. This PPT rule is also included in the OECD Multilateral Instrument.
    The PPT rule is (amongst others) applicable when ‘it is reasonable to conclude’ that a benefit (granted by a tax treaty) was one of the principal purposes of any arrangement/transaction. This requirement contains two elements: the reasonableness test and the principal purpose test.
    In literature it is observed that (i) the reasonableness test of the PPT rule could be contrary to the European Union’s principle of legal certainty; (ii) that the OECD PPT rule gives the tax authorities too much discretion and, therefore, is not in line with EU law and (iii) there is doubt whether the OECD PPT rule contains a genuine economic activity test and therefore is in contravention of the abuse of law case law of the CJEU.
    In this contribution, I defend that none of the above-mentioned reasons the OECD PPT rule is contrary to EU law. The only potential problem I see is that the OECD PPT rule is broader (no artificiality required) compared to the GAARs in Anti-Tax Avoidance Directive and the Parent–Subsidiary Directive.


Dennis Weber
Dennis Weber is a professor of European corporate tax law at the University of Amsterdam and director and founder of the Amsterdam Centre for Tax Law (ACTL).
Article

Access_open The Integrity of the Tax System after BEPS: A Shared Responsibility

Journal Erasmus Law Review, Issue 1 2017
Keywords flawed legislation, tax privileges, tax planning, corporate social responsibility, tax professionals
Authors Hans Gribnau
AbstractAuthor's information

    The international tax system is the result of the interaction of different actors who share the responsibility for its integrity. States and multinational corporations both enjoy to a certain extent freedom of choice with regard to their tax behaviour – which entails moral responsibility. Making, interpreting and using tax rules therefore is inevitably a matter of exercising responsibility. Both should abstain from viewing tax laws as a bunch of technical rules to be used as a tool without any intrinsic moral or legal value. States bear primary responsibility for the integrity of the international tax system. They should become more reticent in their use of tax as regulatory instrument – competing with one another for multinationals’ investment. They should also act more responsibly by cooperating to make better rules to prevent aggressive tax planning, which entails a shift in tax payments from very expert taxpayers to other taxpayers. Here, the distributive justice of the tax system and a level playing field should be guaranteed. Multinationals should abstain from putting pressure on states and lobbying for favourable tax rules that disproportionally affect other taxpayers – SMEs and individual taxpayers alike. Multinationals and their tax advisers should avoid irresponsible conduct by not aiming to pay a minimalist amount of (corporate income) taxes – merely staying within the boundaries of the letter of the law. Especially CSR-corporations should assume the responsibility for the integrity of the tax system.


Hans Gribnau
Professor of Tax Law, Fiscal Institute and the Center for Company Law, Tilburg University; Professor of Tax Law, Leiden University, The Netherlands.
Article

Access_open Post-BEPS Tax Advisory and Tax Structuring from a Tax Practitioner’s View

Journal Erasmus Law Review, Issue 1 2017
Keywords BEPS, value creation, tax structuring, international taxation
Authors Paul Lankhorst and Harmen van Dam
AbstractAuthor's information

    The international tax landscape is changing and it is changing fast. The political perception is that taxation of multinational enterprises is not aligned with the ‘economic activity’ that produces their profits (i.e. not aligned with ‘value creation’). The perception links ‘value creation’ with ‘employees and sales’.
    In the BEPS Project of the OECD, the OECD attempts to combat base erosion and profit shifting and to align taxation with value creation. In this article, the authors discuss the impact they expect BEPS to have on tax advisory and tax planning. The focus goes to BEPS Actions 7, 8-10 and 13.
    By maintaining the separate entity approach under BEPS for the taxation of multinationals, has the OECD been forced to ‘stretch’ existing rules beyond their limits? Will the created uncertainty lead to a shift from ‘aggressive tax planning’ by multinationals to ‘aggressive tax collection’ by tax administrations? Will the role of tax advisory change from advising on the lowest possible effective tax rate to a broader advice including risk appetite and public expectations?


Paul Lankhorst
Paul Lankhorst, MSc LLM, is tax adviser at Loyens & Loeff.

Harmen van Dam
Harmen van Dam, LLM, is tax partner at Loyens & Loeff.
Article

Access_open Corporate Taxation and BEPS: A Fair Slice for Developing Countries?

Journal Erasmus Law Review, Issue 1 2017
Keywords Fairness, international tax, legitimacy, BEPS, developing countries
Authors Irene Burgers and Irma Mosquera
AbstractAuthor's information

    The aim of this article is to examine the differences in perception of ‘fairness’ between developing and developed countries, which influence developing countries’ willingness to embrace the Base Erosion and Profit Shifting (BEPS) proposals and to recommend as to how to overcome these differences. The article provides an introduction to the background of the OECD’s BEPS initiatives (Action Plan, Low Income Countries Report, Multilateral Framework, Inclusive Framework) and the concerns of developing countries about their ability to implement BEPS (Section 1); a non-exhaustive overview of the shortcomings of the BEPS Project and its Action Plan in respect of developing countries (Section 2); arguments on why developing countries might perceive fairness in relation to corporate income taxes differently from developed countries (Section 3); and recommendations for international organisations, governments and academic researchers on where fairness in respect of developing countries should be more properly addressed (Section 4).


Irene Burgers
Irene Burgers is Professor of International and European Tax Law, Faculty of Law, and Professor of Economics of Taxation, Faculty of Business and Economics, University of Groningen.

Irma Mosquera
Irma Mosquera, Ph.D. is Senior Research Associate at the International Bureau of Fiscal Documentation IBFD and Tax Adviser Hamelink & Van den Tooren.

Maarten Floris de Wilde
PhD, LLM, Erasmus University Rotterdam and Loyens & Loeff.
Article

Access_open The Categorisation of Tax Jurisdictions in Comparative Tax Law Research

Journal Erasmus Law Review, Issue 4 2016
Keywords Classification of jurisdictions, international comparative tax law, tax law methodology
Authors Renate Buijze
AbstractAuthor's information

    The number of comparative tax law studies is substantial. The available literature on the methodology behind these tax comparisons, however, is rather limited and underdeveloped. This article aims to contribute to the theoretical background of tax comparisons by explicating methodological considerations in a comparative tax research on tax incentives for cross-border donations and relating it to the available methodological literature. Two aspects of tax law make comparative research in tax law a challenging endeavour: its complexity and fast-changing nature. To overcome these issues, this article proposes to divide jurisdictions into a limited number of categories. In this process the different legal levels are analysed systematically, resulting in categories of jurisdictions. Among the jurisdictions in one category, common characteristics are identified. This results in an abstract description of the category. I use the term ‘ideal types’ for these categories. The high level of abstraction in the use of ideal types allows for comparison of tax jurisdictions, without the risk that the comparison gets outdated. An additional advantage of working with ideal types is that the conclusions of the comparison can be applied to all jurisdictions that fit in the ideal type. This increases the generalisability of the conclusions of the comparative tax research.


Renate Buijze
PhD candidate at the Erasmus University Rotterdam. Email: buijze@law.eur.nl.
Article

Access_open Austerity’s Effect on English Civil Justice

Journal Erasmus Law Review, Issue 4 2015
Keywords Austerity, court fees and legal aid, adversarial and inquisitorial process, McKenzie Friends, simplified process
Authors John Sorabji
AbstractAuthor's information

    This article considers the effect of austerity-induced public spending cuts on the English civil justice system. In doing so it initially examines two fundamental changes engendered by the effect austerity has had on civil court fees and legal aid: first, a challenge to the traditional commitment in English procedure to adversarial process, and a concomitant increase in inquisitorial or investigative processes; and secondly, the growth in use of unqualified individuals to act as advocates in court for individual litigants who are unable to afford legal representation. It then turns to consider what, if any, effect austerity has had on simplified processes available in English civil procedure.


John Sorabji
DPhil, Senior Fellow, UCL Judicial Institute, University College, London, email: j.sorabji@ucl.ac.uk.

Willem H. van Boom
Prof dr. Willem van Boom is a professor of law. As of August 2014, he holds tenure at Leiden Law School.

Prof. Arnaud de Graaf
Erasmus School of Law, Erasmus University Rotterdam.

Prof. dr. Klaus Heine
Erasmus School of Law, Tax Law Department, Erasmus University Rotterdam.
Article

Access_open The Economics and Empirics of Tax Competition: A Survey and Lessons for the EU

Journal Erasmus Law Review, Issue 1 2014
Keywords tax competition, tax coordination, European Union, fiscal federalism
Authors Thushyanthan Baskaran Ph.D. and Mariana Lopes da Fonseca
AbstractAuthor's information

    We survey the theoretical and empirical literature on local and international tax competition in Economics. On the basis of this survey, we discuss whether EU countries should harmonise tax policies to prevent a race to the bottom. Much of the evidence suggests that tax competition does not lead to significant reductions in tax revenues. Therefore, we conclude that tax coordination is in all likelihood unnecessary to prevent inefficiently low levels of taxation in the EU. But since the evidence against the adverse effects of tax competition is not unambiguous, we also discuss whether intergovernmental transfers might be a less invasive means than outright tax harmonisation to prevent a race to the bottom.


Thushyanthan Baskaran Ph.D.
University of Goettingen, Germany.

Mariana Lopes da Fonseca
University of Goettingen, Germany.
Article

Access_open Tax Competition within the European Union – Is the CCCTB Directive a Solution?

Journal Erasmus Law Review, Issue 1 2014
Keywords tax competition, tax planning, European Union, Common Consolidated Corporate Tax Base, factor manipulation
Authors Maarten de Wilde LL.M
AbstractAuthor's information

    The author addresses the phenomenon of taxable profit-shifting operations undertaken by multinationals in response to countries competing for corporate tax bases within the European Union. The central question is whether this might be a relic of the past when the European Commission’s proposal for a Council Directive on a Common Consolidated Corporate Tax Base sees the light of day. Or would the EU-wide corporate tax system provide incentives for multinationals to pursue artificial tax base-shifting practices within the EU, potentially invigorating the risk of undue governmental tax competition responses? The author’s tentative answer on the potential for artificial base shifting and undue tax competition is in the affirmative. Today, the issue of harmful tax competition within the EU seems to have been pushed back as a result of the soft law approaches that were initiated in the late 1990s and early 2000s. But things might change if the CCCTB proposal as currently drafted enters into force. There may be a risk that substantial parts of the EU tax base would instantly become mobile as of that day. As the EU Member States at that time seem to have only a single tool available to respond to this – the tax rate – that may perhaps initiate an undesirable race for the EU tax base, at least theoretically.


Maarten de Wilde LL.M
LL.M, Researcher/lecturer, Erasmus University Rotterdam (<dewilde@law.eur.nl>), lecturer, University of Amsterdam, tax lawyer, Loyens & Loeff NV, Rotterdam, the Netherlands. This article was written as part of the Erasmus School of Law research programme on ‘Fiscal Autonomy and Its Boundaries’. The author wishes to thank the anonymous reviewers for their constructive comments on an earlier draft of this article.
Article

Access_open Company Tax Integration in the European Union during Economic Crisis – Why and How?

Journal Erasmus Law Review, Issue 1 2014
Keywords company tax harmonisation, EU law, Internal Market, taxation policies
Authors Anna Sting LL.M
AbstractAuthor's information

    Company tax integration in the EU is yet to be realised. This article first outlines the main benefits of company tax integration for the Economic and Monetary Union, and also discusses the main legal obstacles the EU Treaties pose for harmonisation of company tax. The main problem identified is the unanimity requirement in the legal basis of Article 115 TFEU. As this requirement is currently not feasible in the political climate of the debt crisis, this article assesses possible reasons for and ways to further fiscal integration. It considers Treaty change, enhanced cooperation, soft law approaches and also indirect harmonisation through the new system of economic governance. Eventually, a possible non-EU option is considered. However, this article recommends making use of the current EU law framework, such as soft law approaches and the system of the new economic governance to achieve a more subtle and less intrusive tax harmonisation, or instead a Treaty change that would legitimately enhance and further economic integration in the field of taxation.


Anna Sting LL.M
PhD Candidate at the Department of International and European Union Law, Erasmus University Rotterdam. The author would like to thank the organisers of the seminar on Company Tax Integration in the European Union, as well as the participants of the seminar of 11 June 2013 for their comments, as well as Prof. Fabian Amtenbrink for comments on an earlier draft of this paper.
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