FID Recht - Bank- / Börsen- / Steuerrecht

Principles without prescription: the limits of discretionary stewardship disclosures

2026-10-19T00:00:00+00:00

Abstract

This study examines stewardship disclosures when institutional investors retain discretion over their content. Disclosure economics, signalling theory, and institutional theory predict that discretionary disclosure frameworks create incentives for investors to provide low-cost symbolic disclosures while underproducing more costly information that identifies genuine stewardship practices. This prediction is tested using a unique dataset of stewardship disclosures by 146 institutional investors operating under Japan’s consistently discretionary stewardship framework. Analysing 438 investor–year observations from 2017, 2021, and 2025, the study finds that stewardship disclosures increased substantially, yet that growth was greater for soft disclosures describing policies and intentions rather than hard disclosures evidencing stewardship infrastructure and activity. The findings suggest that specifying disclosure content is a consequential feature of stewardship regulation.

Institutional dynamics in the production of non-standard derivative terms on the ISDA Framework

2026-10-10T00:00:00+00:00

Abstract

This article examines how non-standard terms are produced in non-cleared OTC derivatives documented on the ISDA Framework. Although ISDA documentation is widely treated as a paradigm of contractual standardization, market participants routinely amend, supplement, replace, and avoid standard terms. The article draws on qualitative interviews with private practice lawyers, in-house counsel, and traders, plus documentary analysis to make two contributions. First, in extending the scholarship on the production of complex financial contracts, the article argues that deviations from standard terms are often deliberate institutional outputs. Second, the granular customization observed in the production process suggests that NC OTC derivatives on the ISDA Framework are better understood as customized instruments despite standardization. The practical implication is that ISDA’s role should evolve from standardizing terms alone to coordinating predictable forms of non-standardization. Through the law and economics insight that private institutions can coordinate the reduction of sub-optimal terms, ISDA’s coordination of non-standardization can proceed without suppressing the flexibility non-standardization provides.

Contractual innovations: the flip clauses (confessions of a Forumshopaholic)

2026-10-10T00:00:00+00:00

Abstract

The choice of governing law and jurisdiction in international sovereign bond contracts has traditionally been anchored in the well-established legal frameworks of New York and England. However, recent legislative proposals in both jurisdictions have prompted market participants to consider alternative governing law options. This article examines a new contractual response: the ‘Flip Clause’, first introduced in the debt restructurings of Suriname (December 2023) and Sri Lanka (December 2024). Flip Clauses grant investors the right to change the governing law and jurisdiction of their bonds to a pre-determined alternative—from New York law to English law, and subsequently to Delaware law—should developments in the originally selected jurisdiction warrant such a change. By embedding this optionality directly within bond structures, these clauses expand the range of available governing law frameworks.A key innovation lies in the clauses’ treatment as a non-reserved matter when initiated by investors, requiring only 20% of holders to trigger a consent solicitation and approval by 66⅔% (or 75% at a quorate meeting); lower than the thresholds applicable to issuer-initiated modifications under standard collective action clauses. This asymmetry provides flexibility for investors while preserving market access for the sovereign. The Flip Clause reflects the sovereign debt market’s capacity for contractual adaptation in response to evolving legislative landscapes, offering a framework that may inform future bond documentation as jurisdictions seek to position themselves as attractive alternatives for sovereign bond issuances.

Digital assets and the problem of floating charges under the UK’s financial collateral regime

2026-10-08T00:00:00+00:00

Abstract

The UK’s financial collateral regime is of great importance to the financial markets, enabling the speedy creation and enforcement of security interests over financial assets, often on a cross-border basis. This brings benefits in terms of liquidity and lower-cost financing for investors, ultimately reducing the cost of capital for the real economy. Many financial assets are actively traded, circulating pools of assets, such as investment portfolios, where the most appropriate form of security under English law is the floating charge. The advent and rapid growth of digital assets expose existing fault lines in the law of financial collateral, which should be addressed in any review of the law in this area. This article proposes an analytical framework based on three interconnected problems: mixed-category portfolio composition, variable patterns of control, and dynamic portfolio adjustment. Applying this framework, the article evaluates the scope of key safeguards for secured creditors and argues that the requirement for ‘control’ of collateral under English law should be reformed.

Whose rules, whose money? Central bank digital currencies and the regulatory architecture of financial inclusion

2026-10-08T00:00:00+00:00

Abstract

This article argues that legal and regulatory design—not technology alone—determines whether retail central bank digital currencies (CBDCs) narrow the structural inequalities that sustain financial exclusion. Drawing on China’s e-CNY, The Bahamas, Nigeria, Jamaica, and the European Union’s digital euro project, it identifies three interdependent regulatory levers: tiered know-your-customer/anti-money-laundering rules permitting low-value access under tight caps; domestic interoperability across CBDC providers, banks, and cash grounded in open standards; and robust offline capability with statutory settlement irrevocability. Cross-country evidence shows that legal-tender status alone does not sustain adoption; what matters is user value delivered through seamless interoperability, transparent fees, and frictionless cash-in and cash-out at par. This article translates these findings into enforceable interoperability duties, proportionate merchant-fee frameworks, and offline-specific settlement rules. It concludes that CBDCs advance inclusion only when tiering, interoperability, and offline functionality are integrated as a coherent legal package—and that absent such coherence, ostensibly inclusive instruments risk reproducing the exclusion they claim to address.

Whither central clearing counterparties? Counterparty risk in stablecoin-based securities settlement

2026-10-07T00:00:00+00:00

Abstract

Recent research suggests that distributed ledger technologies (DLTs) could mitigate counterparty credit risk by enabling atomic settlement and potentially reducing reliance on central clearing counterparties (CCPs). This article offers a critical perspective on that proposition. While DLT-based securities settlement can ensure accuracy for assets already recorded on chain, participants remain exposed to the redemption counterparty risk—stablecoins and other digital tokens may not be adequately backed by real-world assets. This article examines a range of policy responses to these challenges. First, central bank digital currencies or tokenized equity issued directly by corporations can address redemption counterparty risk because they exist entirely within the DLT system. In addition, redemption rights, the assignment of super-priority status to claims, and the placement of reserves in bankruptcy-remote entities can strengthen the enforceability of redemption rights. Finally, the article proposes a mutualized redemption-liquidity facility that would provide capped, prefunded advances to token holders during temporary interruptions in access to reserve assets, while allocating any ultimate deficiency through an ex ante statutory loss waterfall.

The algorithmic pool: AI-mediated receivables, asset quality, and securitization disclosure

2026-10-07T00:00:00+00:00

Abstract

Receivables entering securitization pools may now be approved, priced, monitored, serviced, or selected by artificial intelligence (AI) credit models. Existing securitization law expects investors to assess asset quality through credit-granting standards, exposure-level data, risk retention, transaction documents, and continuing due diligence. That framework remains necessary, but it does not fully capture how model-mediated receivables acquire their risk profile. Where AI materially shapes the receivables backing the notes, model risk is not merely an internal technology issue. It is asset-quality information. Disclosure need not include source code, confidential weights, or complete training datasets. It should identify model function, validation, data provenance, drift monitoring, human oversight, material changes, outsourcing dependence, and any role in servicing or pool selection. The Model-Risk Disclosure Protocol developed here translates AI governance into capital-markets disclosure and connects it to due diligence, prospectus materiality, and transaction documentation. The article moves algorithmic credit analysis beyond borrower-facing rights and places model governance within securitization disclosure and investor protection.

Synthetic equity, hidden ownership and the limits of beneficial ownership disclosure after Archegos

2026-09-09T00:00:00+00:00

Abstract

In classical corporate law, the share integrates governance power with residual economic exposure, ensuring that those who exercise control bear the financial consequences of their decisions. Financial innovation, particularly derivatives and synthetic equity instruments, has increasingly separated these elements, enabling investors to accumulate substantial economic exposure without formal ownership or disclosure. A central manifestation of this development is hidden ownership through total return swaps, which replicate the economics of equity while falling outside conventional ownership-based disclosure obligations. This article examines hidden ownership through the collapse of Archegos Capital Management, which used total return swaps to build concentrated synthetic positions without triggering beneficial ownership disclosure obligations under section 13(d) of the Securities Exchange Act. The article makes three contributions. First, it applies decoupling theory through total return swap mechanics and family-office exclusions, demonstrating how US disclosure rules permit the undisclosed accumulation of significant synthetic exposure through overlapping forms of opacity: instrument opacity, counterparty opacity, and entity opacity. Second, it reconceptualizes Archegos as evidence of a structural flaw in a disclosure regime that relies on voting or investment power as the principal proxy for beneficial ownership while failing to capture economically significant synthetic positions. Third, it critically examines the regulatory challenges posed by equity decoupling and hidden ownership, evaluating why existing and proposed reforms, including the SEC’s 2025 withdrawal of proposed Rule 10B-1 and the Division of Corporation Finance’s 9 July 2026 interpretations of Rule 13d-3 as applied to cash-settled total return swaps, have left economically significant synthetic positions outside the scope of beneficial ownership reporting. Drawing on comparative insights from European regulatory frameworks, this article proposes a dual-threshold disclosure approach that distinguishes between governance-related public disclosure and confidential systemic-risk reporting.

Digital euro: opportunities and risks in the proposal to improve the EU’s central bank money

2026-09-09T00:00:00+00:00

Abstract

The digital euro, currently under development by the European Central Bank, is a central bank digital currency project with significant ethical implications. This article critically assesses the digital euro through the lens of five core values: privacy, financial inclusion, ownership, digital sovereignty, and global interoperability. Drawing on comparisons with ten international CBDC initiatives, we explore both the opportunities the digital euro presents—such as reducing reliance on commercial banks and enhancing access to public money—and the systemic risks it introduces, including surveillance, centralization of financial power, and disruption of the traditional banking sector. Rather than offering purely technical analysis, the article positions the digital euro as a political and ethical choice, with implications for the future structure, values, and control of the European financial system in the digital age.

Cyber incidents as inside information: ad hoc disclosure between DORA incident reporting and the SEC’s materiality regime

2026-09-02T00:00:00+00:00

Abstract

Cyber incidents have become the paradigmatic stress test for event-driven disclosure in capital markets law. Since 5 June 2026, the recalibrated Article 17 of the EU Market Abuse Regulation confines the ad hoc disclosure duty in protracted processes to the final event, while the Digital Operational Resilience Act subjects financial entities to a confidential supervisory reporting cadence of 4 hours, 72 hours and 1 month, and the US Securities and Exchange Commission requires domestic registrants to disclose on Form 8-K within 4 business days of a materiality determination, while foreign private issuers furnish incident disclosure on Form 6-K keyed to their home-country announcements. This article examines how a single intrusion simultaneously activates these regimes. It argues that cyber incidents invert the familiar Geltl paradigm: an external trigger is followed by an internal process of informational crystallization, which fits awkwardly within a ‘final event’ taxonomy built around issuer-initiated corporate processes. The article identifies the resulting frictions, including asymmetric disclosure clocks, selective information channels towards supervisors and clients, the hostile detonation of delayed disclosure by ransomware actors, and a widened ‘dark period’ of undisclosed inside information, and tests them against the CJEU’s 2026 judgments in Carnegie and Brannelius. It concludes with proposals for a cyber-specific final-events taxonomy, recognition of incident containment as a legitimate interest, a bounded security valve modelled on Article 17(5) MAR, and a market-relevance bridge in DORA incident reporting.

Corporate finance from start-up to IPO: filling the gap in the Savings and Investment Union

2026-08-12T00:00:00+00:00

Abstract

The European Union (EU) lacks proper financing for start-ups. The main reason is a lack of equity capital during the crucial timespan between the initiation of the enterprise and the moment it goes public. One of the most likely providers of such capital is business angels and venture capitalists, who are sophisticated investors with professional knowledge and the ability to sustain losses. However, current EU law does not offer favourable rules that would allow start-ups to solicit these investors. In contrast, the United States of America (USA) has a well-established legal framework guiding start-ups on how to solicit business angels, which has been met with some success. We discuss in this article EU and US approaches to regulating start-up solicitations of accredited and qualified investors with the aim of encouraging the EU to consider alternatives to its current regulatory approach. In addition, we offer recommendations for improving start-up capital formation in both jurisdictions. We make concrete proposals that may open up the financial market to more business angel and venture capital financing. In an act of realpolitik, the EU can seize this opportunity for reform by establishing a Union-wide safe harbour for the private offerings of start-up shares.

A scandal in Bohemia—the perils of incestuous sovereign repos†

2026-07-29T00:00:00+00:00

Abstract

Desperate times invite desperate measures. Sovereign borrowers facing liquidity challenges or looming debt crises are exquisitely vulnerable to Hail Mary transaction proposals that promise to delay the commencement of a debt restructuring or at least obscure the true state of the country’s financial predicament. The problem with these financial transactions—often launched on the cusp of a sovereign debt crisis—is that while they may bring short-term benefits, they often do so at ruinous cost and risk. In this article, we examine an increasingly popular variant of the Hail Mary transaction, the sovereign repo.

The class 1 regime in the prudential framework for investment firms: ‘on the road to IFR, I lost my way’

2026-07-15T00:00:00+00:00

Abstract

The Investment Firm Regulation (IFR) and Investment Firm Directive (IFD), adopted in 2019, introduced a new prudential framework for investment firms in the European Union, separating them from the banking prudential rules previously deemed overly complex and disproportionate. A central element of this framework is the ‘class 1 regime’, which subjects the largest and most significant investment firms to the banking prudential rules of the Capital Requirements Regulation and Capital Requirements Directive. This article argues that the class 1 regime, as ultimately enacted, departs substantially from the doctrinal foundation developed by the European Banking Authority (EBA) between 2015 and 2017, which envisaged a carefully delimited group of systemically important and genuinely ‘bank-like’ firms identified through (initial) qualitative and quantitative criteria. The Commission’s legislative proposal reduced class 1 identification to a purely activities-based and balance sheet size-based criterion, and subsequent Trilogue negotiations further lowered the relevant thresholds, capturing a broader and more heterogeneous population of firms than originally intended. The 2025 Technical Advice of the EBA and the European Securities and Markets Authority (ESMA), responding to a 2023 Commission call for advice on the IFR/IFD review, recommends only incremental adjustments (notably extending the discretionary supervisory assessment currently applicable to class 1b firms to the class 1a sub-category) while side-stepping the fundamental analysis the regime requires. This article critiques this approach and proposes that the class 1 identification criteria be reconstructed around a holistic ‘significance assessment’ incorporating systemic importance, interconnectedness, complexity, and bank-likeness. Additionally, it suggests that a macroprudential perspective be developed for firms that do not meet individual significance thresholds but may collectively contribute to systemic risk.

Finance and product markets

2026-07-14T00:00:00+00:00

The nature of product market competition and its influence on firms’ decisions have a long history in economics. Competition was discussed by Adam Smith in The Wealth of Nations. George Stigler received the Nobel Prize in 1982 for his seminal studies of industrial structure, the functioning of markets, and the causes and effects of public regulation. This long-standing interest stems from a simple fact: firms do not operate in isolation but interact within product markets. These interactions delineate the boundaries of markets, shape market dynamics, and determine the resulting intensity of competition. Inspired by these ideas, finance scholars have increasingly recognized and integrated the relevance of product market interactions when studying firms’ decisions and outcomes. This integration has broadened the scope of finance by linking firms’ financial policies to the strategic environment in which they sell products, compete with rivals, and respond to changes in market structure.

Non-compete agreements and labor allocation across product markets

2026-03-16T00:00:00+00:00

Abstract

I analyze the effect of non-compete agreements (NCAs) on the allocation of inventors across product markets. NCAs constrain the within-industry employment choice set of inventors. In a staggered difference-in-differences, I show causal effects that two in hundred inventors per year (increase of 42 percent) respond to more enforceable NCAs by moving to more distant product markets. Across-industry mobility is largest for inventors likely bound by NCAs. Within-industry mobility on the other hand is reduced. Reallocated inventors are subsequently less productive and there is a lower quality match between inventors and their new employers. I highlight how product market choice set constraints can have detrimental effects through reallocation of human capital to more distant product markets.

Competition, complexity, and security design: evidence from retail investment products

2026-03-12T00:00:00+00:00

Abstract

We investigate the role of strategic security design in the market for retail investment products. Focusing on a dominant yet understudied design feature, we provide evidence consistent with issuers’ strategic increase of product complexity to mitigate price competition. Complexity facilitates product differentiation, thereby impairing investors’ ability to compare products. Because more complex products entail greater markups, imply higher tail risk, and are first-order stochastically dominated by simpler products, the empirically observed rise in market complexity increases uncompensated risk-taking, particularly among less sophisticated investors. Overall, our findings indicate that complexity is shaped by issuers’ deliberate design choice to preserve product rents.

Competition and loan contracting

2025-12-08T00:00:00+00:00

Abstract

A theoretical model of the borrower–lender relationship predicts that increased competitive threats lead to a reduction in loan covenant restrictiveness that is stronger for groups of borrowers who face constraints to their ability to raise external financing or compete in the product market. These predictions arise because competition impacts the dynamics of borrower performance so that lenders must trade off the benefit of controlling agency problems against a heightened cost of lost product market opportunities for the borrower, ultimately lowering the optimal use of covenants. We find strong empirical support for these predictions, highlighting an important role of competition for optimal financial contracting rooted in underlying agency problems.

Venture capitalists versus deep-pocketed incumbents: startup financing strategies in the presence of competitive threats

2025-11-27T00:00:00+00:00

Abstract

We examine how venture capitalists (VCs) adapt their financing strategies when investing in startups that compete against deep-pocketed incumbents. Employing textual analysis to identify a startup’s potential competitors, we show that when competitors are cash-rich, VCs deploy a financing strategy characterized by less conditionality, as observed through larger, less frequent funding rounds that are less contingent on short-term performance. This strategy requires VCs to rely more on continuous monitoring and liquidation protection, and is restricted to larger funds with specialized experience. Our results highlight that product market competition plays an important role in explaining VC financial contracting choices.

Bank market power and incentives for firm creation in innovative industries

2025-10-07T00:00:00+00:00

Abstract

I examine the role of banking competition for transmission of incentives to the creation of innovative firms. Exploiting the 2012 Start-Up Italy Act, designed to foster firm creation through public bank guarantees, I document that the policy increased the creation of innovative firms by 24 percent between 2012 and 2015, but only in provinces where banking competition is stronger. Weaker banking competition leads to less guaranteed lending, fewer venture capital deals and lower leverage for these firms, resulting in higher entrepreneurial migration. The findings suggest that bank market power plays a crucial role in shaping the market for entrepreneurial finance.

Bank specialization and corporate innovation

2025-07-17T00:00:00+00:00

Abstract

Theory offers conflicting predictions on how bank specialization affects corporate innovation. We show that the sign and magnitude of this effect vary with the degree of “asset overhang” across sectors—the risk that new technologies reduce the value of banks’ legacy loan portfolios. Using Belgian innovation survey data and US patent data, we find that lenders’ sectoral specialization enhances innovation for firms operating in sectors with low asset overhang, but hinders innovation in sectors with high asset overhang. These findings are robust to different measures of asset overhang and an identification strategy using bank mergers. We further show that these heterogeneous effects arise through financial contracting. Our findings highlight how product market characteristics shape the role of bank specialization in innovation.

Paying off the competition: contracting, market power, and innovation incentives

2025-06-23T00:00:00+00:00

Abstract

This article explores the relationship between a firm’s legal contracting environment and its innovation incentives. Using granular data from the pharmaceutical industry, we examine a contracting mechanism through which incumbents maintain market power: “pay-for-delay” agreements to delay the market entry of competitors. Exploiting a shock where such contracts become legally tenuous, we find that affected incumbents subsequently increase their innovation activity across a variety of project-level measures. Exploring the nature of this innovation, we also find that it is more “impactful” from a scientific and commercial standpoint. The results provide novel evidence that restricting the contracting space can boost innovation at the firm level. However, at the extensive margin we find a reduction in innovation by new entrants in response to increased competition, suggesting a nuanced effect on aggregate innovation.

Competitiveness as a secondary regulatory objective in the European Union: a necessary complement to financial stability and investor protection

2026-07-09T00:00:00+00:00

Abstract

Competitiveness has moved to the centre of European economic policy, and the competitive strength of the European Union’s (EU) financial system is now the subject of intense debate, from the Draghi report to the central bank governors’ call for a holistic review of regulatory complexity. Yet this debate has so far lacked an operational anchor: a definition of financial competitiveness that is precise, measurable, and internationally comparable. This article fills that gap. It argues that competitiveness should be introduced as a secondary objective in European financial regulation and supervision, not as a rival to prudential soundness and consumer protection, but as their complement: a system that fails to finance the real economy will eventually erode its own stability, just as one that sacrifices resilience for short-term advantage will forfeit competitiveness over time. Building on precedents in the UK, Chile, Singapore, and India, the article develops a framework that turns competitiveness from political rhetoric into an operational mandate. It defines financial competitiveness as a system-level property and operationalizes it through four mutually reinforcing dimensions (financing capacity, profitability and value creation, resilience, and market participation and digital transformation), captured by 28 key performance indicators. The empirical diagnostic exposes deep competitive gaps, including a roughly ten-fold venture capital deficit relative to the USA, persistent banking inefficiency, shallow capital markets, and pronounced heterogeneity across Member States. The article then sets out how competitiveness can be embedded across the EU’s distinctive architecture, distinguishing the roles of the Union legislator, the European Supervisory Authorities, the ECB, and national competent authorities, and defending a bounded supervisory objective that disciplines discretion at the margin without ever displacing the prudential core. Anchored in primary legislation and supported by enhanced impact assessment, benchmarking, and periodic independent review, the proposal reframes financial competitiveness as a macroeconomic lever for closing the EU–US productivity gap.

Status of global ESG and sustainability reporting and ESG legislation—a legal perspective on sustainability disclosure

2026-07-04T00:00:00+00:00

Abstract

This article systematically examines the evolution of environmental, social, and governance (ESG) reporting and ESG standards, tracing their roots from foundational debates on Corporate Social Responsibility (CSR) to contemporary, investment-oriented ESG frameworks. It analyses the goals and differences of ESG and CSR reporting and highlights the increasing juridification of ESG through binding legal frameworks across multiple jurisdictions. In doing so, reporting standards such as those of the Global Reporting Initiative (GRI), the Corporate Sustainability Reporting Directive (CSRD), European Sustainability Reporting Standards (ESRS), and the International Sustainability Standards Board (ISSB) are examined, with a focus on their interoperability. Differences between CSR disclosure and ESG reporting are inspected, emphasizing a dual process: in Europe, the ESG landscape is increasingly shaped by new laws to achieve global climate goals, while sustainability reporting continues to be reinforced by regulations such as the CSRD, which have a global impact. While sustainability disclosure and ESG laws become stricter, ESG reporting—especially in the USA—remains largely voluntary. This article structures and explores the ESG and sustainability legal landscape, providing practical guidance and bridging theoretical frameworks with compliance realities.

Correction to: From Safeguards to Scope: Evaluating Public Health Exclusions from ISDS

2026-06-11T00:00:00+00:00

This is a correction to: Andrew D Mitchell, From Safeguards to Scope: Evaluating Public Health Exclusions from ISDS, ICSID Review - Foreign Investment Law Journal, 2025, siaf027, https://doi.org/10.1093/icsidreview/siaf027

The Model Bilateral Investment Treaty for Bosnia and Herzegovina: A New Generation of Investment Protection Policies

2026-05-21T00:00:00+00:00

More is lost by indecision than by wrong decision.(traditional Bosnian saying—‘Više se gubi neodlučnošću nego pogrešnom odlukom’ in original)

Hong Kong's Role in International Economic Law: Multilateralism, Bilateralism, and Unilateralism Perspectives

2026-05-11T00:00:00+00:00

Julien Chaisse, Hong Kong as an Actor in International Economic Law: Multilateralism, Bilateralism, and Unilateralism (Hart Publishing 2024), ISBN: 9781509968206, US$115.00 (hardback), US$58.95 (paperback)

Smurfit v Venezuela:1 Assessing ICSID’s Post-Denunciation Jurisdiction under Article 72 of the ICSID Convention

2026-03-31T00:00:00+00:00

Double Waiver of Immunity and Ripple Effects

2025-12-08T00:00:00+00:00

Abstract

Should a waiver of immunity from jurisdiction entail a waiver of immunity from enforcement of a judgment debt against a State’s assets? The accepted wisdom in many jurisdictions was that there is no ‘double waiver’; in the context of arbitral awards and foreign judgments, a specific and separate waiver of immunity from enforcement measures is required. The International Court of Justice similarly took the view that any waiver of jurisdictional immunity before a foreign court does not in itself mean that that State has waived its immunity from enforcement against State property situated in foreign territory. This article questions this approach and considers whether the time is ripe to reconsider the ‘double waiver’ principle. From the perspective of principle, the ‘double waiver’ would simplify the enforcement of arbitral awards and better reflect the assumptions of the drafters of key international conventions and domestic laws on immunity. As a policy, the ‘double waiver’ principle would enhance the integrity and predictability of international dispute settlement, including the role of courts in facilitating the arbitral process. As regards practice, a survey of 20 jurisdictions reveals there are a number of States that accept the ‘double waiver’ principle, undermining the assumption that the strict distinction between adjudicative and enforcement jurisdiction is customary international law. The article concludes with reflections on the ripple effects that the wider adoption of the ‘double waiver’ principle may trigger.

Policymaking by Judicial Fiat in the EU

2025-11-22T00:00:00+00:00

Abstract

The CJEU Decisions (as defined in this article) have all but put paid to investment protection by way of international arbitration in an intra-EU context.The import of the CJEU Decisions – as it has been interpreted – has regularly been disallowed by international tribunals, annulment committees and (extra-EU) national courts. Still, such judicial bodies have not had reason to explore the multiple concerns on many levels that are raised by the CJEU Decisions considering their having been tasked with the resolution only of those issue(s) that have been submitted by the parties and which are, additionally, dispositive for their resolution in any given instance. And, as a consequence, it stands to reason that the wealth of commentary that has been generated by the CJEU Decisions has also, by and large, limited itself to discuss the reasoning of the CJEU and of national courts of Member States and international arbitration tribunals.This article seeks to undertake a wider examination of a plurality of aspects of international and private law that are raised by the CJEU Decisions. The conclusion that this examination leads to is that the CJEU Decisions represent pronouncements on the desirable policy – in the Court’s view – on intra-EU investment protection by way of post-factum judicial process, rather than on any disciplined application of principles of international law. By the same token, the article stresses the importance of reserving the adoption of such policy decisions to the parliamentary assemblies of the EU and its Member States.

From Safeguards to Scope: Evaluating Public Health Exclusions from ISDS

2025-11-21T00:00:00+00:00

Abstract

This article examines emerging treaty practices to safeguard public health measures from liability under investor–State dispute settlement (ISDS). Although States have traditionally relied on ‘right to regulate’ clauses, general exceptions and clarifications to substantive obligations, recent disputes show that such provisions often fail to block investor claims. As COVID-19-era measures and evolving public health regulations fuel further litigation, States have increasingly considered a more direct approach: excluding health-related measures entirely from the scope of ISDS. While this exclusionary method holds promise for minimising arbitral exposure, it raises new interpretive uncertainties. Tribunals may adopt restrictive readings of a ‘public health’ measure or invoke proportionality analyses undermining the exclusion’s intended effect. The article explores how these textual ambiguities may hinder the policy space that States seek to preserve. It concludes by offering practical drafting recommendations—such as clearer definitions and explicit guidance on evidentiary thresholds—to ensure that ISDS exclusions operate predictably and effectively. By refining how exclusions are framed, States can better protect their authority to enact public health measures without incurring unintended liability in investment arbitration.

Gabriel Resources Ltd and Gabriel Resources (Jersey) Ltd v Romania:1According Fair and Equitable Treatment to an Environmentally, Socially and Culturally Controversial Project

2025-10-17T00:00:00+00:00

An International Humanitarian Law Approach to Interpreting Extended War Clauses in International Investment Agreements

2025-10-06T00:00:00+00:00

Abstract

Extended war clauses (EWCs), designed to provide additional protection for foreign investors during times of armed conflict, remain fraught with ambiguity due to inconsistent and insufficient interpretation in investment arbitration. The evolution of property protection rules under international humanitarian law (IHL), viewed through a constructivism lens, and the development of compensation for war losses under international investment law (IIL) that is profoundly shaped by IHL demonstrate an intricate and dynamic intersection between IHL and IIL. This intersection renders IHL indispensable for the interpretation of essential elements of EWCs. This article makes critical inquiries into whether and to what extent IHL should be integrated into the interpretation of EWCs by delineating the sui generis nature of EWCs and their controversial application by tribunals, and further scrutinizing the necessity, feasibility and appropriateness of the IHL approach. Acknowledging the inherent limitations of the IHL approach, the article presents pragmatic suggestions for refining its application to strike a delicate equilibrium between safeguarding investors’ legitimate interests and upholding States’ sovereignty, and eventually ensures a viable adjudicative framework that not only embodies legal precision but also reflects broader equitable and humanitarian considerations.

The Future of Investor–State Dispute Settlement: Reforming Law, Practice and Perspectives for a Fast-Changing World

2025-09-30T00:00:00+00:00

Ben Beaumont, Fahira Brodlija, Robert Ashdown and Armand Terrien (eds), The Future of Investor–State Dispute Settlement: Reforming Law, Practice and Perspectives for a Fast-Changing World (Kluwer Law International 2024), ISBN 9789403547633, US$207.00

Beyond BITs: The Evolving Relationship between Domestic Investment Law and ISDS in the Era of Domestication

2025-07-04T00:00:00+00:00

Paradigm Shift: Investor Due Diligence and Third-Party Illegality

2025-04-22T00:00:00+00:00

Abstract

Tribunals are holding investors accountable for third-party illegality through the evolving principle of investor due diligence. This development is evident in key cases such as Anderson v Costa Rica, Minotte v Poland, Churchill Mining v Indonesia, Bank Melli Iran v Bahrain, and Worley International Services v Ecuador. This article examines the evolution of investor responsibility by identifying deficiencies in due diligence, assessing liability for third-party illegality, and analyzing consequences based on the seriousness and connexity of the wrongdoing to investment claims. It proposes a structured framework within the broader shift toward a proportional, merits-based approach to illegality in international arbitration, carrying significant implications for stakeholders.

The risks of regulatory fragmentation in the stablecoin market: the case of multi-issuance stablecoins

2026-06-27T00:00:00+00:00

Abstract

Stablecoins are designed to maintain a stable value through redeemability at par and the holding of external reserves, yet their cross-border issuance increasingly exposes regulatory and financial stability vulnerabilities. This article examines the risks arising from multi-issuer stablecoin arrangements, whereby a single, fungible stablecoin is issued by multiple legally distinct entities across different jurisdictions and regulatory regimes (multi-jurisdictional issuance). Focusing on the European Union’s (EU) Markets in Crypto-Assets Regulation (MiCAR), the analysis shows how such structures—currently employed by major issuers such as Circle and Paxos—facilitate regulatory arbitrage, amplify liquidity and redemption risks, and undermine the effectiveness of EU prudential supervision. The article highlights how the fungibility of tokens issued under divergent regimes may concentrate redemption pressures on EU issuers, strain reserve adequacy, and create contagion risks for the EU banking sector. Legal and operational frictions, including the potential ring-fencing of reserves held outside the Union, further exacerbate these vulnerabilities, particularly under stressed market conditions. The article examines the legality under MiCAR of multi-jurisdictional stablecoin issuance schemes, argues that MiCAR inadequately addresses their systemic implications, and proposes targeted reforms. These include a centralized supervisory regime for participating EU issuers under the European Banking Authority, complemented by a stringent equivalence framework for third-country partners, which would limit multi-issuance to jurisdictions with comparable regulatory standards. The article concludes that enhanced cross-border supervisory cooperation and coordinated crisis management frameworks are essential to ensure the resilience of stablecoin markets and to safeguard financial stability within the Union.

Artificial intelligence and EU insider regulation

2026-06-26T00:00:00+00:00

Abstract

The increasing use of artificial intelligence (AI) and big data in capital markets presents significant challenges for the Market Abuse Regulation (MAR), which was originally designed with human decision-making and conventional algorithmic systems in mind. As the rise of AI enable increasingly autonomous trading through self-learning algorithms, substantial legal uncertainty arises regarding the attribution of inside information, liability for AI-driven transactions, and the scope of the insider trading prohibition under Article 8 MAR. This article examines whether, and to what extent, autonomous insider trading falls within the scope of the existing legal framework. In particular, it analyses the role of Article 9(1) MAR and explores, whether a teleological extension or application by analogy could support the recognition of a ‘compliance by design’ defence for both legal and natural persons deploying AI systems. This article further considers the use of AI in fulfilling issuers’ public disclosure obligations under Article 17 MAR, especially with regard to the identification of inside information and the detection and mitigation of deepfakes. Finally, it addresses the extent to which enforcement mechanisms and organizational obligations under Directive 2014/65/EU (MiFID II) and MAR may need to be adapted in order to safeguard informational fairness in increasingly AI-driven capital markets.

The New Role of the ECB as the Fiscal Agent of the European Commission

2026-06-03T00:00:00+00:00

ABSTRACT

The growing importance of European Union (EU) debt in recent years has led to significant institutional changes. Since 2020, the European Commission has taken on the role of managing the Union’s debt, while the European Central Bank (ECB) has begun providing ‘fiscal agent’ services in support of this function. Specifically, the ECB holds the Commission’s bank account for borrowing operations and acts as ‘paying agent’ for the securities issued, according to arrangements that may extend to future EU borrowing instruments. While article 21 of the Statute of the European System of Central Banks and of the European Central Bank allows central banks to act as ‘fiscal agents’ for public entities, this statutory task of the ECB has received little attention in legal scholarship. Traditionally, these functions have been performed by national central banks on behalf of their respective governments. The ECB’s assumption of this role marks a departure from established practice within the Union and raises important legal and institutional questions. The article examines the nature and scope of the fiscal agent services, their implications for ECB independence and liability, and the nature of the ECB’s relationship with the Commission and other institutions, such as the European Court of Auditors. In this way, the research contributes to the debate on the EU fiscal capacity and EU institutional balance.

How do stock exchange listing rules evolve? Evidence from the London Stock Exchange’s Alternative Investment Market (AIM), 1995–2025

2026-04-27T00:00:00+00:00

ABSTRACT

Drawing on the London Stock Exchange’s Alternative Investment Market (AIM) as a case study, this article analyses a hand-collected dataset of material rule revisions to the AIM listing rules from 1995–2025. Its principal finding is that the AIM listing rules evolve much more in earlier years (from 1995–2007) as compared to later years (2008–2025), with relatively long periods without any consequential rule changes. This pattern of rule evolution is consistent with theories of regulatory demand and regulatory learning, as well as the Exchange’s goal of safeguarding reputation. It also emphasizes the importance of initial regulatory design. Some categories of rules are, proportionally, revised more than others, which is consistent with regulatory learning and gap-filling. Only limited evidence is found for regulatory shocks spurring rule evolution. AIM’s forthcoming rulebook reform should be guided by a less risk-averse regulatory philosophy, cognisant of the importance of how these rules are interpreted and subsequently revised.

Designing Sovereign Debt Legislation: Learning from Comparative Experience

2026-01-14T00:00:00+00:00

Abstract

The current international regime for restructuring sovereign debt largely relies on consensual processes and contract law. This has enabled uncooperative distressed debt investors to realize high profits by insisting on full payment in situations where most creditors have already agreed to debt relief. To counter the disruptive effects of holdout creditors, Belgium, the United Kingdom, and France have enacted domestic laws limiting the enforceability of distressed sovereign debt. Recent proposals for similar legislation in New York and other jurisdictions seek to facilitate efficient and equitable sovereign debt restructurings more generally. While the policy debate is often reduced to a binary choice between ‘statutory’ and ‘market based’ approaches, a comparative analysis reveals a range of different solutions. This article surveys existing laws and proposals in the context of underlying legal concepts and policy concerns, identifying nine design choices that can inform the legislative process.

Universal Owners and Climate Change: A Response to Gosling

2025-11-21T00:00:00+00:00

ABSTRACT

Tom Gosling’s 2025 article, ‘Universal Owners and Climate Change’, asks an important question: Is it in universal owners’ interest for warming to remain at or below 1.5°C, and do universal owners have a plausible way of contributing to this outcome? The following response explores downside risk, tipping points and feedback loops, incrementalism, discount rates, climate models, and the efficacy and cost of available investor tools as they relate to universal owners, suggesting that they have an interest in keeping warming to 1.5°C and that they have low-cost tools at their disposal to contribute to this goal.

Credit Substitution in Sustainable Finance: An Achilles Heel?

2025-10-22T00:00:00+00:00

Abstract

Sustainable finance has become mainstream, with governments and stakeholders relying on financial players/channels to prod real economy firms into addressing environmental and social issues. An overlooked, yet significant problem with this idea is credit substitution—where firms replace their ‘exiting’ creditors or investors. This significantly weakens the effect of ‘exit’ and results in the migration of problems or risks associated with lending and investment to new entrants. This article examines credit substitution in theory and practice, focusing on its implications for sustainable finance. It argues that the current regulatory framework and broader ecosystem for financial institutions worldwide create conditions highly conducive to credit substitution. Key factors include substantial cross-jurisdictional differences in approaches towards sustainable finance among major financial centres and cross-sectoral differences within jurisdictions—particularly in the EU—where sustainable finance regulations vary between bank-based and market-based financing. These conditions undermine the effectiveness of sustainable finance policies. If the aim is to address environmental and social impacts in the real economy, such policies are diluted; alternatively, if focused on managing financial risks associated with lending to and investing in firms causing these impacts, the result is only migration, rather than mitigation, of risks. The article concludes with policy implications.

Guest Editorial :Does the US Need Tax Treaties?

2026-04-11T00:01:06+00:00

Volume 54 Online ISSN 0165-2826

‘Gross’ly Overlooked: The Difficulties of Implementing the New Article 12AA of the United Nations Tax Convention in African Countries With Transfer Pricing Rules [pre-publication]

2026-04-11T00:01:06+00:00

In an environment where tax compliance is difficult to impose on non-resident service providers resulting in the loss of tax revenue on services rendered to residents, Article 12AA, a newly adopted addition to the UN Model Tax Convention, is to be welcomed by revenue -starved African jurisdictions. However, the drafters appear to have overlooked potential problems of imposing a gross withholding tax on service fees in developing countries with transfer pricing legislation. This paper outlines the prevalence in African jurisdictions of withholding taxes on service fees, the impact of the Double Tax Agreements (DTA’s) on the collection of withholding taxes and the shortcomings of domestic relief for double taxation in African countries, using South Africa’s measures as an example.

The paper then illustrates the distortions that the imposition of withholding tax on service fees on a gross basis, which Article 12AA provides for, could have on the economies of developing countries like South Africa as well as its impact on foreign direct investment into such countries, particularly given the interplay of such a tax with domestic transfer pricing rules. The paper briefly examines some proposals from other academics and scholars to address these distortions caused by a gross withholding tax on service fees. The paper concludes that a withholding tax on service fees should not be imposed as a final tax on a gross basis. Provision should instead be made in domestic law to permit non-resident service providers to register voluntarily for tax, in order that they may file a tax return, claim allowable deductions and accordingly pay their tax on a net basis. The paper ends with a call for more research on strategies to streamline administrative hurdles resulting from registration for foreign service providers before the new Article 12AA is widely implemented in Africa.

Volume 54 Online ISSN 0165-2826

Crypto Taxation and Regulatory Convergence: A Comparative Study of the European Union and South Africa [pre-publication]

2026-04-11T00:01:06+00:00

The rapid growth of cryptoassets has posed significant challenges for tax administrations worldwide, particularly in detecting taxable transactions, verifying valuations, and linking them to identifiable taxpayers. The pseudonymous and at times anonymous design of crypto assets undermines traditional enforcement models that depend on identifiable intermediaries and jurisdictional oversight. This article conducted a comparative analysis of the European Union’s (EU’s) evolving regulatory framework and considered the lessons that South Africa can draw in strengthening its capacity to administer and enforce crypto taxation. The EU has progressively expanded its approach from the early Anti-Money Laundering Directives (AMLDs) to more integrated instruments, including the Markets in Crypto-Assets Regulation (EU) 2023/1114 (MiCA), the revised Transfer of Funds Regulation (EU) 2023/111 (TFR), and Council Directive (EU) 2023/2226 (DAC8), alongside the Organization for Economic Co-operation and Development (OECD)’s Crypto-Asset Reporting Framework (CARF). Together, these measures demonstrate how prudential oversight, transaction traceability, and tax-transparency obligations can generate verifiable, cross-border data usable for tax assessment and audit. By contrast, South Africa’s framework remains fragmented, relying on isolated provisions under the Financial Intelligence Centre Act 38 of 2011 (FICA), the Financial Advisory and Intermediary Services Act 37 of 2002 (FAIS), and recent commitments to implement CARF. The article argued that South Africa must move beyond formal compliance toward a coherent, layered framework that integrates prudential supervision, fiscal data analytics, and crossborder information exchange. Drawing selectively on the EU’s trajectory, South Africa can strengthen South African Revenue Service’s tax administration, close anonymity gaps, enhance fiscal sovereignty, and promote responsible innovation in its crypto economy.

Volume 54 Online ISSN 0165-2826

The EU Tax List Through the Experience of Three African Countries [pre-publication]

2026-04-11T00:01:06+00:00

The European Union (EU) list of non-cooperative jurisdictions for tax purposes, introduced in 2017, screens non-EU countries for alignment with OECD and EU tax standards to curb harmful tax competition. Non-compliance results in blacklisting, with significant reputational and economic consequences. This paper employs a qualitative empirical methodology to examine the experience and perceptions of Namibia, Mauritius, and Seychelles, exemplifying the challenges faced by developing countries in responding to externally imposed tax reforms. Among other trends, it identifies three compliance strategies – apparent, reluctant, and pre-emptive – reflecting semi-compliance driven by reputational concerns. Based on empirical findings, the paper exposes the EU list’s coercive nature and its disregard for developmental priorities, leading to unstable, short-term policy changes. Using a decolonizing lens, the paper interrogates issues of procedural and substantive fairness, arguing that, while the EU tax list aims to foster tax coordination, it reinforces global inequalities, hindering inclusive and equitable cooperation; it therefore risks marginalizing developing countries and undermining its own legitimacy in advancing global tax justice. The paper contributes new empirical data, proposes an analytical framework for assessing compliance responses, and offers recommendations for both (African) developing countries and the EU. It calls for a more equitable and collaborative model of the EU tax list for international tax governance.

Volume 54 Online ISSN 0165-2826

Kenya’s Significant Economic Presence Tax: A Legal Analysis in the Context of Global and African Digital Tax Reforms [pre-publication]

2026-04-11T00:01:06+00:00

This article examines Kenya’s transition from its digital services tax (DST) to a significant economic presence (SEP) tax regime that became effective in December 2024 and positioned this development within the broader global and African digital taxation discourse. The analysis addresses three central questions:

(1) Is Kenya’s SEP constitutionally sound under the fairness principle articulated in Article 201(b)(i) of the Constitution of Kenya 2010?

(2) How does the SEP interact with Kenya’s existing double taxation agreements (DTAs), and what treaty conflicts may arise?

(3) What lessons can Kenya draw from comparative African experiences, specifically Nigeria’s pioneering SEP model?

This article argues that the SEP represents a formal doctrinal advance over the DST in two legally significant respects. First, by situating the levy within the income tax framework and applying the corporate rate to a deemed profit base, the SEP is capable in principle of engaging Kenya’s treaty network in a manner that the DST as a standalone gross-basis turnover tax was not. Second, the SEP’s deemed profit structure provides a constitutional foundation under Article 201(b)(i) of the Constitution of Kenya 2010 that the DST wholly lacked following the high court’s decision in Kenya Revenue Authority (KRA) v. Stanley Waweru and Six Others. The two regimes are functionally equivalent in all other material respects, economic incidence, effective rate calculated by reference to gross receipts, and administrative reliance on turnover data. The shift from DSTs to the SEP is therefore characterized as a formal legal advance with significant implications for treaty interaction and constitutional defensibility rather than a substantive change in the economic burden imposed on digital service providers. The article includes a detailed legal analysis that evaluates the SEP’s deemed profit methodology (10% of gross turnover taxed at 30% yielding an effective 3% levy), its compatibility with Organization for Economic Co-operation and Development (OECD)/United Nations (UN) international tax frameworks, and administrative challenges facing the KRA.

The contribution concludes that, while Kenya’s SEP represents a pragmatic assertion of fiscal sovereignty addressing immediate revenue needs, its long-term success depends on strengthening domestic administration, managing treaty conflicts through strategic renegotiation, and contributing to global tax reform that is more equitable. The SEP should be viewed not as a final destination but as a transitional measure to secure immediate revenue and leverage in global negotiations while Kenya continues to advocate for a more equitable multilateral solution.

Volume 54 Online ISSN 0165-2826

Literature Review: Customary International Law and Tax Jurisdiction, by Céline Braumann. (Alphen aan den Rijn: Kluwer Law International. 2025) [pre-publication]

2026-04-11T00:01:06+00:00

Volume 54 Online ISSN 0165-2826

The Legality of the Pillar Two Directive and the Role of OECD Interpretational Guidance [pre-publication]

2026-04-11T00:01:06+00:00

The Pillar Two Directive aims to roll out Pillar Two at the EU level by requiring Member States to implement these rules. It can be questioned whether the Pillar Two Directive was founded on the correct legal basis. Besides this, if the directive is valid, it raises interpretational questions. The EU Pillar Two Directive is based on the Organization for Economic Co-operation and Development (OECD) Pillar Two rules, and the OECD Commentary to them is still being supplemented. Since directives are usually static documents, the question arises whether such supplementary OECD guidance can be taken into account for applying and interpreting the Pillar Two Directive or the resulting national implementing legislation.

Volume 54 Online ISSN 0165-2826

Guest Editorial: Does the US Need Tax Treaties? [pre-publication]

2026-04-08T00:01:06+00:00

Volume 54 Online ISSN 0165-2826

Fossil Fuel Claims: Neutralizing Tensions With the EU’s Energy Transition [pre-publication]

2026-04-11T00:01:06+00:00

The European Union’s (EU’s) withdrawal from the Energy Charter Treaty (ECT) has highlighted the tension between investment protection and energy transition. Originally conceived to secure energy investments, the ECT’s investor-state dispute settlement (ISDS) mechanism has increasingly been invoked to challenge legitimate climate policies, thereby threatening the EU’s regulatory autonomy in pursuing decarbonization. This tension is particularly evident in the operation of Article 47(3) of the ECT, whose continued application, even under the ECT’s proposed modernization, which merely reduced protection for fossil fuel investments from twenty to ten years, was ultimately deemed insufficient by the EU to reconcile the ECT with its climate obligations, prompting withdrawal rather than partial reform. This article explores the legal and policy implications of this clause post-withdrawal. Through the analytical lens of prominent fossil fuel claims, it highlights the ongoing legal risks EU Member States face when adopting climate measures that disrupt existing fossil fuel energy investments. These cases illustrate the risk of regulatory chill and the potential surge in fossil fuel-related disputes deployed to resist the EU’s energy transition. In response, this article proposes a framework of doctrinal and procedural reforms aimed at neutralizing these tensions. Two conceptual pillars: (1) Doctrinal Leverage and Strategic Risk Management and (2) Institutional Transparency and Procedural Innovation offer integrated legal, institutional, and normative tools to reclaim regulatory space for a just transition. The article ultimately advocates for a transformed investment regime attuned to global sustainability imperatives.

Volume 11 Online ISSN 2468-7413

Fossil Fuel Claims: Neutralizing Tensions With the EU’s Energy Transition [pre-publication]

2026-03-25T00:01:06+00:00

Volume 11 Online ISSN 2468-7413

Piercing the Sovereign Veil: Spanish Law in Comparative Perspective [pre-publication]

2026-04-11T00:01:06+00:00

This article examines the challenges of enforcing judgments and arbitral awards against sovereign states in Spain, with particular focus on the treatment of state-owned enterprises (SOEs). While the 2015 Organic Law on Privileges and Immunities (LOPI) codified the restrictive theory of immunity and aligned Spain with international standards, it left unresolved the role of SOEs during the enforcement phase. Creditors thus face a double barrier: (1) sovereign immunity on the one hand and (2) the shield of corporate separateness on the other. Drawing on Spanish privatelaw doctrine of piercing the corporate veil (levantamiento del velo), the article explores how criteria developed for corporate abuse – commingling of assets, undercapitalization, external control, and residual fraud – can be transposed to the sovereign context. Comparative insights from the United States, France, and the United Kingdom illustrate possible pathways and pitfalls. Spanish case law, notably the Commercial Bank of Equatorial Guinea (CBGE) litigation, highlights both the promise and the uncertainty of current practice. The article proposes a structured four-part test – (1) control and governance, (2) patrimonial boundaries, (3) functional purpose, and (4) evasion – to discipline judicial reasoning and reconcile effective judicial protection with legal certainty. Spain’s constitutional framework, statutory innovations, and doctrinal tools position it to contribute significantly to international debates on sovereign enforcement.

Volume 11 Online ISSN 2468-7413

Piercing the Sovereign Veil: Spanish Law in Comparative Perspective [pre-publication]

2026-03-19T00:01:06+00:00

Volume 42 Online ISSN 2468-7413

Literature Review: Taxing Income and Consumption: The Development of International Tax Law and Policy, K. Sadiq, C. Evans and N. Li eds. 1st edn. Cheltenham: Edward Elgar. 2025 [pre-publication]

2026-04-05T00:01:06+00:00

Volume 54 Online ISSN 0165-2826

11th EFILA Annual Lecture (2025): Artificial Intelligence (AI) in Investment Arbitration [pre-publication]

2026-04-05T00:01:06+00:00

The lecture highlights the increasing use of Artificial Intelligence (AI) in investment arbitration and the various risks that are associated with it. It is noted that there is currently insufficient specific regulations for regulating the use of AI in investment arbitration, despite the proliferation of numerous guidelines by arbitration institutions and other bodies of the legal community. The EU AI act is highlighted in this context as an important piece of legislation since it is applicable to arbitration generally and thus also to investment arbitration.

Volume 11 Online ISSN 2468-7413

Concurrence of EU Direct Tax Directives: Hierarchy of Norms, Interpretational Solutions, or Decluttering? [pre-publication]

2026-03-30T00:01:06+00:00

The number of (proposals for) EU directives in the field of direct taxation is continuously growing. In the process of drafting them, the focus appears to be on the desired outcome of that specific legislative instrument. The complete overview is not taken into account and certainly not the relation between the proposal and already existing directives or others that are pending. In this publication, the author answers the question of how directives in the field of direct taxation relate to each other, how textual differences on comparable subjects between directives and conflicts in interpretation among directive provisions can be resolved, and where discrepancies between proposals and adopted directives currently exist (and how they can be resolved). To achieve this, the hierarchy of norms in secondary EU legislation will be discussed and several suggestions for simplifications and decluttering will be made, in accordance with the EU Commission’s policy agenda.

Volume 54 Online ISSN 0165-2826

Digital Services Taxes and WTO Law: The Likeness Challenge in the Data Economy [pre-publication]

2026-03-30T00:01:06+00:00

This study explores the alignment of digital services taxes (DSTs) with the non-discrimination provisions outlined in the General Agreement on Trade in Services (GATS) with particular attention being paid to the concept of ‘likeness’. It focuses on the Italian DST as a representative case and examines whether this measure differentiates between ‘like’ digital services and suppliers in accordance with Articles II (Most-Favoured Nation (MFN)) and XVII (National Treatment (NT)). The analysis employs a doctrinal approach and integrates a comprehensive examination of World Trade Organization (WTO) law with relevant case law and tax scholarship. This reveals that revenue thresholds and carve-outs introduce structural asymmetries in the competitive relationship between services and suppliers that may be regarded as ‘like’ under WTO criteria. The Italian DST is ostensibly neutral but disproportionately impacts large multinational platforms thereby posing a significant risk of de facto discrimination under current jurisprudence. This study expands on this insight and argues that a model DST law crafted in accordance with the GATS principles is essential to ensure that future digital taxation initiatives fulfil their fiscal objectives without violating multilateral trade regulations.

Volume 54 Online ISSN 0165-2826

Green Local Fiscal Autonomy in EU Member States [pre-publication]

2026-03-30T00:01:06+00:00

This article provides insights into how differences in the degree of fiscal autonomy of local governments in EU Member States shape the ways in which they design and implement fiscal instruments to support the achievement of climate objectives. By comparing three countries (Belgium, Italy and the Netherlands), it demonstrates that local governments’ capacity to leverage taxation for climate purposes is essentially shaped by their national legal and fiscal frameworks. At the same time, limited fiscal autonomy does not necessarily prevent local authorities from using fiscal instruments to support the achievement of climate objectives. This is illustrated, for instance, by the introduction of the ‘pay-as-you-throw’ (PAYT) waste fee in Turin, where such a measure can be implemented despite the relatively limited fiscal autonomy within the centralized Italian system. The article further shows that local climate plans across the EU acknowledge taxation as a policy tool for advancing sustainability goals, highlighting its potential to influence areas such as mobility, buildings and energy.

Volume 54 Online ISSN 0165-2826

Who Qualifies as a ‘Court or Tribunal’? Access to the Preliminary Reference Procedure and the Principle of Judicial Independence

2026-03-23T00:01:07+00:00

At the institutional heart of the European legal order, the Court of Justice of the European Union (CJEU) acts as guardian of the uniform interpretation and application of EU law. One of the main mechanisms by which the CJEU performs this task is the preliminary reference system provided for in Article 267 Treaty on the Functioning of the European Union (TFEU). This provision enables (and in certain cases even requires) national courts to refer questions concerning the interpretation or validity of EU law to the CJEU. However, access to this system is strictly limited. Only bodies that qualify as ‘courts or tribunals’ within the meaning of Article 267 TFEU may make such a reference. In this article, the author examines the conditions under which a national body qualifies as a ‘court or tribunal’ within the meaning of Article 267 TFEU and how this qualification relates to the broader EU legal requirement of judicial independence as enshrined in Article 19 Treaty on European Union (TEU) and Article 47 Charter.

Volume 35 Online ISSN 0928-2750