Mandatory Rules Research Articles

Unavailable names in the Myotis nattereri species complex

AbstractThe discovery of new species of mammals in Europe is a rare event, but owing to recent progress in genetic methods used to survey current biodiversity, such discoveries have been accumulating during the last decades. The naming of these new taxa has important bearings in conservation, as this is the first step needed for them to be recognised by the scientific community but also legally. The naming of new animal species, however, needs to follow the strict rules of the International Code of Zoological Nomenclature in order to be available and to provide a stable basis for further taxonomic research. We report here a case where new names have been improperly proposed to designate distinctive lineages in the Natterer's bat species complex. As these new names do not follow several mandatory rules imposed by the Code, they are declared unavailable and are not to be used for further taxonomy studies.

Pengaruh Agresivitas Pelaporan Keuangan terhadap Agresivitas Pajak: Dampak Penerapan Mandatory Disclosure Rules (Studi pada Negara-negara Anggota G-20)

This study aims to examine the effect of the aggressiveness of financial reporting on tax aggressiveness behavior and examine the differences in tax aggressiveness behavior between before and after the implementation of mandatory disclosure rules. This study used data sourced from the financial statements of companies listed on investing.com for the 2016-2017 period. The samples used were 54 companies. The data analysis method used descriptive statistical analysis using panel data regression. The results showed that the aggressiveness of financial reporting affected the tax aggressiveness and there was no difference in the behavior of tax aggressiveness between before and after the implementation of mandatory disclosure rules.

Balance of Interests as a Principle of Civil Law: Some Aspects of Legal Consciousness

The research considers the category of reasonable balance of interests in the context of civil relations. The authors of the article highlight the need to restrict permissibility as a method of civil regulation aimed at protecting the rights and interests of the weaker party in some legal relations. A reasonable balance of interests is ensured by laws and agreements, whose conditions become the subject of a judicial dispute in the absence of a mandatory rule. The authors have analyzed judicial acts conditioned by the need to maintain a reasonable balance of interests. As a result, they have determined that the first condition for applying the fair balance principle is the equivalence of counter-performance in the absence of both excessive benefits and excessive losses for the parties. The second condition is the party-related division in some civil relations. The authors have concluded that the risks of negative consequences should not be borne only by the weaker party if the latter could not reasonably foresee the consequences upon concluding the relevant agreement. Methods. The study is based on the comparative analysis of the Russian scientific doctrine and judicial practice. The main approach to the analysis of the legal tools in question is the method of system analysis. In addition, the authors used the structural-functional method and general scientific methods of cognition. The study aims at determining the principle of a reasonable balance of interests in civil law, its essence, necessity and expediency in the system of law enforcement. The authors aim to define conditions for applying legal norms to achieve a reasonable balance of interests among all parties in disputed legal relations. Results. The study results let the authors claim that the risks of negative consequences should not be borne only by the weaker party if it could not reasonably foresee such consequences upon concluding the agreement and the imbalance of interests among parties in civil-legal relations is caused by the violation by one or another party of the principles of fair practice and reasonableness. Although a reasonable balance of interests is a counterweight to the principles of contractual freedom and free will, courts should apply it to ensure the right of justice.

Niejednoznaczne podstawy stosowania przepisów wymuszających swoje zastosowanie (przepisów koniecznego zastosowania)

The article raises issues concerning legal basis for the application of the overriding mandatory rules. In the Polish doctrine there are two opposing concepts in terms of explanation of the legal grounds for application of overriding mandatory rules. Both theories do not have a universal dimension, in the sense that they do not sufficiently explain the basis for the application of domestic as well as foreign overriding mandatory rules, being part of lex causae or coming from a third state. The article presents arguments for and against the possibility of deriving the legal grounds for application of the overriding mandatory rules, with reference to submissions made to that effect in literature. The author makes also an attempt to formulate a concept complementary to the concept of an integrated conflict-of-law rule with the substantive law rule, boiling down to the assumption that the basis for application of overriding mandatory rule is a second degree conflict of laws rule allowing to apply a first degree conflict of laws rule integrated with the substantive rule.

Pharmaceutical Prescriptions and Reference Points: Using Default Rules to Incentivize the Use of Generic Drugs

Pharmaceutical spending is in many countries the second largest family expenditure, after food. No one questions that pharmaceutical companies invest large sums in research and the development of new and better pharmaceutical drugs. Originators are protected by patents and sold in monopolistic conditions. However, once generics enter the market, they provide people with an equally safe and effective alternative to protect their health. Nonetheless, some doctors keep on prescribing originators after the entry of generics. Some jurisdictions control this by mandating doctors to prescribe the generic drug; other countries mandate pharmacists to deliver the generic medicine. However, some countries merely rely on people’s freedom to choose, by allowing doctors to prescribe the originator product and letting patients substitute the prescribed medicine for a cheaper one at the pharmacy. This work tests whether people tend to stick to the medicine doctors prescribe, despite the availability of a cheaper generic. To this end, I ran a survey-experiment on Amazon Mechanical Turk, presenting a hypothetical scenario in which the respondents had to choose between an innovator medicine and its generic form to treat two different medical conditions. I used a between-subjects approach to compare the respondents’ self-reported purchase intention, manipulating what medicine was prescribed by the doctor, whether the doctor conveyed substituting the originator for the generic was fine, and whether the respondent had to treat a mild disease or a severe one. The results show that, at least for mild diseases, pro-originator defaults lead to stickiness (compared to pro-generic defaults). This is a prescriptive claim that casts doubt on the effectiveness of liberal policies that intend to encourage the use of generics by just allowing people to substitute the prescribed originator for a generic. On a normative level, it is hard to appraise the endogeneity of people’s preferences to the default. But by considering people’s purchase intention for a more expensive product over a cheaper substitute as a mistake, we can derive the normative basis to favor pro-generic defaults or even mandatory rules favoring generics.

At a Crossroads: Mandatory Disclosure under DAC-6 and EU Primary Law – Part 2

This article examines the Member States’ new obligations under the DAC-6, which requires the enactment of mandatory disclosure rules for potentially aggressive cross-border tax-planning arrangements and analyses their compatibility with EU primary law. After describing the tax policy environment in which the DAC-6 rules were introduced, Part 1 of this article, published in issue 6 of European Taxation (2019), discussed whether the Treaty on the Functioning of the European Union foresees a viable legal basis for harmonization with respect to this subject matter and whether the DAC-6 rules are in line with the fundamental freedoms. Part 2 continues with an in-depth analysis of the DAC-6’s potential interference with the rights enshrined in the Charter of Fundamental Rights of the European Union and closes by highlighting selected tax policy issues associated with the mandatory disclosure regime of the DAC-6.

Tax Avoidance in the Spotlight: The EU Mandatory Disclosure Rules and Their Impact on Asset Managers and Private Equity

Discussions on fair taxation are a hot topic for debate in the public arena and are high on the political agenda. As part of these discussions, countries are looking for disclosure mechanisms to provide them with timely information about certain schemes to be able to detect and tackle tax avoidance and evasion. In this context, the European Union adopted tax transparency rules that require intermediaries and relevant taxpayers to report relevant cross-border arrangements. This article provides a general overview of the EU mandatory disclosure rules and discusses some of the matters relevant to asset managers and private equity.

Dynamics of the Market for Corporate Tax-Avoidance Advice

This paper addresses the current debate about mandatory disclosure rules for aggressive tax-planning models as a means to shorten regulatory delay. It focuses on the dynamic interaction of innovation and imitation of aggressive tax-planning products and governmental tax regulation and highlights the importance of the length of regulatory lag in comparison to the time it takes the tax-consulting industry to imitate newly innovated tax-avoidance products. It reveals synergies between highly innovative tax-consulting firms and the governmental tax legislator/regulator. It suggests that innovative tax-consulting firms may benefit from governmental regulation and may actively try to inform and influence the regulator to shorten but not eliminate the regulatory delay.

Strong by Association: Arbitration’s Policy Debates, Mandatory Rules, and PIL Scholarship

Strong by Association: Arbitration’s Policy Debates, Mandatory Rules, and PIL Scholarship

Report from Hungary: Is It Possible to Issue Bearer Shares in Hungary? Remarks on Mandatory and Default Rules in Hungarian Company Law

Report from Hungary: Is It Possible to Issue Bearer Shares in Hungary? Remarks on Mandatory and Default Rules in Hungarian Company Law

Legal problems of the Russian concept of risk-oriented approach in the area of taxation

A risk-oriented approach used by the Russian tax authorities for planning control activities contains a number of shortcomings that reduce its effectiveness in terms of encouraging compliance. The stages of the risk assessment process are reflected in various legal instruments that are not integrated into any system. The legal mechanism established by the tax authorities at the subordinate level to assess risks creates a prerequisite for violation of the principles of the taxes and fees legislation. This flaw is caused by the lack of differentiation of risk criteria, which leads to the intervention of regulatory authorities in the economic activities of controlled entities, regardless of their compliance with all mandatory rules. The absence of the requirement for compliance of the control activity with the identified risk allows the regulatory authorities to carry out inspections on all taxes without sufficient grounds, which is burdensome for the controlled entities. Thus, the legal structure of this approach encourages the tax authorities to employ the law enforcement practice violating the principles of neutrality of taxation and the balance of private and public interests. Based on the experience of the United Kingdom tax authority (HM Revenues & Customs) that, like the Russian tax authorities, has been using a risk-oriented approach since 2007, the author identifies the main directions of development of this approach in Russia. Among such areas, in particular, the author has highlighted: consolidation of the norms regulating the process of applying the risk-oriented approach at all stages into a single regulatory legal act of the subordinate level; elimination of latent criteria of tax risk and the framework reflection in the system of publicly available criteria of all possible risk factors identified by the tax authority; creation of guarantees ensuring protection of bona fide persons from excessive control measures.

At a Crossroads: Mandatory Disclosure under DAC-6 and EU Primary Law – Part 1

This article examines the Member States’ new obligations under DAC-6, which requires the enactment of mandatory disclosure rules for potentially aggressive cross-border tax-planning arrangements and analyses their compatibility with EU primary law. After describing the tax policy environment in which the DAC-6 rules were introduced, Part 1 of this article – while providing a brief overview of the mandatory disclosure rules – discusses whether the Treaty on the Functioning of the European Union foresees a viable legal basis for harmonization with respect to this subject matter and examines whether the DAC-6 rules are in line with the fundamental freedoms. Part 2, to be published in issue 7 of European Taxation (2019), continues with an in-depth analysis of DAC-6’s potential interference with the rights enshrined in the Charter of Fundamental Rights of the European Union and closes by highlighting selected tax policy issues associated with the mandatory disclosure regime of DAC-6.

Islam, ethics and bioethics

The article discusses the influence of Sharia, as mandatory rules of behavior of Muslims, on ethical and bioethical norms of life. Based on the sources of Islam, the Koran and the Sunnah, rather than their various interpretations, the article deals with a number of problems of medical bioethics. It is noted that, despite the influence of modern biomedical technologies on modern world cultures, their moral and ethical comprehension is the least in Islam. All of these issues are considered solely on the basis of the provisions of the Koran and the Sunnah. From the various ethical positions that contain the Qur'an and the Sunnah, it can be concluded that the physician, as a true Muslim, must demonstrate the qualities prescribed by Islam to the individual. It is shown that discussions in Islamic countries in a number of areas of modern bioethics do not conflict with the sources of Islam. It is concluded that in the Islamic world the norms of medical bioethics are determined by religious beliefs, which are the dominant of all social life.

Economics of Arbitrability in International IP Contracting

IP arbitrability in international commercial disputes enshrines the friction between traders and holders, between private contracts and public registers, between party autonomy and mandatory rules. Particularly, non‑arbitrability of invalidity defenses concerning registered industrial intellectual property rights has been insufficiently analyzed as a crucial matter of recognition and enforcement of international awards. Consequently, a sound economic rationale on grounds of competitive advantages is disregarded in too many instances. Having regarded the ever‑growing importance of IP rights for companies’ productivity and today’s primary use of arbitration in cross‑border contracting, the present research aims at pointing that out. It applies a transaction cost economics approach and takes into account the legal comparative background. The study finally examines arbitrability of IP validity with inter‑partes effect as an operable solution and the advantages of a predictable model as was early adopted by the United States.

A Study on the Innovative Legal System for Ad Hoc Arbitration in China’s Free Trade Zones

Ad hoc arbitration is one of the most important means to resolve civil and commercial disputes and bring considerable amount of foreign exchange income in many oversea jurisdictions. Mainland China’s Supreme Court issued a judicial opinion to give a limited admission of ad hoc arbitral awards concerning Pilot Free Trade Zones（PFTZ）. That opinion has been undoubtedly an important progress in the history since the Communist Party took control of China. However, that opinion not only uses three vague terms named as a specific place, specific persons and specific arbitration rules, but also keep silent on other issues concerning ad hoc arbitration. As far as the seat of arbitration, China should allow the parties to select freely in accordance with international practice and authorize the ad hoc arbitral tribunal to make the decision in the absence of a choice by the parties. As for the issue of the ad hoc arbitration rules, the innovative provisions of our country can be as follows: under the premise of not violating the mandatory rules of law, the parties are allowed to independently formulate or choose appropriate arbitration rules for them; if the parties do not make or choose, the arbitral tribunal shall determine the appropriate arbitration procedure on the same premise. In terms of arbitrators” norms, the corresponding innovations should be that, with the exception of a few serious offenders and specific categories of persons, all those with civil capacity are eligible to act as ad hoc arbitrators; at the same time, if the parties do not have a specific choice, it is stipulated that according to the default rules, the people’s court appoints arbitrators according to certain standards. The interim arbitration measures of protection have different significance for the claimants & the respondents, and the relevant innovations should include: to give the ad hoc arbitration tribunal the power to issue interim measures of protection. In addition, with regard to the system of setting aside ad hoc arbitral awards, innovative measures should base the jurisdiction of people’s courts upon the arbitral seat whether or not that seat involving the ad hoc arbitration is located within PFTZ. Finally, in order to make ad hoc arbitration go smoothly, China’s Standing Committee of National Congress should empower province-level congresses or their standing committees to create further innovative provisions on the seat of arbitration, arbitrators, arbitral rules, judicial review of arbitral awards related to the above-mentioned type of arbitration.

ANALISIS EKONOMI RUMAH TANGGA PETANI PADA USAHATANI KAKAO RAKYAT DI KABUPATEN BLITAR

As annual crop farmers, the household of cocoa farmers apply diversification livelihood strategy which depends on the season, the labor market, and the free time of each family member to make ends meet. This particular research was conducted in order to analyze the performance and economic behavior of the cocoa farmer households. The research was located in Udanawu and Bakung district with a sample of 45 cocoa farmer households. In order to answer the purpose of this research,a sequences of analysis through tabulation analysis and simultaneous equation models which then estimated using the Two Stage Least Squares (2SLS) method. The results showed that cocoa farming income is significantly influenced by the cocoa prices, production, the number of productive cocoa plants and costs. The expenditure of food on farmer households is significantly affected by the number of the children of the family who are at the time receiving education in school. The most important thing that can be recommended to increase farmer’s income is cocoa bean should be fermented. There needs to be strengthening of institution therefore, the farmers' bargaining position increases and new government policies to push the issuance of mandatory rules for cocoa fermentation.

Limits of mandatory rules in contract law: an example in agency law

This paper uses Article 17 of the Commercial Agent (Council Directive) Regulations 1993 as an example to illustrate the regulatory limits of a mandatory rule in contract law. Article 17 aims to protect commercial agents by forcing the principal to a commercial agency contract to make a mandatory end payment to the agent on termination of the contract. This paper argues that Article 17 cannot benefit the commercial agent. Rather, it makes both the agent and the principal worse off. Based on the analysis, the paper provides four general implications for understanding the limits of the mandatory rule in policing abuse of bargaining power. First, the mandatory rule will generate a new compliance cost for the stronger party, who can pass it on to the weaker party. Second, the mandatory rule cannot benefit all of the parties aimed to be protected. It inevitably creates both winners and losers. Third, the mandatory rule cannot be used to force the stronger party to make a direct payment of money to the weaker party. Fourth, the mandatory rule may exacerbate the problem of information asymmetry in a contracting process.

Market freedoms and private interactions under EU law

The Court of Justice of the European Union has ascertained that free movement provisions as enshrined in European Union primary law entail not only mandatory rules prohibiting the creation and/or maintenance of national barriers to trade within the single market, but also subjective rights of economically active individuals to be enforced by national courts. Historically and as a matter of principle, such rights are recognized vis-a-vis Member states only, and therefore they do not deal with legal relationships between private subjects. However, over the course of time the case law of the Court has made apparent that free movement rules can also be of relevance to shape some legal interactions between private parties. This contribution offers an analytical approach to the mechanisms through which this may happen as well as a reflection about the challenges it involves for the composite European legal orders. Such challenges concern, inter alia, the blurring of the traditional boundaries between public, and private law and between competition law and free movement; the development of new forms of administrative action; and the institutional allocation of competences between the Union and the member states, as well as between the legislature and the judiciary.

New Mandatory Disclosure Rules for Tax Intermediaries and Taxpayers in the European Union – Another “Bite” into the Rights of the Taxpayer?

The European Union responded to the propositions of the OECD in the BEPS Action 12 Final Report on Mandatory Disclosure Rules (MDR) by creating its own rules in the form of Council Directive 2018/822 of 25 May 2018, which is the sixth amendment of Directive 2011/16/EU on administrative cooperation in the field of taxation (DAC 6). This article focuses on the controversial aspects of DAC 6, namely its impact on the fundamental rights of taxpayers. It investigates (i) how the European MDR indirectly affect the taxpayers’ right to legal certainty and legitimate expectations through active prevention of “aggressive” or “potentially aggressive” tax schemes by rapid changes in legislation; (ii) how they will impact the taxpayers’ right to legal advice and legal representation, as well as the right not to self-incriminate; and (iii) what the interplay is between taxpayers’ right to privacy and data protection and the reporting requirements.

The Need to Interpret Legal Norms

At present, there are numerous laws without the right conditions to be long analyzed and correlated. Therefore, many laws are not well-formulated, which sometimes confuses judges. Although the laws should be particularly clear, sometimes judges are not built on the meaning of the norms they are going to apply, only after deliberation and when they pronounce the solution in a particular cause. The legal norm is a general and mandatory rule of conduct whose purpose is to ensure the social order, the rule that can be enforced by the state and, if necessary, by coercion. All these factors that reveal the difficulty of breaking the meaning of the norm based on the words used by the legislator would appear to create so many obstacles to the uniform application of the legal norm. Therefore, it is necessary to overcome the apparent meaning of words and seek the deeper sense of the norm and its real scope of application.