Treaty Provisions Research Articles

Prilog raspravama o postojanju ustavnog prava Evropske unije

Prilog raspravama o postojanju ustavnog prava Evropske unije

Implementation procedures for EU development policy in Poland

EU law obliges Member States to introduce such management and control systems for the implementation of financial instruments on their territory to ensure their proper functioning and compliance with the objectives and principles of EU development policy. Within the limits set by the principles and provisions of treaty and statutory law, Member States are free to design these systems. The aim of the article is to present an outline of the national model for the implementation of EU funds in Poland from a procedural perspective (described in full detail in the author's monograph cited below). The study mainly used a methodology of analytical research (modelling) and doctrinal legal research (analysis of subject literature) with elements of comparative legal research. The analysis shows that the research results indicate that the most frequently used and at the same time the basic method of implementing development policy instruments is using special administrative procedures. These procedures (referred to in the doctrine as third generation procedures) differ from the general administrative procedure in certain elements like stronger formalization, accelerating the trial, methods of proof, remedies, and others. Due to the administrative nature of these proceedings, the control of decisions or other acts issued in them is exercised before administrative courts. Only some disputes relating to claims arising from co-finance decision or contracts and other claims in contractual or tortious matters are settled in the polish common courts. Such construction and specificity of the characterized system is justified by the purposes and functions of EU development policy and nature of its financial instruments. Also for this reason the requirements placed on implementation procedures in terms of their public accessibility and functionality should be seen from a different perspective than standard jurisdictional procedures, designed for general administrative or civil matters.

THE EROSION OF STATES’ RIGHT TO REGULATE IN ISDS

Arbitral awards of ISDS cases have greatly contributed to the emergence of the “regulatory chill” through broad and investor-protection-oriented interpretation of investment treaty provisions. Therefore, it is essential to examine cases concerning the public-interest actions of the states, which shed light on the lessons to be learnt for drafting “balancing provisions”. One of these cases is Bear Creek Mining v. Peru. It involves a dispute arising out of circumstances, where the investor seeks damages from the host state for having revoked a permit in response to protests by a local population against the investment operations. This article analyzes how arbitral award of Bear Creek Mining case has contributed to the “regulatory chill” and proposes certain mechanisms aimed at eliminating the “chilling effect” of the treaty provisions.

Экономико-аналитический подход к оценке налоговых рисков отсутствия фактического права на доход

The subject of the study is the identification by the tax authorities of the dependence of the jurisdiction of the location of the parent companies of Russian organizations on the amount of additional charges for corporate income tax withheld at source in Russia, while controlling the actual right to income (FPA) of a foreign organization. The purpose of the work is to develop proposals for tax risk management in determining the FPA. The article, in conjunction with the analysis of the dynamics of foreign direct investment from Russia, analyzes information on changes in the amounts of corporate income tax paid when paying passive income to foreign recipients, as well as data on the amount of additional tax when monitoring the status of the FPA. As a result of the analysis of court decisions on the basis of the "geography" of the beneficial owners of income from the Russian source, the relationship between the jurisdiction of registration of parent companies of taxpayers and the average amount of additional corporate income tax due to non-compliance with the status of the FPA was established. It is concluded that in the overwhelming majority of tax disputes on the status of the FPA, foreign companies – recipients of income were recognized by the courts as conduit companies created to take advantage of registration in low-tax jurisdictions and abuse the provisions of international tax treaties. It was revealed that over the past seven years, the reason for the outflow of capital from the country was the desire of taxpayers to reduce the effective tax rate by withdrawing profits to low-tax jurisdictions, in which large firms prefer Singapore for structuring cash flows in most cases.

Mechanisms for implementing the provisions of climate change international legal treaties in the forestry sectorof the Russian Federation

Mechanisms for implementing the provisions of climate change international legal treaties in the forestry sectorof the Russian Federation

Položaj branioca u postupku za izručenje u Republici Srbiji

Extradition or delivery of a person who is accused or convicted is a legal process that enables the conduct of criminal proceedings and the execution of criminal sanctions against them in another country. Given that the process of extraditing the accused or convicted is regulated by law, the question of the position of the defense counsel in this process arises. By applying the normative method in this paper, through the analysis of statutory provisions and provisions of international treaties, the position of the defense counsel in extradition proceedings in the Republic of Serbia has been systematically presented, that is, their rights, duties, and powers at every stage of these proceedings with a critical overview of certain legal solutions. Furthermore, international standards related to the role and activities of the Committee against Torture and the European Court of Human Rights regarding the regulation and implementation of extradition proceedings and the position of the defense counsel in these proceedings are presented.

Institut unaprijeđene saradnje u pravu Evropske unije - očekivanja i postignuti rezultati

The Institute of Enhanced Cooperation (EnC) was introduced by the Treaty of Amsterdam (1997) but it was made more flexible and operational by the Treaty of Lisbon (2007). Its main objective was to overcome the blockages in the law-making process, as well as to strengthen the cooperation among EU member states and deepen the integration process in specific areas. In this paper, the authors examine the institute of enhanced cooperation as a form of flexible and differentiated integration. The authors first present a brief historical overview of the legal regulation of this institute in the provisions of the founding treaties of the EU. Then, they provide an overview of the sources of law adopted within the framework of enhanced cooperation in certain areas of Private International Law, and particularly for the purpose of establishing the European Public Prosecutor's Office. Based on the analysis of a number of legal acts adopted within this institute, the authors draw a conclusion that the institute of enhanced cooperation has only partially justified its contractually defined role. Viewed from the perspective of the legal order of the European Union as a whole, this institute requires special attention due to the particularities of its application, which ultimately entails different solutions in the EU member states on certain issues of particular importance for legal and natural persons in the Union. There is no doubt that this institute provides many opportunities to the EU member states in terms of realizing or deepening their cooperation in certain issues, particularly if it is perceived as a stage on the way to establishing general, common rules for all member states. However, its application may challenge the unity and the integral structure of the EU legal order. It may also be inconsistent with some of the basic EU legal principles which have been continuously strengthened and expanded by the Court of Justice of the EU. Above all, it refers to the principle of unity of the legal order, the principle of prohibition of discrimination on the basis of citizenship, and the principle of legal certainty.

The Concept of Constitutional Identity as a Substantive Expression of the Principle of Subsidiarity

The introduction of the subsidiarity principle by the Maastricht Treaty was intended to strike a balance between the Member States and the supranational level in terms of non-exclusive competences. However, the principle of subsidiarity in the current EU structure is Janus-faced: although it was theoretically included in the founding treaty to protect the lower levels, its modus operandi is actually aimed at demonstrating the supranational level’s capacity to act. Perhaps this is why the enshrinement of the subsidiarity principle in the Treaty has not lived up to expectations, and the relevant Treaty provisions have largely remained dead letters. At the same time, the need represented by the principle of subsidiarity, namely the protection of the autonomy of the Member States, remained present in European integration, which finally emerged in the concept of constitutional identity, linked to the redefined identity clause after the Lisbon Treaty. In this sense, the identity clause in Article 4(2) TEU has become the legal device or standard that is able to transfer the constitutional needs of the Member States to the level of EU law and provide the possibility for their recognition at EU level. For this to work, a cooperative approach by national constitutional courts seems essential.

The MLI May Preserve the Essentially Bilateral Nature of Tax Treaties and Embrace a Strong Anti-Avoidance Approach to the Application of Treaty Provisions

The MLI May Preserve the Essentially Bilateral Nature of Tax Treaties and Embrace a Strong Anti-Avoidance Approach to the Application of Treaty Provisions

On the Removal of Asylum Seekers to Third Countries and the Scope of theEU–Turkey Readmission Agreement

Abstract The inclusion of asylum seekers within the scope of European Union (EU) readmission agreements signed with third countries remains contentious, especially considering that these agreements are instruments for removing irregular migrants to countries of origin or transit and do not regulate the responsibility for assessing asylum claims. Yet, the expulsion of asylum seekers from the EU to third countries is realized through a procedure whereby Member States are allowed the possibility of labelling third countries ‘safe’ according to criteria set out in EU law. The applications of asylum seekers arriving from safe third countries to the jurisdiction of the EU are deemed ‘inadmissible’, thus absolving Member States from assessing the applications on merit and enabling States to include asylum seekers within the scope of readmission agreements as irregular migrants. This article contends that the unique features of the EU–Turkey Readmission Agreement do not allow this practice in light of the main principles of international law, even assuming that Turkey can be labelled a ‘safe third country’. These features include treaty provisions obligating the sending State to make every effort to remove persons to their countries of origin, as well as Turkey’s explicitly declared position during the signing of the Agreement, which interprets the scope of the Agreement as not including asylum seekers. However, readmission of asylum seekers has taken place between the EU and Turkey through the EU–Turkey Statement of 18 March 2016 on the legal basis of the bilateral Greece–Turkey Readmission Agreement. It is argued that the EU’s attempts to institute the EU–Turkey Readmission Agreement as the legal basis for readmission of asylum seekers are destined to fail, due to the legal impossibility stemming from the said unique treaty provisions, as well as the absence of any indication from Turkey that it intends to change its initial official position in this regard.

INTERNATIONAL LAW ASPECTS OF THE POST-BREXIT MIGRATION POLICY OF THE UNITED KINGDOM

Introduction. In March 2022, the Home Office of the United Kingdom of Great Britain published the Statement on New Immigration Plan according to which persons having no right to reside on its territory would be removed to “safe third countries” according to the agreements with such states. On April 13th, 2022, a Memorandum of Understanding between Great Britain and Rwanda was signed prescribing that persons whose applications for asylum were not considered by Great Britain be removed to Rwanda for those applications to be considered by the latter. Incompatibility of the contemporary immigration policy of Great Britain with its international law obligations justifies the topicality of the assessment of its implications for codification and progressive development of international law. Materials and Methods. The assessment of the contemporary immigration policy of Great Britain from the standpoint of international law includes the matching of the provisions of the international and national acts adopted by Great Britain as well as official statements of its state bodies and officials and the provisions of universal treaties and “soft law” acts. The writings of the publicists studying international law aspects of forced migration, asylum and human rights served as theoretical framework of the present study. Research Results. The assessment of the Memorandum of Understanding reveals the incompatibility of its provisions with the international law norms on asylum and human rights. Such international law policy of the state should be regarded as an example of rejection of international law which is referred to as “international law nihilism” in Russian legal doctrine.Discussions and conclusions. The authors argue that further adoption of legal and political measures contrary to states’ obligations under treaties and international custom as well as the absence of expressed official positions of states with regards to such measures may have an impact on construction and application of international law norms governing legal status of forced migrants.

ASSESSMENT OF THE PRE-CONDITIONS FOR THE IMPLEMENTATION OF MODERN TECHNOLOGIES OF TAX CONTROL ON BASE EROSION AND PROFIT SHIFTING

The purpose of the study is to assess the possibility of combining the concepts of transfer pricing, beneficial owner of income and valid business purpose in a model of three-component tax risk assessment for countering BEPS. To achieve this purpose, the author set priority tasks, namely conducting an isolated analysis of the concepts of transfer pricing, beneficial owner of income and valid business purpose with further identification of intersections and interconnections of such concepts, as well as the formation of conclusions regarding the possibility of combining these concepts into a single model for identification of BEPS risks. Under the study, the author analyzed the three-level transfer pricing reporting system introduced into the tax system of Ukraine by Law of Ukraine No. 466-IX “On Amending the Tax Code of Ukraine on Improving Tax Administration, Eliminating Technical and Logical Inconsistencies in Tax Legislation”. In particular, the study found grounds for moving the essence of transfer pricing analysis from the formal determination of compliance of the prices established within the controlled transactions with the “arm's length” principle to the analysis of value chains, distribution of functions, assets and risks within a multinational group of companies, as well as to the examination of the value allocation process between jurisdictions and the fairness of such allocation. The study established that the information disclosed under transfer pricing reporting process can become part of the analysis of the legality of applying of the provisions of international treaties on the avoidance of double taxation through the concept of “beneficial owner of income”. The draft model of three-component tax risk assessment for countering BEPS is proposed as a finding of the study. Such model corresponds with international trends of abandoning the formal study of transfer prices in separate controlled transactions in favor of a comprehensive study of the essence of the value allocation process within multinational groups of companies. The author concluded that the isolated assessment of the elements of the model of three-component tax risk assessment for countering BEPS, during tax audits, reduces the effectiveness of ensuring the sovereignty of national tax revenues. At the same time, the author saw the legislative limitation of the transfer pricing audit exclusively on issues of compliance with the “arm's length” principle as a key challenge to the implementation of the model of three-component tax risk assessment for countering BEPS. Such limitation of the control body's tools contradicts the global tendency to countering BEPS as a whole, and not as separate (independent) mechanisms of aggressive tax planning.

Exchange of Information in Tax Matters

Globalisation and cross-border movement of persons and capital have placed new challenges before national tax systems as well as international taxation. Over the past 20 years there has been an unprecedented development of exchange of information, a previously ancillary instrument which has developed into a widely accepted global means of fighting tax evasion. Exchange of information has evolved from an instrument of limited scope used for the implementation of tax treaty provisions to a sophisticated system of automatic information exchange encompassing a vast majority of countries, including infamous tax havens. The notions of tax secrecy and tax transparency have undergone a re-evaluation process, resulting in new global paradigms directed at unveiling previously secret transactions. Banking secrecy has been abolished even in countries with a strong tradition thereof. As some time has passed since the introduction of the latest global standard of the automatic exchange of information, this paper reflects on the most important aspects of exchange of information, regulated by tax treaties: the OECD’s CRS, EU’s DAC, and FATCA. Following a theoretical introduction, which provides a historical and comparative overview of information exchange instruments, the paper presents the practical results of the implementation. Findings of the evaluation of the instrument conducted by key international stakeholders are accompanied by available statistical information, depicting to what extent it has been helpful in preventing tax evasion in Croatia and Slovenia and in recovering lost public revenues. The paper results in identifying the shortcomings of national applications, based on best global practices and statistical data as well as providing tax authorities with recommendations for the improvement of exchanging information. As the system is still in a rather early stage of implementation, the paper presents the current tax administration involvement in exchanging information, which will enable further evaluations in future stages of implementation of the instrument.

Collective Security Treaty Organization: Realities and Perspectives of Crisis Response

This study is aimed at studying the key problem of regional security — crisis response within the framework of the Collective Security Treaty Organization (CSTO).Aim. Show that despite the development of the crisis mechanism, its current state does not satisfy the member states, which affects the overall security of the Eurasian space.Tasks. Consider the stages of development of crisis management through the prism of the development of the formation of the CSTO as an organization designed to ensure security in two directions: military security and countering “new challenges”.Methods. To compare the mechanisms for countering crises, the method of comparative analysis is used, including the provisions of international treaties, as well as successful and unsuccessful practices in the CIS and the CSTO.Results. Based on specific examples of activities and study of the decisions taken by the governing bodies of the CSTO, it is shown that the improvement of the direction of crisis management will become the main one in the development of the Organization.

THE POLICY OF THE EUROPEAN UNION ON THE FIGHT AGAINST TERRORISM: THE ANALYSIS OF THE EUROPEAN UNION LEGISLATION AND SOME NATIONAL ANTITERRORISM PROGRAMMES

Terrorist attacks strike not only the victims, their friends and families, but also the fun­damental principles of the European Union. The choice of the topic of the article is caused by the fact that today the European Union recognizes money laundering, terrorist financing and international terrorism as some of the main threats to its financial system and citizens’ security. The purpose of the article is to analyze the main directions of activities and decisions of the European Union in this area. The methodological basis of the work consists of both general scientific and special meth­ods of scientific knowledge. The EU legislation in the sphere of counter-terrorism was investi­gated using the analytical method, the method of abstraction gave an opportunity to assess the general current state of legal regulation of the fight against terrorism. The use of the compara­tive legal approach made it possible to analyze the national antiterrorist programmes of chosen European countries. The logical legal method was applied when formulating conclusions and proposals. The article deals with the issues related to the legal aspects of the fight against internation­al terrorism. The paper investigates the steps taken by the European Union, i.e., the adoption of resolutions and strategies, the signing of treaties, the creation of institutions that function with the purpose to combat and prevent terrorist attacks, which are the constituents of the general concept of the antiterrorist system. The authors indicate the most important treaty provisions and institutions as well as their development and influence on the system of the fight against terrorism by the European Union. The purpose of the article is to analyze the main directions of activities and decisions of the European Union in this area. It has been investigated that the external activities of the EU include the support of countries in improving their judicial systems and the potential of law enforcement authorities as well as the integration of European antiter­rorist legislation into their security strategies. In the studied countries, the systematic approach to the fight against terrorism is clearly visible.

Settling Water Disputes through International Investment Arbitration: When and by What Standards?

Abstract The development of water law as environmental law may trigger disputes over investment projects, which could find their way to international investment arbitration. Consequently, domestic water law and administration can be subjected to international scrutiny. This article analyses relevant investment treaty provisions and cases concerning water resources management to examine (i) when water disputes can be submitted to investment arbitration and (ii) what standards tribunals have applied to settle them. It demonstrates that water disputes over investment projects can widely be covered by investment treaties, but they do not automatically turn water resources into legally protected commodities. Investment arbitration is commonly used by foreign investors to challenge the legality of water-related measures adopted by host States under an applicable investment treaty, it can also be used to enforce domestic environmental law. In most controversial cases, arbitral tribunals applied reasoned decision-making and regulatory coherence as emerging global regulatory standards.

The Interface of Science and Law: Protecting, Preserving and Conserving Biodiversity with the Law of the Sea Convention

Abstract With examples drawn primarily from the Law of the Sea Convention, this paper examines potential issues arising under international law facing environmental treaty development and implementation for our natural/physical world where human-imposed jurisdictional boundaries, such as “high seas,” are scientifically irrelevant and may even be potentially detrimental to achieving the admirable environmental objectives sought by these treaties. In this context it explores legal pitfalls produced by well-meaning but often inadequately advised attempts to incorporate incompletely understood scientific concepts and terminology, such as “biodiversity,” in, and/or impose them on, environmental treaties. It considers potential adverse effects on the environment, the rule of law and the development of sound science to support environmental treaties when implementation of existing treaty provisions for environmental protection is neglected.

Rising from its ruins? The Southern African Development Community (SADC) Tribunal

The Tribunal of the Southern African Development Community (SADC) was established to ensure adherence to and the proper interpretation of the provisions of the SADC Treaty and its subsidiary instruments, and to adjudicate upon such disputes as might be referred to it. However, since its establishment, it has had a troubled history. After the rulings it made against the Government of Zimbabwe in the landmark Campbell land seizures case, the Tribunal's operations were unceremoniously suspended. This was followed by a process to revise its mandate, one that ultimately condemned it to paralysis and ruin. The new 2014 Protocol on the Tribunal, meant to revise the mandate of the Tribunal to confine it to hearing disputes involving states only, has been criticised as an attempt to undermine the rule of law and human rights in the region. Since the adoption of this 2014 Protocol by the SADC Summit, stakeholders have mobilised regionally to resist its ratification by member states. In particular, lawyers in SADC countries are embarking on legal petitions to reverse the Protocol and promote the revival of the Tribunal in terms of its old mandate. So far, there have been victories in these cases in two influential SADC member states, South Africa and Tanzania. However, it remains important to assess the significance of these developments. As such, the article raises the question: Is the Tribunal rising from its ruins?

Online Dispute Resolution in the Field of Intellectual Property: Russian and Foreign Experience

In the modern world, taking into account scientific and technological progress and the need for innovative development, many states are improving their legislation and approaches to regulating relations in the field of intellectual property by modernizing the justice system. With the use of Internet technologies, it becomes possible to carry out various settlement procedures, both judicial and extrajudicial. Due to the intangible nature of intellectual property objects, online dispute resolution in this area increases the level of protection of rights, expands access to justice, and the effectiveness of resolving disputes. In addition, the use of the blockchain distributed registry system allows you to create a platform for storing information related to the circulation of intellectual property. The experience of Russia, China, Thailand and Canada in the field of online resolution of disputes arising from infringement of intellectual property rights is studied. It is noted that a common understanding of the protection of copyright, as well as objects of industrial property, based on the provisions of fundamental international treaties, as well as modern technologies, including those built on the basis of artificial intelligence, with their correct structured application, will allow resolving such disputes promptly in pre-trial order, thereby unloading the judicial system. At the same time, their clear correlation with the provisions of international agreements is necessary.

Russia–EU energy dialogue in 2000–2014: Key priorities, stages, contradictions, and outcomes

Energy cooperation was one of the cornerstones of the European Union–Rus- sia relations and, in turn, was, to a large extent, shaped by the progress of the EU-Russia Energy Dialogue, which developed from 2000 to 2014. On the basis of a consistent critical analysis of official sources, the paper identifies internal and external determinants of the Russia-EU Energy Dialogue and assesses its general logic and dynamics, as well as its key outcomes. The author concludes that in the first five years of the Energy Dialogue it was the European Union who acted as its driving force, as the EU sought not only to ensure the supplies of Russian energy resources, but also to take control over their production and transporta- tion. A careful comparison of the Russia-EU Energy Dialogue key dimensions and the provisions of the Energy Charter Treaty allowed the author to identify yet another aim of the European Union, namely, to impose on Moscow the prin- ciples of a common European energy policy. However, these efforts encountered strong opposition from the Russian government. From 2006–2007 the conflict of interests had become all the more evident, as considerable changes took place both in the internal energy policy of Moscow and Brussels and Russia’s inter- national position. As a result, the content and structure of the Energy Dialogue changed: discussions on the creation of a single energy community and energy markets were overshadowed by issues of strategic planning and development of an early warning mechanism. Therefore, by 2014, when the EU abandoned the Energy Dialogue, its potential had been to a large extent exhausted. Nevertheless, the Dialogue provided Russia with extensive experience in interacting with the European Commission as a supranational body of the EU, and this experience might be in demand in the future.