Can tax avoidance be anticompetitive?
Google has been in the news for more than one reason. For one, its tax planning has attracted the attention of the public media, and prompted European officials to charge Google with tax avoidance or even tax evasion. The record fines imposed on Google pursuant to the EU’s competition law have made at least as many headlines; Google has appealed, but more cases are pending. These seemingly unrelated events under different legal regimes may be connected, however. The fines levied against Google under EU competition law can be seen as making Google pay its ‘fair share’ to compensate for exploiting loopholes in tax law. However, if the objective is to make Google pay its ‘fair share’, why couldn’t this objective be achieved under tax law?
Continue reading “EU Competition Law as a Taxation Regime”
Earlier this year, the England and Wales Court of Appeal issued its much-anticipated ruling in Okpabi et al. versus Royal Dutch Shell et al. The judgment addresses important questions in relation to a parent company’s liability for damage caused by its subsidiaries.
A previous blog post ‘Parent Companies Are Not Parents, Subsidiaries Are Not Children’, argued that the Court of Appeal has given a strong signal that England will not lead the way in opening up new avenues to get into the ‘deep pockets’ of parent companies to address harms caused by their subsidiaries around the world.
Building on the blog post, a recent article in the European Company Law Journal presents a further analysis of the case and discusses the implications of the ruling for companies and regulators in the future.
Okpabi v Shell Judgment Puts the Brakes on the Expansion of Parent Company Liability for Damage Caused By Its Subsidiaries
A recent judgment of the England and Wales Court of Appeal addressed important jurisdictional questions in relation to a parent company’s liability for damages caused by its subsidiaries. The court did not rule on the merits of the claim; rather, it analysed the preliminary issue of whether UK courts have jurisdiction to hear such claims. In determining whether there is jurisdiction, however, the English court did have to examine substantive law issues. This makes the case of great interest to parent company liability, and, as parent company liability overlaps with supply chain liability, also to the latter. Continue reading “Parent Companies Are Not Parents, Subsidiaries Are Not Children”
a post by guest blogger Penelope Bergkamp
Following a clear trend, Switzerland is now also considering proposals to hold Swiss companies liable for environmental damage and human rights violations in their supply chains. Possibly inspired by the French Corporate Duty of Vigilance Law, the Swiss Coalition for Corporate Justice (SCCJ) launched the Responsible Business Initiative (“RBI”) in 2015. The RBI involves a citizens’ petition to amend the Swiss Federal Constitution to impose “appropriate due diligence” obligations on Swiss companies in accordance with their responsibilities under the UN Guiding Principles, along with liability for breaches by their subsidiaries. In response to the RBI, the Swiss Senate adopted a somewhat narrower, less ambitious proposal. Pursuant to Article 139 of the Federal Constitution, the Swiss people will be asked to vote on the RBI in a popular referendum
This post discusses the RBI and highlights the key differences between the RBI and the Senate proposal. First, the background to the RBI proposal is briefly reviewed. I will then turn to the procedural and substantive provisions of the RBI. Finally, the international private law aspects of the proposal will be analyzed. Continue reading “Swiss Referendum on Implementing Supply Chain Liability”
On 17 May 2017, a new regulation on supply chain due diligence was published in the European Union’s Official Journal. The regulation, known as the “EU Conflict Minerals Regulation,” imposes obligations on EU importers of tin, tantalum and tungsten, their ores, and gold (“3TG”) originating from conflict-affected and high-risk areas. Armed groups engaged in mining operations in these regions are believed to violate human rights and to use the proceeds from the sale of conflict minerals to finance their militia. The regulation is intended to disrupt the financial flows and, thus, stop the human rights abuses. Continue reading “The EU Conflict Minerals Regulation: The Uncertain Effects of Supply Chain Due Diligence”
A post by guest blogger Penelope Bergkamp
On 23 March 2017, the Constitutional council of the French Republic ruled on the constitutionality of the recently adopted Corporate Duty of Vigilance Law (hereafter “Law”). The Constitutional council held that the obligation imposed by the Law to establish a vigilance plan and the enforcement mechanisms of formal notice and injunction are not in conflict with the Constitution. Likewise, the mechanism for holding a company responsible in case of non-compliance with the obligation to establish the vigilance plan is in conformity with the Constitution. With respect to the criminal enforcement of the Law, however, the Constitutional council did identify a constitutional problem
Continue reading “French Constitutional Council Permits Civil, But Not Criminal Enforcement of Corporate Duty of Vigilance Law”
A post by guest blogger Penelope Bergkamp
On 21 February 2017, the French Parliament adopted a law (the “Corporate Duty of Vigilance Law” or “Law”) that creates novel corporate supply chain liability. Specifically, the Corporate Duty of Vigilance Law imposes a duty of vigilance on large companies to prevent serious violations of human rights and fundamental freedoms and serious environmental damage in their supply chain. In a previous post, I discussed the concept of supply chain liability. As I pointed out there, the concept had not been defined by law makers yet. The French legislature has now attempted to operationalize the concept through new legislation.