Committee publications
Crypto is crazy – non-fungible tokens are crazier still
The panel examined recent developments regarding the taxation of crypto-assets in various jurisdictions. The presentation focused on what non-fungible tokens (NFTs) are, important definitions in recent OECD rules and EU regulations dealing with crypto-assets and the EU’s tax transparency rules for crypto-asset transactions, the value-added tax-treatment of transactions concerning crypto-assets and NFT platforms in the United Kingdom and, finally, the income tax treatment in the United States and Italy.
Released on Apr 8, 2024
Permanent establishment (2024)
The concept of permanent establishment (PE) is one of the key issues in international taxation, as it determines the allocation of taxing rights between source and residence countries. However, the traditional PE concept, based on physical presence and agency, is facing new challenges in the context of hybrid and distance working, the digital economy and multilateral instruments. This panel, held at the IBA congress on 15 January 2024, aimed to explore the recent developments and difficulties related to the PE concept from different perspectives and jurisdictions. The panel was chaired by Raul-Angelo Papotti, and featured five speakers from Denmark, France, Germany, Spain and the United Kingdom.
Released on Apr 8, 2024
Holding companies: which jurisdiction is the best?
The panel discussed the present application and significance of holding companies, specifically special purpose vehicles (SPVs), from the viewpoints of several key jurisdictions: Spain, Germany, the United Kingdom, Dubai and Luxembourg. The primary focus of the discussion centred on evaluating the relevance and impact of holding companies within the framework of both international and European Union regulatory progression, particularly in light of the proposed Anti-Tax Avoidance Directive 3 (ATAD 3), аs well as what is the most appropriate jurisdiction to register an SPV. The conversation explored the implications of these regulatory changes for holding companies, assessing their operational viability and strategic importance in the international tax landscape.
Released on Apr 8, 2024
Current and developing issues in cross-border finance
The conference session focused on current and developing tax issues in cross-border finance, with a panel of experts from various jurisdictions discussing the latest trends and challenges in this area. The conference aimed to provide a comprehensive overview of the tax implications of different types of financing transactions, such as securitisation, fund financing, hybrid instruments, and interest deduction limitations. The panel session also addressed the impact of anti-hybrid and mandatory disclosure rules on capital markets, as well as the concept of beneficial ownership and conduit financing.
Released on Apr 7, 2024
From the Editors - Litigation Committee newsletter April 2024
Welcome to the Spring 2024 edition of the newsletter, focusing on the impact of armed conflicts on commercial disputes. You will also find a look back at several litigation-themed sessions and events at the IBA Annual Conference in Paris this past November, as well as inspiration for planning ‘a day in Amsterdam’ ahead of this year’s Annual Litigation Forum in the Dutch capital. We thank all contributors for their submissions and hope you will find them of interest.
Released on Apr 4, 2024
Evidencing damage caused by modern warfare: Russia’s large-scale war against Ukraine
The large-scale war waged by Russia on Ukraine has been going on for over two years and has caused enormous damage. The total amount of damage to Ukrainian citizens, businesses and the state itself is yet to be quantified. It already appears to be in the range of hundreds of billions of dollars. It is said that even the total value of all frozen Russian assets in different jurisdictions is far below the value of the damage caused by the Russian aggression against Ukraine.
Released on Apr 4, 2024
Don’t let an armed conflict get in the way of London litigation
The full-scale invasion of Ukraine in February 2022 was a calamitous event which has given rise to extraordinary hardship and global repercussions that continue to reverberate. Away from the battlefield itself, many have been displaced and businesses disrupted globally. The last year or so has given a definitive answer in so far as the English Court is concerned: there will be no ‘deep freeze’, the sanctions complications arising in litigation unrelated to the war are to be managed.
Released on Apr 4, 2024
Seeking justice across borders: enforcing foreign judgments amid contemporary armed conflicts
Civil and commercial disputes arising from armed conflicts stem from a multitude of causes, ranging from torts and delicts committed during combat to breaches of contractual obligations, fully or partially brought about by sanctions regimes targeting individuals and entities associated with the aggressor. Typically, such disputes inherently present distinctive challenges and intricacies, including issues surrounding state immunity and the imperative of attaining recognition and enforcement of judgments in foreign jurisdictions, particularly when the aggressor’s assets within the jurisdiction of judgment origin prove inadequate to satisfy the damages awarded.
Released on Apr 4, 2024
Disputes in a world of sanctions: issues with the administration of justice
The restrictive measures introduced by the United States, the European Union, the United Kingdom and others in respect of the actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine are undoubtedly of an unprecedented nature. On the other hand Russian anti-sanctions measures are changing the landscape in unrecognisable ways. By February 2024, the EU imposed its 13th package of sanctions against Russia. The economic sanctions have also been extended to 31 July 2024 with the possibility that they will be extended again for as long as the conflict continues. Although such sanctions are part of a continuous effort to impose severe economic, political and other consequences on Russia for its war against Ukraine, they create obstacles to the effective administration of justice and the rule of law.
Released on Apr 4, 2024
The ‘silent casualty’ of war: armed conflict, environmental protection and corporate liability – trends in international law and the impact on commercial disputes
Conflict can contribute to carbon emissions and drastically affect biodiversity, while environmental degradation, such as resource scarcity or water shortages, increases the likelihood of violent conflict. Pollution of local water supplies, illegal land possession and unsustainable extraction of resources are just some examples of corporate activities which can cause conflict.
Released on Apr 4, 2024
The Russian invasion of Ukraine: effects on global trade and remedies available under Italian law
Given the fact that war in Ukraine and consequent sanctions are affecting Italian commercial transactions, the purpose of this article is to examine the remedies provided by Italian law to contractual parties being in an ‘emergency situation’ and to understand if such remedies are (still) applicable in the current context of the Russian-Ukrainian conflict.
Released on Apr 4, 2024
The impact of conflict in Ukraine on commercial disputes: a recent Italian example
According to an Italian court, the conflict between the Russian Federation and Ukraine and the martial law in force in Ukraine put at risk the possibility to recover a credit against a Ukrainian company and justified the suspension of the payment of a bank guarantee.
Released on Apr 4, 2024
The impact of armed conflicts on commercial disputes: recent developments in France
Armed conflicts generate numerous unforeseen direct and indirect consequences, such as the surge in energy prices. Such consequences disrupt the performance of commercial contracts, for instance by making it excessively onerous for one party. The recent reform of French contract law added two mechanisms to the French Civil Code which may prove relevant in such a context. Their use is however strictly framed by French courts.
Released on Apr 4, 2024
The impact of armed conflict on commercial disputes in Africa
This article provides high-level insight into the impact of armed conflicts on commercial disputes ‘on the ground’, in three relevant jurisdictions: Burkina Faso, Sudan, Burkina Faso and Sierra Leone.
Released on Apr 4, 2024
The impact of armed conflicts on commercial disputes: in the context of Malaysian law
This article seeks to examine the effects of conflict over international and national economic flows and the implications which follow within the context of Malaysian law.
Released on Apr 4, 2024
The impact of armed conflicts on commercial disputes in the UK: Navigating sanctions and supply chain challenges
This article considers how the English commercial disputes market has developed in response to the legal risks that arise from armed conflicts, focusing on: (i) navigating sanctions; and (ii) supply chain challenges.
Released on Apr 4, 2024
The impact of armed conflicts on commercial disputes
This article explores the multifaceted impact of armed conflicts on commercial disputes, delving into the types of disputes arising, access to courts and the judicial process, the pivotal role of lawyers in conflict zones, and the effects on cross-border litigation and commercial transactions. Armed conflicts disrupt legal infrastructure, exacerbate property rights disputes, and create regulatory uncertainties, hindering access to justice and impeding cross-border transactions. Despite challenges, lawyers play a crucial role in advocating for clients and upholding the rule of law amidst conflict.
Released on Apr 4, 2024
Economic sanctions in commercial disputes: the Russian courts’ approach
Today's global economy is very different from that of a few years ago. Armed conflicts and political developments surrounding such conflicts have led to trade restrictions, including economic sanctions. In the sanctions-driven environment, many companies have experienced supply chain disruptions. More than any other country, Russia has been affected by supply chain disruptions since February 2022. Not surprisingly, these issues have led to various commercial disputes both in Russia and in the international arena.
Released on Apr 4, 2024
Resolution of international commercial disputes in times of war: considerations for minimising risks
This article examines the limits of litigation, courts, and government sanctions to ensure fairness in resolving cross border disputes during times of war. The article surveys various pitfalls of litigation in times of conflict or involving matters connected to war. It concludes by noting that arbitration may prove to be a powerful and, potentially, more prevalent tool for businesses and individuals to navigate disputes and business relations in times of war.
Released on Apr 4, 2024
International mutual legal assistance in Switzerland: The Hague Evidence Convention’s Chapter II route
Using the lesser-known Chapter II route has advantages and may speed up the process of taking evidence from resident Swiss witnesses
Released on Apr 4, 2024
The impact of Churchill v Merthyr Tydfil on modern commercial dispute resolution
With an increasing number of litigants seeking their day in court, securing an effective, fair and fast resolution to disputes has never been more challenging. The decision of the Court of Appeal in England and Wales, in Churchill v Merthyr Tydfil, confirms the integral role ADR and mediation play in effectively resolving disputes for parties. In showing positive treatment towards ADR and overturning Halsey, the Court has both encouraged parties to think strategically when approaching complex dispute resolution and also supported parties seeking to resolve disputes in a cost effective and fair manner.
Released on Apr 4, 2024
Are you an ostrich?: the wave of novel AI uses
Generative AI is a powerful new tool in the hands of wrongdoers, including fraudsters, thus creating new risks for businesses. This technology can mimic human language, images and biometric data beyond a point where even another machine can distinguish between what is real and what is AI-generated. It can engage targets in automated, conversation-style interactions which maximise the potential for deception. And it can be programmed to do this at scale. This article explores these risks and suggests ways they can be mitigated.
Released on Apr 4, 2024
The Hague Judgments Convention: a leap of faith?
The Hague Judgments Convention aims to simplify the global recognition and enforcement of civil or commercial judgments. While it represents an important step towards international judicial cooperation, this article examines its scope, practical implications, and potential limitations.
Released on Apr 4, 2024
A day in Amsterdam: exploring the hotspots of the Dutch capital
As the Litigation Committee prepares to hold its Annual Litigation Forum, this year in Amsterdam, we take a look at some interesting things to do in this wonderful city.
Released on Apr 4, 2024
What may a lawyer do, what may a lawyer not do and what are lawyers expected to do?
Session summary from IBA Annual Conference 2023: The session ‘The role of the profession, ethics, representation and social responsibility’, held on 1 November 2023 in the chamber of the International Chamber of the Paris Commercial Court in central Paris, was led by Sandrine Giroud (of LALIVE in Geneva), Vice-Chair of the Litigation Committee, and Adam S Goodman (of Dentons in Toronto), Vice-Chair of the Rule of Law Forum. Panellists were Robert Steven Bernstein (of Holland & Knight, New York), Christopher Stephens (of the World Bank, Washington), and Ambassador Ret. François Zimeray (of Zimeray Finelle, Paris). The discussion addressed the pressure lawyers could face from their clients, the limits of free speech, but also whether the concept of universal rights was under attack.
Released on Apr 4, 2024
Litigating in and about the metaverse
A summary of the IBA Litigation Committee and Technology Law Committee’s IBA Annual Conference session on ‘Litigating in and about the metaverse’. The session took place on 1 November 2023 and examined issues that litigators will need to confront as this new area continues to develop.
Released on Apr 4, 2024
In memoriam: Senator Joseph Lieberman
The IBA was saddened to hear of the passing of Senator Joseph ‘Joe’ Lieberman, who died on 27 March 2024 at the age of 82.
Released on Mar 28, 2024
Proposed amendments to Switzerland’s anti-money laundering and sanctions framework
An article on proposed amendments to Switzerland’s anti-money laundering and sanctions framework by Matthias Gstoehl and Benoit Mauron.
Released on Mar 27, 2024
Requirement to hold an Australian financial services licence potentially applies to overseas companies
The Australian Government has proposed significant changes to the regulation of overseas companies seeking to provide financial services to clients in Australia, as this article explains.
Released on Mar 20, 2024
Digital banking versus traditional banking in Türkiye: the legal considerations for consumer protection
In the Turkish finance sector, digital banks offer a plethora of advantages, including cost savings, convenience and technological innovation, making them increasingly popular among consumers seeking efficient and accessible banking solutions. However, these advantages come with their own set of drawbacks, such as limited physical presence, security concerns and potential challenges for certain demographics. This article discusses the consumer protection regime that applies to digital banking.
Released on Mar 20, 2024