N. Nwafor, C. Orabueze, Uchenna Erinne, Lucky Iyoyoejie, C. Aduaka
There is no doubt that the corona virus (COVID-19) pandemic has impacted almost every sphere of human endeavours, including the performance of a contract. The significance of the concepts of frustration and force majeure as principles of contract in the current context of the COVID-19 pandemic cannot be overemphasized. While frustration, a common law doctrine is implied by law to release parties from their obligations, force majeure clauses look at the express intention of parties in dealing with supervening occurrences. This article intends to simplify the understanding of the overlapping nature of frustration, force majeure and COVID-19 in modern contracts.
{"title":"Modern Issues and Challenges in Contract Frustration","authors":"N. Nwafor, C. Orabueze, Uchenna Erinne, Lucky Iyoyoejie, C. Aduaka","doi":"10.54648/bula2022017","DOIUrl":"https://doi.org/10.54648/bula2022017","url":null,"abstract":"There is no doubt that the corona virus (COVID-19) pandemic has impacted almost every sphere of human endeavours, including the performance of a contract. The significance of the concepts of frustration and force majeure as principles of contract in the current context of the COVID-19 pandemic cannot be overemphasized. While frustration, a common law doctrine is implied by law to release parties from their obligations, force majeure clauses look at the express intention of parties in dealing with supervening occurrences. This article intends to simplify the understanding of the overlapping nature of frustration, force majeure and COVID-19 in modern contracts.","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"114 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88142696","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The article analyses various methods for determining the tax burden and highlights their shortcomings. A method is proposed that automatically determines the actual tax burden on labour and capital at each enterprise. To implement the method, it is proposed to define two concepts: ‘value added’ (as the sum of factor income for labour and capital) and ‘price’ (as the sum of value added and depreciation). The added value determines the tax base of VAT, and its components – the base of social contributions, personal income tax (PIT) and income tax, and the established rates – the tax burden on labour, capital and households. Self-regulation of the tax burden ensures the established link between the selling price of goods/services and actually paid taxes. At the same time, macroeconomic stability is ensured, automatic control of payment of taxes and social contributions, costs associated with tax control and tax reporting are minimized, the application of almost all known tax optimization schemes becomes more complicated. legitimate interests, factor income, labour, capital, households, tax burden, progressive tax rate, tax base
{"title":"Self-Regulation of the Tax Burden on Labour and Capital","authors":"Serhii S. Pyroha, Ihor S. Pyroha","doi":"10.54648/bula2022018","DOIUrl":"https://doi.org/10.54648/bula2022018","url":null,"abstract":"The article analyses various methods for determining the tax burden and highlights their shortcomings. A method is proposed that automatically determines the actual tax burden on labour and capital at each enterprise. To implement the method, it is proposed to define two concepts: ‘value added’ (as the sum of factor income for labour and capital) and ‘price’ (as the sum of value added and depreciation). The added value determines the tax base of VAT, and its components – the base of social contributions, personal income tax (PIT) and income tax, and the established rates – the tax burden on labour, capital and households. Self-regulation of the tax burden ensures the established link between the selling price of goods/services and actually paid taxes. At the same time, macroeconomic stability is ensured, automatic control of payment of taxes and social contributions, costs associated with tax control and tax reporting are minimized, the application of almost all known tax optimization schemes becomes more complicated.\u0000legitimate interests, factor income, labour, capital, households, tax burden, progressive tax rate, tax base","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"41 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81501766","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Taking an Analytic Approach to GDPR Compliance","authors":"David Flint","doi":"10.54648/bula2022019","DOIUrl":"https://doi.org/10.54648/bula2022019","url":null,"abstract":"","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"85 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74318632","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Company law and corporate governance in the Republic of Ireland have long been heavily influenced by developments in the UK. However, the UK’s withdrawal from the European Union raises the question whether this will continue to be the case. This article examines the historical development as well as the way forward for corporate governance and the position of shareholders in Ireland following Brexit. It is argued that the influence from global trends, such as climate change mitigation, will have a significant impact on corporate governance in both the EU and the UK. However, any changes in corporate governance may occur at a different pace in the UK and EU, where Ireland would be more under the sphere of influence of the EU. As these trends generally set out to decrease any emphasis on short-term shareholder value creation, it is likely to impact the position of shareholders in Ireland as well. corporate governance, comparative law, shareholder primacy
{"title":"The Competing EU and UK Influence on Corporate Governance in Ireland Following Brexit","authors":"E. Rogge, Oisin McGinley","doi":"10.54648/bula2022015","DOIUrl":"https://doi.org/10.54648/bula2022015","url":null,"abstract":"Company law and corporate governance in the Republic of Ireland have long been heavily influenced by developments in the UK. However, the UK’s withdrawal from the European Union raises the question whether this will continue to be the case. This article examines the historical development as well as the way forward for corporate governance and the position of shareholders in Ireland following Brexit. It is argued that the influence from global trends, such as climate change mitigation, will have a significant impact on corporate governance in both the EU and the UK. However, any changes in corporate governance may occur at a different pace in the UK and EU, where Ireland would be more under the sphere of influence of the EU. As these trends generally set out to decrease any emphasis on short-term shareholder value creation, it is likely to impact the position of shareholders in Ireland as well.\u0000corporate governance, comparative law, shareholder primacy","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"16 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87925909","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Much judicial and academic ink has been spilled over pre – and post-contractual rights and duties of insurer and insured, and it continues to flow, even now. Due to a lack of specialized knowledge and skills, policyholders are always in a weak bargaining position when proposing insurance (Qing Luo, ‘The Legal Protection of the Insured: a comparative study of Chinese, UK, and Australian Insurance Law’, Doctoral Thesis, City University of Hong Kong, CityU Scholars, 14 July 2006, 1, (accessed 25 August 2021, 2:20 pm FST) https://scholars.cityu.edu.hk/en/theses/the-legal-protec tion-of-the-insured(8b392fcd-0a72-4591-81ce-9fced f2a7feb).html). The insured is further disadvantaged because the insurer will only be prepared to enter into a contract of insurance upon its terms; and not tailor-make policies to suit the needs of the insured. Hence, the insured has no choice but to accept what is being offered. The insured is further embraced by the fact that insurance regulations generally protect the insurance industry and the insurer and impose heavy responsibilities on the policyholder. This article is a critical examination of the rights and duties of insurers and insured, vis-à-vis good faith, contracts of insurance, and settlement of insurance claims. The biggest challenge facing the insurance industry is the lack of consumer protection. The regulators of the industry should ensure that insurance regulations perpetrate fairness. Consumer, Inequality, Insurance, Regulation, Scheme
{"title":"The Disproportionate Rights and Duties of the Insurer and the Insured in Fiji","authors":"Pradeep Krishan Tiwari, Gaurav Shukla","doi":"10.54648/bula2022011","DOIUrl":"https://doi.org/10.54648/bula2022011","url":null,"abstract":"Much judicial and academic ink has been spilled over pre – and post-contractual rights and duties of insurer and insured, and it continues to flow, even now. Due to a lack of specialized knowledge and skills, policyholders are always in a weak bargaining position when proposing insurance (Qing Luo, ‘The Legal Protection of the Insured: a comparative study of Chinese, UK, and Australian Insurance Law’, Doctoral Thesis, City University of Hong Kong, CityU Scholars, 14 July 2006, 1, (accessed 25 August 2021, 2:20 pm FST) https://scholars.cityu.edu.hk/en/theses/the-legal-protec tion-of-the-insured(8b392fcd-0a72-4591-81ce-9fced f2a7feb).html). The insured is further disadvantaged because the insurer will only be prepared to enter into a contract of insurance upon its terms; and not tailor-make policies to suit the needs of the insured. Hence, the insured has no choice but to accept what is being offered. The insured is further embraced by the fact that insurance regulations generally protect the insurance industry and the insurer and impose heavy responsibilities on the policyholder. This article is a critical examination of the rights and duties of insurers and insured, vis-à-vis good faith, contracts of insurance, and settlement of insurance claims. The biggest challenge facing the insurance industry is the lack of consumer protection. The regulators of the industry should ensure that insurance regulations perpetrate fairness.\u0000Consumer, Inequality, Insurance, Regulation, Scheme","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"76 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84651657","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"In Parliament","authors":"","doi":"10.54648/bula2022014","DOIUrl":"https://doi.org/10.54648/bula2022014","url":null,"abstract":"","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"127 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77079588","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The mode of appointment of independent directors has gained traction in recent years and has recently been in the limelight since the Securities Exchange Board of India (SEBI), (the regulatory body for listed securities in India) proposed reforms for the process of appointment/removal of independent directors. This article has explored the accountability cast on independent directors and safeguards provided to them within the ambit of the Companies Act, 2013, along with the concerns and recourses available to minority shareholders from proceeding against the independent directors. The article has attempted to resolve the fallacies in the current modus of appointment of independent directors and has examined alternate modes of appointment, including the feasibility of adopting the dual voting structure followed in the United Kingdom which was proposed in the SEBI reforms. Independent directors, appointment, dual voting structure, the United Kingdom, Securities Exchange Board of India Consultation Paper, Companies Act, 2013, cumulative voting and minority shareholders.
{"title":"Appointment of Independent Directors in India: A Critique","authors":"Shruti Khetan, Varsha Maria Koshy","doi":"10.54648/bula2022012","DOIUrl":"https://doi.org/10.54648/bula2022012","url":null,"abstract":"The mode of appointment of independent directors has gained traction in recent years and has recently been in the limelight since the Securities Exchange Board of India (SEBI), (the regulatory body for listed securities in India) proposed reforms for the process of appointment/removal of independent directors. This article has explored the accountability cast on independent directors and safeguards provided to them within the ambit of the Companies Act, 2013, along with the concerns and recourses available to minority shareholders from proceeding against the independent directors. The article has attempted to resolve the fallacies in the current modus of appointment of independent directors and has examined alternate modes of appointment, including the feasibility of adopting the dual voting structure followed in the United Kingdom which was proposed in the SEBI reforms.\u0000Independent directors, appointment, dual voting structure, the United Kingdom, Securities Exchange Board of India Consultation Paper, Companies Act, 2013, cumulative voting and minority shareholders.","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"86 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81163736","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As some of you who know me will be aware, in addition to Competition Law, IP and Privacy, one of my long-term interests has been in computer technology. From my earliest experiences with the products of Sir Clive Sinclair, through programming IBM mainframes with Fortran 4, DEC machines with cp/m, RSTS-E and, latterly, SCO-Unix, to the modern operating systems of Windows and iOS, I have always had an interest in computers and the law surrounding them. Increasingly, I have become frustrated at the many issues which innocent and unsophisticated users seem to be having and the apparent lack of recourse which those users have following what are often business-critical issues.
{"title":"Just Who Is Responsible for This Snafus?","authors":"David Flint","doi":"10.54648/bula2022013","DOIUrl":"https://doi.org/10.54648/bula2022013","url":null,"abstract":"As some of you who know me will be aware, in addition to Competition Law, IP and Privacy, one of my long-term interests has been in computer technology. From my earliest experiences with the products of Sir Clive Sinclair, through programming IBM mainframes with Fortran 4, DEC machines with cp/m, RSTS-E and, latterly, SCO-Unix, to the modern operating systems of Windows and iOS, I have always had an interest in computers and the law surrounding them. Increasingly, I have become frustrated at the many issues which innocent and unsophisticated users seem to be having and the apparent lack of recourse which those users have following what are often business-critical issues.","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"7 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84384002","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Transfer pricing, from documentation to audit, can be complicated and costly. Despite the release of transfer pricing regulations and increased scrutiny over intercompany dealings, the revenue authorities and taxpayers still disagree over various aspects of transfer pricing documentation. This situation necessitated the creation of various transfer pricing dispute resolution and dispute prevention mechanisms in jurisdictions across the globe. The Organization for Economic Cooperation and Development (OECD) has set the global standards on the mechanisms for transfer pricing dispute resolution/prevention and how they should apply. These transfer pricing dispute prevention mechanisms seek to avoid the costly and complicated process that is associated with transfer pricing audit while the transfer pricing dispute resolution mechanisms seek to resolve transfer pricing disputes in the most efficient manner. Accordingly, this article seeks to assess the transfer pricing dispute resolution/prevention framework in Nigeria against the global standards for resolving and preventing transfer pricing disputes. Transfer pricing, safe harbour, advanced pricing arrangement, mutual agreement procedure, dispute resolution, dispute prevention
{"title":"Assessing the Transfer Pricing Disputes Framework in Nigeria","authors":"Daniel Olika, Ilemobade Olateru-Olagbegi","doi":"10.54648/bula2022010","DOIUrl":"https://doi.org/10.54648/bula2022010","url":null,"abstract":"Transfer pricing, from documentation to audit, can be complicated and costly. Despite the release of transfer pricing regulations and increased scrutiny over intercompany dealings, the revenue authorities and taxpayers still disagree over various aspects of transfer pricing documentation. This situation necessitated the creation of various transfer pricing dispute resolution and dispute prevention mechanisms in jurisdictions across the globe. The Organization for Economic Cooperation and Development (OECD) has set the global standards on the mechanisms for transfer pricing dispute resolution/prevention and how they should apply. These transfer pricing dispute prevention mechanisms seek to avoid the costly and complicated process that is associated with transfer pricing audit while the transfer pricing dispute resolution mechanisms seek to resolve transfer pricing disputes in the most efficient manner. Accordingly, this article seeks to assess the transfer pricing dispute resolution/prevention framework in Nigeria against the global standards for resolving and preventing transfer pricing disputes.\u0000Transfer pricing, safe harbour, advanced pricing arrangement, mutual agreement procedure, dispute resolution, dispute prevention","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"32 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84623092","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-31DOI: 10.24886/blr.2022.03.36.1.213
M. Kim
{"title":"A Study on the Challenge of Financial Regulatory Reform in Korea","authors":"M. Kim","doi":"10.24886/blr.2022.03.36.1.213","DOIUrl":"https://doi.org/10.24886/blr.2022.03.36.1.213","url":null,"abstract":"","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"38 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90226593","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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