Legal Studies Research Paper Series Vol. 8, No. 15

The Faculty has published Volume 8 Number 15 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Matteo Mantovani: When Does the Carrying Out of Transactions for Consideration Give Rise to an Economic Activity Relevant for VAT Purposes? An Insight into the Relationship between the Notions of Consideration and Income According to the Court of Justice of the EU (59/2017)

The difference between consideration and income is relevant for VAT purposes. A supply of goods or a provision of services is subject to VAT if it is carried out for consideration. An activity is economic when it is carried out for the purposes of obtaining income on a continuing basis. Supplying goods or services for consideration does not mean that such an activity is economic for VAT purposes and the person who carries it out is a taxable person. To this end, income has to be yielded from the activity. The Court of Justice of the European Union has recently addressed the issue of the difference between income and consideration in two similar cases. Starting from these cases, the article analyses the concepts of consideration, economic activity and taxable person, and their mutual relationships, with a view to explaining when carrying out transactions for consideration gives rise to an economic activity relevant for VAT purposes and, as a consequence, the person who runs the activity becomes a VAT taxable person.

Jonathan Bonnitcha, Lauge N. Skovgaard Poulsen, Michael Waibel: Chapter 9: Legitimacy and Governance Challenges (60/2016)

Investment treaties are some of the most controversial yet least understood instruments of global economic governance. Public interest in international investment arbitration is growing, and some developed and developing countries are beginning to revisit their investment treaty policies. The Political Economy of the Investment Treaty Regime synthesizes and advances the growing literature on this subject by integrating legal, economic, and political perspectives. Based on an analysis of the substantive and procedural rights conferred by investment treaties, it asks four basic questions. What are the costs and benefits of investment treaties for investors, states, and other stakeholders? Why did developed and developing countries sign the treaties? Why should private arbitrators be allowed to review public regulations passed by states? And what is the relationship between the investment treaty regime and the broader regime complex that governs international investment? Through a concise yet comprehensive analysis this book fills in some of the many ‘blind spots’ of academics from different disciplines.

This final chapter of the book outlines the legitimacy and governance challenges facing the investment treaty regime. The first section considers the impact of investment treaties on national governance. In particular, it assesses criticisms that investment treaties unduly fetter democratic decision-making and discourage states from regulating in the public interest. The second section examines the legitimacy of investment treaty arbitration – the regime feature that has come under closest scrutiny over the last decade. It assesses debates about transparency and consistency in investment treaty arbitration, its impact on the broader investment regime complex, the selection, identity, and alleged biases of arbitrators, as well as the lack of investor obligations.

Michael Waibel: Brexit and Acquired Rights (61/2017)

As a hybrid provision, the much-discussed withdrawal provision in Article 50 of the TEU is part of European Union law yet also anchored in public international law. Due to this anchoring of EU law, the UK’s withdrawal raises important questions of public international law that are the focus of this essay. First, this essay examines the relationship between the specialized withdrawal right in Article 50 of the TEU and the customary international law on withdrawal from treaties in Article 70 of the Vienna Convention on the Law of Treaties (“VCLT”), and explores its implications for the UK’s obligations vis-à-vis the EU and its member states. Second, it looks at how Brexit affects the acquired rights of third parties to the EU treaties, namely those of citizens of the other 27 EU member states—an issue that brings Brexit’s most critical practical challenges into sharp focus.

Nicola Padfield: Parole Board Oral Hearings 2016 - Exploring the Barriers to Release: Avoiding or Managing Risks? Report of a Pilot Study (62/2017)

This is the report of a pilot study into oral hearings of the Parole Board carried out in the summer of 2016. It was an observational study of 19 cases listed for hearing by video-link at the Parole Board’s headquarters in the summer of 2016, alongside interviews with Parole Board members. The report discusses these cases in the context of the academic and legal literature. It reaches no clear conclusions, but identifies areas for future research. A more ‘independent’ and ‘court-like’ Parole Board might focus more on releasing post-tariff prisoners, and create a culture of urgency which penalises delays. (It should be read in conjunction with the Stage Two Report, submitted in May 2017. Both reports were originally confidential to the Parole Board but the Board agreed in November 2017 that they could be put in the public domain .)

Nicola Padfield: Parole Board Oral Hearings 2016-2017 - Exploring the Barriers to Release: Stage Two of an Exploratory Study (63/2017)

This is the Stage Two report of an exploratory study into oral hearings of the Parole Board carried out in the early months of 2017. Building on the pilot study, an additional 17 cases listed for hearing at oral hearings at 11 different prisons were observed in early 2017, and further interviews were conducted with a variety of participants in the parole process. Conclusions focus on the apparent culture of delay, and the paper makes a number of recommendations to strengthen the role and independence of the Parole Board, to improve processes, and to improve the support given to prisoners in the parole process. (It should be read in conjunction with the Pilot Study, submitted in November 2016. Both reports were originally confidential to the Parole Board but the Board agreed in November 2017 that they could be put in the public domain.)

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