What you need to know regarding the ICSID third draft of rule changes
On 16 August 2019, ICSID released its latest proposals for amendment of its procedural rules for the resolution of international investment disputes. The key changes are:
- Expanding the requirements as to what should be included in a Request for ICSID Arbitration (including an estimate of the damages sought, an indication that the requesting party has complied with the conditions of the instrument of consent for submissions of the dispute). This may require a party to state whether, for example, any provisions regarding limitation periods or cooling-off periods have been complied with.
- A move towards the electronic filing of documents, rather than paper filing.
- More comprehensive provisions regarding the disclosure of the details of third-party funding (which now includes a donation or a grant).
- Document discovery is not automatic the Tribunal should consider whether to have discovery and its scope in the first session.
- A provision on security for costs, requiring tribunals to consider all relevant circumstances before deciding whether to order security for costs including the partys ability and willingness to comply with an adverse decision on costs, any effect of providing security for costs on the partys ability to pursue a claim and its conduct. The involvement of a funder may be raised as a relevant circumstance but is not enough in and of itself to warrant an order for security for costs.
- A provision that consent to publish the Award shall be deemed to have been given if no party objects in writing to such publication within 60 days after the dispatch.
- New guidelines for determining confidential and protected information.
ICSID Member States are meeting in November 2019 to consult on the latest draft proposals. Amendments to the ICSID Convention Rules require the approval of two-thirds of Member States, and a simple majority in the case of the Additional Facility Rules, Fact-Finding, and Mediation Rules.
An Assessment to Tax is never ‘stale’, but it might be out of date: HMRC v Tooth
This article briefly discusses the key points arising out of the decision of the UK Supreme Court in HMRC v Tooth  UKSC 17. The case considered (1) whether a discovery assessment could become “stale” and (2) the meaning of the phrase “deliberate inaccuracy”.
VATA 1994 s.47, Agency, Onward Supply Relief, & Double Taxation
On 12 July 2021, the First-tier Tribunal (Tax Chamber) (“FTT”) released its decision in Scanwell Logistics (UK) Limited v HMRC  UKFTT 261 (TC), rejecting the taxpayer’s claim for onward supply relief (“OSR”).
Whilst OSR is now limited, post-Brexit, to goods imported into Northern Ireland for onward supply to the EU, the FTT’s discussion of agency under section 47 of the Value Added Tax Act 1994 (“VATA”) is of broader interest.
The case serves as a reminder of the significant financial consequences that can result from errors in tax planning, as Scanwell was ultimately held liable for £5.7 million in unpaid import VAT despite the fact that the imported goods almost immediately left the UK (which, if properly planned, could have meant Scanwell was relieved from liability to import VAT).
Draft Finance Bill 2022—tax avoidance measures
Helen McGhee, senior associate at Joseph Hage Aaronson LLP, considers the draft Finance Bill 2022 clauses published on 20 July 2021 in relation to tax avoidance and recent updates to the tax avoidance regime.
Getting Closer: A Global Minimum Tax on Corporations
On 1 July 2021, US Treasury Secretary Janet Yellen announced that countries representing over 90% of global GDP had agreed to a global minimum tax on corporations (“GMCT”). The GMCT seeks to put a floor on tax competition on corporate income through the introduction of a minimum corporate tax of at least 15%. Whilst certain elements give rise to positive expectations, some caveats should be noted. Much will depend on (1) the outcome of future political negotiations and (2) the detail of the drafting at international and national levels.
The DBKAG & K (CJEU) decision: an opportunity for investment funds?
On 17 June 2021, the European Court decided the joint cases K (C-58/20) and DBKAG (C-59/20) regarding whether the supply of certain services constituted the “management of special investment funds”, benefiting from the VAT exemption enshrined in Article 135(1)(g) of Council Directive 2006/112/EC.