Tax Treaty Override

What exactly is tax treaty override ? When is it realized ? This thesis, which is the result of a co-directed PhD between the University of Bologna and Tilburg University, gives a deep insight into a topic that has not yet been analyzed in a systematic way. On the contrary, the analysis about tax treaty override is still at a preliminary stage. For this reason the origin and nature of tax treaty override are first of all analyzed in their ‘natural’ context, i.e. within general international law. In order to characterize tax treaty override and deeply understand its peculiarities the evaluation of the effects of general international law on tax treaties based on the OECD Model Convention is a necessary pre-condition. Therefore, the binding effects of an international agreement on state sovereignty are specifically investigated. Afterwards, the interpretation of the OECD Model Convention occupies the main part of the thesis in order to develop an ‘interpretative model’ which can be applied every time a case of tax treaty override needs to be detected. Fictitious income, exit taxes and CFC regimes are analyzed in order to verify their compliance with tax treaties based on the OECD Model Convention and establish when the relevant legislation realizes cases of tax treaty override.

Società di capitali amministratrici di società di persone

The present work focuses on a specific aspect of the general issue concerning the possible consequences of the reform of business corporations (“società di capitali”) on the discipline of partnerships (“società di persone”). After the reform of business law enacted with legislative decree n. 6/2003, the majority of the literature, in the light of the provisions of art. 2361 co. 2 civil code and art. 111-duodecies of the regulatory provisions (“disposizioni di attuazione”) of the civil code itself, maintains the possibility for a business corporation to be executive of a partnership. As a matter of fact, whenever all the members of a partnership are actually business corporations, it shall be possible that either one of the latter becomes the executive, either such role is played by a third party, i. e. a non-partner. After displaying the possible advantages and disadvantages stemming from a business corporation managing a partnership, the analysis investigates the legal feasibility of the case in point. First of all, the reasons supporting the theory under which a legal person cannot be manager of a partnership are examined in depth; an overview of the principal EU Member States’ legal systems and of the discipline of the European Economic Interest Grouping and of European Corporate is then provider for. At the outset of such analysis, the author asserts the legal possibility for a legal person to act as manager of a corporation, including a partnership. Afterwards, the investigation covers the issue of the executive-member in the partnerships. Initially, an overview of the literature concerning the legal nature of the management is offered; then, the three different categories of partnership are analyzed, in order to understand whether such legal persons can be managed by a third party (i.e. a non-member). On the basis of the existing strict connection between executive powers and unlimited liability, the author concludes that only the members shall be manager of the partnerships. Another chapter of the thesis is centred, from the one hand, on the textual data that, after the reform of 2003, support the aforesaid conclusion; from the other hand, on the peculiar features of the corporate business that is executive of a partnership. In particular, the attention is focused on the necessity or on the mere opportunity of an article of association explicitly providing that a corporate business can be executive of the partnership; on the practical ways by which the former shall manage the latter (especially on the necessity of nominating a permanent representative of the legal person and on the possibility to designate the procurators to this end); on the disclosure obligations applicable to the case in point.

Quantifying the Economics of Medical Malpractice - A View from a Civil Law Perspective

Life is full of uncertainties. Legal rules should have a clear intention, motivation and purpose in order to diminish daily uncertainties. However, practice shows that their consequences are complex and hard to predict. For instance, tort law has the general objectives of deterring future negligent behavior and compensating the victims of someone else's negligence. Achieving these goals are particularly difficult in medical malpractice cases. To start with, when patients search for medical care they are typically sick in the first place. In case harm materializes during the treatment, it might be very hard to assess if it was due to substandard medical care or to the patient's poor health conditions. Moreover, the practice of medicine has a positive externality on the society, meaning that the design of legal rules is crucial: for instance, it should not result in physicians avoiding practicing their activity just because they are afraid of being sued even when they acted according to the standard level of care. The empirical literature on medical malpractice has been developing substantially in the past two decades, with the American case being the most studied one. Evidence from civil law tradition countries is more difficult to find. The aim of this thesis is to contribute to the empirical literature on medical malpractice, using two civil law countries as a case-study: Spain and Italy. The goal of this thesis is to investigate, in the first place, some of the consequences of having two separate sub-systems (administrative and civil) coexisting within the same legal system, which is common in civil law tradition countries with a public national health system (such as Spain, France and Portugal). When this holds, different procedures might apply depending on the type of hospital where the injury took place (essentially whether it is a public hospital or a private hospital). Therefore, a patient injured in a public hospital should file a claim in administrative courts while a patient suffering an identical medical accident should file a claim in civil courts. A natural question that the reader might pose is why should both administrative and civil courts decide medical malpractice cases? Moreover, can this specialization of courts influence how judges decide medical malpractice cases? In the past few years, there was a general concern with patient safety, which is currently on the agenda of several national governments. Some initiatives have been taken at the international level, with the aim of preventing harm to patients during treatment and care. A negligently injured patient might present a claim against the health care provider with the aim of being compensated for the economic loss and for pain and suffering. In several European countries, health care is mainly provided by a public national health system, which means that if a patient harmed in a public hospital succeeds in a claim against the hospital, public expenditures increase because the State takes part in the litigation process. This poses a problem in a context of increasing national health expenditures and public debt. In Italy, with the aim of increasing patient safety, some regions implemented a monitoring system on medical malpractice claims. However, if properly implemented, this reform shall also allow for a reduction in medical malpractice insurance costs. This thesis is organized as follows. Chapter 1 provides a review of the empirical literature on medical malpractice, where studies on outcomes and merit of claims, costs and defensive medicine are presented. Chapter 2 presents an empirical analysis of medical malpractice claims arriving to the Spanish Supreme Court. The focus is on reversal rates for civil and administrative decisions. Administrative decisions appealed by the plaintiff have the highest reversal rates. The results show a bias in lower administrative courts, which tend to focus on the State side. We provide a detailed explanation for these results, which can rely on the organization of administrative judges career. Chapter 3 assesses predictors of compensation in medical malpractice cases appealed to the Spanish Supreme Court and investigates the amount of damages attributed to patients. The results show horizontal equity between administrative and civil decisions (controlling for observable case characteristics) and vertical inequity (patients suffering more severe injuries tend to receive higher payouts). In order to execute these analyses, a database of medical malpractice decisions appealed to the Administrative and Civil Chambers of the Spanish Supreme Court from 2006 until 2009 (designated by the Spanish Supreme Court Medical Malpractice Dataset (SSCMMD)) has been created. A description of how the SSCMMD was built and of the Spanish legal system is presented as well. Chapter 4 includes an empirical investigation of the effect of a monitoring system for medical malpractice claims on insurance premiums. In Italy, some regions adopted this policy in different years, while others did not. The study uses data on insurance premiums from Italian public hospitals for the years 2001-2008. This is a significant difference as most of the studies use the insurance company as unit of analysis. Although insurance premiums have risen from 2001 to 2008, the increase was lower for regions adopting a monitoring system for medical claims. Possible implications of this system are also provided. Finally, Chapter 5 discusses the main findings, describes possible future research and concludes.

The special rights other than shares in cross-border mergers of limited liability companies within the European Union. A perspective from the Spanish Law

The present research aims to study the special rights other than shares in Spanish Law and the protection of their holders in cross-border mergers of limited liability companies within the European Union frame. Special rights other than shares are recognised as an independent legal category within legal systems of some EU Member States, such as Germany or Spain, through the implementation of the Third Directive 78/855/CEE concerning mergers of public limited liability companies. The above-cited Directive contains a special regime of protection for the holders of securities, other than shares, to which special rights are attached, consisting of being given rights in the acquiring company, at least equivalent to those they possessed in the company being acquired. This safeguard is to highlight the intimate connection between this type of rights and the company whose extinction determines the existence of those. Pursuant to the Directive 2005/56/CE on cross-border mergers of limited liability companies, each company taking part in these operations shall comply with the safeguards of members and third parties provided in their respective national law to which is subject. In this regard, the protection for holders of special rights other than shares shall be ruled by the domestic M&A regime. As far as Spanish Law are concerned, holders of these special rights are recognized a right of merger information, in the same terms as shareholders, as well as equal rights in the company resulting from the cross-border merger. However, these measures are not enough guarantee for a suitable protection, thus considering those holders of special rights as special creditors, sometimes it will be necessary to go to the general protection regime for creditors. In Spanish Law, it would involve the recognition of right to the merger opposition, whose exercise would prevent the operation was completed until ensuring equal rights.

Legal presumptions in national tax systems (Italy and Belgium) and in EU law

The thesis deals with the concept of presumptions, and in particular of legal presumptions, in the context of national tax systems (Italy and Belgium) and EU law. The purpose was to investigate the concept of legal presumption under a twofold comparative perspective. After having provided a general overview of the common core concept of presumption in the European context, an insight in the national approach to legal presumptions was given by examining two different national experiences, namely the Italian and Belgian tax systems. At this stage, the Constitutional framework and some of the most interesting and relevant at EU level presumptive measures were explored, with a view to underlining possible divergences and common grounds. The concept of (national) legal presumption was then investigated in the context of EU law, with the attempt to systematize under a uniform perspective a matter which has been traditionally dealt with either from the merely national point of view or, at EU level, through a fragmented form. In this instance, the EU law relevant framework and the most significant EUCJ case-law, in particular in the field of customs duties, VAT, on the issue of the repayment of taxes levied in breach of EU law and in the area of direct taxation, were examined so as to construe the overall EU approach to national legal presumptions. This was done with the finality of determining if and to what extent a common analytical framework may be identified, from which were extracted certain criteria governing the compatibility of national legal presumptions with EU law.

La renuncia al ejercicio de la acción social de responsabilidad

En el presente estudio se aborda un tema, el del régimen jurídico de la renuncia a la acción social de responsabilidad, que ha sido objeto de un escaso tratamiento por parte de la doctrina española. Estamos ante una institución controvertida, que regula la posibilidad de que una sociedad de capital abandone voluntariamente las pretensiones indemnizatorias que pudiera ostentar frente a alguno de sus administradores por los daños que éstos hubieran ocasionado en el patrimonio social como consecuencia del incumplimiento sus deberes de diligencia y lealtad. El hecho de que una sociedad de capital pueda acordar esta renuncia es un claro indicio del carácter dispositivo de las normas que regulan la responsabilidad de los administradores frente a la sociedad. Después de abordar de los antecedentes y evolución histórica de la renuncia a la acción social, la primera parte del estudio se centra en el análisis del ámbito material y temporal de su régimen jurídico, concluyendo que éste regula no sólo la renuncia o la transacción procesal, sino que se aplica cualquier acuerdo de la junta general que tenga como efecto una exoneración total o parcial de los administradores. La segunda parte del estudio profundiza en el régimen jurídico de la renuncia, haciendo hincapié en el derecho de veto que la Ley española y el Codice civile reconocen a la minoría y que se configura como una auténtica excepción al principio mayoritario que rige, con carácter general, la formación de la voluntad social. En el último capítulo se analizan los efectos de la renuncia acordada por la junta sobre la legitimación extraordinaria que ostentan los socios minoritarios y los acreedores sociales para el ejercicio de la acción social.

Essays on the Economic Analysis of Tort Law

The analysis of tort law is one of the most influential and extensively developed applications of the economic approach in the study of law. Notwithstanding the exhaustive number of contributions on tort law and economics, several open questions remain that warrant further investigation. The general aim of this research project is to refine the traditional model of tort law in order to make it more realistic, updated with the recent technological progress and in line with the experimental results concerning prosocial behavior. This book is divided into six chapters: Chapters 1 and 6 provide an introduction and conclusions, respectively, while the remaining chapters are written in the form of separate yet related articles.