Law Commons^™

A Tale Of Two Subject-To-Tax Rules, Sol Picciotto, Jeffery M. Kadet, Bob Michel

Articles

In this article, we analyze and compare two proposals for a new subject-to-tax rule (STTR) provision to be included in tax treaties, one from the U.N. Tax Committee and the other from the G20/OECD inclusive framework on base erosion and profit shifting. The U.N. proposal is broad, and would clarify that restrictions in tax treaties on taxation of income at the source where it is derived are conditional on that income being taxed at an agreed-upon minimum rate in the country where it is received. The inclusive framework version is much more limited, being confined to payments between connected entities …

Privacy Matters: Data Breach Litigation In Japan, Andrew M. Pardieck

Washington International Law Journal

In 1890, when Brandeis and Warren wrote The Right to Privacy, Japan did not have a word for privacy. Today, it is closely guarded in Japan: the European Data Protection Board has found privacy protections in Japan “equivalent” to those in the EU. This research explores the evolution of privacy law in Japan, focusing on data breach and the legal rights and obligations associated with it. The writing is broken up into two parts: This article discusses private enforcement of privacy norms, as it is the courts that first established and continue to define privacy rights in Japan. A separate …

Executive Agreements In Japan And The United States: Their Differences And Similarities, Yuhei Matsuyama

Washington International Law Journal

The national constitutions of Japan and the United States describe which domestic branches conclude “treaties” and how they do it. In both countries, the legislative branch plays a critical role in the treaty-making process, checking and controlling the executive branch. However, both nations enter international agreements without following the procedures explicitly provided in their national constitutions. Such agreements are called “executive agreements.” In both Japan and the United States, the practice of entering executive agreements has been recognized since the adoption of the current constitutions, and the number of such agreements—in lieu of treaties—is rising. Despite contrasting government and legal …

To Catch The Cheshire Cat: Freezing Injunction Jurisdiction At The Click Of A Mouse, King Fung Tsang, Pierce Lai

Washington International Law Journal

Since its emergence in 1975, the English freezing injunction has grown to have a robust and global extraterritorial reach, but its exercise in extreme cases is jurisdictionally unsound. The “real connecting link” between assets and forum required for the grant of a worldwide freezing order in aid of foreign proceedings has become significantly looser, notably with an element of fraud acting as catalyst. This jurisdictional link is further weakened by the receding of reciprocity imperatives between the United Kingdom and member states of the European Union following Brexit. In its place is the enforcement principle, enabling a high degree of …

Should We Reform The Jury? An Australian Perspective, Keith Thompson

Washington International Law Journal

Jury trials are a necessary part of American and Australian jurisprudence. However, critics question whether both jurisdictions should consider eliminating or reforming jury trials. High-profile jury cases in Australia and the United States elicit criticism regarding the ongoing relevance of the institution. Jury trials function differently in both countries and hold different levels of public trust in the institution. Despite the criticisms of jury trials, neither country has engaged in serious conversations to abolition this ancient institution. This article discusses the trials of Lindy Chamberlain and Cardinal George Pell, placing the use of criminal jury trial in their ancient English …

Surprises In The Skies: Resolving The Circuit Split On How Courts Should Determine Whether An "Accident" Is "Unexpected Or Unusual" Under The Montreal Convention, Ashley Tang

Washington Law Review

Article 17 of both the Montreal Convention and its predecessor, the Warsaw Convention, imposes liability onto air carriers for certain injuries and damages from “accidents” incurred by passengers during international air carriage. However, neither Convention defines the term “accident.” While the United States Supreme Court opined that, for the purposes of Article 17, an air carrier’s liability “arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger,” it did not explain what standards lower courts should employ to discern whether an event is “unexpected or unusual.” In 2004, …

Adopting Nationality, Irina D. Manta, Cassandra Burke Robertson

Washington Law Review

Contrary to popular belief, when a child is adopted from abroad by an American citizen and brought to the United States, that child does not always become an American citizen. Many adoptees have not discovered until years later (sometimes far into adulthood) that they are not actually citizens, and some likely still do not know. To address this problem, the Child Citizenship Act of 2000 (CCA) was enacted to automate citizenship for certain international adoptees, but it does not cover everyone. Tens of thousands of adoptees still live under the assumption that they are American citizens when, in fact, they …

Rights-Based Boundaries Of Unilateral Sanctions, Seyed Mohsen Rowhani

Washington International Law Journal

This Article serves as a model for sender states to consider when designing and implementing unilateral sanctions and also provides a framework for targeted states to challenge the legality of sanctions. In this context, the Article investigates several multilateral treaties, including the United Nations (“UN”) Charter and its principles of nonintervention and sovereignty and its rights-based boundaries. The Article also investigates other rights-based treaties to determine if their member states may have any extraterritorial obligations to promote human rights beyond their borders. In addition, the Article analyses International Court of Justice (“ICJ”) rulings in cases where one party claims that …

Substantial Presence In Covid: Rethinking Relief Under Internal Tax Laws For A Changing World, Kate Moyer

Washington International Law Journal

At the onset of Covid in early 2020, the world shut down, and people everywhere found themselves stuck in new places and unable to travel. Aside from the logistical nightmares and anxiety, forced lockdowns created different tax implications. Depending on the length of a stay, individuals may be subject to a country's internal tax code, triggering double taxation or taxation on income not previously taxed. As a result, countries implemented different relief policies exempting certain days from the calculation of these tests. Reports have been done to examine general policies with Covid-19, but there is a gap in closely examining …

Foreword, Jacob Walker

Washington International Law Journal

No abstract provided.

Contents

Washington International Law Journal

No abstract provided.

International Law And The Taliban's Legal Status: Emerging Recognition Criteria?, Haroun Rahimi, Mahir Hazim

Washington International Law Journal

After the American-mediated attempts at facilitating a negotiated transition failed in Doha, on August 15, 2021, the Taliban retook the Afghan capital and soon after re- established the “Islamic Emirate of Afghanistan” (2021-) along with a caretaker government. The forceful return of the Taliban to power in Afghanistan poses difficult questions of international law. Chief among these questions is who has the right to represent the Afghan state internationally after August 15, 2021. Applying the rules of public international to the case of the Taliban’s caretaker government, this article argues that the strongest argument for disqualifying the Taliban as a …

Contents

Washington International Law Journal

No abstract provided.

Foreword, Jacob Walker

Washington International Law Journal

No abstract provided.

Dangers Of Protectionism In Free Trade, Jacob Walker

Washington International Law Journal

The recent establishment of large mega-free trade agreements has led to the potential for the rapid economic development of nations through the inclusion of provisions that lower tariff rates on goods crossing borders. Some countries, such as India, have shied away from these agreements in favor of protectionist strategies, which has led to inconsistencies in treaty negotiations and economic decline. India used protectionist strategies as part of its domestic plan, which has led it to withdraw from free trade agreements and weakened its regional partnerships. This comment examines the Foreign Direct Investment flowing into India before and after its withdrawal …

Inclusion Of Visually Impaired And Deaf Students In Kenya: A Call For Action, Edwin O. Abuya, Jane W. Githinji

Washington International Law Journal

Drawing on field data, this Article reviews the experiences of visually impaired and deaf students (VIDS) in select universities in Kenya. The paper argues that, unlike able bodied students, these learners face discrimination in these institutions. The Article focuses on three spaces where VIDS are excluded: the admission process, the learning, and the examination environments. To counter the unfair treatment, the paper proposes three solutions that VIDS and stakeholders should consider. These are consistent with legal requirements on access to education by VIDS. Firstly, course instructors should be robustly engaged with. Further, universities should provide adequate and timely information should …

The Mutual Legal Assistance Regime In Afghanistan: Assessing Compliance With International Law And Exposing Loopholes (2001-2021), Abdul M. Hazim

Washington International Law Journal

To constrain transnational crime effectively and strengthen mutual legal assistance mechanisms among member states, the United Nations adopted four Suppression Conventions: the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, the 1999 UN International Convention for the Suppression of the Financing of Terrorism, the 2003 UN Convention against Transnational Organized Crime, and the 2005 UN Convention against Corruption. Ratified globally, these conventions contain many similar or identical mutual legal assistance obligations and non-mandatory measures with which state parties either must or should comply. Afghanistan is a state party to all four UN Suppression Conventions.

This article …

Hong Kong, China, And The Disruption Of Antitrust, Emanuela Lecchi

Washington International Law Journal

Under the “One Country, Two Systems” rule, Hong Kong and China maintain different legal systems. This dichotomy also applies in the antitrust context. China adopted its Anti-Monopoly Law in 2007, while Hong Kong waited until 2012 to introduce its Competition Ordinance (and another three years to fully implement it). This article compares the antitrust laws of these two jurisdictions and their enforcement in light of a turning point: the disruption caused by Big Tech. Interestingly, while the competition laws of Hong Kong and China are substantively similar to each other and to legal precedent in other jurisdictions, Hong Kong has …

The Right To Remain, Timothy E. Lynch

Washington International Law Journal

Article 12.4 of the International Covenant on Civil and Political Rights (ICCPR) states, “No one shall be arbitrarily deprived of the right to enter his own country.” Citizens clearly enjoy Article 12.4 rights, but this article demonstrates that this right reaches beyond the citizenry. Using customary methods of treaty interpretation, including reference to the ICCPR’s preparatory works and the jurisprudence of the Human Rights Committee, this article demonstrates that Article 12.4 also forbids States from deporting long-term resident noncitizens—both documented and undocumented—except under the rarest circumstances. As a result, the ICCPR right to remain in one’s own country is a …

Well-Known Signs: Models Of Disability In Early Modern Islamic Law And Current American, European, And Pakistani Jurisprudence, Elicia Shotland

Washington International Law Journal

Current American, European, and Pakistani legal structures are often insufficient to ensure rights of disabled people, particularly rights of equal access to courts and to act as a witness in court. As the disability rights movement gains ground, judges and legislation drafters are struggling to shift modes of jurisprudence from a medical model that conceptualized disability as a permanent physical affliction to the social model, which locates disability in an individual’s relation to their built and social environments. A review of historical records concerning deaf and hard of hearing participants in legal processes from the Ottoman Empire shows that the …

Treaty Law To Signal To Outsiders: The Case Of The Treaty On The Prohibition Of Nuclear Weapons, Tobias Vestner

Washington International Law Journal

The Treaty on the Prohibition of Nuclear Weapons (TPNW) comprehensively and unequivocally prohibits nuclear weapons. The treaty was created to foster and diffuse norms against nuclear weapons, thereby stigmatizing and delegitimizing nuclear weapons and deterrence. The TPNW’s nature as formal treaty under international law suggests, however, that the TPNW primarily serves signaling to states which have not adhered to the treaty, in particular nuclear weapon states. This article develops how treaty law enables signaling to outsiders. Treaty law notably offers visibility, screens between “insiders” and “outsiders,” communicates substance, and provides credibility to the signal. In line with treaty law’s finality …

The Chorus Doctrine: Promoting Sub-National Diplomacy In Regional Growth Management, Conor J. Mannix

Washington Law Review

Sub-national diplomacy, also known as paradiplomacy, occurs when sub-national actors (think cities or states) engage in international relations, either with other sub-national actors or nation-states. Though typically the province of foreign policy scholarship, paradiplomacy touches on several legal issues, particularly where sovereignty and legal frameworks collide. In the United States, the federal system established by the Constitution gives individual states plenary power but reserves international relations to the federal government through the Supremacy Clause. However, the lines between federal power and state power with regards to international relations remain fuzzy.

Sub-national actors are taking advantage of this lack of sharply …