Law Commons^™

Transfer Pricing: Un Guidelines -- Brazil, Richard Thompson Ainsworth

Faculty Scholarship

The UN Practical Manual on Transfer Pricing for Developing Countries endeavors to provide “clearer guidance on the policy and administrative aspects of applying transfer pricing analysis.” Chapter 10 is particularly noteworthy. It sets out specific country practices. The rules in Brazil, China, India and South Africa are offered as templates for developing countries to follow.

This article considers the Brazilian contribution to Chapter 10. Although some writers believe that developing countries should adopt the Brazilian model this article suggests otherwise. Even though it is a theoretically simple system, some aspects of the Brazilian model consistently work to the fiscal disadvantage …

“Turn On The Lights” -Sustainable Energy Investment And Regulatory Policy: Charting The Hydrokinetic Path For Pakistan, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Toward A Jurisprudence Of Free Expression In Russia: The European Court Of Human Rights, Sub-National Courts, And Intersystemic Adjudication, Robert B. Ahdieh, H. Forrest Flemming

Faculty Scholarship

Protection of free expression in Russia is headed the wrong direction, but one institution may still be able to slow its backward slide: the Russian judiciary. In particular, sub-national courts-those operating at the ground level-have the potential to shape a renewed jurisprudence of free expression in Russia. To encourage as much, the European Court ofHuman Rights (ECHR) should engage the Russian courts in a pattern of "intersystemic adjudication, "pressing them to embrace ideas about the role of courts, the law, human rights, and free expression more in line with international norms. Hopefully, this can reverse Russia's current path toward the …

Rwanda -- Cutting-Edge Vat Compliance, Richard Thompson Ainsworth, Goran Todorov

Faculty Scholarship

On August 26, 2013 the Ministerial Order on Modalities of Use of Certified Electronic Billing Machine, No. 002/23/10TC of 31/07/2013, was published in the Official Gazette of Rwanda. This Order has set loose a technology revolution in VAT compliance that promises business efficiencies, and revenue enhancements that are only imagined in more developed countries. To open the door to technology Rwanda has taken the traditional digital invoice security model, and connected it to a central security portal at the Rwanda Revenue Authority (RRA). Rwanda will now be able to securely monitor transactions in close to real-time (oversight is on-demand).

Tackling Vat Fraud: Thirteen Ways Forward, Richard Thompson Ainsworth

Faculty Scholarship

In a May 31, 2006 Communication to the Council, the European Parliament, and the European Economic and Social Committee, the European Commission indicated a need to develop a coordinated strategy to improve the fight against fiscal fraud [COM (2006) 254 final]. Although the Communication considers fiscal fraud broadly (VAT, excise duties and direct taxes) the most pressing need seems to be for a VAT strategy that will effectively deal with carousel fraud.

This paper considers thirteen proposals that deal with missing trader intra-community fraud (MTIC):

(1) Common VAT (origin system) (2) Vanistendael’s foreign tax offices proposal (3) CVAT (Compensating VAT) …

American Vat – The Carousel Fraud Threat: Will The Eu Show The Us The 'Way Forward', Richard Thompson Ainsworth

Faculty Scholarship

On Thursday, March 29, 2007 the European Commission, Directorate-General for Taxation and Customs Union, will host a one-day Conference on Fiscal Fraud – Tackling VAT Fraud: Possible Ways Forward. The conference is based on the Communication of May 31, 2006 explaining the need to develop a coordinated strategy to improve the fight against fiscal fraud. This paper indicates that the EU examination of carousel fraud points the way forward for advocates of a US VAT as well.

About 40% of EU VAT fraud appears to be 'missing trader intra-community' (MTIC) or carousel fraud. The best estimates of EU losses to …

Treaty Interpretation And Constitutional Transformation: Informal Change In International Organizations, Julian Arato

Faculty Scholarship

No abstract provided.

Vogtländische Straβen-,Tief- Und Rohrleitungsbau Gmbh Rodewisch (Vstr) V. Finanzamt Plauen – Vat Triangulation V. Drop Shipments, Richard Thompson Ainsworth

Faculty Scholarship

In ECJ Case 587/10 (Vogtländische Straβen-,Tief- und Rohrleitungsbau GmbH Rodewisch (VSTR) v. Finanzamt Plauen) an American firm, Atlantic International Trading Company (AIT) is a middleman in an otherwise all-European VAT triangulation. AIT appears to have approached its compliance obligations as if it was a middleman in an American drop shipment.

However, drop shipments are treated very differently from VAT triangulations.

Commercially these transactions are very similar. They are composed of two back-to-back sales, A/B followed by B/C, with a single delivery from A directly to C. This article compares the tax treatment of drop shipments under the RST with triangulation …

Stopping Mtic -- With A 3rd Invoicing Directive, Richard Thompson Ainsworth

Faculty Scholarship

A Third Invoicing Directive for the EU VAT seems to be a foregone conclusion. Corrections are needed in the Second Invoicing Directive. The hallmark of the next Directive will be its application of digital invoice technology. The Commission’s proposals will include adoption of tax-technology advances in invoice-control that are currently in use outside the EU. The next Invoicing Directive will require comprehensive e-invoicing, invoices that are digitally signed, and invoices that are fed into a system of relational databases that match transaction data across the Single Market. There will be real-time EU sales/purchases lists, and remote/real-time audit functionality.

This will …

Israel’S Rosit The Riveter: Between Secular Law And Jewish Law, Pnina Lahav

Faculty Scholarship

In the world of Judaism, the “end of men” is not in sight. Surely, tectonic plates are sliding and shifting, and a great deal of change is unfolding, but men are fighting hard to keep patriarchy alive. Deep inside, the Orthodox patriarchal man may be motivated by the sheer impulse to maintain his power, but outwardly he projects a profound commitment to his religious law, the law of God. He believes that his fight is a noble one ordained by divine will and that God is on his side. The problem is global; it appears in every Jewish community around …

The Thoughtful Integration Of Mediation Into Bilateral Investment Treaty Arbitration, Nancy A. Welsh, Andrea Kupfer Schneider

Faculty Scholarship

While the current system of investment treaty arbitration has definitely improved upon the “gunboat diplomacy” used at times to address disputes between states and foreign investors, there are signs that reform is needed: states and investors increasingly express concerns regarding the costs associated with the arbitration process, some states refuse to comply with arbitral awards, other states hesitate to sign new bilateral investment treaties, and citizens have begun to engage in popular unrest at the prospect of investment treaty arbitration. As a result, both investors and states are advocating for the use of mediation to supplement investor-state arbitration. This Article …

"At The Hospital There Are No Human Rights": Reproductive And Sexual Rights Violations Of Women Living With Hiv In Namibia, Aziza Ahmed

Faculty Scholarship

This report documents the ongoing stigma and discrimination of women living with HIV in Namibia, building on prior findings and investigations on the subject, such as the 2008 research conducted by the International Community of Women Living with HIV/AIDS (ICW) and the Namibian Women’s Health Network (NWHN). The report, based upon both desk research and a field mission, examines the human rights situation related to sexual and reproductive health of women living with HIV, including the gravity and ongoing nature of forced and coerced sterilizations in Namibia. The report also provides evidence of violations of informed consent in the context …

Defying Gravity: The Development Of Standards In The International Prosecution Of International Atrocity Crimes, Matthew H. Charity

Faculty Scholarship

The International Criminal Court (the “ICC”), now one decade old, is still in the process of setting norms as to scope, jurisdiction, and other issues. One issue that has thus far defied resolution is a key issue of jurisdiction: the place of complementarity in deciding whether certain criminal issues impacting international standards or interests should be decided before the ICC or national tribunals. Although the Rome Statute crystallizes definitions of core international crimes that may be tried before the ICC, the process of determining whether to leave jurisdiction with the nation or allowing jurisdiction to the ICC continues to lack …

All The Missing Souls: A Personal History Of The War Crimes Tribunals By David Sheffer, Jennifer Laws

Faculty Scholarship

David Scheffer’s memoir records his firsthand experiences as the primary U.S. representative in the processes of building five war crimes tribunals between 1993 and 2006: the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the Extraordinary Chambers in the Court of Cambodia, and the International Criminal Court. This review analyzes the strengths and weaknesses of his work and makes recommendations to libraries regarding selection for their collections.

How Customary Is Customary International Law?, Emily Kadens, Ernest A. Young

Faculty Scholarship

No abstract provided.

The Dilemma Of Piratical Ransoms: Should They Be Paid Or Not: On The Human Rights Of Kidnapped Seamen And Their Families, Barry H. Dubner, Kimberly Chavers

Faculty Scholarship

No abstract provided.

A New International Human Rights Court For West Africa: The Ecowas Community Court Of Justice, Karen J. Alter, Laurence R. Helfer, Jacqueline R. Mcallister

Faculty Scholarship

The ECOWAS Community Court of Justice (ECCJ) is an increasingly active and bold international adjudicator of human rights violations in West Africa. Since acquiring jurisdiction over human rights issues in 2005, the ECCJ has issued several path-breaking judgments, including against the Gambia for the torture of journalists, against Niger for condoning modern forms of slavery, and against Nigeria for failing to regulate the multinational oil companies that polluted the Niger Delta. This article explains why ECOWAS member states authorized the ECCJ to review human rights suits by individuals but did not allow private actors to complain about violations of regional …

Pricing Compliance: When Formal Remedies Displace Reputational Sanctions, Rachel Brewster

Faculty Scholarship

The conventional wisdom in international law is that dispute resolution institutions sharpen the reputational costs to states. This article challenges this understanding by examining how the inclusion of dispute resolution tribunals and remedy regimes can alter reputational analysis by shifting the audience¹s understanding of how mandatory a treaty's substantive obligations are. Drawing on the distinction between prices and sanctions, this article contests the assumption that the introduction of a remedy regime in international agreements will regularly increase compliance with the treaty¹s substantive terms. Instead, some remedy regimes may 'price' deviations from the treaty¹s terms and thereby facilitate breaches of the …

Where Should Europe’S Investment Path Lead?: Reflections On August Reinisch, “Quo Vadis Europe?”, Julie A. Maupin

Faculty Scholarship

Relative to the past policies of its Member States, will the European Union’s new comprehensive international investment policy constitute a step forward, a step backward, or a perpetuation of the status quo? Professor Reinisch’s contribution to this volume opens a wide window on the current state of the debate. His cogent analysis suggests that, at present, all three possibilities remain live ones, although some basic contours of a likely trajectory are beginning to take shape. I use his musings as a springboard to investigate two questions which follow naturally from his. That is, in view of Professor Reinisch’s response to …

Legitimacy And Lawmaking: A Tale Of Three International Courts, Laurence R. Helfer, Karen J. Alter

Faculty Scholarship

This article explores the relationship between the legitimacy of international courts and expansive judicial lawmaking. We compare lawmaking by three regional integration courts — the European Court of Justice (ECJ), the Andean Tribunal of Justice (ATJ), and the ECOWAS Community Court of Justice (ECCJ). These courts have similar jurisdictional grants and access rules, yet each has behaved in a strikingly different way when faced with opportunities to engage in expansive judicial lawmaking. The ECJ is the most activist, but its audacious legal doctrines have been assimilated as part of the court’s legitimate authority. The ATJ and ECOWAS have been more …

Transparency In International Investment Law: The Good, The Bad, And The Murky, Julie A. Maupin

Faculty Scholarship

How transparent is the international investment law regime, and how transparent should it be? Most studies approach these questions from one of two competing premises. One camp maintains that the existing regime is opaque and should be made completely transparent; the other finds the regime sufficiently transparent and worries that any further transparency reforms would undermine the regime’s essential functioning. This paper explores the tenability of these two positions by plumbing the precise contours of transparency as an overarching norm within international investment law. After defining transparency in a manner befitting the decentralized nature of the regime, the paper identifies …

Anticipatory Self-Defense And The Israeli-Iranian Crisis: Some Remarks, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Revisiting Sovereign Bankruptcy, Lee C. Buchheit, Anna Gelpern, Mitu Gulati, Ugo Panizza, Beatrice Weder Di Mauro, Jeromin Zettelmeyer

Faculty Scholarship

Sovereign debt crises occur regularly and often violently. Yet there is no legally and politically recognized procedure for restructuring the debt of bankrupt sovereigns. Procedures of this type have been periodically debated, but so far been rejected, for two main reasons. First, countries have been reluctant to give up power to supranational rules or institutions, and creditors and debtors have felt that there were sufficient instruments for addressing debt crises at hoc. Second, fears that making debt easier to restructure would raise the costs and reduce the amounts of sovereign borrowing in many countries. This was perceived to be against …

Private Lawyer In Disguise? On The Absence Of Private Law And Private International Law In Martti Koskenniemi’S Work, Ralf Michaels

Faculty Scholarship

No abstract provided.

The Rights Of Palestinian Refugees And Territorial Solutions In Historic Palestine, Susan M. Akram

Faculty Scholarship

The chapter addresses the territorial implications of the rights of Palestinian refugees in the Israeli-Palestinian conflict as measured under international law. The chapter focuses on the central issues, addressing the questions: how do rights of return, property restitution and compensation affect the claims to state territory? Concerning self-determination in the territory of former Palestine, which people are entitled to self-determination -- Palestinians, the Jewish people, Israeli Jews, or Israelis? And over which territory are the 'people' entitled to exercise their self-determination. The main legal principles and sources that provide the framework to address these questions are set out and examined.

Globalization And Law: Law Beyond The State, Ralf Michaels

Faculty Scholarship

The chapter provides an introduction into law and globalization for sociolegal studies. Instead of treating globalization as an external factor that impacts the law, globalization and law are here viewed as intertwined. I suggest that three types of globalization should be distinguished—globalization as empirical phenomenon, globalization as theory, and globalization as ideology. I go on to discuss one central theme of globalization, namely in what way society, and therefore law, move beyond the state. This is done along the three classical elements of the state—territory, population/citizenship, and government. The role of all of these elements is shifting, suggesting we need …

Human Rights And The Evolution Of Global Environmental Law, Robert V. Percival

Faculty Scholarship

Environmental problems that jeopardize the health of humans increasingly implicate concerns that have played an important role in the development of international human rights. While some have questioned the wisdom or effectiveness of focusing human rights concerns on environmental problems, it seems an inevitable response to the failure of many countries to protect their citizens adequately from harm caused by environmental degradation. This paper reviews efforts to apply human rights concerns to environmental problems. It describes how these developments illustrate the growth of a kind of “global environmental law” that blurs traditional distinctions between domestic and international law and public …

Collective Action Clauses For The Eurozone, Michael Bradley, Mitu Gulati

Faculty Scholarship

One of the primary policy initiatives instituted in response to the Eurozone sovereign debt crisis is a requirement that all Eurozone sovereign bonds issued after January 1 2013 include provisions referred to as Collective Action Clauses or CACs. These CACs allow for a super-majority of creditors to impose restructuring terms on minority holdouts. This article assesses the likely effect of this proposal on the borrowing costs of sovereign debtors. Contrary to much of the literature, we find that the presence of CACs leads to a lower cost of capital, especially for below-investment grade bonds

Who Governs? Delegations In Global Trade Lawmaking, Terence C. Halliday, Josh Pacewicz, Susan Block-Lieb

Faculty Scholarship

Who governs international trade law regimes? Although this question has attracted much research for global regulatory regimes, very little is known about international trade law organizations which function as global legislatures. This paper focuses on hitherto invisible attributes of the inner core of global legislators - the state and non-state delegations and delegations that create global norms for private international trade law through the most prominent global trade legislature, the United Nations Commission on International Trade Law (UNCITRAL). Based on ten years of fieldwork, extensive interviews, and unique data on delegation attendance and participation in UNCITRAL’s Working Group on Insolvency, …

The Chevron-Ecuador Dispute, Forum Non Conveniens, And The Problem Of Ex Ante Inadequacy, Howard M. Erichson

Faculty Scholarship

These opening lines from Chevron's website of "facts about Chevron and Texaco in Ecuador" refer to the latest salvo in a long-running environmental dispute concerning a Texaco subsidiary's Ecuadorian oil-drilling activities. Chevron resisted enforcement in the United States of an Ecuadorian court's $18 billion judgment, and the plaintiffs are seeking to enforce the judgment against Chevron in various courts around the world. Chevron's account suggests that the plaintiffs' lawyers are engaged in improper forum-shopping. The plaintiffs'lawyers, according to Chevron, ought to pursue enforcement of the judgment in the United States.