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Faculty Publications

The Peter A. Allard School of Law

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Full-Text Articles in Law

The Digital Services Tax: A Conceptual Defense, Wei Cui Oct 2018

The Digital Services Tax: A Conceptual Defense, Wei Cui

Faculty Publications

As 2018 nears its end, a digital service tax (DST) seems imminent in Europe, yet elaborations of the DST’s motivations have so far come primarily from the European Commission and the UK Treasury: academic and practitioner commentators remain largely skeptical. This paper offers a new conceptual defense of the DST that is independent of the existing government positions. I argue that a clear case can be made for the DST as a way of taxing location-specific rent earned by digital platforms. While the DST may also be partially motivated by other, potentially conflicting visions for reforming international taxation, such ...


Resolute Advocacy, The Notwithstanding Clause, And Counsel’S Conundrum: A Note On Toronto (City) V Ontario (Attorney General), Andrew Flavelle Martin Oct 2018

Resolute Advocacy, The Notwithstanding Clause, And Counsel’S Conundrum: A Note On Toronto (City) V Ontario (Attorney General), Andrew Flavelle Martin

Faculty Publications

A lawyer’s duties to the client must be balanced against, among other things, his or her duties to the court. There are some instructions that counsel should not follow. In Toronto (City) v Ontario (Attorney General), counsel for Ontario followed problematic instructions that I argue he should have refused. Ontario, while seeking leave pending appeal from a decision striking down legislation as an unjustifiable infringement of the Canadian Charter of Rights and Freedoms, had begun the process of passing a corresponding bill that invoked the Charter’s notwithstanding clause or override. During the stay hearing, counsel for Ontario stated ...


Tax Treaty Abuse And The Principal Purpose Test - Part I, David G. Duff Oct 2018

Tax Treaty Abuse And The Principal Purpose Test - Part I, David G. Duff

Faculty Publications

The Multilateral Convention to Implement Tax Treaty Measures to Prevent Base Erosion and Profit Shifting (MLI) has been described as “an historical turning point in the area of international taxation” which introduces a third layer of tax rules for the taxation of cross-border transactions in addition to domestic tax law and bilateral tax treaties. Of the many provisions of the MLI, the most important are the preamble text in Article 6(1) and the so-called principal purpose test (PPT) in Article 7(1), both of which have been adopted by all signatories to the MLI in order to satisfy the ...


Tax Treaty Abuse And The Principal Purpose Test: Part Ii, David G. Duff Oct 2018

Tax Treaty Abuse And The Principal Purpose Test: Part Ii, David G. Duff

Faculty Publications

The Multilateral Convention to Implement Tax Treaty Measures to Prevent Base Erosion and Profit Shifting or Multilateral Instrument (MLI) has been described as “an historical turning point in the area of international taxation” which introduces a third layer of tax rules for the taxation of cross-border transactions in addition to domestic tax law and bilateral tax treaties. Of the many provisions of the MLI, the most important are the preamble text in Article 6(1) and the so-called principal purpose test (PPT) in Article 7(1), both of which have been adopted by all signatories to the MLI in order ...


Residence-Based Formulary Apportionment: (In-)Feasibility And Implications, Wei Cui Oct 2018

Residence-Based Formulary Apportionment: (In-)Feasibility And Implications, Wei Cui

Faculty Publications

I examine one way of taxing international corporate income that has not previously been studied, “residence-based formulary apportionment” or RBFA. I first offer a new taxonomy of different ways of taxing corporate income by reference to individual shareholders, and distinguish what I call the “shareholder attribution” approach from integration, pass-through, and other approaches. I then argue that although traditional international legal norms had led international tax design to avoid taxing foreign corporations “unconnected” with the taxing jurisdiction (e.g. foreign corporations earning only foreign income), these legal norms have gone through substantial transformations in recent years. The exercise of jurisdiction ...


Judicial Review Of Government Actions In China, Wei Cui, Jie Cheng, Dominika Wiesner May 2018

Judicial Review Of Government Actions In China, Wei Cui, Jie Cheng, Dominika Wiesner

Faculty Publications

China’s laws and policies on the judicial review of government actions are often used as a bellwether of the government’s attitude towards the rule of law. Accordingly, in gauging the direction of legal reform in the Xi Jinping era, recent media reports have highlighted changes in litigation against government agencies as evidence of positive movement towards the greater rule of law, albeit only contradicted by other evidence of political repression and increasing authoritarianism. We provide a selective review of changes in China’s administrative litigation system in the last few years, including the amendment in 2014 of the ...


Legislated Interpretation And Tax Avoidance In Canadian Income Tax Law, David G. Duff, Benjamin Alarie May 2018

Legislated Interpretation And Tax Avoidance In Canadian Income Tax Law, David G. Duff, Benjamin Alarie

Faculty Publications

Predictable statutory interpretation helps ensure the reliable operation of contemporary systems of taxation. Tax liabilities that are not clearly expressed and articulated by legislatures lead to over-reliance on litigation as a means to enforce and clarify legislative intent. For this reason, modern legislatures continually amend and draft new tax provisions, reformulating existing rules and introducing new ones to address ever-changing social and economic environments. Moreover, legislatures also respond with amendments directed at judicial decisions with which they disagree, as well as the transactions and arrangements at issue in these cases. As these amended and new rules are then subject to ...


An Error Of Law And The Credibility Of The Civil Resolution Tribunal, Douglas C. Harris, Sophie Marshall Apr 2018

An Error Of Law And The Credibility Of The Civil Resolution Tribunal, Douglas C. Harris, Sophie Marshall

Faculty Publications

No abstract provided.


The Marital Wealth Gap, Erez Aloni Mar 2018

The Marital Wealth Gap, Erez Aloni

Faculty Publications

Married couples are wealthier than people in all other family structures. The top 10% of wealth holders are, in great proportion, married. Even among the wealthiest households, married couples hold significantly more wealth than others. The Article identifies this phenomenon as the “Marital Wealth Gap,” and critiques the role of diverse legal mechanisms in creating and maintaining it. Marriage also contributes to the concentration of wealth because marriage patterns are increasingly assortative: wealth marries wealth. The law entrenches or even exacerbates these class-based marriage patterns by erecting structural barriers that hinder people from meeting across economic strata.


How can the ...


When Deciding Whether To Allow A Taking Of Property We Need To Ask What We Want Property Rights To Do, Douglas C. Harris Jan 2018

When Deciding Whether To Allow A Taking Of Property We Need To Ask What We Want Property Rights To Do, Douglas C. Harris

Faculty Publications

In recognition of the dangers inherent to a regime that enables a majority of owners to terminate the individual property interests of a dissenting minority, the Strata Property Act requires that strata corporations secure court confirmation of dissolution votes. Not surprisingly, the shift to a lower dissolution threshold, the rapidly rising land values in British Columbia’s urban centres, and the increased costs of maintaining aging buildings, have precipitated a growing number of dissolution votes and a steady flow of applications to the British Columbia Supreme Court (BCSC) to confirm the votes.


A Bridge Over Troubled Waters - Resolving Bank Financial Distress In Canada, Janis P. Sarra Jan 2018

A Bridge Over Troubled Waters - Resolving Bank Financial Distress In Canada, Janis P. Sarra

Faculty Publications

Effective June 2017, Canada formalized its new resolution regime for “domestic systemically important banks”. This article examines the new resolution regime in the context of the early intervention program by the financial services regulator. The system offers a complex but integrated set of mechanisms to monitor the financial health of financial institutions, to intervene at an early stage of financial distress, and to resolve the financially distressed bank in a timely manner. Resolution is the restructuring of a financially distressed or insolvent bank by a designated authority. To “resolve” a bank is to use a series of tools under banking ...


Human Rights Protection: The Role Of Institutional Capacity And Selective Adaptation, Pitman B. Potter Jan 2018

Human Rights Protection: The Role Of Institutional Capacity And Selective Adaptation, Pitman B. Potter

Faculty Publications

This paper will examine the potential application of selective adaptation and institutional capacity to the understanding of international human rights norms and practices. Enforcement of international human rights norms depends on the capacity of intermediary institutions; that is, their ability to perform their assigned tasks. Institutional performance is in turn contingent on domestic political and socio-economic conditions, and as such, local conditions of rapid socio-economic and political transformation pose particular challenges. The other key concept in this paper, selective adaptation, describes a process by which practices and norms are exchanged across cultural boundaries. The dynamic of selective adaptation can operate ...


Local Tax Incentives And Behavior Of Foreign Enterprises: Evidence From A Large Developing Country, Jing Xing, Wei Cui, Xi Qu Jan 2018

Local Tax Incentives And Behavior Of Foreign Enterprises: Evidence From A Large Developing Country, Jing Xing, Wei Cui, Xi Qu

Faculty Publications

We analyze how profit reporting and investment behavior of foreign enterprises respond to local tax incentives in China, a large developing country. Using firm-level data between 2000 and 2013 from China’s industrial enterprise survey, we first provide strong evidence for tax competition among Chinese cities (especially cities within the same province) over the average effective income tax rate. We then find that, despite stringent capital controls, both reported pre-tax profits and investment of foreign firms respond strongly to local tax incentives, suggesting that subnational tax competition in China is oriented towards both mobile profits and real resources.


Legal Ethics And The Political Activity Of Government Lawyers, Andrew Flavelle Martin Jan 2018

Legal Ethics And The Political Activity Of Government Lawyers, Andrew Flavelle Martin

Faculty Publications

The ability to engage in political activity is an essential feature of a democratic society. However, the ability of government lawyers to do so is unclear. While most governments have passed legislation identifying permissible political activity of their employees, it is unclear how the professional obligations of lawyers apply in this context and how these professional obligations interact with this legislation. This article answers these questions. The duty of loyalty to the client requires most government lawyers to refrain from all political activity at the same level of government. The special professional obligations of Crown prosecutors require these lawyers to ...


Freedom Of Expression, Academic Freedom, And Equality: Seven Institutional Responsibilities, Emma Cunliffe Nov 2017

Freedom Of Expression, Academic Freedom, And Equality: Seven Institutional Responsibilities, Emma Cunliffe

Faculty Publications

This paper considers the institutional responsibilities that arise from the separate but related values of freedom of expression, academic freedom, and equality rights at Canadian public universities.

It introduces some applicable Canadian legal principles and considers whether freedom of expression can properly be limited. It also addresses the importance of institutional support for those who face threats or unfair criticism as a result of activities performed in the course of their university role.

The paper argues that universities should actively foster a robust and inclusive institutional culture that advances substantive equality while ensuring that policies and procedures do not place ...


Does Judicial Independence Matter? A Study Of The Determinants Of Administrative Litigation In An Authoritarian Regime, Wei Cui Jan 2017

Does Judicial Independence Matter? A Study Of The Determinants Of Administrative Litigation In An Authoritarian Regime, Wei Cui

Faculty Publications

Lawsuits against the government form a part of the regular functioning of legal systems in democratic countries, and responding to such lawsuits an unavoidable part of governance. However, in the context of authoritarian regimes, administrative litigation has been viewed as a distinctively valuable institution for promoting the rule of law and individual rights. Moreover, the judiciary is portrayed as the keystone to this institution and to the rule of law in general: the more powerful and competent is the judiciary, the more it is able to “constrain government” through judicial review. Through empirical and comparative analyses of over two decades ...


Illicit Exploitation Of Natural Resources - Art. 28l Bis Of The Malabo Protocol, James G. Stewart, Daniëlla Dam Jan 2017

Illicit Exploitation Of Natural Resources - Art. 28l Bis Of The Malabo Protocol, James G. Stewart, Daniëlla Dam

Faculty Publications

Article 28A(1)(13) of the Protocol to the Statute of the African Court of Justice and Human Rights lists ‘Illicit exploitation of natural resources’ as a criminal offense within the Court’s jurisdiction. In conjunction with the new mandate of the African Court, which includes the exercise of jurisdiction over corporations for the first time in an international treaty, the prohibition of “illicit exploitation of natural resources” creates an offense with especially sharp teeth, for business people, their corporations, military actors and politicians. The crime constitutes an important innovation in international law, since it offers a distinct legal basis ...


Owning And Dissolving Strata Property, Douglas C. Harris Jan 2017

Owning And Dissolving Strata Property, Douglas C. Harris

Faculty Publications

Strata or condominium property creates multiple privately owned lots or units within an association of owners. Dissolving strata property involves winding-up the association and terminating the private interests. As a result, the non-consensual dissolution of strata property involves the taking of property from those owners who oppose dissolution. The owners of individual lots become co-owners of the land formerly within the association, but the non-consenting owners have their property interests in separate lots taken from them. Beginning with the observation that non-consensual dissolution of strata property results in a taking of property, this article analyzes British Columbia’s move to ...


Tripping The Light Fantastic: A Comparative Analysis Of The European Commission's Proposals For New And Interim Financing Of Insolvent Businesses, Jennifer Payne, Janis P. Sarra Jan 2017

Tripping The Light Fantastic: A Comparative Analysis Of The European Commission's Proposals For New And Interim Financing Of Insolvent Businesses, Jennifer Payne, Janis P. Sarra

Faculty Publications

The European Commission published a draft Directive in November 2016, with the aim of ensuring that all Member States have in place an effective mechanism for dealing with viable, but financially distressed, businesses. The draft Directive includes provisions designed to encourage financing for the debtor company, both interim financing to “keep the lights on” for a brief period while the debtor negotiates with its creditors for a resolution to its financial distress, and where possible, to finance implementation of a restructuring plan, called “new financing” in the draft Directive. Creating such a financing regime is a complex and difficult issue ...


Destination-Based Cash-Flow Taxation: A Critical Appraisal, Wei Cui Jan 2017

Destination-Based Cash-Flow Taxation: A Critical Appraisal, Wei Cui

Faculty Publications

This article offers the first comprehensive scholarly response to proposals for destination-based, cash-flow taxation (DCFT). DCFT proposals have attracted heightened public attention in 2016 because of its incorporation into the U.S. House Republican Blueprint for tax reform and Donald Trump’s subsequent election to the White House. They also continue to fascinate tax specialists by suggesting that corporate profit can not only be taxed in countries of “source” or “residence,” but also (or even exclusively) in the countries where sales to final consumers occur. This Article clarifies the logical structure of DCFT proposals and exposes substantial gaps between their ...


The Ahistoricism Of Legal Pluralism In International Criminal Law, James G. Stewart, Asad Kiyani Jan 2017

The Ahistoricism Of Legal Pluralism In International Criminal Law, James G. Stewart, Asad Kiyani

Faculty Publications

International criminal law (“ICL”) is legally plural, not a single unified body of norms. As a whole, trials for international crimes involve a complex dance between international and domestic criminal law, the specificities of which vary markedly from one forum to the next. To date, many excellent scholars have suggested that the resulting doctrinal diversity in ICL should be tolerated and managed under the banner of Legal Pluralism. To our minds, these scholars omit a piece of the puzzle that has major implications for their theory – the law’s history. Neglecting the historical context of the international and national criminal ...


The Selection Of Litigation Against Government Agencies: Evidence From China, Wei Cui, Zhiyuan Wang Jan 2017

The Selection Of Litigation Against Government Agencies: Evidence From China, Wei Cui, Zhiyuan Wang

Faculty Publications

We test the relevance of the selection theory of litigation in a contemporary, civil law setting, using Chinese judicial data that span 25 years regarding lawsuits against government agencies. Civil law systems may be characterized by lower costs of litigation and lower rates of settlement than the U.S. legal system, and therefore the presence of selection effects cannot be assumed. We show that selection effects are indeed manifest in Chinese administrative litigation, and suggest that this may be explained by hidden or intangible litigation costs. Our test for selection effects builds on the approach of previous U.S. studies ...


Law And Economics Scholarship And Supreme Court Antitrust Jurisprudence, 1950–2010, Camden Hutchison Jan 2017

Law And Economics Scholarship And Supreme Court Antitrust Jurisprudence, 1950–2010, Camden Hutchison

Faculty Publications

Although law and economics has influenced nearly every area of American law, few have been as deeply and as thoroughly "economized" as antitrust. Beginning in the 1970s, antitrust law—traditionally informed by populist hostility to economic concentration—was dramatically transformed by a new and overriding focus on economic efficiency. This transformation was associated with a provocative new wave of antitrust scholarship, which claimed that economic efficiency (or "consumer welfare") was the sole legitimate aim of antitrust policy. The U.S. Supreme Court seemingly agreed, issuing decision after decision rejecting traditional antitrust values and adopting the efficiency norm of the law ...


Property And Sovereignty: An Indian Reserve And A Canadian City, Douglas C. Harris Jan 2017

Property And Sovereignty: An Indian Reserve And A Canadian City, Douglas C. Harris

Faculty Publications

Property rights, wrote Morris Cohen in 1927, are delegations of sovereign power. They are created by the state and operate to establish limits on its power. As such, the allocation of property rights is an exercise of sovereignty and a limited delegation of it. Sixty years later, Joseph Singer used Cohen’s conceptual framing in a critical review of developments in American Indian law. Where the US Supreme Court had the opportunity to label an American Indian interest as either a sovereign interest or a property interest, he argued, it invariably chose to the disadvantage of the Indians. Within Canada ...


Transnational Carbon Contracting: Why Law’S Invisibility Matters, Natasha Affolder Jan 2017

Transnational Carbon Contracting: Why Law’S Invisibility Matters, Natasha Affolder

Faculty Publications

Contract lawyers are well aware that it is in the boilerplate, in the creation of contractual norms, forms and defaults, that power gets divided and that winners and losers are made. This analysis applies to contractual governance just as it applies to the individual contract setting. This chapter draws on the example of forest carbon contracts to illustrate the 'behind the scenes' privileging of contractual forms, norms, and defaults in action. It argues that the reductionist vision of law emerging in the literature and practice of carbon contracting is both misleading and impoverished.


Capturing Excess In The On-Demand Economy, Erez Aloni Jan 2017

Capturing Excess In The On-Demand Economy, Erez Aloni

Faculty Publications

Activities facilitated by on-demand platforms (such as Airbnb or Uber) produce varying levels of negative and positive externalities. In this Article I submit that the type and quantity of externalities produced are determined by the location of the activity along a spectrum of increased utilization. Transactions that make use of excess capacity produce the fewest negative externalities and produce more positive externalities. The more we move along the spectrum away from use of excess capacity and toward new capacity created for the platform use, the more negative externalities the activity produces. Thus, unique sets of rules should govern the categories ...


The Limitations Of Supply Chain Disclosure Regimes, Adam S. Chilton, Galit A. Sarfaty Jan 2017

The Limitations Of Supply Chain Disclosure Regimes, Adam S. Chilton, Galit A. Sarfaty

Faculty Publications

Although the past few decades have seen numerous cases of human rights violations within corporate supply chains, companies are frequently not held accountable for the abuses because there is a significant governance gap in the regulation of corporate activity abroad. In response, governments have begun to pass mandatory disclosure laws that require companies to release detailed information on their supply chains in the hopes that these laws will create pressure that will improve corporate accountability. In this paper, we argue that supply chain disclosure regimes are unlikely to have a large effect on consumer behavior, and as a result, their ...


A Critical Canadian Perspective On The Benefit Corporation, Carol Liao Jan 2017

A Critical Canadian Perspective On The Benefit Corporation, Carol Liao

Faculty Publications

There has been much fanfare surrounding the possible implementation of a legal model of social enterprise similar to the American benefit corporation in Canada. This article points out that some of the fundamental legal characteristics of the benefit corporation are already reflected in existing Canadian corporate laws, and in some instances Canadian laws are comparatively more progressive. Directors owe fiduciary duties to the best interests of the corporation, and minority protections such as the oppression remedy oblige directors to consider non-shareholder stakeholders. Landmark judgments from Canada’s highest court have affirmed the board requirement to consider stakeholder interests, and that ...


Transparency Evolution: More Than The Right To Know, Ljiljana Biuković Jan 2017

Transparency Evolution: More Than The Right To Know, Ljiljana Biuković

Faculty Publications

Providing an analysis of global regulation and the impact of international organizations on domestic laws, this collection grew out of a central objective to explore methods of domestic engagement with international trade and human rights norms, and the inherent difficulties in establishing balanced links between these two international law regimes. The common thread of the papers in this collection is a focus on the application of socio-legal normative paradigms in building knowledge and policy support for coordinating local performance with international trade and human rights standards in ways that are mutually sustaining.


Property In The City: Special Edition Introduction, Douglas C. Harris, Graham Reynolds Jan 2017

Property In The City: Special Edition Introduction, Douglas C. Harris, Graham Reynolds

Faculty Publications

Cities concern themselves with the organization of space. Their principal work involves the mapping, zoning, regulating, taxing, developing, owning, protecting, patrolling, and servicing of land. As a result, cities exert considerable control over the rights of use that property owners enjoy, but they also make many uses possible through the building of infrastructure and the provision of services. However, the effects are not unidirectional; the institution of property is not simply inert clay in the hands of a city. Cities govern the actions of owners and, by extension, shape the institution of property, but this multidimensional institution is, in turn ...