Law Commons^™

International Law: Private Law In United States Law, Reuven S. Avi-Yonah

Book Chapters

This article discusses some aspects of the development of international economic law in the United States since the end of World War I and the impact it had on the development of international economic law generally, focusing specifically on the three areas in which U.S. law had the most significant impact on international economic law: international trade and investment, international taxation, and international antitrust measures. In general, in all three areas U.S. law had considerable influence on the development of international economic law in the twentieth century. However, the degree of influence in these and other areas varied depending on …

How To Think About Ppms (And Climate Change), Donald H. Regan

Book Chapters

The European Commission has apparently backed off from a proposal to tax imported goods produced by methods that generate excessive greenhouse gas emissions. So the issue of whether such a tax would be legal under the WTO has become slightly less urgent than it recently appeared. But Pascal Lamy the Director-General of the WTO still thought the possibility of some countries imposing emission-based trade restrictions was worth mentioning prominently in his speech to the Trade Ministers Conference in conjunction with the Bali Conference on climate change after Kyoto. And at that same conference, an official of the European Commission may …

Metals Or Management? Explaining Africa's Recent Economic Growth Spurt, Laura Nyantung Beny, Lisa D. Cook

Articles

Explanations for Africa's poor long-run growth performance have varied over time. The theories examined include geography (Jeffrey D. Sachs and Andrew Warner 1997); institutions (William Easterly and Ross Levine 1997; Daron Acemoglu, Simon Johnson, and James Robinson 2001, 2002; Nathan Nunn 2007, 2008); health (David Bloom and Sachs 1998; Gregory N. Price 2003); and economic dependency (William Darity 1982). More recently, economists have attempted to explain what The Economist has called Africa's new "period of unparalleled economic success" (The Economist 2008a, 33). Average annual real GDP growth was 1.8 percent between 1980 and 1989 and increased to 4.4 percent between …

International Financial Centers And The World Economy, James R. Hines Jr.

Other Publications

International financial centers (IFCs) are countries and territories with low tax rates and other features that make them attractive investment locations. These properties of IFCs occasionally raise concerns that they may erode tax collections, divert economic activity, and otherwise burden nearby high-tax countries. A large body of economic research over the last 15 years considers these issues, with findings that point sharply in the opposite direction: the evidence strongly suggests that the policies of IFCs contribute to investment, employment, and the efficient functioning of markets and government policies in other countries.

IFCs contribute to economic activity by improving the potential …

Business Profits (Article 7 Oecd Model Convention), Reuven S. Avi-Yonah, Kimberly A. Clausing

Book Chapters

The 2006 OECD Report on attribution of profits to permanent establishments states that its recommendation "was not constrained by either the original intent or by the historical practice and interpretation of Article 7." Moreover, the Report recommends a redrafting of both the Article itself and the Commentary. Given this, it seems appropriate to begin by asking: If we were working on a clean slate, what would be the best way to tax MNEs at source in the light of 21st century business practices? The beginning point has to be that a modern MNE does not operate as if its constituent …

A Creditable Vat?, Reuven S. Avi-Yonah

Articles

In the early 1990s, Bolivia tried to adopt a popular U.S. tax reform proposal: replacing its corporate income tax with a cash-flow -type consumption tax, broadly similar in structure to taxes proposed by a long line of theorists from Prof. William Andrews in 1974 to the President's Advisory Panel on Federal Tax Reform in 2006. Unfortunately, the Bolivian experiment ran into an insuperable obstacle: the U.S. foreign tax credit (FTC) rules. The U.S. Treasury decided that the Bolivian tax would not be creditable for U.S. corporations investing in Bolivia. Given the importance of U.S. foreign direct investment (FDI) for Bolivia, …

The Meaning Of 'Necessary' In Gatt Article Xx And Gats Article Xiv: The Myth Of Cost-Benefit Balancing, Donald H. Regan

Articles

Conventional wisdom tells us that in Korea–Beef, the Appellate Body interpreted the word ‘necessary’ in GATT Article XX to require a cost–benefit balancing test. The Appellate Body is supposed to have applied this test also in EC–Asbestos, US–Gambling (involving GATS Article XIV), and Dominican Republic–Cigarettes. In this article I demonstrate, by detailed analysis of the opinions, that the Appellate Body has never engaged in such balancing. They have stated the balancing test, but in every case they have also stated the principle that Members get to choose their own level of protection, which is logically inconsistent with judicial review by …

A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan

Articles

In US-Gambling, the Appellate Body held that an origin-neutral prohibition on remote gambling (which is how they mostly viewed the United States law) was "in effect" a "zero-quota", and that such a "zero-quota" violated GATS Article XVI:2. That holding has been widely criticized, especially for what critics refer to as the Appellate Body's "effects test". This article argues that the Appellate Body's "in effect" analysis is not an "effects test" and is not the real problem. The real mistake is regarding a so-called "zero-quota" as a quota under Article XVI. That is inconsistent with the ordinary meaning of the word …

Greed And Pride In International Bankruptcy: The Problems And Proposed Solutions To “Local Interests”, John A. E. Pottow

Law & Economics Working Papers Archive: 2003-2009

From just-enacted (2005) chapter 15 of the U.S. Bankruptcy Code to the U.K. Enterprise Act of 2002, legislative reforms to international bankruptcy are on the rise. One of the thorniest issues facing scholars and policymakers alike in these efforts is what to do with the nettlesome problem of “local interests.” What exactly are these “local interests,” and what is it that we are we trying to protect? Literature to date has been elusive in pinning this down and has offered, for the most part, only undifferentiated anxiety that an international bankruptcy regime may impinge undesirably upon “local concerns.” This article …

Offshore Outsourcing And Worker Rights, Theodore J. St. Antoine

Articles

For the workers in the Rust Belt of the United States, concentrated in Southern New England, Western New York State, Pennsylvania, Ohio, Michigan, Indiana, and Illinois, it doesn't make much difference whether their jobs are outsourced or lost to North Carolina or Mexico or China. In any event the sources of income that have existed for generations are gone and the economic and psychic pains are much the same. Nonetheless, for purposes of national policy it plainly matters whether the work is moving to another part of the country or is leaving the United States entirely. I am going to …

Regulatory Purpose And 'Like Products' In Article Iii:4 Of The Gatt (With Additional Remarks On Article Iii:2), Donald H. Regan

Book Chapters

In EC-Asbestos the Appellate Body has told us that (l) in interpreting Article III:4 of the GATT, we must take explicit account of the policy in Article III: l that measures should not be applied "so as to afford protection to domestic production" [hereafter just "so as to afford protection"]. In Chile- Alcohol the Appellate Body has told us that (2) in deciding whether a measure is applied "so as to afford protection," we must consider "the purposes or objectives of a Member's legislature and government as a whole"- in other words, the regulatory purpose of the measure. Chile- Alcohol …

Tax Treaty Overrides: A Qualified Defence Of U.S. Practice, Reuven S. Avi-Yonah

Book Chapters

The ability of some countries to unilaterally change, or "override;' their tax treaties through domestic legislation has frequently been identified as a serious threat to the bilateral tax treaty network. In most countries, treaties (including tax treaties) have a status superior to that of ordinary domestic laws (see, e.g. France, Germany, the Netherlands). However, in some countries (primarily the US, but also to some extent the UK and Australia) treaties can be changed unilaterally by subsequent domestic legislation. This result clearly violates international law as embodied by the Vienna Convention on the Law of Treaties ("VCLT"), which is recognized as …

Offshore Outsourcing And Workers Rights, Theodore J. St. Antoine

Articles

No abstract provided.

Central American-Dominican Republic Free Trade Agreement: Sources Of Information, Barbara H. Garavaglia

Articles

Globalization and fre trade are usually discussed in a political context in the United States as well as in other areas of the world. As a consequence, it can be difficult to find neutral, basic information about recent new trade agreements, such as the Central American-Dominican Republic Free Trade Agreement (CAFTA-DR), because much of the information found in the news or on the Web is polemical, and it takes time for the legal literature to provide the kind of legal analysis needed by practicing attorneys. This short piece is an attempt to provide links to free, Web-based information on CAFTA-DR …

The Wto, Export Subsidies, And Tax Competition, Reuven S. Avi-Yonah

Book Chapters

From its beginnings late in the 19th century, the modem state has been financed primarily by progressive income taxation. The income tax differs from other forms of taxation (such as consumption or social security taxes) in that in theory it includes income from capital in the tax base, even if it is saved and not consumed. Because the rich save more than the poor, a tax that includes income from capital in its base is more progressive (taxes the rich more heavily) than a tax that excludes income from capital (e.g., a consumption tax or a payroll tax). However, the …

Globalization, Law And Development: Introduction And Overview (Globalization, Law And Development Conference), Michael S. Barr, Reuven S. Avi-Yonah

Articles

The current period of globalization (defined loosely as increasing global economic integration), which began with the liberalization of exchange and capital controls and lowering of trade and investment barriers in the 1980s, is not the first time the world got economically smaller. The period from 1870 to the outbreak of World War I in 1914 was by some measures (such as the percentage of GNP in developed countries derived from overseas investment, and labor migration) marked by more extensive globalization than the post-1980 one. This earlier globalization came to a halt with the hostilities of World War I, followed by …

Do World Trade Organization Dispute Settlement Reports Affect The Obligations Of Non-Parties? -- Response To Mcnelis, Donald H. Regan

Articles

In the June 2003 issue of this Journal, Natalie McNelis argued that when a World Trade Organization (WTO) dispute is settled by a Dispute Settlement Body (DSB) report, even Members who are not parties to the dispute have an obligation to conform their behaviour to legal principles laid down in the report. 1 Although I am generally sympathetic to McNeis's conclusion-and although I think she does a great service by directing our attention to the question of how Members, as opposed to later tribunals, should respond to DSB reports-I think her argument cannot stand as she presents it. After explaining …

Further Thoughts On The Role Of Regulatory Purpose Under Article Iii Of The General Agreement On Tariffs And Trade: A Tribute To Bob Hudec, Donald H. Regan

Articles

My topic in this article is the role of regulatory purpose under Article III of the GATT, and I regard Bob [Hudec] as the patron saint of efforts to establish the relevance of purpose. His famous "Requiem for an 'Aims and Effects' Test" may have been called a requiem, but it was reluctant and sceptical. Bob thought dispute settlement tribunals ought to consider the regulator's purpose, and he thought they would do so, whatever they said. As decisions on Article III accumulate, we are in the process of learning that he was right on both counts.

The Dormant Commerce Clause And The Hormones Problem, Donald H. Regan

Book Chapters

It is obvious that no anti-discrimination regime can stop at forbidding explicit discrimination of the relevant sort. If only explicit discrimination is forbidden, lawmakers who want to discriminate can hide their discriminatory intentions behind facially neutral classifications that are nonetheless chosen because they differentially burden the protected class. So, we must be prepared to invalidate some facially neutral laws that have "discriminatory effect" or, as American lawyers often call it, "disparate impact." On the other hand, we cannot possibly invalidate all laws which have a disparate impact on a protected class; many perfectly reasonable laws adopted for completely innocent purposes …

Regulatory Purpose And 'Like Products' In Article Iii:4 Of The Gatt (With Additional Remarks On Article Ii:2), Donald H. Regan

Articles

In European Communities-Measures Affecting Asbestos and Asbestos-Containing Products (EC-Asbestos) the Appellate Body has told us that (1) in interpreting Article 111:4 of the General Agreement on Tariffs and Trade (GATT), we must take explicit account of the policy in Article 111:1 that measures should not be applied "so as to afford protection to domestic production" [hereafter just "so as to afford protection"]. In Chile--Taxes on Alcoholic Beverages (Chile--Alcohol) the Appellate Body has told us that (2) in deciding whether a measure is applied "so as to afford protection", we must consider "the purposes or objectives of a Member's legislature and …

(How) Should Trade Agreements Deal With Income Tax Issues?, Joel Slemrod, Reuven S. Avi-Yonah

Articles

What is the relationship between the international tax regime, as embodied in bilateral international tax treaties, and multilateral free trade agreements like the General Agreement on Tariffs and Trade (GATr)?' Are their fundamental goals consistent or inconsistent? If they are inconsistent, should the tax treaties or the GATT be changed to remedy the inconsistency? If they are consistent, should the scope of either be expanded to include the other?

Foreign Direct Investment In Latin America Overview And Current Status, Reuven S. Avi-Yonah, Martin B. Tittle

Other Publications

More firms than ever, and in more industries and countries, are expanding abroad through [foreign] direct investment [FDI]. Although FDI in 1980 was equivalent to only 5% of world GDP, by the end of the 1990's, that percentage had more than tripled to 17%. In 1993, the total US dollar value of world FDI was only US$ 200 billion, but by the year 2000, it had risen to US$ 1.3 thousand billion. Developing countries received around 25% of these inflows, mostly in the form of "greenfield" investments, where a new enterprise is essentially created from scratch.

Judicial Review Of Member-State Regulation Of Trade Within A Federal Or Quasi-Federal System: Protectionism And Balancing, Da Capo, Donald H. Regan

Articles

The topic of this Essay is not one Terry Sandalow has worked on, but he got me started on it by organizing, with Eric Stein, the Bellagio Conference on comparative constitutional economic integration in the United States and the European Community. For that, and for thirty-three years during which he has been an unfailingly stimulating and supportive colleague, Dean, and friend, I am deeply grateful.

The Product/Process Distinction - An Illusory Basis For Disciplining 'Unilateralism' In Trade Policy, Robert L. Howse, Donald H. Regan

Articles

It has become conventional wisdom that internal regulations that distinguish between products on the basis of their production method are GATT-illegal, where applied to restrict imports (although possibly some such measures might be justified as 'exceptions' under Article XX). The aim of this article is to challenge this conventional wisdom, both from a jurisprudential and a policy perspective. First, we argue there is no real support in the text and jurisprudence of the GATT for the product/process distinction. The notion developed in the unadopted Tuna/Dolphin cases that processed-based measures are somehow excluded from the coverage of Article III (National Treatment) …

Copyright And International Trips Compliance (Symposium: Fifth Annual Conference On International Intellectual Property Law And Policy), Shira Perlmutter, Jerome H. Reichman, Whitmore Gray

Other Publications

MS. PERLMUTTER: We have heard today about copyright in two different regions of the world, in Central and Eastern Europe' and in China. In recent years there has been an increasing convergence in the substance of national laws in different regions of the world. One of the major factors has been the TRIPs Agreement? I will focus on the current efforts toward implementing the TRIPs Agreement, and this will be a procedure-oriented talk.

American Bar Association Section Of International Law And Practice Standing Committee On World Order Under Law Report To The House Of Delegates: International Monetary Fund And The World Bank Group, Michael A. Heller, H. Francis Shattuck Jr.

Articles

The International Monetary Fund (IMF) and the World Bank Group are the subjects of this report. The report, with its accompanying recommendation, is one of several reports on selected United Nations specialized agencies and the International Atomic Energy Agency. The report has been developed by the Section of International Law and Practice, International Institutions Committee, through its Working Group on UN Specialized Agencies. This is a contribution to the 50th Anniversary of the United Nations in fulfillment of the American Bar Association's Goal VIII-to advance the rule of law in the world. The accompanying recommendation addresses issues of an enhanced …

Globalisation Of Contract Law: Rules For Commercial Contracts In The 21st Century, Whitmore Gray

Articles

This is a paper given at the Asia-Pacific Lawyers Association meeting held in Bangkok in November 1995. The author describes the principles of international commercial contracts published in 1994 by the International Institute for the Unification of Private Law. Professor Gray sees a new era of harmonisation of contract law. An appendix gives an abstract of a contract law decision given by an Austrian Court in 1994.

Review Of The Validity Of Sales Contracts: A Comparative Study, Whitmore Gray

Reviews

These 2 volumes are a slightly revised version of the substantive reports prepared by the Max Planck Institute in Hamburg (Director: Professor Konrad Zweigert) for the Rome Institute for the Unification of Private Law. They were designed to serve as a basis for the elaboration and discussion of a new uniform law on this subject matter, which would supplement the 1964 Hague conventions on a Uniform Law on the International Sale of Goods and Uniform Law on the Formation of Contract for the International Sale of Goods.