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Articles 1 - 20 of 20
Full-Text Articles in Law
Does The United States Still Care About Complying With Its Wto Obligations?, Reuven S. Avi-Yonah
Does The United States Still Care About Complying With Its Wto Obligations?, Reuven S. Avi-Yonah
Articles
The Tax Cuts and Jobs Act of 2017 (“TCJA”) contains a provision that on its face appears to be a blatant violation of the WTO’s Subsidies and Countervailing Measures (SCM) rules. New IRC section 250 applies a reduced 13.125% tax rate to “foreign derived intangible income” (FDII), which is defined as income derived in connection with (1) property that is sold by the taxpayer to any foreign person for a foreign use or (2) services to any foreign person or with respect to foreign property. In other words, this category comprises exports for property and services, including royalties from the …
Problems With Destination-Based Corporate Taxes And The Ryan Blueprint, Reuven S. Avi-Yonah, Kimberly Clausing
Problems With Destination-Based Corporate Taxes And The Ryan Blueprint, Reuven S. Avi-Yonah, Kimberly Clausing
Articles
With the election of Donald Trump and the Republican Party’s domination of Congress, House Speaker Paul Ryan’s blueprint for fundamental tax reform requires more careful analysis. The Ryan blueprint combines reduced individual rates with a destination-based cash flow type business tax applicable to all businesses. The destination-based business tax at the center of the blueprint has several major problems: It is incompatible with our WTO obligations, it is incompatible with our tax treaties, and it will not eliminate the problems of income shifting and inversions it is designed to address. In addition, these proposals generate vexing technical problems that are …
Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson
Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson
Articles
In this section: • U.S. Supreme Court Upholds Law Facilitating Compensation for Victims of Iranian Terrorism • Russia Argues Enhanced Military Presence in Europe Violates NATO-Russia Agreement; United States Criticizes Russian Military Maneuvers over the Baltic Sea as Inconsistent with Bilateral Treaty Governing Incidents at Sea • U.S. Secretary of State Determines ISIL Is Responsible for Genocide • United States Blocks Reappointment of WTO Appellate Body Member • U.S. Department of Defense Releases Report of Investigation Finding That October 2015 Air Strike on Doctors Without Borders Hospital in Kunduz, Afghanistan, Was Not a War Crime • United States Expands Air …
Measures With Multiple Purposes: Puzzles From Ec-Seal Products, Donald H. Regan
Measures With Multiple Purposes: Puzzles From Ec-Seal Products, Donald H. Regan
Articles
European Communities—Measures Prohibiting the Importation and Marketing of Seal Products is the first case in which the dispute system of the World Trade Organization (WTO) has wrestled with a regulation that pursued multiple conflicting, legitimate purposes. (I will explain later why Brazil—Retreaded Tyres is not such a case.) This generates puzzles about applying the definition of a “technical regulation” to complex measures; about whether an exception to a ban can be justified by a purpose different from that of the ban; and about how to apply “less restrictive alternative” analysis to measures with multiple goals. The first of these puzzles …
Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson
Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson
Articles
• Another Mexican National Executed in Texas in Defiance of Avena Decision • Manhattan Arrest of Indian Consular Official Sparks Public Dispute Between the United States and India • United States Questions Claims Based on China’s “Nine-Dash Line” in the South China Sea • United States Takes Steps to Combat Illegal Trade in Wildlife • U.S. Compromises Facilitate Agreement on World Trade Organization’s Bali Package; Question Remains Whether Bali Package Requires Congressional Approval • Destruction of Syrian Chemical Arms Delayed • Iran Nuclear Agreement Is Implemented Notwithstanding Expressions of Distrust by Iran and the U.S. Congress
Who's In Charge Of Global Finance?, Michael S. Barr
Who's In Charge Of Global Finance?, Michael S. Barr
Articles
The global financial crisis caused widespread harm not just to the financial system, but also to millions of households and businesses and to the global economy. The crisis revealed substantive, fundamental weaknesses in global financial regulation and raised serious questions about whether national regulators and the international financial regulatory system could ever be up to the task of overseeing global finance. This Article analyzes post-crisis reforms with two questions in mind: First, how can we build an effective international financial architecture with more than one architect? Second, can we build a system that is legitimate and accountable? The Article suggests …
Treaty Interpretation And Constitutional Transformation: Informal Change In International Organizations., Julian Arato
Treaty Interpretation And Constitutional Transformation: Informal Change In International Organizations., Julian Arato
Articles
Like all constituted bodies of government, international organizations change over time-sometimes in profound and unexpected ways. Besides developing through the obvious mechanism of formal amendment by the constituent member states, these governance bodies can and do undergo a more autonomous kind of constitutional development-what might be called informal constitutional change or transformation. This type of quiet evolution may occur on different levels-including the reordering of the organization's internal architecture in terms of the relative competences of its various organs, as well as the development of the powers of the organization as a whole vis-avis the states parties. Unlike formal amendment, …
United States--Certain Measures Affecting Imports Of Poultry From China: The Fascinating Case That Wasn't, Donald H. Regan
United States--Certain Measures Affecting Imports Of Poultry From China: The Fascinating Case That Wasn't, Donald H. Regan
Articles
US–Poultry (China) was the first Panel decision dealing with an origin-specific SPS measure, or with what the United States referred to as an ‘equivalence regime’. More specifically, it was the first instance in which the basis for the challenged measure was the claimed inability of the complainant country to enforce its own food-safety rules. Unfortunately, as the litigation developed, the very interesting novel issues raised by such a measure were not discussed. This essay discusses those novel issues – in particular, what sort of scientific justification or risk assessment should be required for a measure like this, and what SPS …
A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan
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 …
The Meaning Of 'Necessary' In Gatt Article Xx And Gats Article Xiv: The Myth Of Cost-Benefit Balancing, Donald H. Regan
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 …
Why China?: A Startling Transformation, Nicholas C. Howson
Why China?: A Startling Transformation, Nicholas C. Howson
Articles
Another vantage point—the view from inside China— reveals a process of transformation even more startling and far-reaching than the external manifestations of China’s rise.
Offshore Outsourcing And Worker Rights, Theodore J. St. Antoine
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 …
China's Acquisitions Abroad - Global Ambitions, Domestic Effects, Nicholas C. Howson
China's Acquisitions Abroad - Global Ambitions, Domestic Effects, Nicholas C. Howson
Articles
In the past year or so, the world has observed with seeming trepidation what appears to be a new phenomenon-China's "stepping out" into the world economy. The move, labeled the "Going Out Strategy" by Chinese policy makers, sees China acting in the world not just as a trader of commodities and raw materials, or the provider of inexpensively-produced consumer goods for every corner of the globe, but as a driven and sophisticated acquirer of foreign assets and the equity interests in the legal entities that control such assets. The New Yorker magazine, ever topical and appropriately humorous, highlighted this attention …
Global Administrative Law: The View From Basel, Michael S. Barr, Geoffrey P. Miller
Global Administrative Law: The View From Basel, Michael S. Barr, Geoffrey P. Miller
Articles
International law-making by sub-national actors and regulatory networks of bureaucrats has come under attack as lacking in accountability and legitimacy. Global administrative law is emerging as an approach to understanding what international organizations and national governments do, or ought to do, to respond to the perceived democracy deficit in international law-making. This article examines the Basel Committee on Banking Supervision, a club of central bankers who meet to develop international banking capital standards and to develop supervisory guidance. The Basel Committee embodies many of the attributes that critics of international law-making lament. A closer examination, however, reveals a structure of …
Passport To Toledo: Cuno, The World Trade Organization, And The European Court Of Justice, Reuven S. Avi-Yonah
Passport To Toledo: Cuno, The World Trade Organization, And The European Court Of Justice, Reuven S. Avi-Yonah
Articles
The purpose of this article is to try to place the debate about Cuno v. DaimlerChrysler in a broader perspective by connecting it with the overall discussion of harmful tax competition. It discusses two hypothetical scenarios under which the city of Toledo, Ohio, is (a) a separate country and (b) a member state of the European Union. If the first hypothetical were true, the tax incentives offered by Toledo would violate the rules of the World Trade Organization; if the second hypothetical were true, the tax incentives would also violate the Treaty of Rome, as interpreted by the European Court …
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
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.
Do World Trade Organization Dispute Settlement Reports Affect The Obligations Of Non-Parties? -- Response To Mcnelis, Donald H. Regan
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 …
Regulatory Purpose And 'Like Products' In Article Iii:4 Of The Gatt (With Additional Remarks On Article Ii:2), Donald H. Regan
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 …
Tax, Trade And Harmful Tax Competition: Reflections On The Fsc Controversy, Reuven S. Avi-Yonah
Tax, Trade And Harmful Tax Competition: Reflections On The Fsc Controversy, Reuven S. Avi-Yonah
Articles
This article contrasts three approaches to dealing with the BEPS problem: adopting a unitary taxation regime, ending deferral, and adopting anti-base-erosion measures. It concludes that while the first approach is the best long-term option, the other two are more promising as immediate candidates for adoption in the context of U.S. tax reform and the OECD BEPS project.
The Product/Process Distinction - An Illusory Basis For Disciplining 'Unilateralism' In Trade Policy, Robert L. Howse, Donald H. Regan
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) …