Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- International Law (28)
- Comparative and Foreign Law (11)
- Tax Law (11)
- Taxation-Transnational (9)
- Other Law (7)
-
- European Law (6)
- Human Rights Law (5)
- Transnational Law (5)
- Constitutional Law (4)
- Criminal Law (4)
- Science and Technology Law (4)
- Commercial Law (3)
- Courts (3)
- Intellectual Property Law (3)
- Internet Law (3)
- Legislation (3)
- Health Law and Policy (2)
- International Humanitarian Law (2)
- Law and Philosophy (2)
- Law and Society (2)
- Legal History (2)
- Litigation (2)
- Administrative Law (1)
- Antitrust and Trade Regulation (1)
- Banking and Finance Law (1)
- Bankruptcy Law (1)
- Civil Rights and Discrimination (1)
- Common Law (1)
- Computer Law (1)
- Keyword
-
- Base Erosion (9)
- Tax Treaties (9)
- BEPS (6)
- International Tax (5)
- OECD (5)
-
- Profit Shifting (5)
- Constitution (4)
- Double Taxation (4)
- European Union (4)
- Organisation for Economic Co-operation and Development (4)
- Tax Treaty (4)
- United States (4)
- Base Erosion and Profit Shifting (3)
- Bilateral (3)
- Organisation for Economic Co-operation and Development (OECD) (3)
- Profit Sharing (3)
- United Nations (3)
- Action Plan (2)
- China (2)
- Compatibility (2)
- Convention (2)
- Europe (2)
- G20 (2)
- International Tax Regime (2)
- Internet (2)
- Jurisdiction (2)
- Limitation on Benefits (2)
- Multilateral (2)
- OECD Model Treaty (2)
- Permanent Establishment (2)
Articles 1 - 30 of 32
Full-Text Articles in Law
Customary International Law: A Reconceptualization, Roozbeh (Rudy) B. Baker
Customary International Law: A Reconceptualization, Roozbeh (Rudy) B. Baker
Brooklyn Journal of International Law
The current state of international law is one of deep confusion over the role of state practice and opinio juris within the customary element. The debate between adherents of “modern custom” versus those of “traditional custom” has resulted in deep uncertainty and confusion. New theories of customary international law have proved inadequate in clarifying the current state of the field. Confusions over the meanings and relationships between state practice and opinio juris aside, current approaches are all also flawed due to a heavily state-centric bias that fails to take into account the very real affects that norm-generating transnational actors have …
Taking Constitutional Identities Away From The Courts, Pietro Faraguna
Taking Constitutional Identities Away From The Courts, Pietro Faraguna
Brooklyn Journal of International Law
In federal states, constitutional identity is the glue that holds together the Union. On the contrary, in the European Union—not a fully-fledged federation yet—each Member state has its own constitutional identity. On the one hand, the Union may benefit from the particular knowledge, innovation, history, diversity, and culture of its individual states. On the other hand, identity-related claims may have a disintegrating effect. Constitutional diversity needs to come to terms with risks of disintegration. The Treaty on the European Union seeks a balance, providing the obligation to respect the constitutional identities of its Member states. Drawing from the European experience, …
Fashion Forward: The Need For A Proactive Approach To The Counterfeit Epidemic, Casey Tripoli
Fashion Forward: The Need For A Proactive Approach To The Counterfeit Epidemic, Casey Tripoli
Brooklyn Journal of International Law
In the last two decades, the overall activity of the counterfeit market has expanded and risen 10,000 percent. This dramatic shift corresponds to growth of the Internet, which has unified the fascination of obtaining cheap, illegitimate goods with the efficiency of a mouse click. With the expected continued inflation of the counterfeit market comes a host of new concerns, namely, how to determine who is responsible for the distribution of these knockoffs, and who should be ordained to limit them in the marketplace. In both the United States and the European Union, however, outdated laws produce a mélange of inadequate …
Tax Treaties And The Taxation Of Services In The Absence Of Physical Presence, Michael S. Kirsch
Tax Treaties And The Taxation Of Services In The Absence Of Physical Presence, Michael S. Kirsch
Brooklyn Journal of International Law
The increasing ability to deliver personal services electronically raises significant cross-border tax issues. In particular, given that the service provider need not be physically present in the would-be source country, significant questions arise as to the continued viability of tax treaty rules that focus on the service provider’s physical location. In response to these developments, proposed changes to the United Nations Model tax treaty have been approved that would allow source country taxation of technical services, even in the absence of the service provider’s physical presence. This article raises concerns about the broad scope of the proposed changes and recommends …
Location Savings And Segmented Factor Input Markets: In Search Of A Tax Treaty Solution, Mitchell A. Kane
Location Savings And Segmented Factor Input Markets: In Search Of A Tax Treaty Solution, Mitchell A. Kane
Brooklyn Journal of International Law
This article analyzes the proper bounds of source-based taxation of profits generated when firms outsource factor inputs, such as labor, to achieve cost savings. The article advances arguments grounded in efficiency, treaty text, and international distribution to justify greater source-based taxation than has historically been the case. To implement such expanded taxation, the article proposes a modification to transfer-pricing rules in instances where factor inputs are acquired from affiliates and a modification to the tax treaty rules regarding permanent establishments where factor inputs are acquired from unrelated parties. Finally, the article deals with a range of complications, particularly relating to …
A Golden Opportunity: Supporting Up-And-Coming U.S. Luxury Designers Through Design Legislation, Shieva Salehnia
A Golden Opportunity: Supporting Up-And-Coming U.S. Luxury Designers Through Design Legislation, Shieva Salehnia
Brooklyn Journal of International Law
This Note examines the necessity of creating clothing design protection legislation in the United States as a catalyst for up-and-coming designers to compete with European Union luxury conglomerates in reaching the new, emerging middle class in mainland China. It first discusses the current international intellectual property regimes pertinent to creative expression and brand ownership in the context of the fashion industry and clothing design. It looks at how international agreements may provide general harmonization strategies for trademark protection but leave up-and-coming brands and designers out of its framework. It also provides a brief overview of the persistence and prevalence of …
Should I Stay Or Should I Go?: Why Bolivian Tactics And U.S. "Flexibility" Undermine The Single Convention On Narcotic Drugs, Robert C. Zitt
Should I Stay Or Should I Go?: Why Bolivian Tactics And U.S. "Flexibility" Undermine The Single Convention On Narcotic Drugs, Robert C. Zitt
Brooklyn Journal of International Law
This Note examines the deterioration of the 1961 Single Convention on Narcotic Drugs (“Convention”), as Member State circumvention of treaty spirit continues to highlight the disconnect between progressive drug policies and an enforcement regime armed with little or no power to monitor compliance. It first provides a brief history of the Convention with discussion underscoring the governing bodies of the treaty itself, particularly the International Narcotics Control Board (INCB). Further discussion will note the procedural mechanisms whereby parties can propose amendments or reservations to the Convention itself. With such procedures in mind, subsequent examination will analyze how Member States have …
The Need For An International Convention On Data Privacy: Taking A Cue From The Cisg, Morgan Corley
The Need For An International Convention On Data Privacy: Taking A Cue From The Cisg, Morgan Corley
Brooklyn Journal of International Law
In light of the invalidation of the U.S.-EU Safe Harbor, along with the increase in sales of personal data as a commodity, data privacy has become a major concern amongst different nations. The lack of harmonization of data-privacy laws around the world continues to pose obstacles to the free flow of data across national borders. The free flow of data is, nonetheless, essential the international economy. As a result, nations continue to work together to try to create mechanisms by which data can be transferred across borders in a secure manner. This Note examines the current state of data-privacy law …
Australians' "Right" To Be Bigoted: Protecting Minorities' Rights From The Tyranny Of The Majority, Jillian Rudge
Australians' "Right" To Be Bigoted: Protecting Minorities' Rights From The Tyranny Of The Majority, Jillian Rudge
Brooklyn Journal of International Law
Australia’s Racial Discrimination Act (RDA) is a federal statute prohibiting behavior that offends, insults, humiliates, or intimidates people based on their race, nationality, ethnicity, or immigration status. It appropriately limits the right to freedom of expression where the exercise of that right encroaches on other, equally fundamental rights to equality and freedom from discrimination. The RDA is one of Australia’s few human rights laws focused on fighting racism. It is especially important for protecting the rights of minorities since Australia lacks a constitutional or federal bill of rights. Unfortunately, in 2014 and 2015, conservative politicians called for a repulsion of …
Thailand's Ban On Commercial Surrogacy: Why Thailand Should Regulate, Not Attempt To Eradicate, Allison L. Zimmerman
Thailand's Ban On Commercial Surrogacy: Why Thailand Should Regulate, Not Attempt To Eradicate, Allison L. Zimmerman
Brooklyn Journal of International Law
International commercial surrogacy is when a person or couple from one country hires a surrogate in a different country. In recent years, this form of reproductive tourism has been a booming industry in Thailand due to the lack of meaningful regulation, relatively low cost, and unavailability in other countries. After a string of scandals involving Thai surrogacy arrangements arose, however, the Thai government enacted the Protection for Children Born Through Assisted Reproductive Technologies Act (the “ART Act”), prohibiting Thai commercial surrogacy from serving foreign clients, and only allowing Thai heterosexual couples to make use of surrogacy arrangements. As a result, …
The Phase-Out And Sunset Of Travel Restrictions In The International Health Regulations, Sarah R. Goldfarb
The Phase-Out And Sunset Of Travel Restrictions In The International Health Regulations, Sarah R. Goldfarb
Brooklyn Journal of International Law
Whether and to what extent travel restriction should be implemented during international infectious disease epidemics became a controversial issue, most recently, during the 2014 Ebola outbreak. The primary authority on the manner in which to respond to such epidemics is the International Health Regulations (IHR). The IHR is a treaty, established by the World Health Organization (WHO), which governs and coordinates international responses to international infectious disease epidemics. Despite the WHO's strong advisement to the contrary, many countries who were signatories to the IHR implemented travel bans and other types of travel restrictions to prevent the transmission of the disease …
Treaties In The Aftermath Of Beps, Yariv Brauner
Treaties In The Aftermath Of Beps, Yariv Brauner
Brooklyn Journal of International Law
The article argues that, despite the fanfare around it, the outcome of the BEPS project is unlikely to be dramatic, at least in the short term. Beyond a period of increased legal uncertainty and aggressive enforcement by some countries, it expects little substantive change in tax treaties. The challenges to the dominance of the OECD and the richest countries would likely be assuaged with marginal concessions, most or all of which not be affecting tax treaties. Yet, the article sees a silver lining in the non-substantive, structural, and instrumental outcomes of the BEPS project. It argues that even if unintended, …
Kill-Switches In The U.S. Model Tax Treaty, Allison Christians, Alexander Ezenagu
Kill-Switches In The U.S. Model Tax Treaty, Allison Christians, Alexander Ezenagu
Brooklyn Journal of International Law
The new U.S. Model income tax treaty contains an unusual addition: mechanisms for the parties to unilaterally override the negotiated treaty rates in specified circumstances. Previewed last year in proposed form—a first for the Treasury—these new mechanisms work as kill-switches, partially terminating the treaty as to one or both treaty partners. The idea is to forestall a more problematic outcome, such as an enduring breach of one of the parties’ expectations, or the opposite, a complete termination of all the treaty terms in the face of such a breach. Yet embedding a kill-switch in a treaty creates distinct legal, procedural, …
Tax Treaties As A Network Product, Tsilly Dagan
Tax Treaties As A Network Product, Tsilly Dagan
Brooklyn Journal of International Law
The copiousness of tax treaties is often presented as proof, not only of their success but also of their desirability. In focusing on alleviating double taxation by allocating tax revenues, however, the treaties project is a missed opportunity. This article explains that an international tax standard is a network product and uses network theory to explore the potential advantages and drawbacks of the tax treaty network in entrenching such a standard. Networks facilitate stability and self-enforcement. By joining (and remaining in) a network, users benefit from the compatibility with other users; this, in turn, incentivizes new users to join and …
Unilateral Responses To Tax Treaty Abuse: A Functional Approach, Omri Marian
Unilateral Responses To Tax Treaty Abuse: A Functional Approach, Omri Marian
Brooklyn Journal of International Law
In recent years, there has been a dramatic increase in the attention given to abusive tax schemes that take advantage of bilateral tax treaties. The ensuing discourse tends to view potential responses to treaty abuses as a hierarchical set of options, gradually escalating, in which treaty termination is a last resort option. This article argues that the hierarchical view of unilateral responses to treaty abuse is misguided. Unilateral responses to treaty-based abuse are not hierarchically ordered. Rather, the approach to treaty abuse is (and should be) functional, adopting specific types of unilateral responses based on the type of treaty abuse …
When International Tax Agreements Fail At Home: A U.S. Example, Diane Ring
When International Tax Agreements Fail At Home: A U.S. Example, Diane Ring
Brooklyn Journal of International Law
Over the past two and a half years, the international tax community has focused on the Base Erosion and Profit Shifting Project (BEPS project) undertaken by the Organisation for Economic Co-operation and Development (OECD) at the behest of the G20. According to the OECD, the resulting 2015 agreement involved the direct participation of more than sixty countries. An additional fifty-nine countries indirectly participated through regional dialogues. Furthermore, numerous international organizations are credited with participating in discussions and contributing to the resulting product. But, effective implementation of the BEPS agreement requires domestic action of various types—the domestic side of international agreement …
“Thinking Outside The (Tax) Treaty” Revisited, Adam H. Rosenzweig
“Thinking Outside The (Tax) Treaty” Revisited, Adam H. Rosenzweig
Brooklyn Journal of International Law
The rise and development of “Base Erosion and Profit Shifting” project by the Organization for Economic Cooperation and Development (BEPS) provides an ideal opportunity to revisit the fundamental principles underlying the international tax regime and the bilateral tax treaty regime in particular. This is true because BEPS represents both an attempt to create a new, truly multinational consensus on international tax matters and a clear move away from the bilateral tax treaty as the primary form of international coordination. From this perspective, BEPS provides the perfect opportunity to revisit the role of a proposed dispute resolution mechanism for nontreaty member …
How Reform-Friendly Are U.S. Tax Treaties?, Fadi Shaheen
How Reform-Friendly Are U.S. Tax Treaties?, Fadi Shaheen
Brooklyn Journal of International Law
This article addresses the treaty compatibility aspect of proposals for reforming the U.S. international tax system. Finding that a reform proposal is treaty compatible obviates the need for renegotiating or overriding existing U.S. treaties to implement the proposal if enacted. After establishing that a U.S. move to an exemption system would be treaty compatible despite the literal reading of Article 23 of the U.S. Model income tax treaty as requiring a credit system, the article argues that any system that is or can be expressed as an outright fixed or floating combination of exemption and credit is treaty compatible regardless …
The Two Faces Of The Single Tax Principle, Daniel Shaviro
The Two Faces Of The Single Tax Principle, Daniel Shaviro
Brooklyn Journal of International Law
Some argue that a “single tax principle,” said to underlie tax treaties, requires that cross-border income should generally be taxed once, rather than twice or not at all. Even if one accepts this principle, it is important to recognize the difference between “upside” departures, which occur when the same dollar of income is taxed more than once, and “downside” departures, which occur when it is not taxed at all. This article argues that a focus on barring upside departures from the single tax principle can be quite misguided. While over-taxing cross-border activity, relative to that occurring in one country, may …
Copyright Competition: The Shifting Boundaries Of Convergence Between U.S. And Canadian Copyright Regimes In The Digital Age, David Amar
Brooklyn Journal of International Law
The great copyright debate between protecting creators and encouraging information-sharing has always been a contentious and likely unresolvable battle. However, with the crafting of new legislation designed to rein in unscrupulous sharing in the age of online sharing and piracy, the discussion grows ever more heated. The economies of Canada and the U.S. have always been intertwined, and in a copyright context, this has never been clearer. Since Canada began to appear on the U.S. “Special 301” piracy reports, the two nations have been locked into a system of promulgating ever-more restrictive copyright policy, the logical extreme of which may …
Cutting The Wire: A Comprehensive Eu-Wide Approach To Refugee Crises, Kelsey Leigh Binder
Cutting The Wire: A Comprehensive Eu-Wide Approach To Refugee Crises, Kelsey Leigh Binder
Brooklyn Journal of International Law
This Note examines the current refugee crisis occurring in the European Union, where over a million refugees have entered the region since the beginning of 2015, and proposes that the EU implement a two-step permanent emergency framework for dealing with mass migration crises. It first looks at the major bodies of international refugee law, including a historical overview of its foundations, the 1951 Convention Relating to the Status of Refugees, and the 1967 Protocol Relating to the Status of Refugees. Next, it will explore the legal mechanisms that are in force throughout the EU, including the EU’s asylum laws and …
Free Kick: Fifa’S Unintended Role In Illuminating Jurisdictional Gaps Of International Criminal Courts, Travis L. Marmara
Free Kick: Fifa’S Unintended Role In Illuminating Jurisdictional Gaps Of International Criminal Courts, Travis L. Marmara
Brooklyn Journal of International Law
In the wake of the FIFA corruption scandal of 2015, certain realities have come to light. FIFA’s corruption knows no bounds, but fans of the sport will watch nonetheless. What is less apparent is that the two most prominent international criminal courts—the International Court of Justice (ICJ) and the International Criminal Court (ICC) fail to have jurisdiction over the FIFA organization or its officials when they engage in white-collar crimes that sanction human rights abuses abroad. This Note examines how FIFA officials’ acceptance of Qatari bribes to host the 2022 World Cup exposed alarming jurisdictional inadequacies of the ICJ and …
Public Antitrust Enforcement Of Resale Price Maintenance In China: A Crusade Or Discrimination?, Jingmeng Cai
Public Antitrust Enforcement Of Resale Price Maintenance In China: A Crusade Or Discrimination?, Jingmeng Cai
Brooklyn Journal of International Law
In recent years, a growing number of international observers and companies have expressed concerns that China may be using its new antitrust laws to discriminate against multinational companies. China’s antitrust decisionmakers, however, have taken pains to deny such criticisms. This article focuses on Resale Price Maintenance (RPM) to argue that these concerns are not always based in reality. After examining almost all of the decisions made public regarding RPM by the Chinese antitrust agency, the National Development and Reform Commission (NDRC), this article analyzes the following three factors that have shaped how the NDRC enforces antitrust laws in China. First, …
The Principle Of Legality And A Common Law Bill Of Rights—Clear Statement Rules Head Down Under, Dan Meagher
The Principle Of Legality And A Common Law Bill Of Rights—Clear Statement Rules Head Down Under, Dan Meagher
Brooklyn Journal of International Law
This article traces the evolution in Australia of fundamental rights protection provided by the courts. It is a fascinating and controversial story that, at its most critical moments, was (and continues to be) informed by U.S. constitutional law design and statutory interpretation principles. On one level, that is no surprise when “it may be said that, roughly speaking, the Australian Constitution is a redraft of the American Constitution of 1787 with modifications found suitable for the more characteristic British institutions and for Australian conditions.” But, what is extraordinary is that the decision of the framers of the Australian Constitution to …
The Costs And Consequences Of Incorrect Citations: European Law In The U.S. Supreme Court, Andrea Pin
The Costs And Consequences Of Incorrect Citations: European Law In The U.S. Supreme Court, Andrea Pin
Brooklyn Journal of International Law
Building on the controversy over foreign citations in domestic courts, this article reflects on the U.S. Supreme Court's practice of quoting EU law and the European Court of Human Rights’ case law. It offers a detailed examination of how the U.S. Supreme Court has used European sources and shifts the debate over whether it should use them, by explaining a different way in which the court could exploit them. The article focuses on the three fields in which such foreign case law has either influenced the U.S. Supreme Court decisions or otherwise impacted the judges’ reasoning: laws targeting homosexual conduct; …
Relative International Legal Personality Of Non-State Actors, William Thomas Worster
Relative International Legal Personality Of Non-State Actors, William Thomas Worster
Brooklyn Journal of International Law
Non-state actors are increasingly being considered international legal persons on a case-by-case basis. This articles argues that the common thread in making decisions on whether to treat a non-state actor as an international legal person is one of the function that the actor is playing in relation to other international actors. Gone is the traditional notion that only states are international legal persons, and it is now well accepted that international organizations are also persons. More controversial is the status of self-determination peoples, National Liberation Movements, indigenous peoples, insurgents, belligerents, combatants, private corporations, non-governmental organizations, religious organizations, and individuals. This …
Rescuing The “Supreme Court” Of Sports: Reforming The Court Of Arbitration For Sport Arbitration Member Selection Procedures, Jennifer R. Bondulich
Rescuing The “Supreme Court” Of Sports: Reforming The Court Of Arbitration For Sport Arbitration Member Selection Procedures, Jennifer R. Bondulich
Brooklyn Journal of International Law
The international athletic community’s preference for arbitration over traditional domestic courts to settle disputes between individual athletes and their respective sports governing bodies has led to the development of an authority specializing in international sports dispute resolution—the Court of Arbitration for Sport (CAS). Originally created in 1984 by the International Olympic Committee (IOC) to hear Olympic disputes, CAS has developed into the exclusive arbitral body for international sports disputes, and clauses granting CAS exclusive authority are found in essentially all contracts between individual athletes and their respective athletic federation. Although, CAS functions as the “Supreme Court” of Sports and is …
“Chi S’Aiuta, Dio L’Aiuta”: Balancing Italy’S Right To Utilize Assisted Reproductive Technologies With The Teachings Of The Catholic Church, Erin A. Mcmullan
“Chi S’Aiuta, Dio L’Aiuta”: Balancing Italy’S Right To Utilize Assisted Reproductive Technologies With The Teachings Of The Catholic Church, Erin A. Mcmullan
Brooklyn Journal of International Law
Adelina Parrillo never anticipated starting a prolonged legal battle when she requested her embryos be donated for scientific research. The restrictive legislation in place in Italy, inevitably influenced by the Catholic Church, mandated that she either implant the embryos or store them indefinitely. After a long drawn out battle with the Italian courts, she desperately sought assistance from the European Court of Human Rights (ECtHR), a court tasked with protecting the rights of individuals such as Parrillo from the overreaching of Member States. The ECtHR) acknowledged that this decision, to donate her unused embryos to medical research, was within the …
Making The Time Fit The Crime: Clearly Defining Online Harassment Crimes And Providing Incentives For Investigating Online Threats In The Digital Age, A. Meena Seralathan
Making The Time Fit The Crime: Clearly Defining Online Harassment Crimes And Providing Incentives For Investigating Online Threats In The Digital Age, A. Meena Seralathan
Brooklyn Journal of International Law
This Note examines online harassment and online stalking throughout the world, including the current landscape of Internet communication, the effects of cyberharassment and cyberstalking on its victims, and both the difficulties in defining these crimes in criminal codes and the difficulties in inspiring law enforcement to investigate complex internet crimes. Specifically, this Note discusses the problems inherent in current cyberharassment and cyberstalking treaties and legislation within the United States, Canada, and Australia. For example, this Note analyzes how these jurisdictions define cyberharassment and cyberstalking, how these definitions are inadequate for dealing with current forms of cyberharassment and cyberstalking (both due …
The Last Poor Plunder From A Bleeding Land: The Failure Of International Law To Protect Syrian Antiquities, Mackenzie Warner
The Last Poor Plunder From A Bleeding Land: The Failure Of International Law To Protect Syrian Antiquities, Mackenzie Warner
Brooklyn Journal of International Law
The Syrian civil war has led to the looting and destruction of a significant amount of the country's cultural heritage. The rise of ISIS in Syria and its exploitation of cultural heritage for propaganda and financial gain has exacerbated this damage. Further, international treaty protections of cultural heritage during armed conflict contain significant weaknesses impeding their ability to effectively protect antiquities in the post-9/11 context of modern armed conflict that substantially involves non-state armed groups and acts of terrorism occurring outside the event of declared war. The primary international protections of cultural heritage during armed conflict consist of the 1954 …