Law Commons^™

German Vat Compliance - Moving One Step Closer To Automated Third-Party Solutions, Richard Thompson Ainsworth

Faculty Scholarship

Recent developments in German VAT compliance, notably (a) the imposition of criminal penalties for failing to immediately amend a preliminary return that is known to be in error [Bundesgerichtshof decision of March 17, 2009, No. BGH 1 StR 342/08], when considered in tandem with (b) amendments to the voluntary disclosure rules, Gesetz zur Vebesserung der Bekämpfung von Geldwäsche und Steuerhinterziehung, it is clear that the German VAT compliance landscape has changed dramatically in the past year.

Taken as a whole, the German rules strongly encourage internal audits, self-reviews, and immediate self-disclosures of errors in previously filed returns and taxes paid. …

Direct Concern In Regional Policy: The European Court Of Justice And The Southern Question, Daniela Caruso

Faculty Scholarship

For a few years, the European Court of Justice (ECJ) has declared inadmissible, for lack of direct concern, a number of annulment actions initiated by sub-state actors in the context of regional policy. This article compares the ECJ's holdings with the General Court's more generous application of the ‘direct concern’ standard in some of the same disputes, and argues in favour of the General Court's approach. The cases hereby analysed pertain to the implementation of structural funds in Southern Italy. Relating regional policy to the historical unfolding of the ‘Southern Question’, this article examines the unexpected opportunity for civic and …

Reciprocal Comity, Edward J. Janger

Faculty Scholarship

No abstract provided.

My Brother's Keeper: An Empirical Study Of Attorney Facilitation Of Money-Laundering Through Commercial Transactions, Lawton P. Cummings, Paul T. Stepnowsky

Faculty Scholarship

In recent years, various “gatekeeping initiatives” have been introduced through inter-governmental standard-setting organizations, such as the Financial Action Task Force, as well as through federal legislation in the United States, which seek to apply the mandatory customer due diligence, record keeping, and suspicious activity reporting obligations contained in the existing anti-money laundering regime to lawyers when they conduct certain commercial transactions on behalf of their clients. The organized bar has argued against such attempts to regulate it, in part, due to the lack of empirical data showing that, as a threshold matter, lawyers unwittingly aid money laundering in a significant …

Vat Fraud: Mtic & Mtec - The Tradable Services Problem, Richard Thompson Ainsworth

Faculty Scholarship

Tradable services – VoIP termination services, mobile minutes, software as a service (SaaS), or almost any service bought or sold in the “cloud” – are a distinct class of taxable supplies. These service-based supplies both resemble and differ fundamentally from goods. They also differ from services that are consumed-on-purchase (consumed services).

Tradable services are designed from the beginning for re-sale. They are hybrid supplies that behave commercially like goods, but have functional attributes that make them hard to distinguish from services generally. When determining the place of supply/ place of taxation for these kinds of supplies, their hybrid character presents …

The Politics Of Corporate Alien Tort Cases, Chimène Keitner

Faculty Scholarship

No abstract provided.

M.B.Z. V. Clinton: Whither Jerusalem?, Calvin R. Massey

Faculty Scholarship

No abstract provided.

What’S In A Name? How Nations Define Terrorism Ten Years After 9/11, Sudha Setty

Faculty Scholarship

Ten years after the attacks of September 11, 2001, it almost goes without saying that the acts of grotesque violence committed on that day have had enormous effects on national security law and policy worldwide. To be labeled a terrorist, or to be accused of involvement in an act of terrorism, carries far more severe repercussions now than it did ten years ago. This is true under international law and under domestic law in nations that have dealt with serious national security concerns for many years.

Given the U.N.’s global mandate to combat terrorism and that being defined as a …

Criminalized State: The International Criminal Court, The Responsibility To Protect, And Darfur, Republic Of Sudan, Matthew H. Charity

Faculty Scholarship

The international community continues to struggle with the question of what to do when a nation fails to protect its own people from systemic neglect, mistreatment, or even genocide. For many years, this debate pitted proponents of humanitarian intervention by a third-party against those who believe that all others must defer to the sovereign right of the state to control its own affairs and the affairs of its people. In the midst of this debate, the international community has adopted a middle road: insisting that states must acknowledge their responsibility to protect their populations and if the state manifestly fails …

Attribution Of Criminal Liability A Critical Comparison Of The Us Doctrine Of Conspiracy And The Icty Doctrine Of Joint Criminal Enterprise From An American Perspective, Mark A. Summers

Faculty Scholarship

No abstract provided.

Rule Of Law In Haiti Before And After The 2010 Earthquake, James D. Wilets, Camilo Espinosa

Faculty Scholarship

No abstract provided.

Islam In The Secular Nomos Of The European Court Of Human Rights, Peter G. Danchin

Faculty Scholarship

Since 2001 the European Court of Human Rights has decided a series of cases involving Islam and the claims of Muslim communities (both majorities and minorities) to freedom of religion and belief. This Article suggests that what is most interesting about these cases is how they are unsettling existing normative legal categories under the ECHR and catalyzing new forms of politics and rethinking of both the historical and theoretical premises of modern liberal political orders. These controversies raise anew two critical questions for ECHR jurisprudence: first, regarding the proper scope of the right to religious freedom; and second, regarding the …

A Return To Lüth, Peter E. Quint

Faculty Scholarship

In the following brief essay, which is based on a paper delivered at the 2009 Annual Meeting of Americal Society of Comparative Law, the author revisits the Lüth case, one of the central decisions of German constitutional law.

Where Do We Go From Padilla V. Kentucky? Thoughts On Implementation And Future Directions, Maureen A. Sweeney

Faculty Scholarship

On March 31, 2010, the U.S. Supreme Court held in the landmark case of Padilla v. Kentucky that the Sixth Amendment right to effective assistance of counsel in criminal cases includes the right for non-U.S. citizens to be correctly and specifically advised about the likely immigration consequences of a plea agreement. The decision represents an important shift in the way courts have addressed such claims by noncitizen defendants. The Court’s decision recognizes a constitutional requirement that defense counsel provide advice in an area of law in which few defense counsel are knowledgeable, and therefore raises important and difficult questions about …

International Antitrust Cooperation And The Preference For Nonbinding Regimes, Anu Bradford

Faculty Scholarship

Today, multinational corporations operate in increasingly international markets, yet antitrust laws regulating their competitive conduct remain national. Thus, corporations are subject to divergent antitrust regimes across the various jurisdictions in which they operate. This increases transaction costs, causes unnecessary delays, and raises the likelihood of conflicting decisions. The risks inherent in multi-jurisdictional regulatory review were prominently illustrated in the proposed GE/Honeywell acquisition, which failed following the European Union’s (“EU”) decision to prohibit the transaction despite its earlier approval in the United States. Inconsistent remedies imposed on Microsoft following parallel investigations by both the U.S. and EU authorities serve as another …

Mandatory Versus Default Rules: How Can Customary International Law Be Improved?, Curtis A. Bradley, Mitu Gulati

Faculty Scholarship

Customary International Law (CIL) is plagued with uncertainties about its sources, its content, its manipulability, and its normative attractiveness. The rise of law-making through multilateral treaties also makes the proper role of CIL increasingly uncertain. This is an opportune time, therefore, to be thinking of ways to revive and improve CIL. In a prior article, we argued that the "Mandatory View" of CIL, pursuant to which nations are barred from ever withdrawing unilaterally from rules of CIL, is functionally problematic, at least when applied across the board to all of CIL. We also suggested that CIL might be improved by …

Greek Debt: The Endgame Scenarios, Mitu Gulati, Lee C. Buchheit

Faculty Scholarship

Perhaps Greece -- a country with a debt to GDP already approaching 150 percent and set to move even higher -- avoids a debt restructuring. Perhaps not.

What are the possible scenarios if Greece cannot return to the capital markets to refinance this gargantuan debt stock once its EU/IMF bailout package expires in two years time? What would a Greek debt restructuring look like after mid-2013? And (sharp intake of breath here) what would happen if such a debt restructuring were undertaken before that point?

Global Problems In Domestic Courts, Ralf Michaels

Faculty Scholarship

We face an increasing number of problems that are essentially global in nature because they affect the world in its entirety: global cartels, climate change, crimes against humanity; to name a few. These problems require world courts, yet world courts in the institutional sense are largely lacking. Hence, domestic courts must function, effectively, as world courts. Given the unlikelihood of effective world courts in the future, our challenge is to establish under what conditions domestic courts can play this role of world courts effectively and legitimately.

Emergency And Escape: Explaining Derogations From Human Rights Treaties, Laurence R. Helfer, Emilie M. Hafner-Burton, Christopher J. Fariss

Faculty Scholarship

Several prominent human rights treaties attempt to minimize violations during emergencies by authorizing states to “derogate”—that is, to suspend certain civil and political liberties—in response to crises. The drafters of these treaties envisioned that international restrictions on derogations and international notification and monitoring mechanisms would limit rights suspensions during emergencies. This article analyzes the behavior of derogating countries using new global datasets of derogations and states of emergency from 1976 to 2007. We argue that derogations are a rational response to domestic political uncertainty. They enable governments facing serious threats to buy time and legal breathing space from voters, courts, …

Conflict Of Norms Or Conflict Of Laws?: Different Techniques In The Fragmentation Of International Law, Ralf Michaels, Joost H.B. Pauwelyn

Faculty Scholarship

One of the most pressing topics in current international law is fragmentation. Traditionally, most constructive attempts to deal with fragmentation have been based on analogies what one of us, in an earlier book, called "conflicts of norms" - those rules in domestic law that deal with conflicts of norms within one legal system. In this article, we assess under what circumstances a different approach, based on an analogy to conflict of laws - those rules in domestic law that deal with conflicts of norms between different legal systems - yields a more adequate structure. The result is that public international …

Empagran’S Empire: International Law And Statutory Interpretation In The Us Supreme Court Of The 21st Century, Ralf Michaels

Faculty Scholarship

In its Empagran decision in 2004, the US Supreme Court decided that purchasers on foreign markets could not invoke US antitrust law even against a global cartel that affects also the United States. The article, forthcoming in a volume dedicated to the history on international law in the US Supreme Court, presents three radically different readings of the opinion. The result is that Empagran is a decision that is transnationalist in rhetoric, isolationist in application, and hegemonial in its effect. A decision with a seemingly straightforward argument is found riddled in the conflict between these different logics. A decision with …

Responses To The Ten Questions, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Defining International Law Librarianship In An Age Of Multiplicity, Knowledge, And Open Access To Law, Richard A. Danner

Faculty Scholarship

Many law librarians are experts in international law and legal research. The concept of ‘international law librarianship’, however, encompasses something more than a field of study in which a group of experts practise their profession. In the broader sense, the idea suggests a common calling, similar interests, and goals shared by librarians with a range of specialties beyond international law, working in all types of law libraries. What commonalities create and sustain the concept of international law librarianship? This paper suggests that they can be found in: law librarians’ common need to respond to the ‘multiplicity’ of information sources facing …

Introductory Note To The International Centre For Settlement Of Investment Disputes: Aes Summit Generation Ltd. V. Republic Of Hungary, Charles O. Verrill Jr.

Faculty Scholarship

No abstract provided.

Les Devoirs De L'Arbitre: Ni Un Pour Tous, Ni Tous Pour Un, William W. Park

Faculty Scholarship

Fans of the Alexandre Dumas novel Three Musketeers will remember that the adventure includes a fourth young man, d'Artagnan, who hopes to become one of the King’s guards, along with his friends Athos, Porthos, and Aramis, living by the motto “All for one, one for all”. Likewise, an arbitrator’s generally include four key obligation: accuracy, fairness, and efficiency, as well as vigilance in promoting an enforceable award. Prevailing litigants normally hope that the arbitral process will lead to something more than a piece of paper. To this end, they expect arbitrators to avoid giving reasons for annulment or non-recognition to …

Agency Threats, Tim Wu

Faculty Scholarship

There are three main ways in which agencies regulate: rulemaking; adjudication; and informal tools of guidance, also called nonlegislative or interpretative rules. Over the last two decades, agencies have increasingly favored the use of the last of these three, which can include statements of best practices, interpretative guides, private warning letters, and press releases.

Scholars are hardly unaware of this trend. In a series of papers, writers have explored the use of informal regulation as it affects the relationship between agencies and the federal courts, asking when nonlegislative rules can be challenged as unenforceable for want of process. This Essay …

Hiv And Women: Incongruent Policies, Criminal Consequences, Aziza Ahmed

Faculty Scholarship

UN Women must take an aggressive role in the standardization of laws and policies at the global and national level where their incongruence has negative and often criminal consequences for the health and lives of women and girls. This article focuses in on three such examples: opt-out testing for HIV, criminalization of vertical transmission, and the new World Health Organization guidelines on breastfeeding.

Feminism, Power, And Sex Work In The Context Of Hiv/Aids: Consequences For Women's Health, Aziza Ahmed

Faculty Scholarship

This paper examines the involvement of feminists in approaches to sex work in the context of HIV/AIDS. The paper focuses on two moments where feminist disagreement produced results in favor of an "anti-trafficking" approach to addressing the vulnerability of sex workers in the context of HIV. The first is the UNAIDS Guidance Note on Sex Work and the second is the "anti-prostitution pledge" found in the Presidents Emergency Plan for AIDS Relief. This article also examines the anti-sex work position articulated by abolitionist feminists and demonstrates the unintended consequences of the abolitionist position on women's health. By examining the actual …

Mandatory Mediation And Its Variations, Nancy A. Welsh

Faculty Scholarship

The use of arbitration to resolve international investment disputes clearly represents an improvement over “gunboat diplomacy” and its implicit threat of violent confrontation. Nonetheless, investors, States and other stakeholders have begun to express dissatisfaction with some elements of arbitration in the international investment treaty context. First, arbitration proceedings can be quite lengthy, and their transaction costs seem to be increasing. Second, parties’ compliance is not guaranteed. Some States suggest they may refuse to abide by arbitral awards. Third, the process focuses parties on their legal rights when non-legal issues may be equally important and useful to achieve resolution. Fourth, arbitration …

A Tale Of Two Decades: War Refugees And Asylum Policy In The European Union And The United States, Maryellen Fullerton

Faculty Scholarship

No abstract provided.