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Articles 1 - 30 of 60
Full-Text Articles in Law
Virtual Intermediaries Ii - Canadian Solutions (Drop Shipments) Compared With Us, Japanese & Eu Approaches, Richard Thompson Ainsworth
Virtual Intermediaries Ii - Canadian Solutions (Drop Shipments) Compared With Us, Japanese & Eu Approaches, Richard Thompson Ainsworth
Faculty Scholarship
Virtual travel agents are opportunistic internet-based travel agents. They are intermediary businesses that create mutually beneficial three-party transactions that secure accommodations for a traveler that: (a) meet the basic needs of the traveler (at a discount), (b) fills vacant room for accommodation retailers with guests that pay below market, but above standard costs, and (c) profit from the extra cash, the margin in the transaction.
The virtual intermediary’s eye is always on the discount and the cash flow. One of the things that catches their attention are the accommodation taxes which they collect from the traveler in advance and remit …
More Cooperation, Less Uniformity: Tax Deharmonization And The Future Of The International Tax Regime, Steven Dean
More Cooperation, Less Uniformity: Tax Deharmonization And The Future Of The International Tax Regime, Steven Dean
Faculty Scholarship
Efforts to foster improved international tax cooperation have become preoccupied with tax harmonization. Deharmonization offers the possibility of harmony without uniformity By exploring two examples of tax deharmonization in practice and considering the origins and limitations of tax harmonization, this Article brings the traditional emphasis on harmonization into question. It then makes the case that deharmonization--cooperation without uniformity--could provide a viable alternative. Achieving tax deharmonization potential would require revisiting some of the most basic elements of our current international tax regime, particularly the benefits principle.
The Fog Of Certainty, Robert B. Ahdieh
The Fog Of Certainty, Robert B. Ahdieh
Faculty Scholarship
In a recent essay in the Yale Law Journal, constitutional law scholar Michael Stokes Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, he suggests, international law is mere “policy and politics.”
For all the certainty with which this argument is advanced, it cannot survive close scrutiny. At its foundation, Professor Paulsen’s essay rests on a pair of fundamental misconceptions of the nature of law. Law is not reduced to mere policy, to begin, simply because it can be undone. Were that …
The Morphing Of Mtic Fraud: Vat Fraud Infects Tradable Co2 Permits, Richard Thompson Ainsworth
The Morphing Of Mtic Fraud: Vat Fraud Infects Tradable Co2 Permits, Richard Thompson Ainsworth
Faculty Scholarship
Missing trader intra-community (MTIC) fraud has been slowly morphing from cell phones and computer chips to other commodities. In the last few months however MTIC made a dramatic appearance in tradable CO2 permits. It closed exchanges and prompted France and the Netherlands to unilaterally change their tax treatment of CO2 trades. The UK has followed the French treatment in large measure. On Monday June 8, 2009 rumors of MTIC fraud in carbon emission permits closed the main European exchange for spot trading of European Union carbon emissions permits and Kyoto offsets. When BlueNext began trading permits again on Wednesday, June …
Book Review: The Iraq War And International Law, Maxwell O. Chibundu
Book Review: The Iraq War And International Law, Maxwell O. Chibundu
Faculty Scholarship
A review of The Iraq War and International Law edited by Phil Shiner and Andrew Williams. Oxford, Hart Publishing, 2008.
Massachusetts Zappers - Collecting The Sales Tax That Has Already Been Paid, Richard Thompson Ainsworth
Massachusetts Zappers - Collecting The Sales Tax That Has Already Been Paid, Richard Thompson Ainsworth
Faculty Scholarship
No other New England state is as vulnerable to Zappers as is the State of Massachusetts. Zappers and related software programming, Phantom-ware, facilitate an old tax fraud – skimming cash receipts. In this instance skimming is performed with modern electronic cash registers (ECRs).
Zappers are a global revenue problem, but to the best of this author’s knowledge they have not been uncovered in Massachusetts. A global perspective says: it is highly unlikely that Zappers are not in the Commonwealth – we just need to find them. In fact, using a Quebec template, tax losses from Zappers and related frauds in …
Use And Enjoyment Of Intangible Services: The German, Austrian, Danish And Estonian Vat Derogations, Richard Thompson Ainsworth
Use And Enjoyment Of Intangible Services: The German, Austrian, Danish And Estonian Vat Derogations, Richard Thompson Ainsworth
Faculty Scholarship
When the Czech Republic elected (effective January 1, 2009) to derogate from the standard rules for determining the place of supply for intangible services, pursuant to Article 58 of the Recast VAT Directive (RVD), it was following the lead of ten other Member States. This paper considers four of those other jurisdictions - Germany, Austria, Estonia, and Denmark - and compares their derogations with that of the Czech Republic.
In each instance a use and enjoyment standard determines the place of supply for certain intangible services. The affected transactions are (potentially) wide ranging. In each instance non-EU countries are on …
Use And Enjoyment Of Intangible Services: The Czech Republic's Vat Derogation, Richard Thompson Ainsworth
Use And Enjoyment Of Intangible Services: The Czech Republic's Vat Derogation, Richard Thompson Ainsworth
Faculty Scholarship
On January 1, 2009 a minor change in the Czech Republic VAT became effective. A use and enjoyment standard was added to modify the sourcing of certain service transactions. Traditional proxy-based rules, derived from Articles 43 and 56(1) of the Recast VAT Directive (RVD), are set aside by this modification when the customer receiving the services has a permanent establishment (PE) in the Czech Republic. The modification is authorized by RVD 58.
This change is a limited adoption of RVD 58(b), and functions like a full force of attraction principle in direct taxation. If caught by these rules, transactions that …
Water Scarcity, Conflict, And Security In A Climate Change World: Challenges And Opportunities For International Law And Policy, Gabriel Eckstein
Water Scarcity, Conflict, And Security In A Climate Change World: Challenges And Opportunities For International Law And Policy, Gabriel Eckstein
Faculty Scholarship
Although climate change is expected to have major consequences that affect the global environment in its broadest sense, one of the earliest and most direct impacts will be on Earth’s fresh water systems. While some regions will experience increased precipitation, others will suffer serious scarcity. Among others, consequences are likely to include severe flooding, extreme droughts, and meandering border-rivers. This, in turn, will affect human migration patterns, population growths, agricultural activities, economic development, and the environment. This article explores the impact that climate change will have on regional and global freshwater resources and the resulting legal and policy implications that …
Quebec's Module D'Enregistrement Des Ventes (Mev): Fighting The Zapper, Phantomware And Tax Fraud With Technology, Richard Thompson Ainsworth
Quebec's Module D'Enregistrement Des Ventes (Mev): Fighting The Zapper, Phantomware And Tax Fraud With Technology, Richard Thompson Ainsworth
Faculty Scholarship
On January 28, 2008 the Quebec Minister of Revenue, Jean-Marc Fournier, announced that by late 2009 the MRQ will begin testing a device, the module d'enregistrement des ventes (MEV) that is projected to substantially reduce tax fraud in the restaurant sector. By 2010 or 2011 MEVs will be mandatory in all Quebec restaurants, where they will assure accuracy and retention of business records within electronic cash registers (ECRs).
This paper moves beyond a discussion of the variety of sales suppression programs in use - zappers and phantom-ware. The concern here is on enforcement efforts, particularly the MEV. The intent is …
Transfer Pricing In Vat/Gst Vs. Direct Taxation: A Paper On The Topic Of Relations Between Associated Companies, Richard Thompson Ainsworth
Transfer Pricing In Vat/Gst Vs. Direct Taxation: A Paper On The Topic Of Relations Between Associated Companies, Richard Thompson Ainsworth
Faculty Scholarship
This paper considers transfer pricing in VAT/GST and direct taxes, one of a range of tax relationships that flow between associated companies. The topic necessarily proposes an inquiry into vertical harmonization of transfer pricing norms alongside an assessment of present efforts to horizontally harmonize transaction values.
Stated differently, the vertical inquiry is: should the same transaction between the same associated enterprises be valued in the same manner by a single country in VAT/GST and direct taxes? The horizontal effort is: should two jurisdictions treat transactions between associated enterprises within their respective jurisdictions in the same manner in VAT/GST and direct …
International Law, Human Rights And The Transformative Occupation Of Iraq, Peter G. Danchin
International Law, Human Rights And The Transformative Occupation Of Iraq, Peter G. Danchin
Faculty Scholarship
This chapter examines the project of transformative occupation undertaken by the United States and its allies following the invasion of Iraq in 2003. More specifically, it considers the Iraqi occupation in light of two competing sensibilities in international legal argument. On one view, which I term “legal formalism”, the purpose of international law is eclectic, intersubjective and value-pluralist: to create the conditions for peaceful coexistence between different political orders and ways of life. This view is commonly associated with the liberalism of the United Nations Charter which posits both the subject of international law and its liberty in formal terms …
Whose Public? Which Law? Mapping The Internal/External Distinction In International Law, Peter G. Danchin
Whose Public? Which Law? Mapping The Internal/External Distinction In International Law, Peter G. Danchin
Faculty Scholarship
This chapter challenges and problematizes the convergence thesis between sovereignty and human rights which is argued to rest on only a partial understanding of the liberal tradition in international law, a position commonly referred to as “liberal anti-pluralism.” While relying on a contingent and thus contestable conception of individual autonomy, liberal anti-pluralist accounts do not in fact seek to challenge the rationale for public law or public reason itself. To the contrary, such accounts advance a vision of “universal” or “global” social order governed by a “neutral” public law which limits the freedom of its subjects pursuant to the single …
The Universal Declaration And Developments In The Enforcement Of International Human Rights In Domestic Law, Michael P. Van Alstine
The Universal Declaration And Developments In The Enforcement Of International Human Rights In Domestic Law, Michael P. Van Alstine
Faculty Scholarship
No abstract provided.
The Universal Declaration And South African Constitutional Law: A Response To Justice Arthur Chaskalson, Peter E. Quint
The Universal Declaration And South African Constitutional Law: A Response To Justice Arthur Chaskalson, Peter E. Quint
Faculty Scholarship
No abstract provided.
60 Years Of The Basic Law And Its Interpretation: An American Perspective, Peter E. Quint
60 Years Of The Basic Law And Its Interpretation: An American Perspective, Peter E. Quint
Faculty Scholarship
In commemoration of the 60th anniversary of the adoption of the German Basic Law (Constitution) , the author discusses certain aspects of the Basic Law, in comparison with the Constitution of the United States, and examines important developments in the jurisprudence if the German Constitutional Court interpreting the Basic Law.
Book Review: Fresh Perspectives On The "War On Terror", Katherine Vaughns
Book Review: Fresh Perspectives On The "War On Terror", Katherine Vaughns
Faculty Scholarship
No abstract provided.
Islands Of Effective International Adjudication: Constructing An Intellectual Property Rule Of Law In The Andean Community, Laurence R. Helfer, Karen J. Alter, M. Florencia Guerzovich
Islands Of Effective International Adjudication: Constructing An Intellectual Property Rule Of Law In The Andean Community, Laurence R. Helfer, Karen J. Alter, M. Florencia Guerzovich
Faculty Scholarship
The Andean Community - a forty-year-old regional integration pact of small developing countries in South America - is widely viewed as a failure. In this Article, we show that the Andean Community has in fact achieved remarkable success within one part of its legal system. The Andean Tribunal of Justice (ATJ) is the world's third most active international court, with over 1400 rulings issued to date. Over 90% of those rulings concern intellectual property (IP). The ATJ has helped to establish IP as a rule of law island in the Andean Community where national judges, administrative officials, and private parties …
Recognition And Enforcement Of Foreign Judgments, Ralf Michaels
Recognition And Enforcement Of Foreign Judgments, Ralf Michaels
Faculty Scholarship
No abstract provided.
The United States, Israel, And Unlawful Combatants, Curtis A. Bradley
The United States, Israel, And Unlawful Combatants, Curtis A. Bradley
Faculty Scholarship
This essay considers how members of a terrorist organization should be categorized under international law when the organization is engaged in an armed conflict with a nation. The proper categorization can have significant implications for the nation’s authority under both international and domestic law to subject members of a terrorist organization to military targeting and detention. As a result of judicial decisions, Israel ostensibly follows a two category approach, pursuant to which anyone who is not a lawful combatant, including a member of a terrorist organization, is a civilian. The United States, by contrast, currently follows a three category approach, …
Umdenken Für Die Unidroit - Prinzipien: Vom Rechtswahlstatut Zum Allgemeinen Teil Des Transnationalen Vertragsrechts [Rethinking The Unidroit Principles: From A Law To Be Chosen By The Parties Towards A General Part Of Transnational Contract Law], Ralf Michaels
Faculty Scholarship
The most talked-about purpose of the UNIDROIT Principles of International and Commercial Contracts (PICC) is their applicability as the law chosen by the parties. However, focusing on this purpose in isolation is erroneous. The PICC are not a good candidate for a chosen law - they are conceived not as a result of the exercise of freedom of contract, but instead as a framework to enable such exercise. Their real potential is to serve as objective law - as the general part of transnational contract law.
This is obvious in practice. Actually, choice of the PICC is widely possible. National …
Dispute Systems Design: The United Nations Compensation Commission, Francis Mcgovern
Dispute Systems Design: The United Nations Compensation Commission, Francis Mcgovern
Faculty Scholarship
The Security Council of the United Nations established the United Nations Compensation Commission (“UNCC”) with its Resolution 687 on April 3, 1991.1 It was the first compensation system established under the authority of Chapter VII of the U.N. Charter and was designed to process and pay claims arising from the Iraqi invasion of Kuwait in 1990. The purpose of this paper is to examine the design of the UNCC from a variety of perspectives: its historical setting, the alternative design approaches that have been taken in other compensation contexts, the details of its design, and its role in the design …
Historical Practice And The Contemporary Debate Over Customary International Law, Ernest A. Young
Historical Practice And The Contemporary Debate Over Customary International Law, Ernest A. Young
Faculty Scholarship
Response to: Anthony J. Bellia, Jr. & Bradford R. Clark, The Federal Common Law of Nations, 109 Colum. L. Rev. 1 (2009).
A.J. Bellia and Brad Clark have performed a valuable service for other scholars interested in foreign relations law and federal jurisdiction by collecting and illuminating—with their usual care and insight—the historical practice of both English and early American courts with respect to the law of nations. Their recent Article, The Federal Common Law of Nations, demonstrates that, while American courts have not generally treated customary international law (CIL) as supreme federal law, they have applied such law where …
International Common Law: The Soft Law Of International Tribunals, Andrew T. Guzman, Timothy L. Meyer
International Common Law: The Soft Law Of International Tribunals, Andrew T. Guzman, Timothy L. Meyer
Faculty Scholarship
No abstract provided.
Treaties As "Part Of Our Law", Ernest A. Young
Treaties As "Part Of Our Law", Ernest A. Young
Faculty Scholarship
No abstract provided.
Unpacking The State’S Reputation, Rachel Brewster
Unpacking The State’S Reputation, Rachel Brewster
Faculty Scholarship
International law scholars debate when international law matters to states, how it matters, and whether we can improve compliance. One of the few areas of agreement is that fairly robust levels of compliance can be achieved by tapping into states’ concerns with their reputation. The logic is intuitively appealing: a state that violates international law develops a bad reputation, which leads other states to exclude the violator from future cooperative opportunities. Anticipating a loss of future gains, states will often comply with international rules that are not in their immediate interests. The level of compliance that reputation can sustain depends, …
Shadow Unilateralism: Enforcing International Trade Law At The Wto, Rachel Brewster
Shadow Unilateralism: Enforcing International Trade Law At The Wto, Rachel Brewster
Faculty Scholarship
This short essay briefly traces the evolution of trade law enforcement from the the GATT to the WTO regime. The WTO's Dispute Settlement Understanding (DSU) is widely viewed as a major innovation from the GATT regime in that it subordinates unilateral enforcement of trade law to a rule-based system of multilateral enforcement. I recognize the successes of the WTO regime but the institution effective permits (if not encourages) the unilateral enforcement of trade law outside of the DSU framework Specifically, I examine how the DSU system only provides a prospective remedy - that is, the DSU permits retaliation only for …
Foreign Officials And Sovereign Immunity In U.S. Courts, Curtis A. Bradley
Foreign Officials And Sovereign Immunity In U.S. Courts, Curtis A. Bradley
Faculty Scholarship
No abstract provided.
Why The Chinese Public Prefer Administrative Petitioning Over Litigation, Taisu Zhang
Why The Chinese Public Prefer Administrative Petitioning Over Litigation, Taisu Zhang
Faculty Scholarship
In recent years, the Chinese public, when facing disputes with government officials, have preferred a non-legal means of resolution, the Xinfang system, over litigation. Some scholars explain this by claiming that administrative litigation is less effective than Xinfang petitioning. Others argue that the Chinese have historically eschewed litigation and continue to do so habitually. This paper proposes a new explanation: Chinese have traditionally litigated administrative disputes, but only when legal procedure is not too adversarial and allows for the possibility of reconciliation through court-directed settlement. Since this possibility does not formally exist in modern Chinese administrative litigation, people tend to …
Restating The U.S. Law Of International Commercial Arbitration, George A. Bermann
Restating The U.S. Law Of International Commercial Arbitration, George A. Bermann
Faculty Scholarship
The American Law Institute's new Restatement of the U.S. Law of International Commercial Arbitration is only barely underway, and the reporters began with a chapter, on the recognition and enforcement of awards, that should represent for them a comfort zone of sorts within the overall project. Yet already a number of difficult, and to some extent unexpectedly difficult, questions have arisen. Some of the difficulties stem from the very nature of an ALl Restatement project. Others stem from the nature of arbitration itself and, more particularly, from the inherent tension between arbitral and judicial functions in the arbitration arena. Still …