Comparative and Foreign Law Commons^™

Negotiating Bilateral Tax Treaties: Should Tax Treaties Involving Low-Income Countries Contain A Sunset Clause?, Okanga Ogbu Okanga

Reports & Public Policy Documents

This policy brief reflects on an underexplored proposition: that bilateral tax treaties – particularly treaties involving (middle- and) low-income countries – should contain an expiration or sunset clause. The brief examines some reasons why it may be sensible for a low-income country to make its bilateral tax treaty expirable, from its onset. It also highlights a few reasons why such a policy may not be advisable – or tenable. The brief concludes by exploring the design of a model sunset clause for inclusion in the UN Model Tax Convention.

Masthead & Table Of Contents

Dalhousie Law Journal

No abstract provided.

But Why Him? A Review Of The Tenth Justice: Judicial Appointments, Marc Nadon, And The Supreme Court Act Reference, By Carissima Mathen And Michael Plaxton, Andrew Flavelle Martin

Dalhousie Law Journal

To the great benefit of the Canadian legal community and the Canadian public, the authors have created an extensive, concise, and highly readable account of the Nadon saga. Anyone unfamiliar with the purported appointment of Justice Nadon to the Supreme Court of Canada, the Reference re Supreme Court Act, ss 5 and 6 (also known as the Nadon Reference), and the aftermath will find this book invaluable. I expect this work will become the definitive and authoritative account of this saga and that it will be indispensable to future scholars.

I begin this review with a brief overview of the …

Masthead & Table Of Contents

Dalhousie Law Journal

No abstract provided.

Domestic Revenue Mobilization Through Corporate Income Tax In An East African Developing Country Context, Afton Titus

Dalhousie Law Journal

The laudable objective of making the Sustainable Development Goals (SDGs) a reality requires the targeted use of financial resources. It has become imperative for governments to raise such financial resources through mechanisms that facilitate the domestic mobilization of revenues. This paper argues that in an African developing country context, corporate income tax represents the most effective means by which governments may raise the required funds. Corporate income tax remains an important source of revenue for African countries. This paper further proposes: (i) the design of the essential features of a corporate income tax system that properly accounts for the economy …

Cross-Border Tax Transparency: A Study Of Recent Policy Developments In Turkey, Leyla Ateş

Dalhousie Law Journal

Transnational tax information cooperation has the crucial role of empowering tax administrations to collect tax revenues in full and on time, thereby narrowing the tax gap created by international evasion and avoidance. However, the adequacy of established transnational tax information exchange systems in combatting international tax evasion and avoidance has been severely criticized and a new wave of progress on transparency has started after the 2008 global economic crisis. In this direction, Turkey set cross-border tax transparency high on its political agenda. Though, Turkey has operationalized new transnational tax cooperation agreements very slowly. Furthermore, Turkey’s approach to exchanging information has …

Origin And Differentiation In International Income Allocation, Ivan Ozai

Dalhousie Law Journal

The present international tax rules are typically justified by origin-based theories. These theories align countries’ tax entitlements with the geographical location of the economic factors that contribute to the creation of income. Two recent phenomena have rendered origin-based approaches limited in scope. First, the economic integration of multinational corporations and the relevance of intangibles have made it infeasible to precisely pinpoint the factors contributing to the generation of income. Second, the growing disputes between countries about which economic factors should be considered relevant for sharing the international tax base have recently led to increased consideration of distributional consequences, thus moving …

International Arbitration: The New Frontier Of Business And Human Rights Dispute Resolution?, Tamar Meshel

Dalhousie Law Journal

The question of redress for corporate human rights violations remains daunting. Access to justice challenges faced by rights holders before domestic courts have placed this issue at the forefront of international discourse, and many initiatives have attempted to improve rights holders’ access to effective remedies. This article examines one such initiative, namely international arbitration. The article focuses on the use of international arbitration in the business and human rights context pursuant to the 2013 Accord on Fire and Building Safety in Bangladesh and the recently launched Hague Rules on Business and Human Rights Arbitration. It evaluates the extent to which …

Designing A More Sustainable Global Tax System, Allison Christians

Dalhousie Law Journal

The international tax system incentivizes unsustainable business practices because it ignores the private profits created by externalizing human, societal, and environmental costs. This paper proposes a novel reform: applying living wage and externality assessment tools to the rules for establishing where income arises for tax purposes. To do so, I propose a method that is relatively complex but arguably more accurate (in tax terms) and a complementary but relatively simpler proxy method. I examine how each method would implicate treaty-based and domestic rules and processes and conclude that the proposed design provides a viable starting point to make the global …

The Politics Of Regulating And Disciplining Judges In Nigeria, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The disciplining of judges is a sensitive and complex challenge. In Nigeria, the complexity is heightened because the process is complicated by socio-political factors and public views about the motivations for disciplining some judges, including claims of political interference by the ruling government. This Chapter argues that both judicial discipline and the work of the National Judicial Council (NJC) – the body responsible for judicial regulation in Nigeria – are caught up within Nigeria’s peculiar socio-politics, a reality that a strictly legal analysis will miss. The Chapter analyzes contemporary challenges and controversies associated with the complaints and discipline procedure in …

Effective Taxation In Africa: Confronting Systemic Vulnerability Through Inclusive Global Tax Governance, Okanga Ogbu Okanga, Lyla Latif

Articles, Book Chapters, & Popular Press

Implicit within the African fiscal architecture are embedded vulnerabilities to exogenous factors which challenge their domestic revenue mobilization (DRM) strategies. These DRM challenges are attributable to asymmetrical power relationships that exist within the international tax regime (ITR). The rules governing international taxation have largely been devised by developed countries resonating their own economic purposes, resulting in a regressive relationship that overlooks African perspectives in the creation of tax norms. Consequently, policymaking, and scholarship have focused extensively on curbing these power asymmetries that have resulted in vulnerable African tax systems. Continental and domestic approaches are now aligned towards fostering reform of …

“Labour Law Is A Subset Of Employment Law” Revisited, Alan Bogg

Dalhousie Law Journal

This article revisits the arguments in Brian Langille’s seminal law review article, “Labour Law is a Subset of Employment Law.” Langille’s article was based upon two main claims: (a) that (individual) employment law should be understood as the “set” and (collective) labour law the “subset” of employment law (the primacy of employment law); (b) that “public values” have priority over “private values” in the regulation of work (the primacy of public values). These two claims were presented as mutually reinforcing in “Subset.” Drawing on specific examples from UK and Canadian law, this article endorses the first claim but rejects the …

Employment Law Revisited, Mark Freedland

Dalhousie Law Journal

This critique of Brian Langille’s famous “Subset” article considers the historical and current meaning of “employment law” in Canada and in the UK. In Canada, “employment law” was fashioned by Innis Christie in the 1980s as the law of personal work relations for the non-unionized sector, with “labour law” applying to the unionized sector of the economy. In the UK, “individual employment law” appeared in the 1970s to be a distinct discipline; but since that time it has largely re-merged with labour law, with the terms “employment law” and “labour law” becoming virtually synonymous. An enlarged scope is proposed for …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

The Province Of (Substantive) Legitimate Expectation In Nigeria's Tax Administration: A Law And Policy Evaluation, Okanga Ogbu Okanga

LLM Theses

The interplay between tax administration and legitimate expectation has been the subject of debate and scholarship in many jurisdictions. Questions around how much discretion tax authorities should be allowed and whether courts should uphold the (substantive) legitimate expectations of taxpayers – by implication, bind the tax authority – when the tax authority reverses itself on a guidance, promise, position, etc. feature prominently in this conundrum. In Nigeria, the disposition of both the tax authority and the court appears to lean towards outright dismissal of legitimate expectation. Put differently, it seems that the tax authority does not consider itself bound by …

Biosimilars: The Quest For A Rational Regulatory And Intellectual Property Approach In Canada, Elizabeth S. Dipchand

LLM Theses

Biologics and biosimilars represent the promise for more effective treatments of many diseases. International treaty obligations influenced heavily by the biopharmaceutical industry and advanced through the international trade agenda may lead to an imbalance between incentivizing innovation and the public interest. Canada’s implementation of its obligations into national patent and regulatory laws encourages aggressive biologic patent protection strategies that, coupled with linked regulatory assessments, may establish compounding layers of exclusion that disproportionately disincentivizes both the biologics innovation and biosimilar development. This comparative analysis addresses the progression of international obligations and the way in which they have been implemented into Canada’s …

An Intellectual History Of Comparative Tax Law, Kim Brooks

Articles, Book Chapters, & Popular Press

In this article, the author argues that comparative tax law has an intellectual history. More specifically, the author claims that history reveals there is a distinguishable comparative tax law scholarship where tax scholars engage in common debates. The author then offers a description of method, highlighting the difficulty of identifying the work that might be considered “comparative tax law.” Next, the author conceptualizes and clusters contributions from scholars who have framed the comparative tax law field. The author argues that our national boundedness, combined with the lack of an explicit network of scholars, has masked the rich intellectual history in …

Theorizing Developmental Regionalism In Narratives Of African Regional Trade Agreements (Rtas), Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

There is a gap in the legal scholarship on African regional trade agreements (RTAs) that links law and development to narratives of developmental regionalism. This article addresses the gap by making the case for an explicit linking of Law and Development scholarship and Developmental Regionalism in African RTAs.

First, the article argues that the cross- pollination of the fields provides an opportunity for a more rigorous understanding of developmental regionalism in African RTAs. Second, the article that developmental regionalism as an analytical tool responds to and encapsulates the multidimensional character of African RTAs. Third, the article argues for a more …

Judicial Nullification Of Presidential Elections In Africa: Peter Mutharika V Lazarus Chakera And Saulos Chilima In Context, James Thuo Gathii, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

In contemporary Africa, the judicialization of presidential elections between incumbents and challengers in courts is becoming increasingly visible. The latest example of this judicialization is the Malawi case of Peter Mutharika v Lazarus Chakera and Saulos Chilima, which successfully triggered a repeat election in which an opposition politician defeated an incumbent. This article examines the consequences and implications of this case and compares the Malawi decision to cases in Kenya and Nigeria. It further analyzes the backlash on the Malawi justices from the executive and the subsequent solidarity seen from both legal and civil society. The article concludes that the …

Doing Development Differently: Reorienting Sino-African Trade And Investment Relations After The Pandemic, Olabisi D. Akinkugbe, Clair Gammage

Articles, Book Chapters, & Popular Press

This article explores the evolutive nature of Sino-African relations and questions how Chinese interventions may influence Africa’s development stories in a post-Covid world. We examine whether the crisis could serve as a catalyst for reorienting the strategic partnership between China and Africa away from debt diplomacy towards genuine partnership or a breaking apart of the long-standing relationship. This article presents three narratives to illustrate how the future direction of Sino-African relations may change and how this might enable Africa to ‘do development differently’.

Regime For Use Of Out-Of-Commerce Works, Lucie Guibault

Articles, Book Chapters, & Popular Press

A presentation of the new provisions in European Directive 2019/790 on Copyright in the Digital Single Market on the licensing and use of out-of-commerce works by cultural heritage institutions.

Assisted Dying And Evidence-Based Law-Making: A Critical Analysis Of An Article’S Role In New Zealand’S Referendum, Ben White, Lindy Willmott, Jocelyn Downie, Andrew Geddis, Colin Gavaghan

Articles, Book Chapters, & Popular Press

Aim: To critically analyse the reliability of an article which claims to be evidence that the End of Life Choice Act 2019 provides a “potential hotspot for family, community and social discord that may not be easily remedied” should the legislation receive public support in New Zealand’s September 2020 referendum.

Method: The subject article was reviewed multiple times by all authors and critiqued against three criteria: a reliability pyramid developed to weigh evidence about assisted dying; principles that guide the conduct of social science research; and the use of reliable and current social science literature to support factual claims.

Results: …

Tim Edgar: The Accidental Comparatist, Kim Brooks

Articles, Book Chapters, & Popular Press

This paper focuses on the contributions of Tim Edgar as a major comparative law scholar. It reviews the major debates and theoretical directions in comparative law scholarship and offers a case study of Edgar's contributions in the light of the major debates in comparative law. Edgar's development as a comparatist is traced through three defined phases. His identification of the policy problem to be resolved is highlighted as a major feature of his contribution.

An Intellectual History Of Comparative Tax Law, Kim Brooks

Articles, Book Chapters, & Popular Press

In this article, the author argues that comparative tax law has an intellectual history. More specifically, the author claims that history reveals there is a distinguishable comparative tax law scholarship where tax scholars engage in common debates. The author then offers a description of method, highlighting the difficulty of identifying the work that might be considered “comparative tax law.” Next, the author conceptualizes and clusters contributions from scholars who have framed the comparative tax law field. The author argues that our national boundedness, combined with the lack of an explicit network of scholars, has masked the rich intellectual history in …

Comparative Legal Perspectives On Cultural Land Trusts For Urban Spaces Of Culture, Community, And Art: A Tool For Counteracting Displacement, Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

As cities redevelop and previously less desirable or marginalized portions of the city space are “retaken” by a city, areas that have provided affordable performance, rehearsal, and live/work space for the arts and culture sector are becoming increasingly less available for these uses. Focusing predominantly on the Canadian Civil Law and Common Law context with passing reference to other jurisdictions such as the US, Scotland, and the UK, this article explores techniques for managing the increased pressure on and increasingly rapid displacement of spaces of arts, culture, and community cultural wealth that is taking place in cities. To this end, …

Tim Edgar: The Accidental Comparatist, Kim Brooks

Articles, Book Chapters, & Popular Press

This paper focuses on the contributions of Tim Edgar as a major comparative law scholar. It reviews the major debates and theoretical directions in comparative law scholarship and offers a case study of Edgar’s contributions in the light of the major debates in comparative law. Edgar’s development as a comparatist is traced through three defined phases. His identification of the policy problem to be resolved is highlighted as a major feature of his contribution.

A Hitchhikers' Guide To Comparative Tax Scholarship, Kim Brooks

Articles, Book Chapters, & Popular Press

Comparative law offers scholars a fascinating lens through which to dis- cover new insights about the world, but only if we take on comparative law projects. Few legal scholars devote a substantial strand of their research to comparative study, and so their work fails to benefit from the active and prolonged debates in comparative law. This Article makes a singular, but hopefully substantial, contribution: it seeks to render more accessible the comparative law scholarship with the aim of facilitating easier access to comparative law insights for tax (and hopefully other) law scholars. Put another way, the Article seeks to engage …

International Economic Law In The Global South And Covid-19, James Thuo Gathii, Olabisi D. Akinkugbe, Nthope Mapefane, Ohio Omiunu, Titilayo Adebola

Articles, Book Chapters, & Popular Press

The COVID-19 pandemic has disrupted all facets of human relations on a magnitude not witnessed in the post-World War II era. Due to the interdependence of countries in the international system, it is not surprising that the unfolding public health crisis has had significant ramifications for the functioning of the global economy as well. In responding to this global health crisis, and the associated fallouts, the academic community has a crucial role to play in finding solutions to the hydra-headed problems we all face.

Driven by this sense of urgency and responsibility, AfronomicsLaw put out a call for contributions in …

A Leap Of Faith: Twail Meets Caribbean Queer Rights Jurisprudence—Intersections With International Human Rights Law, H. Patrick Wells

Dalhousie Law Journal

This article examines the legal status of queer rights in Caribbean jurisprudence. It conducts an analysis of Caribbean queer rights case law, in order to arrive at an understanding of the extent and dynamics of constitutional protection for these rights. It then uses the revelations from this analysis to determine how Caribbean queer rights jurisprudence has intersected with international human rights norms, values and rules. Finally, the article applies the TWAIL methodological approach to international law to argue that the Caribbean queer rights jurisprudence has not so far reflected the counter-hegemonic, resistance, anti-imperialist discourse that TWAIL champions, in spite of …

Searching For A Summary Judgment Equivalent In Quebec Procedural Law, Kathleen Hammond

Dalhousie Law Journal

The summary judgment is a procedural mechanism that is meant to improve the efficiency of civil litigation by allowing a judgment to be delivered in a summary way, and without the need for a full trial. It is seen as an important tool for dealing with the growing problem of access to justice in Canada. Reform to Ontario’s summary judgment rules in 2010, and a liberal interpretation of the Ontario rules in the case of Hryniak v Mauldin, 2014, have led to a greater reliance by parties on summary judgment motions in Ontario. This trend is also apparent in other …