Domestic Rules Research Articles

The Origins of Supranational State Aid Legislations: What Policymakers Must Know and Adhere to. The Case of Estonia

Abstract As an independent country, Estonia can decide on how to promote its economy through state intervention, at least in theory. At the same time, Estonia has been a WTO member since 1999 and an EU Member State since 2004 and must adhere to these rules. Both regimes limit a Member State’s ability to interfere in the economy, setting forth rules on when a state can interfere with consequences if the rules are not met. But these rules differ, and the same situation can have a different result depending on the rules applied. Also, both sets of rules limit the competence of a member country to interfere in economy differently, for example, the WTO applies a rather lenient ex post control while in the EU a strict ex ante control by the Commission is used. Also the consequences for failing to adhere are different. Although one of the smallest EU Member States and represented by the Commission in WTO roundtables, it is still relevant for Estonia to have a position on globally applied state interference measures, and present and protect its views, if needed. To successfully promote its economy nationally and in the EU, Estonian policymakers, like those of any other country in the same position, must know not only the applicable state interference rules but also the underlying principles thereof. The article will provide a historical overview of the framework of the supranational state aid regimes of the WTO and the EU, as well as the domestic rules of Estonia. It is aimed at reflecting the principles behind the state aid rules that the domestic policymakers must consider when designing national state interference measures. The author applies classical research methods, namely, reading and interpretation of texts, but also comparing the WTO, EU and Estonian laws on state subsidies.

The Status of the OECD Transfer Pricing Guidelines in the Post-BEPS Dynamic

Despite the vast literature on the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (OECD Guidelines), its status has received little consideration. The image in the literature is that the OECD Guidelines is a significant publication, given the substantial cross-border trade between associated enterprises. In the OECD/G20 BEPS Project, the Final Report on Actions 8-10, published in 2015, revised the OECD Guidelines as part of the sweeping measures to counter aggressive tax avoidance by certain multinational enterprises (MNEs), such as Google LLC, Facebook Inc. and Apple Inc. BEPS Actions 8-10, inter alia, revised the guidance on intangibles and cost contribution arrangements to prevent profits from intangibles being allocated to low-tax jurisdictions. As anticipated, the OECD has reported that transfer pricing disputes are rising. In particular, BEPS Action 14, on dispute resolution, requires tax treaties to include article 9(2) of the OECD Model Tax Convention, on corresponding transfer pricing adjustments, in tax treaties. Moreover, BEPS Action 14 (element 1.1 of the minimum standard) requires that access to the mutual agreement procedure be available for transfer pricing cases in tax treaties and that countries implement the resulting mutual agreements. As a minimum standard, members of the Inclusive Framework are obliged to implement this measure, which further elevates the status of the OECD Guidelines, as resulting disputes will be resolved on the basis of the principles in the OECD Guidelines. The membership of the Inclusive Framework exceeds 135 countries. As there is a dearth of transfer pricing case law, the consequence is that courts have only established limited jurisprudence on the topic. One Australian transfer pricing case concluded that the OECD Guidelines had no formal status in treaty interpretation. It is asserted in this article that the OECD Guidelines is part of the Commentary accompanying the OECD Model Convention on Income and on Capital. Even so, it is argued that treaty countries should not only use the OECD Guidelines as a guidance document in their domestic rules, but expressly state in their tax treaties that the OECD Guidelines are to be used for the interpretation of the associated enterprises article. In addition, the treaty statement should specify whether the static or ambulatory approach should be applied. This article asserts that the best way forward is for the OECD to illuminate the status of the OECD Guidelines by including a clear statement in the Commentary on the intrinsic character of the OECD Guidelines and expressly identify which parts of the OECD Guidelines form part of the Commentary, adapting the approach taken in the Commentary on the business profits article incorporating the 2010 Report on the Attribution of Permanent Establishments.

The Domestic Impact of International Standards

Abstract Regulation is no longer purely a domestic affair. International standards now exist across a broad range of regulatory arenas, touching on issues that may be central to domestic values, such as the regulation of health, safety, and the environment. Although a number of studies have looked at the domestic impact of globalization more generally, few scholars have evaluated the effects of international standards, specifically. This paper investigates that issue, with an empirical focus on agrochemicals. Using original data on changes to US agrochemical regulations between 1996 and 2015, I evaluate whether and how domestic rules have changed in response to international standards. Contrary to common fears, I find little evidence that international standards primarily act as a ceiling, thereby undermining domestic regulations. Instead, international standards seem to serve as focal points, pulling nations toward leniency as well as toward stringency. These findings not only contribute to the broader literature on the domestic effects of globalization, but they also allay concerns that international standards could act as a regulatory cap, encouraging nations to sacrifice caution for economic gain.

Sualtında İcra Edilen Sismik Araştırmalardan Kaynaklanan Kirlilik ve Uluslararası Hukuk

Oceans are perceived by humans to be silent, as publicly reiterated by the esteemed Jacques Cousteau. However, this cannot be farther from the truth since ambient noise in an underwater environment is a relatively high one, even if humans fail to hear it. The part of anthropogenic noise in this has been increasing steadily for at least a century and newly developed technologies contribute to this noise immensely. One of these new technologies is the air gun - used in seismic surveys since the 1960’s. These guns are used to gather information by emitting sound waves at short intervals of every ten seconds. Seismic surveys have been deemed to be harmless activities by the international courts and arbitration tribunals in their judgments and awards, especially in regards to disputes of maritime delimitation. In cases where states parties to such a dispute refrain from drilling activities, among others, which may potentially jeopardize the marine environment permanently, and execute seismic surveys solely, they will not be held internationally responsible for the activities of the latter kind. However, recent studies have indisputably proven that this is a misrepresentation of the environmental effects of the seismic surveys. This paper aims to throw light upon the real nature of these surveys with a view to establishing whether these activities are transgressions of international law. This is to be endeavored within the purview of two different sources of international law - global rules and regional legal rules. It is the understanding of the author that the international conventions with a global relevance form the framework for the regional and domestic rules, the latter of which is not included in this paper. This inquiry, in its conclusion, tries to come up with suggestions of  Gökhan a practical nature to mitigate underwater noise pollution. The implementation of these measures is significant for those states parties to actual maritime delimitation disputes, since they will augment the legitimacy of the activities carried out by them. 

A Perspective of Objectivity in International Human Rights Treaties

In this paper I argue that there is objectivity in international human rights law, against which the justifiability of arguments can be determined, and which could advance the universality versus relativity of human rights debate. Revisiting the three schools of treaty interpretation (i.e. textual, intentional, and teleological) and applying the three elements of Radbruch’s rule of law, I discuss how the interpreter’s job of balancing those schools has limited room for manoeuvre. I further propose an approach to help jurists detect unjustifiable arguments in treaty interpretation, often in the disguise of relativism. That approach consists of: (a) a non-justifiable argument contradicts all three schools of treaty interpretation; or ignores all three; (b) a justifiable argument is supported by at least one of these schools; (c) a better argument is a more balanced argument, i.e. supported by more elements of interpretation. Finally, I argue that there is a degree of objectivity in each school of treaty interpretation, which is supported by shared intention and speech act theory, and can therefore be held to apply to the whole process of treaty interpretation. I illustrate above arguments with a case (Golder vs. the United Kingdom), a doctrine (international human rights legal regimes’ interpretation of the exhaustion of domestic remedies rule), and a country (China’s relativistic arguments on Article 1 of the Convention against Torture).

Chinese Investment in the US and the EU is Declining –for Similar Reasons

AbstractSince peaking in 2016, Chinese outward investment, primarily to the US but also to the European Union (EU), has declined dramatically, especially in response to changes in China's domestic rules for capital outflow. Concern over growing Chinese influence in other economies, the ascendant role of a Communist Party‐led government in Beijing and the possible security implications of Chinese dominance in the high‐tech sector have put Chinese outward investment under international scrutiny. This paper analyzes the recent trends in Chinese investment in the US and the EU and reviews recent political and regulatory changes both have adopted toward Chinese inward investment. It also explores the emerging transatlantic difference in the regulatory response to the Chinese information technology firm, Huawei. Concerned about national security and as part of the ongoing broader trade friction with China, the US has cracked down far harder on the company than the EU.

European arrest warrants and time-barred enforcement in the state of residence of the convicted person: Too much, too late!

The principle of mutual recognition is considered ‘the cornerstone of judicial cooperation’ in the European Union (hereafter EU). It requires Member States to recognise judicial decisions of other Member States, thus enabling a swift administration of justice. Within the field of criminal law, the Court of Justice of the European Union (hereafter CJEU) links this principle explicitly to the prevention of impunity, most clearly in the Popławski decision (following previous hints in Spajic or Petruhhin). It invokes this principle to oblige a Member State to execute a European arrest warrant (hereafter EAW) issued against one of its residents when the executing State cannot undertake to enforce the sentence itself due to, for instance, its domestic rules on limitation periods. In doing so, the Court overlooks the fact that those domestic rules may serve other fundamental interests and principles recognised by the EU and the CJEU itself, such as social rehabilitation and legal certainty. Moreover, a more balanced approach to (non-)recognition could also contribute to a swift administration of justice, namely as an incentive to the issuing State to avoid undue delays in the issuing of an EAW. Many States believe that, once a certain amount of time has elapsed since the conviction, the enforcement of a criminal sanction will become unfair or even counterproductive. The length of this period is proportionate to the seriousness of the conviction. As EU-broad harmonisation on the subject is unlikely in the short-run, mutual recognition should work both ways if the requested person has significant ties to the executing State.

ORGANIZATIONAL, REGULATORY AND LEGAL ASPECTS OF EUROPEAN INTEGRATION OF HIGHER MEDICAL EDUCATION IN UKRAINE: A CRITICAL REVIEW

The aim: The main purpose of this research is to conduct the theoretical and applied study of the legal profile enforcement for state attestation of medical graduates, the relevant legislative system, and its effectiveness; to identify the issues of special legislative requirements, as well as the search for ways to resolve it. Materials and methods: Basic methods: analysis, synthesis and comparison. Object of research: system of state certification of graduates of medical sciences. Investigation of this topic in the paper is carried out in the following logical sequence: firstly, the basic principles of the state integrated qualification exam were determined and analyzed; then the legal enforcement for integrated state qualification exam of master's degree in discipline "22 Health Care" was considered. Also, a critical review of Ukrainian normative base for holding the state attestation of medical graduates was conducted. Conclusions: In view of foregoing, we can make a conclusion that in the modern globalization world, competition of national educational services should be ensured by a range of different activities: legal, organizational, financial, etc. The legal direction, domestic rules should correspond to similar, uniform rules and practices of the most effective state (regional, international) systems.

Treaty principal purpose test and domestic business purpose rule for transboundary income in the russian tax law

For twenty-five years, the main purpose test has been present in Russia bilateral tax treaties, but has not been applied. In the case of disputes over the use of bilateral tax treaties, the tax administration applied an internal rule of business purpose. The Federal Tax Service of Russia in 2018 noted the growing role of this internal rule for international taxation. However, with the implementation of the BEPS plan, the treaty rule of the principal purpose test enters into Russian international tax law, and it begets questions. How similar are the Russian domestic rule and treaty rule? Is it possible to apply the practice of applying an Russian domestic rule to a treaty rule?

Cyber Security and The Rule of Law - Global Rule of Law Theory

사이버 공격은 1988년 “웜 (Worm)”에 의한 디도스 (DDoS) 발생 사건 이후 사이버 스파이 · 테러 · 범죄 등의 목적으로 다양하게 이루어지고 있으며, 최근에는 러시아에 의한 미국 대통령 선거과정에의 개입 등과 같은 정치적 영역도 공격 대상이 되고 있으며 심지어 사이버 전쟁 (Cyber war)으로 까지 확대되고 있는 실정이다. 현대적 초첨단사회의 사이버 공격으로부터 도출되기 시작된 법치주의의 위기를 관리하고 이를 극복하기 위해서는 Nation 범위 내에서의 실질적 법치주의에 대한 확고한 신뢰와 확보 뿐만아니라 글로벌 차원에서의 과학 기술 대응 Model Laws 또는 Guideliness 형성과 검증을 위한 국제적 협력이 가능하도록 하는 글로벌 법치주의 관념에 대한 동의와 실천이 선결되어야 할 것이라 하겠다. 인터넷 범죄에 대한 국제규범을 정립하기 위하여 UN GGE가 활동하면서 규범대상을 확대하고 있으며, 사이버 공간에서의 국가적 행동을 위한 국제규범안을 수립하기 위하여 UNIDIR와 CSIS가 공동 연구를 하고 있지만, UN GGE와 UNIDIR · CSIS에 의한 연구는 연구범위의 제약성이나 연구주체의 특정성으로 인하여 국제적 협력과 공조를 위한 유형으로는 충분한 것으로 보기 어려운 면이 있으므로 글로벌 수준의 법치주의를 확보할 수 있는 글로벌 이니시아티브를 확보하는 것이 시급한 실정이다. 사이버안보를 확보하기 위한 High-technology 글로벌 이니시아티브의 구축과 새로운 법치주의의 형성과 구축은 시간과 경쟁관계에 있다고 할 수 있다. 인공지능 · IoT · 빅데이터 · 불로체인 등과 같은 첨단과학 원천 기술 및 응용 기술이 시간을 다투면서 쏟아져 나오는 제4차 산업혁명의 초지능·지식·정보 사회와 직면하고 있는 모든 국가가 국내적 차원의 법치주의에 머무르는 수준을 과감하게 탈피하여 국제적 협력을 통한 보다 진보된 글로벌 법치주의의 확립이 시급한 단계에 이미 들어와 있다고 할 수 있다. 인류는 어느 시대보다 열린 자세와 적극적 실행으로 미래를 합의하여야 할 것이다.Cyber-attacks have been conducted for various reasons, such as cyberespionage, terrorism, and crime, with the first of such attacks being a DDoS outbreak via “worm in 1988. Similar attacks have entered the political realm and even expanded into cyber warfare. In order to manage and overcome the crisis of the rule of law that emerged from the cyber-attack in an every growing high-tech society, trust and strength of security of domestic rule of law within nations is not enough. The formation and verification of Model Laws or Guidelines in response to advances in science and technology at the global level are also imperative. This will be accomplished through consensus and practice on the global rule of law that enables international cooperation for the future. Although the United Nations GGE is working to establish international norms for Internet crimes and is expanding its scope and UNIDIR and CSIS are jointly researching to establish international norms for national action in cyberspace, this cooperative approach has encountered difficulties in securing international cooperation. This failure to find consensus is due to the constraints of the subjects technologically or politically The establishment of high-technology global initiatives and the formation of a new rule of law for securing cyber space is in competition with time. Every country is facing the super-intelligence, knowledge, and information society of the Fourth Industrial Revolution. In this revolution, high-tech scientific and applied technologies such as: artificial intelligence, IoT, big data, and Blochain are developing at a rapid pace, faster than regulations. It is said that the establishment of a more advanced global rule of law through international cooperation is already urgently needed, as the technology has escaped the domestic regulatory realm. Humanity should agree on the future with an open attitude and active execution now more than ever.

The Kremlin’s Malign Legal Operations on the Black Sea: Analyzing the Exploitation of Public International Law Against Ukraine

This article seeks to analyze the asymmetric manipulation and exploitation of legal domains to achieve political objectives. A multidisciplinary analysis is offered to explore the perversion of the law to shape legitimacy, contain adversaries, justify violations, escape obligations, and ultimately to advantageously revise the international and domestic rule of law. Colloquially known as lawfare, this article offers a discourse analysis of the term and asserts that a more doctrinally appropriate phrase exists to describe this phenomenon; Malign Legal Operations (MALOPs). Furthermore, this article asserts that MALOPs are the root of contemporary hybrid warfare and that all other hybrid means are secondary. In particular, the Russian Federation’s behavior towards Ukraine in the Black Sea region is used as a case study to determine the extent of these MALOPs and to explore what measures can be taken to defend the rule of law.The primary example offered is Russia’s November 25th, 2018 attack on three Ukrainian Naval vessels in the Kerch Strait and its capture of 24 sailors. Supplementary examples include the annexation of Crimea, manipulations of the Montreux Convention, and Russia’s overall aggression towards Ukraine.

The ECJ’s Danish Cases and the Spanish Withholding Tax Exemption in Respect of Interest Payments to EU Lenders: Some Reflections and Practical Implications

In this article, the author addresses the impact of the ECJ’s decision in N Luxembourg (Joined Cases C-115/16, C-118/16, C-119/16 and C-299/16) on the Spanish domestic rule granting a withholding tax exemption in respect of interest payments to EU lenders.

Governar a miséria

Em 1693, uma memória enviada ao rei de Portugal continha denúncias sobre a completa indiferença dos senhores em relação à doutrina, à vida sacramental e às exéquias dos escravos no Rio de Janeiro e em Salvador. Naquele mesmo ano, debates envolveram instâncias civis e religiosas no intuito de colocar noutros termos a desconsideração ritual em relação aos escravos. Nesse processo de reordenamento das atribuições que cabiam às esferas civis e eclesiásticas em relação ao governo doméstico dos escravos, foram particularmente importantes as obras de dois jesuítas – Jorge Benci e André João Antonil – e a normativa estabelecida pelas Constituições Primeiras do Arcebispado da Bahia, em 1707. Neste artigo, pretende-se analisar como as controvérsias estabelecidas em fins do século XVII abriram uma nova perspectiva para a defesa ética do tratamento cristão dos cativos, tendo por base o princípio de autoridade, reivindicado pela Igreja, de governar espiritualmente os miseráveis.

National and International Rule of Law: Proclaimed Adherence and Real-Life Policies

The main purpose of this article is to analyze the correlation between ‘black letter’ law and its real-life implementation. The correlation is to be examined in light of countries’ and the international community’s proclaimed goal, namely to embed and implement the ‘rule of law’ principle domestically and internationally. Within the context of legal and political documents, as well as statements by political personalities, the rule of law has become the dominant vector for development. It is proclaimed to be one of the basic principles of legal orders in many countries and in the international community. But is the rule of law the most important characteristic of legal orders inside of states and, what is more important, between them? Is there an actual willingness on the part of states to strengthen the international rule of law? This article observes the origins and characteristics of the rule of law in particular with respect to Russia. Both domestic and international rule of law impact each other. Some forms of this interaction and their mutual influence are characterized below. The study also traces intent as formalized in international declarations and their de-facto stance toward the rule of law and international law. This scrutiny enables the conclusion that ‘black letter law’ and real-life application do not currently coincide. There are clear contradictory trends relating to this basic principle at both national and international levels. The first contradiction lies in the entrenchment and implementation of the principle by regulatory means. The second contradiction reveals discrepancies between regulatory instruments and real actions and policies. The article evaluates predispositions for these opposing tendencies; it also assesses alternative prospects for the development of international law and the rule of law.

Subversive citizens: using EU free movement law to bypass the UK’s rules on marriage migration

ABSTRACT In 2012, new and restrictive spousal reunification laws were implemented in the UK. EU free movement rules, however, have enabled British citizens to circumvent those restrictions by residing for a period in another Member State, and then returning with their family member to the UK. The article examines the resulting tension between national and EU law. It explores use of the Surinder Singh route (named after the court case which established the rule) against a background in which a much wider group of British citizens than previously are now ineligible for family reunification under national laws. The route is perceived as a threat to government authority in a critical area of national sovereignty, as demonstrated by its invocation in the Brexit process. The article draws on interviews with twenty families who used or planned to use the route and discusses how it provides a safety valve for those with high cultural, but insufficient economic, capital to fulfil the domestic rules. It provides insight into how legal categories are fluid and contingent, demanding analytical flexibility and awareness of their dynamic effect on the lives of marriage migrants and sponsors.

Latin America and the Antarctic Treaty System as a legal regime

ABSTRACT This paper analyses the involvement of Latin America in the legal aspects of the Antarctic Treaty System. Eleven of the twenty Latin American countries are part of at least one of the Antarctic Treaty System legal instruments. Using the information shared by them through the Electronic Information Exchange System run by the Antarctic Treaty Secretariat, this paper evaluates the incorporation of the Antarctic Treaty System instruments and agreements in domestic legislation in Latin American states. Additionally, the paper evaluates the domestic rules Latin American states have enacted on Antarctic matters by their own initiative. Some countries, like Chile in first position and Argentina in second position, have well developed legislation related to Antarctic issues, but in other countries it is less developed or less reported. This general assessment reveals the challenges for Latin America in growing its influence in Antarctic governance and in the Antarctic Treaty System as a political-legal regimen.

Country Note: Review of Implementation of the Inclusive Framework on Base Erosion and Profit Shifting in Indonesia

Tax avoidance by multinational enterprises in Indonesia has led to a massive, ongoing loss of tax revenue. A type of tax avoidance known as base erosion and profit shifting (BEPS) has become a global issue and compelled the OECD to take measures by releasing the BEPS Action Plan and launching the BEPS Project. Indonesia declared its commitment to adopt appropriate parts of the outcome of the BEPS Project for developing countries in Indonesia’s domestic tax rules, recognized as the Inclusive Framework on BEPS or BEPS Minimum Standards. This article analyses the implementation of the BEPS Minimum Standards in Indonesia and how the government has taken action to counteract tax base erosion. The author considers qualitative research and data collected through a literature study and in-depth interviews. Indonesia is in the process of implementing the BEPS Minimum Standards, as addressing transfer pricing issues and preventing tax treaty abuse are currently particular areas of focus for the government.

Protecting Intellectual Property through Trade and Investment Agreements: Concepts, Norm-setting, and Dispute Settlement

This paper attempts to offer a birds-eye, comparative view on two different expansionist tendencies in international IP law and policy. Looking at IP protection via IP chapters in FTAs on the one hand and by means of international investment law on the other, we can observe a common trend towards occupying additional regulatory space – albeit through different routes. The paper reviews these trends from a conceptual perspective, and by comparing norm-setting and dispute settlement in the respective areas. It finds that at a meta level, the traditional form of regulating IP in international treaties expands in form of ever-more detailed and comprehensive commitments which contracting states then have to implement (or perhaps better: import) in(to) their domestic IP laws. Since these expansions concern the traditional domain of IP laws as mechanisms that regulate private law relations, they are conceptually different from investment law as a tool primarily designed to protect against state interferences. By protecting IP rights as an investment asset, international investment law makes a whole new (or perhaps better: distinct) set of commitments from another area of global norm-setting available to IP owners. From among these commitments, the principal tool for expansion is ISDS as a litigation mechanism that directly benefits IP owners once they qualify as investors. ISDS invites IP owners to engage in creative lawyering that re-packages investment protections against state interference into tools that allow IP-owners to challenge unfavourable domestic IP rules which determine the nature and scope of the private rights IP owners rely on vis-a-vis competitors and users. Overall then, the distinct routes for regime expansion show that while FTA-based IP protection grows by means of norm-setting, investment protection for IP rights is essentially enlarged through ISDS as a private dispute settlement tool with public consequences.

From Joining to Leaving: Domestic Law’s Role in the International Legal Validity of Treaty Withdrawal

If a state withdraws from a treaty in a manner that violates its own domestic law, will this withdrawal take effect in international law? The decisions to join and withdraw from treaties are both aspects of the state’s treaty-making capacity. Logically, international law must therefore consider the relationship between domestic and international rules on states’ treaty consent both in relation to treaty entry and exit. However, while international law provides a role for domestic legal requirements in the international validity of a state’s consent when joining a treaty, it is silent on this question in relation to treaty withdrawal. Further, there has been little scholarly or judicial consideration of this question. This contribution addresses this gap. Given recent controversies concerning treaty withdrawal – including the United Kingdom’s exit from the European Union, South Africa’s possible withdrawal from the International Criminal Court, and the threatened US denunciation of the Paris Agreement – and the principles underlying this body of law, it is proposed that the law of treaties should be interpreted so as to develop international legal recognition for domestic rules on treaty withdrawal equivalent to that when states join treaties, such that a manifest violation of domestic law may invalidate a state’s treaty withdrawal in international law.

Quality management of POCT for cardiovascular biomarkers in medical institution

Recently point-of-care testing (POCT) for cardiovascular biomarkers is sharply increasing among subdivision field of POCT, however the relevant quality control is not matched. In this paper, the present situation and problems about selecting biomarkers, managing quality and reporting results during clinical application were expounded. The difference between POCT for cardiovascular biomarkers and routine biomarkers was elaborated.The domestic and international rules and standards about POCT for cardiovascular biomarkers were summarized. Finally, this paper included some rationalization proposal to solve the noticeable problems of quality control in POCT for cardiovascular biomarkers. Key words: Cardiovascular diseasesd; Point-of-care testing; Biomarkers; Quality control