Law Jurisdictions Research Articles

Transfer Pricing in a BEPS Era: Rethinking the Arm’s Length Principle – Part II

In the second of a two-part article, the author considers how the arm’s length principle could be enhanced to meet the substance and value alignment requirements of the OECD BEPS initiative. The boundaries and concepts of the arm’s length principle are explored, taking into account the analysis in the Part I of the article, published previously, and insights from economics. Guidance from the OECD and the case law of various jurisdictions are included in this study. Recommendations are presented to amend the Commentary on Article 9 of the OECD Model and the guidance in the OECD Guidelines.

Child protection training for professionals to improve reporting of child abuse and neglect

Child abuse and neglect results in significant costs for children and communities. As a core public health strategy, diverse professional groups are required by law and policy in many jurisdictions to report suspected cases. Numerous different training initiatives appear to have been developed and implemented for professionals but there is little evidence regarding the precise training components and mechanisms that improve reporting of child abuse and neglect both generally, for specific professions, and for distinct types of child abuse and neglect. To enhance reporting practice, designers of training programmes require detailed information about what programme features will offer greatest benefit. A systematic review which identifies the effectiveness of different training approaches will advance the evidence base and develop a clearer understanding of optimal training content and methods. In addition, it will provide policymakers with a means by which to assess whether current training interventions are congruent with what is demonstrated to be effective. It will also inform future research, public policy, and professional practice in this field.

Bankruptcy-remote transactions and bankruptcy law—a comparative approach (part 2): can parties validly waive bankruptcy proceedings?

Bankuptcy-remote transactions are sophisticated, but no longer a rarity, and should stop being considered as an oddity, or ‘marginal’ case. Rather, they challenge some of bankruptcy law’s most basic assumptions, on a practical, rather than theoretical, level.This article explores how bankruptcy-remote transactions are used as a waiver to bankruptcy proceedings. While academic debate has been discussing whether bankruptcy rules should be a matter of choice transaction parties have made that proposal a reality, by combining different mechanisms that effectively exclude the possibility that a vehicle enters bankruptcy proceedings . . . or so they try. The article analyses such mechanisms in light of existing bankruptcy law, corporate law and private law, using a comparative perspective that considers the law of common law jurisdictions, such as the United States and United Kingdom, but also examples from civil law countries, like France, Spain, Italy or Germany. This analysis shows a mixed picture, with cases where ‘contract’ or ‘mandatory policy’ perspectives alternate, but also where it is sometimes difficult to apply the law s underlying assumptions to the peculiarities of bankruptcy-remote entities. The conclusions are relevant if the techniques used in this specific type of transactions become more widespread in an effort to carve-out ever-larger pieces to statutory bankruptcy proceedings.

Do Small Jurisdictions Have a More Complex Law? A Numerical Experiment in Constitutional and Private Law

It is commonly assumed that the size of a country’s population has nothing to do with the structure of the law. The law of larger jurisdictions is supposedly just as simple or complex as the law of smaller jurisdictions. However, this hypothesis has never been empirically tested. This is surprising in view of the fact that a thriving field of research in linguistics deals with the relationship between language complexity and the size of the speech community. This research shows that grammatical complexity correlates negatively with the size of the speech community: the bigger the community, the simpler the grammar. The aim of this paper, an experiment in numerical comparative law, is to investigate whether the same is true for the law. The question that it seeks to answer is whether smaller jurisdictions have a more complex law than bigger jurisdictions and, if so, how this could be explained. The material is drawn from both constitutional law and private law.

Transfer Pricing in a BEPS Era: Rethinking the Arm’s Length Principle – Part I

In the first of a two-part article, the author considers the impact of the OECD BEPS initiative on the application of the arm’s length principle. A historical and comparative analysis is presented of the implementation of the arm’s length principle, as well as the boundaries of the principle in practice. Guidance from the OECD and the case law of various jurisdictions are also considered.

Universal civil jurisdiction in international law

Universal jurisdiction in international law allows states to exercise jurisdiction over particularly egregious conduct regardless of connection to the crime or its perpetrators. Universal civil jurisdiction (UCJ) is similar except that it applies civil, rather than criminal, jurisdiction, but to similar conduct. This article assesses the recognition of universal civil jurisdiction and finds that it is dubious at best. There is considerable evidence against the recognition of universal civil jurisdiction in international law: several states have explicitly and vehemently voiced their opposition to instances of exercise of UCJ. There is very limited evidence in favour of the recognition of UCJ in international law: rigorous analysis of over one hundred international and municipal decisions and instruments commonly cited in favour of UCJ reveals that few of these instruments actually provide such support. On balance, therefore, UCJ is not recognised in international law, or, at best, finds very limited recognition in international law.

Islamic Law, Muslims and American Politics

In this article I ask whether and how Islamic law constricts American Muslims in their ability to negotiate the applied socio-political order. Assuming sharī‘ah to be their point of departure, I ask if their efforts are religiously legitimate or purely pragmatic and necessarily oblivious to Islamic law. In this context, I explore how Islamic law is negotiated across space and time, the degree of recognition it accords to local (including non-Muslim) custom, and the distinction between jurisdiction of law and jurisdiction of fact. I also investigate the question of sharī‘ah’s overall scope and jurisdiction and how this impinges upon Islamic law’s relationship with the secular. Among the arguments I make is that numerous aspects of the American socio-political order fall outside the parameters of the strictly shar‘ī and, as such, Muslims may negotiate these without relying upon or giving offense to Islamic law.

Lex Mitior

In 2009, New Mexico prospectively repealed the death penalty. Three years later in 2012, New Mexico prosecuted a defendant for a capital murder that was committed before repeal, and it sought to subject him to the death penalty. If state prosecutors had prevailed with the jury, they would have secured the very kind of sentence—death—that state officials had been lauded in Europe for outlawing three years earlier. A prosecution like New Mexico’s could never occur in Europe, and not merely because Europe has long outlawed the death penalty. It could never occur because, in contrast to the law of most American jurisdictions, European states embrace a doctrine known as “lex mitior” (“the milder law”). The latter doctrine is a counterpart to the ex post facto prohibition. Both doctrines concern retroactivity in criminal law, but they are the converse of one another. The ex post facto doctrine prohibits retroactivity by prohibiting the state from prosecuting persons under criminal statutes that either retroactively criminalize conduct that was hitherto lawful or retroactively increase penalties for conduct that, while unlawful all along, was hitherto punishable less severely. In contrast, lex mitior mandates retroactivity by mandating that criminal defendants receive the retroactive benefits of repealing statutes that either decriminalize conduct altogether or reduce punishment for it. After surveying laws in the United States regarding the retroactive effect of ameliorative repeals, the author addresses whether punishing offenders under harsher laws that obtained at the time of their conduct can serve consequentialist and/or retributive purposes of punishment. He concludes that, although doing so can be morally justified under limited circumstances, typically it is not—a conclusion that bears upon lex mitior’s proper scope, whether it consists of a binding norm (as it is among European nations), a nonconstitutional norm (as it presently is within the United States), or, when legislative intent is uncertain, a function of the rule of lenity.

Extra-Territoriality and the Conflict of Laws: Section 23(1) of the Labour Act

The application of Nigerian laws to situations with foreign (international) elements has generated debates in some quarters. Notably, the controversy has recently surfaced in Labour related matters particularly with respect to the application and scope of Section 23(1) of the Labour Act. This paper explores the legal principles that sit behind extraterritoriality of statutes, and how such measures have come to be justified. In particular, this paper explores the impact of this principle vis-a-vis the recruitment of Nigerian citizens when conducted by persons outside Nigeria as contemplated under the Labour Act. This paper proceeds to also consider the principle of extraterritorial jurisdiction in international law.

Lex Mitior: Converse of Ex Post Facto and Window into Criminal Desert

In 2009 New Mexico prospectively repealed the death penalty. Three years later in 2012, New Mexico prosecuted a defendant for a capital murder that was committed before repeal, and it sought to subject him to the death penalty. If state prosecutors had prevailed with the jury, they would have secured the very kind of sentence – death – that state officials had been lauded in Europe for outlawing three years earlier. A prosecution like New Mexico’s could never occur in Europe, and not merely because Europe has long outlawed the death penalty. It could never occur because, in contrast to the law of most American jurisdictions, European states embrace a doctrine known as “lex mitior” (“the milder law”). The latter doctrine is a counterpart to the ex post facto prohibition. Both doctrines both concern retroactivity in criminal law, but they are the converse of one another. The ex post facto doctrine prohibits retroactivity by prohibiting the state from prosecuting persons under criminal statutes that either retroactively criminalize conduct that was hitherto lawful or retroactively increase penalties for conduct that, while unlawful all along, was hitherto punishable less severely. In contrast, lex mitior mandates retroactivity by mandating that criminal defendants receive the retroactive benefits of repealing statutes that either decriminalize conduct altogether or reduce punishments for it. After surveying laws in the United States regarding the retroactive effect of ameliorative repeals, the author addresses whether punishing offenders under harsher laws that obtained at the time of their conduct can serve consequentialist and/or retributive purposes of punishment. He concludes that, although doing can be morally justified under limited circumstances, typically it is not – a conclusion that bears upon lex mitior’s proper scope, whether it consists of a binding norm (as it is among European nations), a nonconstitutional norm (as it presently is within the United States), or, when legislative intent is uncertain, a function of the rule of lenity.

Global Governance and the State: Domestic Enforcement of Universal Jurisdiction

The primary goal of this article is to analyze Belgium’s universal jurisdiction law concerning humanitarian law violations and its relationship to global governance norms. When discussing the notion of universal jurisdiction, there are relatively few empirical situations that scholars can draw on to illuminate the debate. In general, there is a very theoretical orientation to the universal human rights debate. Belgium’s 1993 universal jurisdiction law (expanded in 1999) brings a greater degree of empirical clarity to this debate. This law allowed Belgium to hear cases concerning violations of humanitarian law, including genocide and other crimes against humanity, which happened anywhere, without any connection to Belgium. In essence, this was an attempt at the protection of human rights on a universal basis and may be the way forward in the prevention of mass atrocities.

International Terrorism and the Jurisdiction of Islamic Law

This article investigates the jurisdiction of Islamic law to international terrorism under the four Sunni schools of Islamic law. International terrorism refers to the following three cases: 1) terrorist acts committed outside of the Islamic state by its citizens; 2) terrorist acts committed outside the Islamic state by its non-citizens; and 3) terrorist acts committed inside the Islamic state by its non-citizens. It starts with studying the classical Muslim jurists’ tripartite division of the world into the ‘house of Islam’, ‘house of war’, and ‘house of peace’ to find out the boundaries of the jurisdiction of Islamic law and its position on the extradition of international terrorists. It examines the definition and elements of terrorism to find out the relevance of applying Islamic law to the modern form of acts of terrorism. It argues for the universal jurisdiction of Islamic law to acts of international terrorism.

Universal Jurisdiction is Not Disappearing: The Shift from 'Global Enforcer' to 'No Safe Haven' Universal Jurisdiction

The history of universal jurisdiction over core international crimes has often been framed as a story of rise and fall. Non-governmental organization (NGO) activism was regarded as a cause for both the rise and the fall; the rise culminated with the arrest of General Pinochet in 1998 and the fall came with the ‘amputation’ of the universal jurisdiction laws in Belgium in 2003 and Spain in 2009 and 2014. In this article, the author offers an alternative view of this history. He argues that universal jurisdiction is not necessarily on the decline since the number of universal jurisdiction statutes and trials has increased and the number of universal jurisdiction complaints has not substantially decreased in recent years. Rather, the trajectory of universal jurisdiction can be understood as an ongoing competition between two conceptions of the role states play in the universal jurisdiction regime. In the ‘global enforcer’ conception, states have a role in preventing and punishing core international crimes committed anywhere in the world, while in the ‘no safe haven’ conception, states should not be a refuge for participants in core international crimes. In recent years, the ‘no safe haven’ conception has made important inroads in legislation and prosecution of international crimes, but the ‘global enforcer’ conception is still present in the universal jurisdiction regime. Though NGOs prefer the ‘global enforcer’ conception, with its strong anti-impunity rationale, these organizations have (involuntarily) contributed to the advancement of the ‘no safe haven’ approach through their legalistic position and ambiguous rhetoric about universal jurisdiction.

Thomas Jefferson and the Uses of Equity

In 1795, a disgruntled George Wythe published his own edition of decisions from Virginia's newly formed High Court of Chancery, of which he was the sitting judge. Wythe's volume was replete with rebukes of his fellow justices in the court system for their lack of erudition and grounding in the distinctive principles and procedures of common law and chancery jurisdictions. His own copy of the volume, which, like many of his books that found their way into the library of his prize pupil, Thomas Jefferson, includes Wythe's handwritten appendix to the series of references he had made to classical literature and rhetoric in his own remarks, including several to the legal arguments of Demosthenes, and most strikingly to Sophocles'Antigone. Like much of their correspondence, their respective legal arguments as attorneys, and Thomas Jefferson's own massive commonplace books of common law and equity jurisprudence, Wythe's extensive commentaries signify not only the continued appeal and display of an early modern humanist legal and intellectual culture, but also the centrality and power of the idea of equity in that culture and for its successors acting in the Atlantic and imperial constitutional crisis of the second half of the eighteenth century.

AUSTRIA'S LAW AGAINST DEFAMATION OF RELIGION: A CASE STUDY

AbstractRecently there have been calls from Islamic nations for the creation of a crime of “defamation of religion.” Austria already has such an offense: section 188 of the Criminal Code of 1974 prohibits giving “justified offense” (berechtigtes Ärgernis) by “publicly disparag[ing] or ridicul[ing] a person who, or an object which, is the subject of veneration of a domestically established church or religious community, or a dogma, a lawful custom or a lawful institution of such a church or religious community.” This has recently been applied to secure the conviction of an activist of the right-wing Freedom Party of Austria, who announced at a semi-public seminar attended by about thirty people, including one undercover journalist, that Mohammed was a pedophile. Drawing on the law of comparable jurisdictions, this article traces the history of the provision and considers how it is applied by the courts. In this article it is contended that this provision, while rarely used, unduly restricts public discussion. At the least, the provision needs both reinterpretation and amendment; international human rights sources suggest that repeal should be seriously considered given that the existing offense of sedition is available for serious cases.

Measuring Level of Compliance of Publishers with the Legal Deposit of Pakistan: An Exploration

AbstractThe purpose of this study was to explore the situation of print publication in Pakistan and further develop feasible and reliable methods/techniques that can be used to measure the level of compliance to the depository law of the country. This study was the first attempt of its kind in measuring the compliance level of Pakistani publishers using the check list techniques which has been contiguous for four years 2010, 2011, 2012, 2013. The sample technique (indicator A1.1.4.2 b) was selected by considering numerous list checking techniques, either proposed by ISO, ISO/TR 28118:2009 or Koninklijke Bibliotheek (KB) studies and Penzhorn studies. 200 commercial publishers from Lahore and Rawalpindi, in an equal ratio, were selected through convenience sampling. The analysis of existing data was carried out to obtain figures indicating the number/percentages of books delivered as legal deposit. It revealed a compliance rate of 18% to 30% which is very low in view of most countries who claim to have 100% or nearly a 100% compliance. The compliance of larger publishers is better as compared to medium and smaller publishers. The compliance rate of English books is comparatively better but Urdu books and especially Islamic books’ compliance rate is not up to the mark. It also revealed that the publication of PNB (Pakistan National Bibliography) was not consistent till 1999 but after that period the national bibliography was published annually. However, the coverage of the 2014 publication was late. This type of exploration has never been conducted previously and the main goal of this project is related to its innovative and creative role in recognizing the applied matters that are confronted in the jurisdiction of depository law in Pakistan and this study will help to initiate more detailed and comprehensive studies.

A Comparative Study on the Law governing Contractual Obligations through the lens of laws of Iran and Other Countries

When disputes caused by an international contract are raised in a national court, the court tries to determine the law governing the related contract. So, it refers to the rules of conflict resolution in its legal system and determines the governing law. Since rules of conflict resolution are not identical in the legal systems, difference in the rules of conflict resolution is created. Now if the parties of an international contract have not selected the governing law, major problems in various legal systems are highlighted. One of the solutions to cope with this problem is to join to the conventions related to international trade. Among them, Convention on the International Sale of Goods (Vienna, 1980), Rome Convention 1980, Rome Convention 2008 can be mentioned. It seems that will sovereignty principle has penetrated in the laws to the extent that even if the parties have not used this right and have not determined the governing laws explicitly or implicitly, the legislator or the judge tries to search for their hypothetical will and jurisdiction of a specific law and usually this search results in the enforcement of law of contract conclusion or contract implementation place which is studied in this paper.

The High Frequency of Piercing the Corporate Veil in China

Implicit in the company laws of common law jurisdictions is the notion of the corporate veil and the insulation of company shareholders from liability for debts of the company. The veil is not sacrosanct, however, and in appropriate circumstances courts will allow company creditors to pierce the veil and recover debts of the company directly from its shareholders. In contrast, the company legislation of China, supplemented by quasi-legislative rulings by the Supreme People’s Court, provides company creditors with an explicit right to pierce the corporate veil and pursue shareholders for satisfaction of company debts. While the rate of corporate veil piercing in China is much higher than that of other countries, as a previous study has found for the years 2006–2010 and which this study shows has continued in the years 2011–2014, it is not entirely clear that the difference is attributable only to the use of statutory remedies in preference to judicial doctrines used elsewhere. The result might also be a consequence of judicial interpretations of the law that go well beyond its literal and intended scope.

The Potential Value of the U.N. Convention on the Rights of the Child in Pediatric Bioethics Settings.

This article provides support for the use of a particular international human rights law document, the U.N. Convention on the Rights of the Child (CRC), in contemporary pediatric bioethics practice without relying on the legally binding force of the document. It first demonstrates that the CRC's core commitments and values substantially overlap with the core commitments and values of mainstream bioethics and with the laws of many domestic jurisdictions where mainstream bioethics are currently practiced. It then explores some implications of this overlap. For instance, the substantial international human rights law scholarship on how to understand these commitments and values can be helpful in suggesting ways to operationalize them in domestic bioethics practice and can offer insightful, internationally generated ethical perspectives that may not have been considered. The article also argues that the CRC can help health-care organizations develop policies consistent with the best interests of children and that the CRC can serve as a common language of values for transnational health-care collaborations. However, as a final case discussion demonstrates, whatever the merits of the CRC, one may face practical difficulties in trying to use it.

The New Hong Kong Competition Law: Anomalies and Challenges

Enacted in 2012, the Hong Kong Competition Ordinance represents the first cross-sector competition legislation governing the Hong Kong Special Administrative Region. This article critically evaluates the peculiar aspects of the Competition Ordinance with reference to the legislative history as well as the competition law and enforcement experience of foreign jurisdictions (such as the European Union, the United States, and Australia). These aspects include: (i) the lack of cross-sector merger control; (ii) the 'substantial market power' requirement under the second conduct rule; (iii) the 'object or effect' test under the second conduct rule; (iv) the blanket exclusion of statutory bodies; (v) the power of the Chief Executive in Council to disapply the competition rules; (vi) the turnover de minimis thresholds; (vii) warning notices; (viii) the judicial enforcement model and restrictive private actions; and (ix) the capping of fines at 10% of local turnover. This article discusses solutions to some of these problems, and the challenges ahead for competition law enforcement in Hong Kong.