Legal Scheme Research Articles

A Study on the Legal Scheme to the Change of Financial Environment

A Study on the Legal Scheme to the Change of Financial Environment

Tax avoidance, anti-abuse clauses and arbitration courts: a note on capital gains’ exemption

PurposeIn Portugal, between 1989 and 2010, capital gains from corporate shares were exempted, while gains from other instruments, like limited liability companies (LLC) equity stakes, were taxed. Inevitably, this non-neutral tax treatment originated a notorious tax arbitrage, consisting in the transformation of the legal status of a LLC into a corporation, the subsequent share sale and tax exemption. In tax litigation, many arbitration rulings were delivered, with widely divergent decisions. The purpose of this paper, using a blend of the legal research method and case analysis, is to discuss three research questions. Should the general anti-abuse clause (GAAC) be applied to this tax planning operation? Why the divergence in arbitration rulings? Is this anomalous arbitration outcome because of the wording the GAAC and its complexity or, contrarily, does it emerge from the disconnection between the set of rules governing capital gains taxation and the legislative intent that is behind such rules?Design/methodology/approachThe methodology used in this paper is based on a mix of the legal research method and case analysis. In the case of legal research, a hermeneutic approach – meaning that documents, texts and their interpretation can produce important fruits to the development of the field – is a tested and fruitful approach. Besides being a hermeneutic discipline, it is an argumentative one. By exposing arguments that confirm or deny particular solutions, legal research (e.g. in criminal, business or administrative law) can influence better legislative choices by political actors. Advantages of case analysis include lessons learned from observation. The author discusses if the application of the GAAC to an arrangement that originated a tax exemption can be validated by the usual interpretative lines that doctrine sustains should be observed when a GAAC is used to void legal schemes. The pros and cons of tax arbitration are also highlighted.FindingsThe conclusion of this paper is that the GAAC is not the crux of the problem. Instead, a contradictory or, at least, disconnected relation between the expressed intent of legislators and the wording of capital gains tax clauses is, in our view, the main reason for such divergent arbitration rulings on the same issue.Practical implicationsThe author believes that the paper is a contribution to the literature, given the global use of anti-abuse clauses and the interpretative complexities they originate. Moreover, the analysis in this paper is carried out in a legal setting where a disconnection is detectable between the expressed legislative intent and the legal drafting of personal income tax rules related to the exemption of capital gains. Studying the complexity added by this feature of the Portuguese legislation serves as a reminder of the importance of careful and well-crafted wording to achieve consistent court outcomes.Originality/valueThe paper has value to governments, tax authorities and tax managers, given the ever-increasing use of anti-abuse clauses in many countries, and the potential use of arbitration in similar settings.

The water–energy nexus in Chile: a description of the regulatory framework for hydroelectricity

This article offers a general description of hydropower regulations in Chile wherein two sectors that are regulated separately come to meet each other: water (as a natural resource) and electric industry (as an activity). First, the characteristics for pursuing the activity are described together with the manner in which the hydropower plants perform their function as an energy source both in terms of implementation (setting up the plants) as well as in terms of operations (functioning as an energy source). Second, the legal schemes that serve as the institutional foundation and regulatory system for water and energy are laid out. Lastly, specific regulation applicable to developing hydropower is reviewed in terms of both hydroelectric power plant projects (their construction) as well as operations.

The Value of Fiduciary Duties: Evidence from En Bloc Sales in Singapore

We explore the causal relationship between the legal doctrine of fiduciary duties and market price response in the setting of collectively selling subdivided residential real estates, the en bloc sales, in Singapore. We used a unique legal shock in 2009, the Ng Eng Ghee v. Mamata Kapildev Dave case decided by the Singapore Court of Appeal, to identify the value of fiduciary duties to actual and potential sellers, i.e. subsidiary proprietors whose condominium units have been sold en bloc or could be sold through the same legal scheme in future. We find that the judicial establishment of fiduciary duties in the en bloc sale process raises the price of these sales. After considering both the increase in price premium and the decrease in deal probability, the new judicial position seems to do no harm to condominium prices. Furthermore, we observe evidence lending persuasive support to the proposition that fiduciary duties is a useful legal device to constrain agency problem which, in the context of en bloc transactions, manifests itself as lowball sales by investor owners at the expense of resident owners. Finally, the findings in this paper demonstrate that fiduciary duties are likely to have enhanced the overall welfare of both sides of en bloc transactions. Our study highlights the importance of judicial oversight in non-consensual land assembly mechanisms that have been contemplated or practiced in a number of jurisdictions. At the same time, it presents a rare piece of empirical evidence illustrating the practical impact of fiduciary duties, a long-standing and widely-adopted legal doctrine. As such, this study also sheds new light on the crucial issue of adapting fiduciary duties to a variety of areas of law including corporate M&A, shareholder activism and broker-dealer obligations.

Between Engagement and Reluctance: Governments’ Stand Towards Citizen Initiatives

Based on a mapping (2013) of citizen initiatives in 17 European countries, this article explores the diversity in which governments recognise, respond to and engage with such citizen initiatives, mainly through legal definitions, funding schemes, and support practices. In many cases, governmental policies consider citizen initiatives as vehicles of public support for international development and as an addition to the already plural field of development actors. Contrastingly, available subsidies and support programmes are mainly tailored towards increasing professionalism, aiming to impose a minimum of quality standards on projects deployed. Evidence from the mapping also shows that, recently, central governments have gradually withdrawn from existing funding programmes, leaving the dealings with citizen initiates to local levels (region, province or municipality). Depending on how citizen initiatives are perceived – vehicles of public support, a welcome addition to the plural field of development actors, or initiatives that simply make a difference on the ground – the question arises whether that disconnect from central government should be considered worrying or welcoming.

Administrative Law and Human Rights Standards in Legal Aid: An Overview with Examples from Finland and England & Wales

The majority of writing on legal aid is from a socio-legal or political perspective and little attention has been paid to legal aid as a branch of administrative law. This is an important failing as the legal aid requirements imposed by international human rights law do not only relate to the scope of legal aid, but also establish parameters for the administration of legal aid schemes. These requirements may be met directly within the specific legislation governing legal aid, but in some instances rely on the application of general domestic administrative law principles. Employing a comparative approach, this article explores some of the connections between administrative law, international human rights law and the provision of legal aid, using the jurisdictions of Finland and England & Wales as examples. Good protection of the relevant international human rights standards is provided in Finland through a robust administrative law system which contains a clear set of basic principles and is directly applicable to the making of decisions on legal aid. In England & Wales administrative law principles are not as helpful; however the manner in which administrative law acts upon discretionary decision-making in that jurisdiction means that strengthening administrative law principles might not have much impact on legal aid administration. In such a situation subject-specific legal aid legislation must be relied upon to meet human rights standards.

A Connectivity-Based Legalization Scheme for Standard Cell Placement

Standard cell placement algorithms have been at the forefront of academic research concerning the physical design stages of VLSI design flows. The penultimate step of a standard cell placement procedure is legalization. In this step the manufacturability of the design is directly settled, and the quality of the solution, in terms of wirelength, congestion, timing and power consumption is indirectly defined. Since the heavy lifting regarding processing is performed by global placers, fast legalization solutions are protruded in state-of-the-art design flows. In this paper we propose and evaluate a legalization scheme that surpasses in execution speed two of the most widely used legalizers, without not only corrupting the quality of the final solution in terms of interconnection wirelength but improving it in the process.

データ集積の急増と個人情報の利用目的規制

This paper focuses on obligation of data controller associated with purpose of personal data processing. The development of IoT and big data causes privacy concern in various aspects. One of the most serious issues is that data could be collected, used or disclosed while the data subjects do not recognize it. It could be difficult to get efficient consent for one or more specific purpose from the data subject under these new technologies. The aim of this paper is to compare the relevant legal schemes in the EU, the U.S. and Japan, and reach an appropriate solution.

Cross-border reproductive care: an Ethics Committee opinion.

Cross-border reproductive care (CBRC) is a growing worldwide phenomenon, raising questions about why assisted reproductive technology (ART) patients travel abroad, what harms and benefits may result, and what duties health-care providers may have in advising and treating patients who travel for reproductive services. Cross-border care offers benefits and poses harms to ART stakeholders, including patients, offspring, providers, gamete donors, gestational carriers, and local populations in destination countries. This document replaces the previous document of the same name, last published in 2013 (Fertil Steril 2013;100:645-50).

Mediación familiar y civil en España: una institución (¿reciente?) que ha llegado para quedarse

This paper examines Mediation as an Alternative Dispute Resolution process [ADR] in light of its “multi-level” legal scheme, namely the Directive 2008/52/EC, the Act 5/2012 and the autonomic laws. These Acts provide a concept of mediation and identify its main principles (i. e. voluntariness, confidentiality, impartiality and neutrality). There is, however, an interesting paradox: despite the well-known advantages of mediation (it entails an economical procedure and affords adequate satisfaction to the parties), it remains underused in the European jurisdictions. This paper calls, therefore, for measures to encourage its use, such as an adequate training for lawyers as to the appropriate manner in which to provide advice during the procedure.

With Love and Kisses: Nothing Lasts Forever: An Examination of the Social and Artistic Antiquation of Moral Rights

Abstract:This article examines the social and artistic antiquation of moral rights law. Moral rights law developed, and was implemented, under the heavy influence of the French preference to put the rights of the author at the center of intellectual property protection (with Victor Hugo leading this charge). However, as artistic practice evolves in a continually rapid fashion, it is becoming increasingly clear that moral rights are unable to properly accord with modern art forms. An examination of the social construction of authorship, the emergence of unique contemporary art forms, and the role of technology as a catalyst to intellectual property law, reveals that the Western world’s legal moral rights scheme cannot survive its current form. Moral rights’ endurance hinges on its ability to reconcile with a social and artistic climate alien to its origins. Artistic expression does not exist in a vacuum and is inextricably linked to, and reflective of, the social climate it is born out of. As society evolves and shifts, so too does its art and so must the law.

Christ, the Hated God

The majestic doctrine of Christology, the union of Christ’s two natures, (and the majestic doctrine of the Holy Trinity) depends upon the chief doctrine of justification by faith alone apart from works of the law. Without the chief doctrine the majestic doctrines will not be properly proclaimed to sinners. The chief doctrine distinguishes Christ, with the Father and the Holy Spirit, from the law. Christ is a sacrament who gives himself altogether outside of the law, in obedience to the Father, not the law, overcoming the law itself. Therefore, faith is not the work of an allegedly-free human will which assents to Christ’s story as framed by the law (Anselm). Instead Christ dies so that the law can testify against itself that Christ bears all sin, and in order to create a divine death into which sinners can be baptized. Therefore, faith is the trust ( fiducia ) created by the Holy Spirit in the preaching of Christ’s death and resurrection outside the law. Here God preached (mercy) overcomes God not-preached (wrath) for the hearer. Conversely, Christ’s removal of the law as the mediator between God and human beings, and the legal scheme’s justification by love, causes hate where there is no faith.

Entre justicia y moralidad : criterios metateóricos en cuanto a la justicia la moral y el derecho.

El avance social de las últimas décadas supone la necesidad de replantearse los diversos esquemas jurídicos y la forma como estos se integran a la sociedad contemporánea. Por ello, se deben asumir como valores políticos y jurídicos la dignidad humana, los derechos humanos y el principio democrático que los fundamentan y, a la vez, los limitan, en aras del desarrollo colectivo. Lo anterior supone un sometimiento de los poderes y las instituciones a la Constitución y a los derechos fundamentales en las diversas esferas privadas y públicas que maneja el individuo, como la social, la cultural y la política.

An Inquiry on the Affordability of Legal Services and the Appropriateness of the Regular Courts for Consumer Redress in Nigeria

The paper assessed the appropriateness of the regular courts for consumer redress in Nigeria in view of delays, and the cost of legal services before the ordinary courts. The paper adopted a phenomenological qualitative research approach in exploring the perspectives and experience of government officials and other private bodies involved in consumer protection and consumer re-dress. Twenty face-to-face interviews were conducted, transcribed and thematically analysed. The study found that legal services are not affordable to the consumers and that the ordinary courts are inappropriate for consumer dispute resolution. The research participants were limited to officials of consumer protection, products standard setting agencies, legal aid, academics, and heads of consumer organizations. The participants excluded the ordinary consumer of goods and services in the country. The study recommends the establishment of a cheap, simple and expeditious redress mechanism for redressing the widespread consumer injustice in the country. A well-funded legal aid scheme to bridge the gap between the poor consumer and the justice system is equally suggested. This study is the first attempt at qualitatively exploring in-depth the appropriateness of the justice delivery system for consumer redress in Nigeria.

Reclamation Trend of Underground Construction

The paper exposes the problems inducing to the active reclamation of underground space in large cities with established historical and architectural development as well as the problems associated its reclamation. Freed up space, as a rule, is transformed into new public spaces, parks and squares; there are new functional communications, cultural and historical relations between the parts of the city are rising to a new level that attracts more and more attention of architects and builders, and, of course, will be developed more intensively over time. At the same time, during the underground construction difficult geotechnical conditions cannot be ignored, as well as the correlation to the objects of transport and social infrastructure, the high cost of the projects, and in sometimes it is necessary to correct the legislation in order to regulate the contradictions in the legal scheme of town-planning development of underground space. However, the use of subsurface resources in the construction of underground structures for placing essential services requires solving problems from various hemispheres of knowledge, so the integration of science and industry is required. The reclamation of underground space is not only the improvement of the environmental situation and increasing the comfort of people's lives, but also security issues.

The Legal Scheme of Exceptional Circumstances: Exception Tempered by a Respect for Freedoms

The Legal Scheme of Exceptional Circumstances: Exception Tempered by a Respect for Freedoms

Emilu rozwijaj się, albo… Poza edukacyjną dyscyplinę

In my paper I will argue that the development and the need of support of development (also in Rousseau sense) takes a strategic position in the contemporary power relations. The pedagogical thinking built on the need/demand of support of development can justify the mechanisms of power in a legal scheme, and consequently, to justify them in terms of natural human right. My paper assumes the following order: Firstly, pay attention to the specifics of contemporary power relations. Secondly, problematize the need of support the development and show how educational dispositif works. Thirdly, I ask about the emancipatory potential of Rousseau’s pedagogical ideas.

Theoretical and Legal Reflections on Securities Dispositions

Abstract Decreasing the number of materialised securities for the benefit of electronic securities has led to distinctions between commercial and legal opinions on securities transactions. Contemporary financial markets only trade electronic securities held in securities accounts. Securities law enhances adjustments to economic realities and not to legal principles. Discrepancies between economic realities and securities regulation should be resolved in order to find a balance between successfully functioning transactions of electronic securities and legal schemes which are based on transfers of physically existing assets, which include securities, as a result of the theory of incorporations, in certain legal regulations. This article is a theoretical and legal reflection on selected issues connected with the transfer of securities with reference to discrepancies between economic realities and legal regulations.

Questioning Law's Capacity

The past ten years have witnessed an increased public awareness of the marginalisation and discrimination experienced by people with disability in the Australian legal system, and an associated proliferation of law reform reports on disability law.1 A particular focus has been legal schemes applicable to people with disability found lacking legal capacity. A recent example is the 2014 report of the Australian Law Reform Commission ('ALRC') in its inquiry into equality, capacity and disability in Commonwealth laws.2 Running parallel to these domestic law reform recommendations, the Convention on the Rights of Persons with Disabilities 3 ('CRPD') has brought about paradigm shifts in legal understandings of disability and the appropriate treatment of people with disability. In particular, Article 12 establishes that people with disability are entitled to legal capacity and places obligations on States Parties to repeal laws that deny legal capacity. Legal capacity has been recast as an international human rights issue, central to recognising the equality of people with disability under domestic legal systems.

LEGAL AID: SHAPING THE SHORELINE WAVE BY WAVE

A study of the global development of legal aid reveals that it developed in five waves and that legal aid schemes are combinations of three variables, namely scope (what is covered), eligibility (matters that qualify for legal aid and financial conditions) and delivery (who provide the services and at what cost). The article argues that there is a sixth wave, namely quality assurance and that the third variable has been extended to include reference to quality. Quality assurance normally has its origin in self-regulation or in requirements set by implementing bodies of the state. It is difficult to determine what constitutes “quality” and it is even more difficult to reach consensus on its meaning. An investigation into quality assurance in two jurisdictions shows that there is not a “one size fits all” template available. The nature and extent of the services rendered and the manner in which quality assurance is applied, depends on the delivery variable (whether it is salaried, judicare or mixed). The philosophy behind it is also important. If it is mere “window dressing” or designed to give effect to a Constitutional or some other legislative requirement, the system will not achieve credibility in the eyes of the beneficiaries thereof. Quality control that is directed towards providing customer satisfaction, and where the user of the service is seen as the ultimate recipient and arbiter of a benefit that is paid for by the state, has a much better prospect of being judged effective and credible. External quality assessment goes a long way towards promoting quality improvement and credibility.