In Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd 2006 4 SA 458 (SCA) Haupt sought to enforce a copyright claim in the Data Explorer computer programme against Brewers Marketing Intelligence (Pty) Ltd. His claim was dismissed in the High Court and he appealed to the Supreme Court of Appeal. The Court held that copyright in the Data Explorer programme vested in Haupt. Haupt acquired copyright in the Data Explorer programme regardless of the fact that the programme was as a result of an unauthorised adaptation of the Project AMPS programme which belonged to Brewers Marketing Intelligence (Pty) Ltd. This case note inter alia analyses the possibility of an author being sued for infringement even though he has acquired copyright in a work that he created by making unauthorised adaptations to another's copyright material. Furthermore, it examines whether or not the law adequately protects copyright owners in situations where infringement takes the form of unauthorised adaptations of computer programmes. It is argued that the protection afforded by the Copyright Act 98 of 1978 (Copyright Act) in terms of section 27(1) to copyright owners of computer programmes is narrowly defined. It excludes from its ambit of criminal liability the act of making unauthorised adaptation of computer programmes. The issue that is considered is therefore whether or not the unauthorised adaptation of computer programmes should attract a criminal sanction. In addressing this issue and with the aim of making recommendations, the legal position in the United Kingdom (UK) is analysed. From the analysis it is recommended that the Copyright Act be amended by the insertion of a new section, section 27(1)(A), which will make the act of making an unauthorised adaptation of a computer programme an offence. This recommended section will close the gap that currently exists in our law with regard to unauthorised adaptations of computer programmes. KEYWORDS: Copyright; Copyright Act; copyright infringement; computer programmes; unauthorised adaptation
{"title":"Unauthorised Adaptation of Computer Programmes - is Criminalisation a Solution? Haupt T/A Softcopy V Brewers Marketing Intelligence (PTY) Ltd 2006 4 SA 458 (SCA)","authors":"L. Muswaka","doi":"10.4314/PELJ.V14I7.9","DOIUrl":"https://doi.org/10.4314/PELJ.V14I7.9","url":null,"abstract":"In Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd 2006 4 SA 458 (SCA) Haupt sought to enforce a copyright claim in the Data Explorer computer programme against Brewers Marketing Intelligence (Pty) Ltd. His claim was dismissed in the High Court and he appealed to the Supreme Court of Appeal. The Court held that copyright in the Data Explorer programme vested in Haupt. Haupt acquired copyright in the Data Explorer programme regardless of the fact that the programme was as a result of an unauthorised adaptation of the Project AMPS programme which belonged to Brewers Marketing Intelligence (Pty) Ltd. This case note inter alia analyses the possibility of an author being sued for infringement even though he has acquired copyright in a work that he created by making unauthorised adaptations to another's copyright material. Furthermore, it examines whether or not the law adequately protects copyright owners in situations where infringement takes the form of unauthorised adaptations of computer programmes. It is argued that the protection afforded by the Copyright Act 98 of 1978 (Copyright Act) in terms of section 27(1) to copyright owners of computer programmes is narrowly defined. It excludes from its ambit of criminal liability the act of making unauthorised adaptation of computer programmes. The issue that is considered is therefore whether or not the unauthorised adaptation of computer programmes should attract a criminal sanction. In addressing this issue and with the aim of making recommendations, the legal position in the United Kingdom (UK) is analysed. From the analysis it is recommended that the Copyright Act be amended by the insertion of a new section, section 27(1)(A), which will make the act of making an unauthorised adaptation of a computer programme an offence. This recommended section will close the gap that currently exists in our law with regard to unauthorised adaptations of computer programmes. KEYWORDS: Copyright; Copyright Act; copyright infringement; computer programmes; unauthorised adaptation","PeriodicalId":206472,"journal":{"name":"INTL: Political & Legal Issues (Topic)","volume":"114 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133311284","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The term “tax state” originated in a controversy between Rudolf Goldscheid and Joseph Schumpeter over the treatment of Austria's public debt in the aftermath of World War I and the dissolution of the Austro-Hungarian Empire. Goldschied asserted that this debt represented a crisis for a state that relies on taxation, and claimed that resolution required transforming the state into an entity that operated with its own capital. In contrast, Schumpeter argued that the crisis was temporary and could be resolved by a one-time capital levy to reduce the debt, after which the state could resume its tax-based mode of operation. This essay explains that Goldscheid's analysis was more on the mark than Schumpeter's, and does so by exploring the logic of interaction between carriers of distinct forms of property-based action: one form is private property; the other form is common or collective property. Perpetual crisis is a product of this interaction, elimination of which is conceivable only in the presence of a single principle for governing human action and interaction within both polity and economy.
{"title":"Perpetual Crisis in the Tax State","authors":"R. Wagner","doi":"10.2139/ssrn.1955223","DOIUrl":"https://doi.org/10.2139/ssrn.1955223","url":null,"abstract":"The term “tax state” originated in a controversy between Rudolf Goldscheid and Joseph Schumpeter over the treatment of Austria's public debt in the aftermath of World War I and the dissolution of the Austro-Hungarian Empire. Goldschied asserted that this debt represented a crisis for a state that relies on taxation, and claimed that resolution required transforming the state into an entity that operated with its own capital. In contrast, Schumpeter argued that the crisis was temporary and could be resolved by a one-time capital levy to reduce the debt, after which the state could resume its tax-based mode of operation. This essay explains that Goldscheid's analysis was more on the mark than Schumpeter's, and does so by exploring the logic of interaction between carriers of distinct forms of property-based action: one form is private property; the other form is common or collective property. Perpetual crisis is a product of this interaction, elimination of which is conceivable only in the presence of a single principle for governing human action and interaction within both polity and economy.","PeriodicalId":206472,"journal":{"name":"INTL: Political & Legal Issues (Topic)","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121835425","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
New York adopted an industry-specific value added tax (VAT) to solve problems with virtual intermediaries (room remarketers) under its hotel accommodations tax. The New York VAT resembles the VAT used in the European Union (EU). It is a credit-invoice VAT that subjectively values supplies. Michigan has also adopted an industry-specific credit-invoice VAT, however the targeted industry is the retail gasoline trade. The valuation method is objective, rather than subjective. In valuing supplies objectively rather than subjectively, the Michigan VAT resembles the exception provisions that are found in most VATs around the globe. Objective valuations are used in VATs when dealing with inherently problematical transaction types. The central point is that Michigan, like New York, has departed from the traditional American approach of taxing consumption in a single stage (directly from the consumer through a retail sales tax). Michigan is doing this because it wants to capture the administrative benefits of utilizing a multi-stage levy. What New York and Michigan are interested in securing is: a larger and more stable and revenue flow through the VAT’s fractioned payment mechanism, and a more easily audited tax regime through a leveraging of the VAT’s self-enforcement mechanisms.
{"title":"An Industry-Specific VAT in Michigan - Objective Valuation in the Retail Gasoline Trade","authors":"R. T. Ainsworth","doi":"10.2139/SSRN.1939231","DOIUrl":"https://doi.org/10.2139/SSRN.1939231","url":null,"abstract":"New York adopted an industry-specific value added tax (VAT) to solve problems with virtual intermediaries (room remarketers) under its hotel accommodations tax. The New York VAT resembles the VAT used in the European Union (EU). It is a credit-invoice VAT that subjectively values supplies. Michigan has also adopted an industry-specific credit-invoice VAT, however the targeted industry is the retail gasoline trade. The valuation method is objective, rather than subjective. In valuing supplies objectively rather than subjectively, the Michigan VAT resembles the exception provisions that are found in most VATs around the globe. Objective valuations are used in VATs when dealing with inherently problematical transaction types. The central point is that Michigan, like New York, has departed from the traditional American approach of taxing consumption in a single stage (directly from the consumer through a retail sales tax). Michigan is doing this because it wants to capture the administrative benefits of utilizing a multi-stage levy. What New York and Michigan are interested in securing is: a larger and more stable and revenue flow through the VAT’s fractioned payment mechanism, and a more easily audited tax regime through a leveraging of the VAT’s self-enforcement mechanisms.","PeriodicalId":206472,"journal":{"name":"INTL: Political & Legal Issues (Topic)","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126899253","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We examine the effects of the short selling ban, imposed by Australian regulators in the wake of the global financial crisis, on trading of financial stocks. Unlike other developed markets, where regulators imposed short-selling restrictions for brief periods of time at the height of the financial crisis, the ban on short selling of financial stocks on the Australian Stock Exchange lasted eight months, including both the tumultuous end of 2008 and the calmer period up to May 2009. Our control group consists of matched Canadian financial institutions which were unaffected by a short selling ban. We analyze the impact of the imposed short selling constraints on measures of market quality and on stock prices using univariate and multivariate fixed effects panel regressions. As predicted by previous theoretical work, we find that stocks subject to the short selling ban suffered a severe degradation in market quality. Controlling for the adverse effects of the financial crisis on financial markets, we show that imposing constraints on short-selling reduced trading activity, increased bid and ask spreads and increased intraday volatility. Moreover, there appears to be no evidence for lasting price support from the restrictions.
{"title":"How the Australian Ban on Short Selling During the GFC Affected Market Quality and Volatility","authors":"Thomas Henker, Julia Henker, Uwe Helmes","doi":"10.2139/ssrn.1970711","DOIUrl":"https://doi.org/10.2139/ssrn.1970711","url":null,"abstract":"We examine the effects of the short selling ban, imposed by Australian regulators in the wake of the global financial crisis, on trading of financial stocks. Unlike other developed markets, where regulators imposed short-selling restrictions for brief periods of time at the height of the financial crisis, the ban on short selling of financial stocks on the Australian Stock Exchange lasted eight months, including both the tumultuous end of 2008 and the calmer period up to May 2009. Our control group consists of matched Canadian financial institutions which were unaffected by a short selling ban. We analyze the impact of the imposed short selling constraints on measures of market quality and on stock prices using univariate and multivariate fixed effects panel regressions. As predicted by previous theoretical work, we find that stocks subject to the short selling ban suffered a severe degradation in market quality. Controlling for the adverse effects of the financial crisis on financial markets, we show that imposing constraints on short-selling reduced trading activity, increased bid and ask spreads and increased intraday volatility. Moreover, there appears to be no evidence for lasting price support from the restrictions.","PeriodicalId":206472,"journal":{"name":"INTL: Political & Legal Issues (Topic)","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128884021","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Under section 715 of the Act, “if the [CFTC] or the [SEC] determines that the regulation of swaps or security-based swaps markets in a foreign country undermines the stability of the United States financial system, either Commission, in consultation with the Secretary of the Treasury, may prohibit an entity domiciled in the foreign country from participating in the United States in any swap or security-based swap activities.” An important issue with this provision is the lack of a clear definition for an “entity domiciled in [a] foreign country.” This rule is counter-productive and should be replaced with one that would lead toward an international harmonization of derivative rules and regulations.
{"title":"The Plain Meaning, Legislative Intent, and Policy Considerations of the Dodd-Frank Act: §715 - Authority to Prohibit International Participation in Swap Activities","authors":"L. Sinai","doi":"10.2139/ssrn.2039412","DOIUrl":"https://doi.org/10.2139/ssrn.2039412","url":null,"abstract":"Under section 715 of the Act, “if the [CFTC] or the [SEC] determines that the regulation of swaps or security-based swaps markets in a foreign country undermines the stability of the United States financial system, either Commission, in consultation with the Secretary of the Treasury, may prohibit an entity domiciled in the foreign country from participating in the United States in any swap or security-based swap activities.” An important issue with this provision is the lack of a clear definition for an “entity domiciled in [a] foreign country.” This rule is counter-productive and should be replaced with one that would lead toward an international harmonization of derivative rules and regulations.","PeriodicalId":206472,"journal":{"name":"INTL: Political & Legal Issues (Topic)","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114206618","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2010-05-21DOI: 10.1628/002268810791319940
Ulrich G. Schroeter
Schadensersatzanspruche des Kaufers scheitern unter dem BGB nach herrschender Ansicht immer dann an dem fehlenden Vertretenmussen des Verkaufers (§ 437 Nr. 3 i.V.m. § 280 Abs. 1 Satz 2 BGB), wenn ein produktionsbedingter Sachmangel vorliegt, der Verkaufer jedoch ein bloser Handler (und nicht der Hersteller der Ware) ist.Der vorliegende Beitrag begrundet, warum dieser Ansatz seit der Schuldrechtsreform 2001 nicht langer haltbar ist, und schlagt eine differenzierende Losung vor.Under German domestic sales law, buyers' claims for damages for non-conformity of the goods depend on the seller's fault ("Vertretenmussen") for the non-conformity. German courts have traditionally denied such fault when the goods delivered had been incorrectly manufactured by a third-party producer, i.e. when the seller was a mere trader. The present paper argues that it has become inconvincing to except sellers from liability since the German law of sales was reformed in 2001, and develops a more appropriate solution.
{"title":"Inspection Duties and 'Fault' of Intermediary Sellers in Cases of Delivery of Non-Conforming Goods under German Domestic Sales Law (Untersuchungspflichten und Vertretenmüssen des Händlers bei der Lieferung sachmangelhafter Ware)","authors":"Ulrich G. Schroeter","doi":"10.1628/002268810791319940","DOIUrl":"https://doi.org/10.1628/002268810791319940","url":null,"abstract":"Schadensersatzanspruche des Kaufers scheitern unter dem BGB nach herrschender Ansicht immer dann an dem fehlenden Vertretenmussen des Verkaufers (§ 437 Nr. 3 i.V.m. § 280 Abs. 1 Satz 2 BGB), wenn ein produktionsbedingter Sachmangel vorliegt, der Verkaufer jedoch ein bloser Handler (und nicht der Hersteller der Ware) ist.Der vorliegende Beitrag begrundet, warum dieser Ansatz seit der Schuldrechtsreform 2001 nicht langer haltbar ist, und schlagt eine differenzierende Losung vor.Under German domestic sales law, buyers' claims for damages for non-conformity of the goods depend on the seller's fault (\"Vertretenmussen\") for the non-conformity. German courts have traditionally denied such fault when the goods delivered had been incorrectly manufactured by a third-party producer, i.e. when the seller was a mere trader. The present paper argues that it has become inconvincing to except sellers from liability since the German law of sales was reformed in 2001, and develops a more appropriate solution.","PeriodicalId":206472,"journal":{"name":"INTL: Political & Legal Issues (Topic)","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132935101","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Today many welfare states have undergone a transformation, and the focus of their efforts has shifted towards activating and enabling, where the promotion of labor participation is the principal aim. One of the components of the welfare state that has been subjected to a shift in governance is the provision of activation services, where the use of contracts as a governance tool has gained foothold. In the Dutch context, the contract has become a primary tool for realizing policy goals and safeguarding public interest, on the Dutch employment reintegration market. Moreover, in the Dutch context the tender documents are the cornerstone of the contractual relation that governs the delivery of employment reintegration services through private actors. One of the challenges the use of the market brings with it, relates to conveying preferences about how and which policy goals should be realized and under which conditions.The aim of this paper is to examine, in an exploratory fashion, how contractual relations between municipalities and service providers are shaped through the tender documents and contracts. Examining the service policy goals that are being formulated and under which conditions service should be delivered. In addition, we want to see how the operational responsibility is shaped in the contracts. The results show that while municipalities buy a wide variety of services, they opt to buy them in a modular fashion. Furthermore, much of the responsibility and decision-making prerogatives, in relation to service delivery, is kept in the hands of municipal case managers. Finally, in the specifications drawn up for service delivery there remains a strong focus on stipulating process requirements. Something that is reminiscent of more traditional governance arrangements.
{"title":"New Modes of Governance in the Dutch Reintegration Market: Analyzing the Process of Contracting Out","authors":"Alex D. R. Corra, M. Plantinga","doi":"10.2139/ssrn.1488932","DOIUrl":"https://doi.org/10.2139/ssrn.1488932","url":null,"abstract":"Today many welfare states have undergone a transformation, and the focus of their efforts has shifted towards activating and enabling, where the promotion of labor participation is the principal aim. One of the components of the welfare state that has been subjected to a shift in governance is the provision of activation services, where the use of contracts as a governance tool has gained foothold. In the Dutch context, the contract has become a primary tool for realizing policy goals and safeguarding public interest, on the Dutch employment reintegration market. Moreover, in the Dutch context the tender documents are the cornerstone of the contractual relation that governs the delivery of employment reintegration services through private actors. One of the challenges the use of the market brings with it, relates to conveying preferences about how and which policy goals should be realized and under which conditions.The aim of this paper is to examine, in an exploratory fashion, how contractual relations between municipalities and service providers are shaped through the tender documents and contracts. Examining the service policy goals that are being formulated and under which conditions service should be delivered. In addition, we want to see how the operational responsibility is shaped in the contracts. The results show that while municipalities buy a wide variety of services, they opt to buy them in a modular fashion. Furthermore, much of the responsibility and decision-making prerogatives, in relation to service delivery, is kept in the hands of municipal case managers. Finally, in the specifications drawn up for service delivery there remains a strong focus on stipulating process requirements. Something that is reminiscent of more traditional governance arrangements.","PeriodicalId":206472,"journal":{"name":"INTL: Political & Legal Issues (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125856877","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Indian companies that raised large sums of foreign funds to finance growth and acquisition plans during the bull run in the stock markets are in a Catch 22 situation. The conversion price of their foreign currency convertible bonds is several times higher than their current market prices. This leaves them with two options. One is to reset the price at current market price, a move that could dilute promoter holdings (since it would entail issuing more equity shares). The other is to redeem the bonds, which could increase debt obligations that are already substantial in some cases. The maturity of many of the FCCBs is expected to start in October 2009 and peak in 2010-11. Most analysts say the market is unlikely to recover so significantly over the next two years that market prices will match the conversion prices. The paper would state forth the current conditions of the FCCB market and Bond Holders.
{"title":"Legal Issues Relating to Foreign Currency Convertible Bonds","authors":"Dipen Chatterjee","doi":"10.2139/ssrn.1328822","DOIUrl":"https://doi.org/10.2139/ssrn.1328822","url":null,"abstract":"Indian companies that raised large sums of foreign funds to finance growth and acquisition plans during the bull run in the stock markets are in a Catch 22 situation. The conversion price of their foreign currency convertible bonds is several times higher than their current market prices. This leaves them with two options. One is to reset the price at current market price, a move that could dilute promoter holdings (since it would entail issuing more equity shares). The other is to redeem the bonds, which could increase debt obligations that are already substantial in some cases. The maturity of many of the FCCBs is expected to start in October 2009 and peak in 2010-11. Most analysts say the market is unlikely to recover so significantly over the next two years that market prices will match the conversion prices. The paper would state forth the current conditions of the FCCB market and Bond Holders.","PeriodicalId":206472,"journal":{"name":"INTL: Political & Legal Issues (Topic)","volume":"71 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-01-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121275324","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recent case law suggests that the European courts are rethinking their position in respect of international law. On the one hand, the European Court of Justice (ECJ) is extending its case law on the WTO, denying ‘direct effect’ to all of its provisions, to other major international treaties, such as the United Nations Convention on the Law of the Sea (UNCLOS). In another recent judgment, the ECJ firmly said that it will not allow international agreements to jeopardize Europe's constitutional principles. These judgments might suggest that the ECJ is becoming more cautious, even skeptical toward international law. On the other hand, the WTO case law also illustrates that the ECJ has found more subtle ways than direct effect to give domestic law effect to international agreements. Examples are treaty-consistent interpretation, judicial dialogue with international tribunals, and transformation of international law into European legal principles. In this way, the ECJ is able to show respect to international law, which is indeed a core European value. At the same time, the ECJ maintains the power to act as a gatekeeper and resist those international legal norms that are considered inimical to the European legal order. On the whole the author welcomes this case law, albeit with some critical notes.
{"title":"From 'Direct Effect' to ‘Muted Dialogue': Recent Developments in the European Courts' Case Law on the WTO and Beyond","authors":"M. Bronckers","doi":"10.1093/JIEL/JGN037","DOIUrl":"https://doi.org/10.1093/JIEL/JGN037","url":null,"abstract":"Recent case law suggests that the European courts are rethinking their position in respect of international law. On the one hand, the European Court of Justice (ECJ) is extending its case law on the WTO, denying ‘direct effect’ to all of its provisions, to other major international treaties, such as the United Nations Convention on the Law of the Sea (UNCLOS). In another recent judgment, the ECJ firmly said that it will not allow international agreements to jeopardize Europe's constitutional principles. These judgments might suggest that the ECJ is becoming more cautious, even skeptical toward international law. On the other hand, the WTO case law also illustrates that the ECJ has found more subtle ways than direct effect to give domestic law effect to international agreements. Examples are treaty-consistent interpretation, judicial dialogue with international tribunals, and transformation of international law into European legal principles. In this way, the ECJ is able to show respect to international law, which is indeed a core European value. At the same time, the ECJ maintains the power to act as a gatekeeper and resist those international legal norms that are considered inimical to the European legal order. On the whole the author welcomes this case law, albeit with some critical notes.","PeriodicalId":206472,"journal":{"name":"INTL: Political & Legal Issues (Topic)","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126415095","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
OECD countries are ageing with resulting fiscal pressures. OECD countries can adopt a number of strategies in response, including modifying expenditure plans, increasing growth, raising taxes in the future or undertaking activities to pre-fund the future liabilities. The appropriate policy response for a country will depend on the particular circumstances facing the country. This paper focuses on the pre-funding option without wishing to imply the pre-funding is necessarily the best policy approach for all countries. We define pre-funding as increasing net financial assets which implies either reducing debt or increasing financial assets. We identify 15 OECD countries as having undertaken some pre-funding. This is a higher number than may be expected, partly due to the fact that primary budget balances are more useful indicators of debt dynamics than general government balances. Of the 15 countries we identify 8 as ‘strong pre funders’ which have a history of pre-funding and a forward looking pre-funding strategy. These are Belgium, Canada, Denmark, Finland, Luxembourg, New Zealand, Norway and Sweden. We identify 7 other countries with less aggressive pre-funding strategies as mild pre funders – Australia, Iceland, Ireland, Italy, Korea, the Netherlands and Spain. The most striking characteristic of the strong pre funders is their high tax to GDP ratio – an average of 51.7 per cent of GDP compared to an average of 42.7 per cent of GDP for countries that do not pre-fund. The strong pre-funders also have slightly higher expected increases in pension expenditure (4.5 percentage points of GDP compared to an OECD average of 3.8 per cent). This difference is consistent with the view that higher welfare benefits are associated with tax smoothing at higher initial tax rates.
{"title":"Expenditure Growth, Fiscal Sustainability and Pre-Funding Strategies in OECD Countries","authors":"B. Comley, Adam McKissack","doi":"10.2139/ssrn.2017668","DOIUrl":"https://doi.org/10.2139/ssrn.2017668","url":null,"abstract":"OECD countries are ageing with resulting fiscal pressures. OECD countries can adopt a number of strategies in response, including modifying expenditure plans, increasing growth, raising taxes in the future or undertaking activities to pre-fund the future liabilities. The appropriate policy response for a country will depend on the particular circumstances facing the country. This paper focuses on the pre-funding option without wishing to imply the pre-funding is necessarily the best policy approach for all countries. We define pre-funding as increasing net financial assets which implies either reducing debt or increasing financial assets. We identify 15 OECD countries as having undertaken some pre-funding. This is a higher number than may be expected, partly due to the fact that primary budget balances are more useful indicators of debt dynamics than general government balances. Of the 15 countries we identify 8 as ‘strong pre funders’ which have a history of pre-funding and a forward looking pre-funding strategy. These are Belgium, Canada, Denmark, Finland, Luxembourg, New Zealand, Norway and Sweden. We identify 7 other countries with less aggressive pre-funding strategies as mild pre funders – Australia, Iceland, Ireland, Italy, Korea, the Netherlands and Spain. The most striking characteristic of the strong pre funders is their high tax to GDP ratio – an average of 51.7 per cent of GDP compared to an average of 42.7 per cent of GDP for countries that do not pre-fund. The strong pre-funders also have slightly higher expected increases in pension expenditure (4.5 percentage points of GDP compared to an OECD average of 3.8 per cent). This difference is consistent with the view that higher welfare benefits are associated with tax smoothing at higher initial tax rates.","PeriodicalId":206472,"journal":{"name":"INTL: Political & Legal Issues (Topic)","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115396249","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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