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On the Problem of Russian Administrative Reform Implementation 论俄罗斯行政改革实施中的问题
A. Pronin
The paper deals with some aspects of a contemporary russian administrative law reform. Special attention is paid to the legal questions of E-Governance and administrative procedure.
本文论述了当代俄罗斯行政法改革的几个方面。特别关注电子政务和行政程序的法律问题。
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引用次数: 0
Offshore Accounts: FATCA Background, Developments, and Key Issues 离岸账户:FATCA背景、发展和关键问题
J. Harvey
FATCA was unilaterally enacted by the US in March 2010 to address tax evasion by US taxpayers using offshore accounts. Much has occurred during the ensuing 4 years as the world prepares for FATCA’s July 1, 2014 effective date.This slide deck titled, Offshore Accounts: FATCA Background, Developments, and Key Issues, was prepared for a March 24, 2014 speech sponsored by the University of Baltimore School of Law and the Maryland State Bar Association. Ultimately the key question is whether FATCA will be successful, and if so, how long will it take?
FATCA是美国于2010年3月单方面颁布的,旨在解决美国纳税人使用离岸账户逃税的问题。在接下来的四年里,全世界都在为FATCA于2014年7月1日生效做准备,这期间发生了很多事情。这张题为《离岸账户:FATCA背景、发展和关键问题》的幻灯片是为2014年3月24日巴尔的摩大学法学院和马里兰州律师协会主办的一次演讲而准备的。最终的关键问题是FATCA能否成功,如果成功,需要多长时间?
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引用次数: 1
Apple's International Tax Planning 苹果公司的国际税收筹划
J. Harvey
In May 2013 the US Senate Permanent Subcommittee on Investigations held a hearing surrounding Apple Inc.’s international tax planning. As the first expert witness at the hearing, Prof. Harvey only had 10 minutes to summarize his thoughts on Apple’s tax planning. Thus, he prepared this slide deck for a 90 minute presentation to the Tax and Corporate Law Societies of Villanova School of Law. The slides summarize (i) the results of Apple’s international tax planning, (ii) international tax planning basics, (iii) and various tax policy options.
2013年5月,美国参议院常设调查小组委员会就苹果公司的国际税务筹划举行了听证会。作为听证会上的第一位专家证人,哈维教授只有10分钟的时间来总结他对苹果公司税收筹划的看法。因此,他准备了这张90分钟的幻灯片,向维拉诺瓦法学院的税务和公司法协会进行演讲。幻灯片总结了(i)苹果国际税收筹划的结果,(ii)国际税收筹划的基础知识,(iii)和各种税收政策选择。
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引用次数: 0
Testimony of J. Richard (Dick) Harvey, Jr. Before the U.S. Senate Permanent Subcommittee on Investigations May 21, 2013 2013年5月21日,小理查德·哈维在美国参议院常设调查小组委员会作证
J. Harvey
Apple is an iconic US multinational corporation. In addition to demonstrating excellence in designing, building, and selling consumer products, Apple has been very successful at minimizing its global income tax burden. This expert testimony describes how Apple:• allocates approximately two-thirds of its global income to Ireland, a country where only 4% of its employees and 1% of its customers are located,• minimizes Irish tax by creating an Irish entity that is managed and controlled in the US, and• avoids the US Subpart F rules.More generally, the testimony illustrates techniques used by US MNCs to shift income overseas and avoid the US Subpart F rules designed to tax passive income.Finally, the testimony makes several tax policy recommendations.Expert Witness Testimony Submitted on May 21, 2013 for the US Senate Permanent Subcommittee on Investigations.
苹果公司是一家标志性的美国跨国公司。除了在设计、制造和销售消费品方面表现出色外,苹果还非常成功地将其全球所得税负担降至最低。这份专家证词描述了苹果公司如何:•将其全球收入的大约三分之二分配给爱尔兰,而爱尔兰只有4%的员工和1%的客户,•通过创建一个在美国管理和控制的爱尔兰实体来最大限度地减少爱尔兰的税收,以及•避免美国的子part F规则。更广泛地说,证词说明了美国跨国公司将收入转移到海外,并避开美国针对被动收入征税的F部分规定的技巧。最后,该证词提出了几项税收政策建议。专家证人证词于2013年5月21日提交美国参议院常设调查小组委员会。
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引用次数: 3
The Aftermath of Catastrophes: Valuing Business Interruption Insurance Losses 灾难的后果:评估商业中断保险损失
Christopher C. French
With the onslaught of tornadoes, hurricanes, and floods in recent years, business interruption losses have been staggering. Many businesses do not survive such catastrophes. Even business owners that purchased business interruption insurance, which is intended to ensure that a business’s revenue stream continues during an interruption in its operations, often find that their insurers have dramatically different views regarding the amount of the losses that should be reimbursed. The reason for this disparity in views is that the loss valuation provisions in business interruption insurance policies provide very little guidance regarding how business interruption losses should be calculated. Thus, disputes regarding the valuation of business interruption losses frequently arise and courts and juries are forced to resolve such disputes with widely varying, inconsistent, and unpredictable results. This lack of predictability has placed a burden on the legal system because far more business interruption cases are tried than are necessary. This Article analyzes the origins and purpose of business interruption insurance, as well as the courts’ inconsistent interpretations of the standard form business interruption loss valuation provisions. The Article then offers an interpretation of the existing loss valuation provisions under the rules of policy interpretation and considers whether the result would be different if the language were analyzed from a product liability perspective in light of the fact that policies are non-negotiated contracts of adhesion sold on a take-it-or-leave-it basis. The Article concludes with an analysis of the public policy considerations related to the payment of business interruption insurance losses and proposes alternative loss valuation formulas to be used in the future that should provide for consistent, fair and predictable loss valuations and payment of claims without litigation.
近年来,随着龙卷风、飓风和洪水的侵袭,业务中断造成的损失令人震惊。许多企业无法在这样的灾难中幸存下来。即使是购买了业务中断保险的企业主,也经常发现他们的保险公司对应该赔偿的损失金额有着截然不同的看法。业务中断保险的目的是确保企业在业务中断期间的收入流继续。造成这种意见分歧的原因是,营业中断保险政策中的损失评估条款对如何计算营业中断损失提供的指导很少。因此,关于业务中断损失估值的纠纷经常出现,法院和陪审团被迫解决这些纠纷,结果差异很大,不一致,而且不可预测。这种可预测性的缺乏给法律体系带来了负担,因为审判的商业中断案件远远超过了必要的数量。本文分析了中断保险的起源和目的,以及法院对标准形式的中断损失评估条款的不一致解释。然后,该条根据政策解释规则对现有的损失评估条款进行了解释,并考虑到政策是在接受或放弃的基础上出售的非协商附则合同,如果从产品责任的角度分析语言,结果是否会有所不同。文章最后分析了与商业中断保险损失支付相关的公共政策考虑,并提出了未来使用的其他损失评估公式,这些公式应提供一致、公平和可预测的损失评估和索赔支付,而无需提起诉讼。
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引用次数: 6
Direct and Derivative Claims in Securities Fraud Litigation 证券欺诈诉讼中的直接和衍生索赔
R. Booth
In the typical securities fraud class action under Rule 10b-5, the plaintiff class consists of buyers who seek damages equal to the difference between the price paid for the stock during the fraud period and the lower price that prevails after corrective disclosure. The argument here is that this claim is really an amalgam of direct and derivative claims and that the derivative claims should result in recovery by the corporation for the benefit of all stockholders. There are three types of losses that arise in the typical stock-drop action. First, part of the loss may be attributable to lower expected earnings (fundamental loss). Second, part of the loss may be attributable to an increase in the cost of equity because of increased risk associated with the corporation (capitalization loss). Third, part of the loss may be attributable to the class action itself which if successful will result in a payout by the corporation to settle the litigation (feedback loss). It is not clear that fundamental loss should be actionable since it is a loss that will occur whether or not there is fraud. Capitalization loss may or may not be actionable. If it arises because of harm to the reputation of the corporation as a result of fraud or similar wrongful acts that cause the market to lose trust in the corporation resulting in an increased cost of capital for the corporation, the loss is derivative because it affects the corporation as a whole and affects all stockholders in the same way. On the other hand, the corporation may also suffer a capitalization loss in the absence of any fraud because the market learns new information about firm-specific risk. This loss - like fundamental loss - arises whether or not there is fraud. It should not be actionable. Finally, feedback loss arises only because the corporation pays if the class action is successful. But if the only actionable loss is capitalization loss for which the corporation should recover, there is no justification for a class action, no reason for the corporation to pay, and no feedback loss. In other words, feedback loss goes away if the class action goes away. In short, the only genuine loss in a stock-drop action under Rule 10b-5 is attributable to claims that should be characterized as derivative. The mystery is why the courts and litigants have failed to characterize such claims as derivative rather than direct. Although there is some doubt whether capitalization loss is actionable as a matter of federal securities law, such claims are clearly actionable under the state law of fiduciary duty, particularly when there is insider misappropriation involved. The fact that such claims are litigated as direct class claims rather than derivative claims is especially puzzling because most stock is held by well-diversified institutional investors that lose from class actions. Such investors are equally likely to sell (gain) as to buy (lose) during the fraud period. Gains and losses net out over time. So the c
在典型的基于10b-5规则的证券欺诈集体诉讼中,原告群体由买方组成,他们寻求的损害赔偿等于欺诈期间为股票支付的价格与纠正性披露后普遍存在的较低价格之间的差额。这里的论点是,这一索赔实际上是直接索赔和派生索赔的混合体,派生索赔应该导致公司为所有股东的利益而进行追回。在典型的股票下跌行为中,有三种损失。首先,部分损失可能归因于较低的预期收益(基本损失)。其次,部分损失可能归因于股权成本的增加,因为与公司相关的风险增加(资本化损失)。第三,部分损失可能归因于集体诉讼本身,如果成功,将导致公司支付和解诉讼(反馈损失)。根本损失是否可以提起诉讼尚不清楚,因为无论是否存在欺诈,这种损失都会发生。资本化损失可能是可诉的,也可能不是。如果由于欺诈或类似的不法行为导致公司声誉受损,导致市场对公司失去信任,导致公司的资金成本增加,则这种损失是衍生的,因为它影响到公司整体,并以同样的方式影响到所有股东。另一方面,由于市场了解到有关公司特有风险的新信息,在没有任何欺诈行为的情况下,公司也可能遭受资本损失。无论是否存在欺诈,这种损失——就像根本损失一样——都会出现。它不应该是可操作的。最后,只有当集体诉讼成功时,公司才会支付费用,反馈损失才会出现。但是,如果唯一可起诉的损失是公司应该赔偿的资本化损失,那么就没有理由进行集体诉讼,公司没有理由支付,也没有反馈损失。换句话说,如果集体诉讼没有了,反馈损失也就没有了。简而言之,在10b-5规则下的股票下跌诉讼中,唯一真正的损失可归因于应被定性为衍生品的索赔。令人费解的是,为什么法院和诉讼当事人未能将此类索赔定性为派生索赔,而不是直接索赔。尽管资本损失是否可以作为联邦证券法的诉讼事项存在一些疑问,但根据州信义义务法,这种索赔显然是可以提起诉讼的,特别是在涉及内幕挪用的情况下。这类索赔被作为直接集体索赔提起诉讼,而不是作为衍生索赔提起诉讼,这一事实尤其令人费解,因为大多数股票是由多元化程度较高的机构投资者持有的,而这些机构投资者在集体诉讼中会蒙受损失。这些投资者在欺诈期间卖出(获利)和买入(亏损)的可能性是一样的。随着时间的推移,收益和损失相互抵消。因此,诉讼成本是一种无谓损失,会降低投资组合的回报。此外,因为如果行动成功,公司就会付钱,所以净效果是持有者付钱给买家。在欺诈期间买入少量股票以增加现有持股的多元化投资者,其所持股票的损失可能大于其从任何复苏中获得的收益。因此,多元化投资者原则上应该反对直接的集体诉讼。他们应该支持衍生诉讼,寻求公司赔偿任何损失,如欺诈造成的资本化损失。但是,每一个可能支持衍生诉讼的群体——机构投资者、被告公司和原告律师公会——都受到阻碍改革的冲突的影响。机构投资者不能选择不参与证券欺诈集体诉讼,因为如果这样做,它实际上会以持有人的身份支付,而不会以买方的身份获得补偿。被告公司可能不愿意,因为保险可能不包括在派生诉讼中提出的索赔。原告律师协会可能不愿意以很大的精力起诉衍生诉讼,因为在集体诉讼中律师费可能要高得多。因此,除非法院采取主动,否则改革是不可能的。但这是有争议的。众所周知,程序是法院的事情。将索赔定性为直接索赔或派生索赔是一种受程序规则支配的司法职能。此外,证券欺诈集体诉讼是一项司法发明。因此,法院有权力也有责任收拾残局。
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引用次数: 3
Observations on the Role of Commodification, Independence and Governance in the Accounting Industry 商品化、独立性和治理在会计行业中的作用观察
J. Macey, Hillary A. Sale
In this Article, we argue the internal corporate governance structure of the big accounting firm is fundamentally flawed, and that this flaw contributed to the current crisis of confidence in the integrity of public reporting. The incentive structure within accounting firms makes it virtually impossible for auditors to be independent of significant clients like Enron. The result has been a change in the balance of economic power between accounting firms and their clients - individual audit partners suffer from client capture. In addition, to their lack of independence, accounting firms and partners lack accountability in part due to the advent of the limited liability partnership structure. Despite these problems, federal securities laws and regulations require auditors to provide independent audits to companies. The result has been the commodification of audits and a market in which audits are bought and sold. As a consequence, audits no longer serve the economic purpose for which they were required - providing information that protects investors and leads to the efficient pricing of securities. Although the provisions of the Sarbanes-Oxley Act offer some help in resolving the capture, governance, and commodification concerns we raise, we conclude that more is needed. Sarbanes-Oxley established the Public Company Accounting Oversight Board. This Board is to register the public accounting firms, set standards for their reports, inspect and investigate the firms, and, when appropriate, sanction firms and individuals. To be successful, the Board will have to replace the incentive system eliminated with the creation of LLPs with its own set of rules and standards, which it will have to enforce vigorously. In addition, Sarbanes-Oxley provides new standards for auditor independence, establishing a requirement that audit firms rotate the partners assigned to clients in order to prevent capture. We conclude that this provision is less likely to achieve its goal, as long as client satisfaction remains the dominant measure of partner performance. Instead, we argue that until lead audit partners are confident that they can fire dishonest clients without fear that doing so will result in the destruction of their own careers, the problems that contributed to the Enron and other significant corporate failures will continue to exist.
在本文中,我们认为大型会计师事务所的内部公司治理结构存在根本性缺陷,而这一缺陷导致了当前对公开报告完整性的信任危机。会计师事务所内部的激励结构使得审计师几乎不可能独立于安然这样的重要客户。其结果是,会计师事务所与其客户之间的经济实力平衡发生了变化——个别审计合伙人受到客户俘获的影响。此外,除了缺乏独立性外,会计师事务所和合伙人缺乏问责制,部分原因是有限责任合伙结构的出现。尽管存在这些问题,联邦证券法律法规要求审计人员对公司进行独立审计。其结果是审计的商品化和审计被买卖的市场。因此,审计不再服务于需要它们的经济目的——提供保护投资者并导致证券有效定价的信息。尽管萨班斯-奥克斯利法案的规定在解决我们提出的捕获、治理和商品化问题方面提供了一些帮助,但我们得出的结论是,还需要更多的帮助。萨班斯-奥克斯利法案设立了上市公司会计监督委员会。该委员会负责注册会计师事务所,为其报告制定标准,检查和调查会计师事务所,并在适当时对会计师事务所和个人进行制裁。为了取得成功,董事会必须用建立自己的一套规则和标准来取代已被取消的激励制度,董事会必须大力执行这些规则和标准。此外,萨班斯-奥克斯利法案为审计师的独立性提供了新的标准,要求审计公司轮换分配给客户的合伙人,以防止被捕获。我们得出的结论是,只要客户满意度仍然是衡量合作伙伴绩效的主要指标,这一规定就不太可能实现其目标。相反,我们认为,除非首席审计合伙人确信他们可以解雇不诚实的客户,而不必担心这样做会导致他们自己的职业生涯毁灭,否则导致安然和其他重大公司破产的问题将继续存在。
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引用次数: 40
Law in a Shrinking World: The Interaction of Science and Technology with International Law 缩小世界中的法律:科学技术与国际法的互动
J. Dellapenna
Science and technology are driving a process of "globalization" in which the world effectively shrinks and expands simultaneously. Emerging technologies make it possible to be personally or professionally intimate with persons on the other side of the globe at the same time that we are able to interact less and less with our physical neighbors. Nation states are losing power both to regional or global institutions at the same time that they are devolving power to subordinate units. International law has had little to say about scientific and technological questions as such, although it does feature a few conventions regarding research in the high seas, in outer space, or in Antarctica, as well as conventions relating to the international protection of intellectual property. International lawyers have given even less attention to the impacts of rapidly changing science and technology on international law itself. This paper addresses those questions. Science and technology have challenged international law by changing the ends pursued through international law, by changing the means by which those ends are pursued through international law, and by changing the nature and structure of international law itself. Science and technology have changed the ends pursued through international law by presenting humanity with new problems such as the harnessing of nuclear energy, the globalizing of markets, the creation of daunting transboundary environmental problems, and the development of new forms of intellectual property. Science and technology have changed the means by which international law acts through new and more effective means of detecting and deterring violations of law and of communicating about legal and other concerns, as well as by rendering national sovereignty obsolete. Profound as these changes are, they are not so significant as the way in which science and technology are transforming the nature and structure of law generally, and of international law in particular. Law has always been bound by its forms, both expressive and institutional. International law has long exhibited considerable doctrinal sophistication coupled with institutional primitiveness, making international law in many respects more like law in preliterate societies than in modern nation states. Speaking broadly, law has gone through approximately three stages before the middle of the twentieth century: oral law; scribal law; and printed law. Each form of legal expression gave rise to particular institutional forms as well. While different societies passed through these stages at different points in time and with different specific experiences, most states had, by the middle of the twentieth century moved into the printed law stage. In the twentieth century, some important steps occurred to bring international law more in line with the legal forms of contemporary nation states at the same time that received forms of law in those nation states were being profoundly challe
科学技术正在推动“全球化”进程,在这个进程中,世界实际上是在收缩和扩张的同时进行的。新兴技术使我们与地球另一端的人在个人或工作上保持亲密关系成为可能,与此同时,我们与我们的物理邻居的互动越来越少。民族国家在将权力下放给下属单位的同时,也在向地区或全球机构丧失权力。国际法对科学和技术问题本身几乎没有什么可说的,尽管它确实有一些关于在公海、外层空间或南极洲进行研究的公约,以及关于国际保护知识产权的公约。国际律师对迅速变化的科学技术对国际法本身的影响给予的关注更少。本文解决了这些问题。科学和技术改变了国际法追求的目标,改变了国际法追求这些目标的手段,并改变了国际法本身的性质和结构,从而对国际法提出了挑战。科学和技术改变了国际法所追求的目标,向人类提出了新的问题,如利用核能、市场全球化、造成令人生畏的跨界环境问题以及发展新形式的知识产权。科学和技术通过新的和更有效的手段来发现和制止违反法律的行为,并就法律和其他问题进行交流,以及使国家主权过时,从而改变了国际法发挥作用的手段。尽管这些变化意义深远,但它们并不像科学和技术正在改变法律,特别是国际法的性质和结构那样意义重大。法律总是受到其形式的约束,无论是表现性的还是制度性的。国际法长期以来表现出相当的理论复杂性和制度的原始性,这使得国际法在许多方面更像前文字社会的法律,而不是现代民族国家的法律。从广义上讲,在二十世纪中叶以前,法律大约经历了三个阶段:口头法;抄写员的法律;还有法律。每一种法律表现形式也产生了特定的制度形式。虽然不同的社会在不同的时间点以不同的具体经验经历了这些阶段,但到20世纪中叶,大多数国家已经进入了印刷法律阶段。在二十世纪,发生了一些重要的步骤,使国际法更加符合当代民族国家的法律形式,与此同时,这些民族国家接受的法律形式正受到新兴科学和技术的深刻挑战。今天,法律以及国际法律正在进入一个新的阶段——数字法律。现在是时候开始考虑这种表达形式将如何改变法律的制度结构,包括律师思考和行动的方式,以及制定和适用法律的正式制度。
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引用次数: 11
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Villanova University Law School Public Law & Legal Theory Research Paper Series
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