Pub Date : 2019-08-30DOI: 10.21153/dlr2019vol24no1art870
C. Panayi
This article examines some aspects of the European Union’s corporate tax set-up which correspond to aspects of a country’s corporate tax regime. The overarching question is whether there is such a thing as EU corporate tax law. This article seeks to address this in the context of the following issues: the existence of a uniform tax base and tax rates; the existence of anti-abuse rules and a transfer pricing regime; and, finally, the existence of a common tax administration and its powers. The article questions whether the peripatetic development of EU corporate tax law is suitable for the EU or whether it undermines its long-term objectives. The potential impact of Brexit in the development of EU corporate tax law is also addressed.
{"title":"The Peripatetic Nature of EU Corporate Tax Law","authors":"C. Panayi","doi":"10.21153/dlr2019vol24no1art870","DOIUrl":"https://doi.org/10.21153/dlr2019vol24no1art870","url":null,"abstract":"This article examines some aspects of the European Union’s corporate tax set-up which correspond to aspects of a country’s corporate tax regime. The overarching question is whether there is such a thing as EU corporate tax law. This article seeks to address this in the context of the following issues: the existence of a uniform tax base and tax rates; the existence of anti-abuse rules and a transfer pricing regime; and, finally, the existence of a common tax administration and its powers. The article questions whether the peripatetic development of EU corporate tax law is suitable for the EU or whether it undermines its long-term objectives. The potential impact of Brexit in the development of EU corporate tax law is also addressed.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67652020","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 : 2019-08-30DOI: 10.21153/dlr2019vol24no1art874
Chen Meng. Lam
In what was described as ‘one of the most difficult cases’ that had come before it, the Singapore Court of Appeal in ACB v Thomson Medical Pte Ltd (‘ACB’) recognised, for the first time, the loss of genetic affinity as an independent head of loss that would allow a plaintiff to recover damages in a claim for wrongful fertilisation. In ACB, the Court of Appeal dismissed the claim for upkeep costs of raising the child from birth to maturity, and instead identified the loss of genetic affinity as the real harm for which damages should be awarded to compensate for the mistaken use of sperm from an unknown third party. An interesting aspect of ACB was how the Court of Appeal grappled with policy considerations as the basis for its decision. The influence of policy considerations in ACB raises the question of whether the decision runs contrary to the long-standing view that there is little room for public policy reasoning in private law adjudication. In this article, the author argues that the Court of Appeal’s decision in ACB was correctly made as it rightly embraced policy considerations in rejecting the upkeep claim and focused on the value of biological relationships in recognising an interest in genetic affinity.
在被称为“最困难的案件之一”的案件中，新加坡上诉法院在ACB v Thomson Medical Pte Ltd（“ACB”）一案中首次承认遗传亲和力的丧失是一个独立的损失，这将使原告能够在错误受精的索赔中收回损害赔偿。在ACB中，上诉法院驳回了抚养孩子从出生到成熟的抚养费索赔，而是将基因亲和力的丧失确定为真正的伤害，应赔偿因错误使用未知第三方精子而造成的损失。ACB的一个有趣方面是，上诉法院如何处理作为其裁决基础的政策考虑。ACB中政策考虑的影响提出了一个问题，即该决定是否违背了长期以来的观点，即私法裁决中几乎没有公共政策推理的空间。在这篇文章中，作者认为，上诉法院在ACB中的裁决是正确的，因为它在驳回抚养费索赔时正确地考虑了政策因素，并将重点放在了生物关系在承认基因亲和力方面的价值上。
{"title":"Damages for Wrongful Fertilisation: Reliance on Policy Considerations","authors":"Chen Meng. Lam","doi":"10.21153/dlr2019vol24no1art874","DOIUrl":"https://doi.org/10.21153/dlr2019vol24no1art874","url":null,"abstract":"In what was described as ‘one of the most difficult cases’ that had come before it, the Singapore Court of Appeal in ACB v Thomson Medical Pte Ltd (‘ACB’) recognised, for the first time, the loss of genetic affinity as an independent head of loss that would allow a plaintiff to recover damages in a claim for wrongful fertilisation. In ACB, the Court of Appeal dismissed the claim for upkeep costs of raising the child from birth to maturity, and instead identified the loss of genetic affinity as the real harm for which damages should be awarded to compensate for the mistaken use of sperm from an unknown third party. An interesting aspect of ACB was how the Court of Appeal grappled with policy considerations as the basis for its decision. The influence of policy considerations in ACB raises the question of whether the decision runs contrary to the long-standing view that there is little room for public policy reasoning in private law adjudication. In this article, the author argues that the Court of Appeal’s decision in ACB was correctly made as it rightly embraced policy considerations in rejecting the upkeep claim and focused on the value of biological relationships in recognising an interest in genetic affinity.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45479422","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 : 2019-08-30DOI: 10.21153/dlr2019vol24no1art875
B. Gussen
This note extends my previous analysis of the constitutional recognition of Aboriginal and Torres Strait Islander Peoples (‘First Nations’) by providing guidance on the optimal approach for this recognition. The guidance is founded on the concepts of efficiency and equity. An optimal recognition is defined as one that achieves both objectives simultaneously. Efficiency flows from a dynamic recognition that changes over time relatively easily, as exemplified by a treaty-based approach. The equity criterion has, as a proxy, legal pluralism, whereby constitutional recognition enlivens ‘Indigenous jurisprudence’ through mechanisms such as self-governance. The proposal is to combine efficiency and equity by guaranteeing the collective rights of Indigenous Australians in accordance with universally recognised principles and norms of international law, such as the UN Declaration on the Rights of Indigenous Peoples (for which the Commonwealth of Australia announced its support in 2009). This in turn is likely to guide a treaty-based approach to the relationship between the Commonwealth and First Nations that can evolve towards legal pluralism.
{"title":"Recommendations on the Optimal Constitutional Recognition of the First Nations in Australia","authors":"B. Gussen","doi":"10.21153/dlr2019vol24no1art875","DOIUrl":"https://doi.org/10.21153/dlr2019vol24no1art875","url":null,"abstract":"This note extends my previous analysis of the constitutional recognition of Aboriginal and Torres Strait Islander Peoples (‘First Nations’) by providing guidance on the optimal approach for this recognition. The guidance is founded on the concepts of efficiency and equity. An optimal recognition is defined as one that achieves both objectives simultaneously. Efficiency flows from a dynamic recognition that changes over time relatively easily, as exemplified by a treaty-based approach. The equity criterion has, as a proxy, legal pluralism, whereby constitutional recognition enlivens ‘Indigenous jurisprudence’ through mechanisms such as self-governance. The proposal is to combine efficiency and equity by guaranteeing the collective rights of Indigenous Australians in accordance with universally recognised principles and norms of international law, such as the UN Declaration on the Rights of Indigenous Peoples (for which the Commonwealth of Australia announced its support in 2009). This in turn is likely to guide a treaty-based approach to the relationship between the Commonwealth and First Nations that can evolve towards legal pluralism.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42085450","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 : 2019-08-30DOI: 10.21153/dlr2019vol24no1art871
Dalit Flaiszhaker
This article explores whether the post-GFC global financial architecture is likely to provide efficient regulation capable of preventing a future crisis from occurring. The article starts with a brief overview of the emergence in the 1970s of global financial architecture. A thorough descriptive analysis of the post-crisis architecture follows, raising serious doubts regarding the current architecture’s ability to accomplish its goal. This analysis is performed in two stages, taking first an outsider’s perspective on the changes the architecture underwent after the crisis and moving then to the inside — the structure and contents of the architecture. Using macro-prudential methodological tools, the establishment of the Financial Stability Board is reviewed, along with three cutting edge regulations: the Basel III framework for banking, the IOSCO’s recommendation for money market funds, and the FSB’s recommendations regarding repurchase agreements. Pointing out the architecture’s perceived failure to provide stability due to severe regulatory arbitrage, the article then widens the lens to explore the implications of the above regulation. The article suggests that the current architecture encourages ‘financialisation’ and pushes the financial system and the real economy further apart. Consequently, the article raises normative concerns regarding the legal foundations of the global financial architecture, and its legitimacy.
{"title":"Dissonance in Global Financial Law","authors":"Dalit Flaiszhaker","doi":"10.21153/dlr2019vol24no1art871","DOIUrl":"https://doi.org/10.21153/dlr2019vol24no1art871","url":null,"abstract":"This article explores whether the post-GFC global financial architecture is likely to provide efficient regulation capable of preventing a future crisis from occurring. The article starts with a brief overview of the emergence in the 1970s of global financial architecture. A thorough descriptive analysis of the post-crisis architecture follows, raising serious doubts regarding the current architecture’s ability to accomplish its goal. This analysis is performed in two stages, taking first an outsider’s perspective on the changes the architecture underwent after the crisis and moving then to the inside — the structure and contents of the architecture. Using macro-prudential methodological tools, the establishment of the Financial Stability Board is reviewed, along with three cutting edge regulations: the Basel III framework for banking, the IOSCO’s recommendation for money market funds, and the FSB’s recommendations regarding repurchase agreements. Pointing out the architecture’s perceived failure to provide stability due to severe regulatory arbitrage, the article then widens the lens to explore the implications of the above regulation. The article suggests that the current architecture encourages ‘financialisation’ and pushes the financial system and the real economy further apart. Consequently, the article raises normative concerns regarding the legal foundations of the global financial architecture, and its legitimacy.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48063978","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 : 2019-08-30DOI: 10.21153/dlr2019vol24no1art876
B. Hayward
{"title":"‘The Foundation of Choice of Law: Choice and Equality’ by Sagi Peari","authors":"B. Hayward","doi":"10.21153/dlr2019vol24no1art876","DOIUrl":"https://doi.org/10.21153/dlr2019vol24no1art876","url":null,"abstract":"","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46165207","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 : 2018-11-27DOI: 10.21153/DLR2018VOL23NO0ART808
James Fowkes
Modern regulators have long grappled with the challenges of regulating multinational corporations and their cross-border supply chains. There is a tendency, in this context, to view the problem as one where the most serious or common abuses are to be found in the Global South, but the effective remedies mostly need to be found in the Global North. This article discusses recent examples of expansive, creative judicial activity from India, Colombia and the African regional judicial system to challenge this assumption. Some of today’s Southern judicial activity can break the stereotype in interesting and important ways, and our thinking about regulation in this context needs adjustment accordingly.
{"title":"Adjusting the North-South Balance: Southern Judicial Boldness and its Implications for the Regulation of Global Supply Chains","authors":"James Fowkes","doi":"10.21153/DLR2018VOL23NO0ART808","DOIUrl":"https://doi.org/10.21153/DLR2018VOL23NO0ART808","url":null,"abstract":"Modern regulators have long grappled with the challenges of regulating multinational corporations and their cross-border supply chains. There is a tendency, in this context, to view the problem as one where the most serious or common abuses are to be found in the Global South, but the effective remedies mostly need to be found in the Global North. This article discusses recent examples of expansive, creative judicial activity from India, Colombia and the African regional judicial system to challenge this assumption. Some of today’s Southern judicial activity can break the stereotype in interesting and important ways, and our thinking about regulation in this context needs adjustment accordingly.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45582302","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 : 2018-11-27DOI: 10.21153/dlr2018vol23no0art802
J. D. du Plessis, J. Kämmerer
{"title":"Introduction","authors":"J. D. du Plessis, J. Kämmerer","doi":"10.21153/dlr2018vol23no0art802","DOIUrl":"https://doi.org/10.21153/dlr2018vol23no0art802","url":null,"abstract":"","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44269464","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 : 2018-11-27DOI: 10.21153/DLR2018VOL23NO0ART803
M. King
{"title":"2018 Deakin Law Oration: Human Rights and Good Corporate Citizenship","authors":"M. King","doi":"10.21153/DLR2018VOL23NO0ART803","DOIUrl":"https://doi.org/10.21153/DLR2018VOL23NO0ART803","url":null,"abstract":"","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44750053","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 : 2018-11-27DOI: 10.21153/DLR2018VOL23NO0ART806
Andreas Rühmkorf
This article critically discusses the developing legislative framework for Corporate Social Responsibility (CSR) in global supply chains in the ‘home states’ of transnational corporations, that is, the countries where these companies are incorporated and have their headquarters. The article focuses on the interaction of private and public governance by examining how legislation can steer companies’ use of private CSR instruments such as Codes of Conduct. Following a critical review of empirical data relating to the Supplier Codes of Conduct of the top 30 listed German companies (DAX30), recent examples of ‘home state’ legislation of CSR are assessed. The article shows that most of these laws are not very stringent. The article argues that a hybrid regulatory approach towards CSR in global supply chains is necessary.
{"title":"Global Supply Chain Governance: The Search for ‘What Works’","authors":"Andreas Rühmkorf","doi":"10.21153/DLR2018VOL23NO0ART806","DOIUrl":"https://doi.org/10.21153/DLR2018VOL23NO0ART806","url":null,"abstract":"This article critically discusses the developing legislative framework for Corporate Social Responsibility (CSR) in global supply chains in the ‘home states’ of transnational corporations, that is, the countries where these companies are incorporated and have their headquarters. The article focuses on the interaction of private and public governance by examining how legislation can steer companies’ use of private CSR instruments such as Codes of Conduct. Following a critical review of empirical data relating to the Supplier Codes of Conduct of the top 30 listed German companies (DAX30), recent examples of ‘home state’ legislation of CSR are assessed. The article shows that most of these laws are not very stringent. The article argues that a hybrid regulatory approach towards CSR in global supply chains is necessary.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44023917","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 : 2018-11-27DOI: 10.21153/DLR2018VOL23NO0ART804
Markus Krajewski
Transnational corporations are currently not formally bound by international human rights obligations. Instead, states have a duty to protect individuals against human rights abuses by third parties, including corporations. While it is undisputed that this obligation extends to all individuals living on the territory of the respective state, the extraterritorial scope of the duty to protect remains contested. This is especially the case for human rights violations through transnational business activities. The state on whose territory the violation occurs has a duty to protect human rights by adopting and implementing labour and environmental laws applicable in that state. However, it is less clear if and to what extent the state of the main seat of the mother company or the global ordering company — the ‘home state’ — also has a human rights duty to regulate transnational business activity. This article argues that such a duty can be based on existing human rights doctrine and standards of general international law such as the ‘no harm’ rule and the due diligence principle. It argues that states have a duty to regulate transnational business activities of corporations over which they exercise jurisdiction if human rights violations caused by such activities are predictable and preventable. In its final part, the article assesses various approaches in state practice which could be seen as instruments in the fulfilment of the duty to regulate transnational business activities.
{"title":"The State Duty to Protect against Human Rights Violations through Transnational Business Activities","authors":"Markus Krajewski","doi":"10.21153/DLR2018VOL23NO0ART804","DOIUrl":"https://doi.org/10.21153/DLR2018VOL23NO0ART804","url":null,"abstract":"Transnational corporations are currently not formally bound by international human rights obligations. Instead, states have a duty to protect individuals against human rights abuses by third parties, including corporations. While it is undisputed that this obligation extends to all individuals living on the territory of the respective state, the extraterritorial scope of the duty to protect remains contested. This is especially the case for human rights violations through transnational business activities. The state on whose territory the violation occurs has a duty to protect human rights by adopting and implementing labour and environmental laws applicable in that state. However, it is less clear if and to what extent the state of the main seat of the mother company or the global ordering company — the ‘home state’ — also has a human rights duty to regulate transnational business activity. This article argues that such a duty can be based on existing human rights doctrine and standards of general international law such as the ‘no harm’ rule and the due diligence principle. It argues that states have a duty to regulate transnational business activities of corporations over which they exercise jurisdiction if human rights violations caused by such activities are predictable and preventable. In its final part, the article assesses various approaches in state practice which could be seen as instruments in the fulfilment of the duty to regulate transnational business activities.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45851303","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：