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Article

Donors without Borders

A Comparative Study of Tax Law Frameworks for Individual Cross-Border Philanthropy

Journal European Journal of Law Reform, Issue 4 2013
Keywords comparative, philanthropy, tax, deduction, international
Authors Joseph E. Miller, Jr.
AbstractAuthor's information

    Under current United States tax law, individual gifts to foreign charities generally are not deductible from federal income tax as charitable contributions. A comparative study of analogous tax laws in Switzerland and the United Kingdom demonstrates that the Swiss approach generally reflects the same prohibition against tax deductions for individual gifts to foreign charities, while British law permits such deductibility for gifts to qualified charities in other EU member states, Norway, and Iceland.
    All three countries’ legal frameworks demonstrate that their respective notions of the ‘public interest’ significantly affect their approaches to deductibility for gifts to foreign charities. The British conception of public interest, enlarged by participation in the European Union and the nondiscrimination requirements of the EU treaties, is embodied in its more expansive deductibility rules. Swiss non-participation in the EU, by contrast, reflects a more isolationist notion of public interest and may inform its prohibition on deductions for gifts to foreign charities. The narrower Swiss approach parallels the United States’ approach, and it suggests that an American expansion of deductibility for foreign charitable gifts could be encouraged by American participation in the proposed TPP, TTIP, or other multilateral trade agreements or economic unions.


Joseph E. Miller, Jr.
Joseph E. Miller is partner at Faegre Baker Daniels.
Article

Drafting of Legislation in Compliance with Model Laws

Journal European Journal of Law Reform, Issue 4 2013
Keywords challenges, domestic legislation, model laws
Authors Lesedi Poloko
AbstractAuthor's information

    Lawmaking is an essential attribute of a state. Laws differ from one country to another, and compliance with different legal rules may create problems. Uniformity of laws is an end in itself, and its value lies in its practical benefits. Interest in the quality of legislative instruments is a major concern, especially as regards the effectiveness of the national legislation.


Lesedi Poloko
LLM in Advanced Legislative Studies (2011-2012), Institute of Advanced Legal Studies, School of Advanced Study, University of London. The author would like to thank Prof. Helen Xanthaki for her constructive comments and valuable suggestions. Any errors remain those of the author.
Article

Drafting Conventions, Templates and Legislative Precedents, and their Effects on the Drafting Process and the Drafter

Journal European Journal of Law Reform, Issue 4 2013
Keywords drafting conventions, templates, legislative precedents, drafter’s skill, necessary tools for effective communication of language of legislation
Authors Agnes Quartey Papafio
AbstractAuthor's information

    The aim of this article is to explore whether drafting conventions, templates and legislative precedents contradict or complement the drafter’s style and if they complement the drafter’s style, the various ways in which the use of these tools achieves it.


Agnes Quartey Papafio
The author received her LLM Degree from the University of London, Institute of Advanced Legal Studies in 2012. She works at the Ministry of Justice and Attorney-General’s Office in Ghana as a legislative drafter attached to the Legislative Drafting Division.
Article

Brazil and International Agreements

Journal European Journal of Law Reform, Issue 2 2013
Keywords international agreements, Brazil, international scenario
Authors Eugênia Cristina Nilsen Ribeiro Barza
AbstractAuthor's information

    This article brings together an analysis about international agreements, highlighting their importance to States, either separately or in groups, considering aspects of the universal nature of their content, as well as regional aspects, stressing some particularities of the Brazilian legal system. It is based on the assumption that it is interesting for nation-States to participate in the elaboration of international agreements, although it is not always possible to implement them, their validity is not refuted or their efficacy denied. It is also relevant to reflect upon the international commitments internally, even more so when we see that the State will have to deal with a series of variables to validate such international commitments. At times when States are interdependent, the study about the participation of the State in the elaboration of international agreements is more than relevant, and is divided here in three perspectives. First, the participation of the State in regional agreements, highlighting the European experience of integration. Then, the Latin-American attempts at integration, from which MERCOSUL stands out, and, finally, matters unique to Brazil in light of international and regional challenges. At the end of this study, some answers as to how and why Brazil incorporates and implements its international agreements will be presented as final considerations.


Eugênia Cristina Nilsen Ribeiro Barza
Ph.D. in Law and Associate Professor of the Recife Law School, Legal Sciences Centre at the Federal University of Pernambuco, where she teaches Private International Law. Research Group: Regional integration, globalisation and International Law. E-mail: ecnrbarza@terra.com.br.
Book Review

Book Review

Journal European Journal of Law Reform, Issue 1 2013
Authors Prof. Dr. iur. Christiana Fountoulakis
Author's information

Prof. Dr. iur. Christiana Fountoulakis
University of Fribourg, Switzerland
Article

The Regularization of Undocumented Immigrants in the United States

The Spanish Solution

Journal European Journal of Law Reform, Issue 1 2013
Keywords undocumented immigrants, migration policy, regularization process, social assimilation, economic crisis
Authors Oscar Celador Angón
AbstractAuthor's information

    The aim of this article is to offer solutions to the problem of undocumented immigrants in the United States, using the Spanish migration model as a possible solution. During the last decade Spain has been the European country that has received more migration flows due to his economic development. Spain has used the knowledge and experience of other European host societies to design a migration model, which avoids the social conflicts arising from the coexistence of large numbers of undocumented immigrants, and that could provide answers to the problems faced by the US system.


Oscar Celador Angón
Oscar Celador Angón is Professor of Law and Director of the Department of International Law, Ecclesiastical Law and Philosophy of the Universidad Carlos III de Madrid.
Article

Continuous Mixed Forestry and the Citizens Forest Model

Journal European Journal of Law Reform, Issue 1 2013
Keywords continuous mixed forestry in Europe, citizen forest society, forest law reform, climate change, social forest ethics
Authors J.W. Simon and W. Bode
AbstractAuthor's information

    Climate change, air pollution and especially short-rotation forestry are the main causes for increasing detrimental effects on forests. Therefore, it is urgently necessary to find effective counteractions to this damage so that forests will become resistant, grow sustainably and are more economically effective and thus contribute optimally to the common welfare for all citizens. ‘Continuous mixed forestry’, in contrast to the normally used short-rotation or age-classed-forestry, is one suitable model to counteract climate change and air pollution in this way on both the local and national level. It is forestry without clear-cuts, biocides and with soft logging by continuous thinning and natural regeneration.The necessary change to this sustainable cultivation model is generally possible and necessary all over Europe and in other areas of the world. A very good chance for this type of forestry is available now within the framework of selling state-owned forests to private investors. This selling is planned by governments in some countries like the Great Britain1xThe Guardian, 22 December 2010, For sale: all of our forests. Not some of them, nor most of them – the whole lot, 11:55 GMT; Frankfurter Allgemeine Zeitung (2011), In love of the forest (Aus Liebe zum Forst), 4 February, No. 29, p. 5. But the British Government has apparently changed its view, see: The Guardian, 17 February 2011, Timber! Cameron in U-turn over forests sell-off, p. 1. and has been partly realised on a large scale in Germany.2xE.g. Lower House of the German Parliament (2009), answer of the Federal Government to the small question … Privatisation of forests by the Federal Institute of Real Estate Tasks, 16. Election period, Drucks. 16/14115, 30 September 2009. This article proposes selling the state-owned forests to a central, private national heritage foundation as a first step instead of transferring them with their traditional, mismanaged short rotation or age-classed forestry to private investors who would continue the state mismanagement. The task of the foundation would be to organize the ‘citizen forest society’ as a social-ethics–based society that is privately owned by citizens and the foundation. This would generate ecological advantages for the forest and moreover long-lasting profits for citizens, because the foundation would establish other organizations where the citizens become responsible owners of ‘their’ forest without any governmental or third-party influence.This proposal describes a solution to the demands of social-oriented ethics, which are primarily focused on the cooperation of responsible persons, represented by the private ownership of the forests, and directed by a responsible foundation.

Noten

  • 1 The Guardian, 22 December 2010, For sale: all of our forests. Not some of them, nor most of them – the whole lot, 11:55 GMT; Frankfurter Allgemeine Zeitung (2011), In love of the forest (Aus Liebe zum Forst), 4 February, No. 29, p. 5. But the British Government has apparently changed its view, see: The Guardian, 17 February 2011, Timber! Cameron in U-turn over forests sell-off, p. 1.

  • 2 E.g. Lower House of the German Parliament (2009), answer of the Federal Government to the small question … Privatisation of forests by the Federal Institute of Real Estate Tasks, 16. Election period, Drucks. 16/14115, 30 September 2009.


J.W. Simon
University of London, Institute for Advanced Legal Studies/Centre for Ethics and Law in the Life Sciences, Medical University Hannover.

W. Bode
Leit.Min.R., Ministerium für Umwelt und Verbraucherschutz/Saarland, 66121 Saarbrücken, Germany.
Article

Responsive Law Reform: A Case Study in Privacy and the Media

Journal European Journal of Law Reform, Issue 1 2013
Keywords law reform, regulatory theory, privacy, free speech, media
Authors Megan Richardson
AbstractAuthor's information

    This article develops a regulatory theory of law reform for common law jurisdictions drawing on a model of responsive regulation and applies it to a case study in Privacy and the Media with particular reference to law reform initiatives in Australia, New Zealand and the UK.


Megan Richardson
Professor of Law and Co-Director Centre for Media & Communications Law, Melbourne Law School, The University of Melbourne, former member of an International Advisory Panel for the New South Wales Law Reform Commission reference on invasion of privacy. This article was substantially written at the Institute for Advanced Legal Studies, where I had the privilege of being a Research Fellow in September–December 2012. I am grateful to the Institute for allowing me to spend three months in this excellent facility and also to my home institution, The Melbourne Law School, for supporting my research period abroad. The ideas in this article were presented at seminars at the Institute and at the Dickson Poon School of Law, King’s College London. I am grateful to those who attended for their helpful comments and especially to Tanya Aplin, Lyria Bennett Moses, Desmond Browne QC, Stewart Dresner, James Michael and Jan Oster. Thanks also to my colleagues Andrew Kenyon and Jason Bosland for additional helpful insights.
Article

Developments in Regional Trade Law

A View from Israel

Journal European Journal of Law Reform, Issue 1 2013
Keywords foreign trade, free trade area agreements, regional trade agreements
Authors Talia Einhorn
AbstractAuthor's information

    This article analyzes the developments in Israel’s regional trade agreements and their effects on the liberalization of its international trade. The article first addresses Israel’s dependence upon its international trade and the case for liberalizing it (Section A); the RTAs concluded by Israel (Section B); the contribution of the first Free Trade Area Agreements (FTAs), concluded by Israel with the European Economic Community, on the one hand, and the United States, on the other, to the overall liberalization of its international trade (Section C); a discussion follows of the special problems encountered with the rules of origin, an essential characteristic of any FTA, and of the proof of origin under Israel’s FTAs (Section D). The special features and problematic aspects of the customs union, concluded between Israel and the Palestine Liberation Organization (PLO), are analyzed (Section E). Finally, the article provides an outlook into the future of Israel’s RTAs (Section F).


Talia Einhorn
Professor of Law (Ordinaria), Ariel University Department of Economics and Business Management/Visiting Senior Research Fellow, Tel-Aviv University Faculty of Management; <taliaeinhorn@gmail.com>. The author is grateful to Adv. Avigdor Dorot for sharing his valuable practical experience.
Article

Aspects of Italian Civil Law in the Recent Developments Regarding Money Laundering Regulations

Journal European Journal of Law Reform, Issue 1 2013
Keywords money laundering, preventive approach, traceability of payments
Authors Alessia Valongo
AbstractAuthor's information

    Original results have been achieved on the issue of money laundering through Italian regulations,1xG.M. Flick, ‘Riciclaggio’, in Enc. giur. Treccani, XXVII, Roma, 1991, p. 1; L. Magistro, Riciclaggio di capitali illeciti, Milano, 1991, p. 3; G. Amato, Il riciclaggio del denaro ‘sporco’, Roma, 1993, p. 17; L. Ferrajoli, La normativa antiriciclaggio, Milano, 1994, p. 3; E. Cassese, Il controllo pubblico del riciclaggio finanziario, Milano, 1999, p. 44; A. Di Amato, ‘Contratto e reato, Profili civilistici’, in P. Perlingieri (ed.), Tratt. dir. civ. Cons. Naz. Notariato, Napoli, 2003, p. 228; S. Faiella, Riciclaggio e crimine organizzato transnazionale, Milano, 2009, p. 11; R. Razzante, Il riciclaggio nella giurisprudenza, Milano, 2011, p. 43. mostly following the request of the European Community. In particular, the Decree dated 21 November 2007 n. 231, implementing two European directives (n. 2005/60/EC and n. 2006/70/EC), is the main framework, which coordinates the laws that have been passed in recent years.2xIt also has been amended by the so called “Save Italy Decree” (Decree dated 6 December 2011 n. 201, inside the Monti’s manoeuvre), which lays down urgent measures for growth and consolidation of public finances. My research is focused on the impact of the new regulations on the field of civil law, especially on contracts and obligations. The core of the paper is the involvement of the legal professionals and, in particular, of the lawyers, to the fight against money laundering. The topic also involves some problems about the protection of individual rights, such as right of transparency in the market, right to know economic and financial information, right to defense and to a fair trial, right to secrecy.

Noten

  • 1 G.M. Flick, ‘Riciclaggio’, in Enc. giur. Treccani, XXVII, Roma, 1991, p. 1; L. Magistro, Riciclaggio di capitali illeciti, Milano, 1991, p. 3; G. Amato, Il riciclaggio del denaro ‘sporco’, Roma, 1993, p. 17; L. Ferrajoli, La normativa antiriciclaggio, Milano, 1994, p. 3; E. Cassese, Il controllo pubblico del riciclaggio finanziario, Milano, 1999, p. 44; A. Di Amato, ‘Contratto e reato, Profili civilistici’, in P. Perlingieri (ed.), Tratt. dir. civ. Cons. Naz. Notariato, Napoli, 2003, p. 228; S. Faiella, Riciclaggio e crimine organizzato transnazionale, Milano, 2009, p. 11; R. Razzante, Il riciclaggio nella giurisprudenza, Milano, 2011, p. 43.

  • 2 It also has been amended by the so called “Save Italy Decree” (Decree dated 6 December 2011 n. 201, inside the Monti’s manoeuvre), which lays down urgent measures for growth and consolidation of public finances.


Alessia Valongo
Adjunct Professor, University of Perugia.
Article

The Application of Exception Clauses of the Rome Convention and the Rome I Regulation by the Dutch Courts

An Escape from Reality?

Journal European Journal of Law Reform, Issue 1 2013
Keywords Rome Convention 1980, Rome I Regulation, choice of law, exception clause, international commercial contracts
Authors Emmely de Haan
AbstractAuthor's information

    Both the Rome Convention and its successor the Rome I Regulation contain much discussed provisions on applicable law in the case of absence of a choice of law. Both instruments contain so called ‘exception clauses’ which refer to a closer connection of the contract with one state to the law of another state resulting from the general presumptions. The Netherlands is the frontrunner with a highly restrictive interpretation of the exception clauses. The applicable law to a transnational dispute might not always be the law of the competent court, although courts tend to prefer their own national law with which they are familiar. This year it has been exactly 20 years since the first revolutionary ruling on the subject by the Dutch Supreme Court, the so called Balenpers case. With the recent transition of the Convention into the Regulation, it is useful to analyse these connecting factors and review them in the context of the new Regulation. The Dutch courts have developed numerous connecting factors over the years. The article analyses Dutch case law on international contracts of carriage and international employment contracts from the implementation of the Rome Convention to date.


Emmely de Haan
The author graduated from Utrecht University in 2012 with an LL.M. degree in Dutch Private Law and is currently an LL.M. candidate at the University of Virginia in the United States, specializing in International Trade Law and Regulation and Dispute Settlement. This article is a shorter version of her master thesis, which was supervised by Professor dr. K.R.S.D. Boele-Woelki.
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