Search result: 11 articles

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Year 2017 x
Article

Access_open Legality of the World Bank’s Informal Decisions to Expand into the Tax Field, and Implications of These Decisions for Its Legitimacy

Journal Erasmus Law Review, Issue 2 2017
Keywords World Bank, legality, legitimacy, global tax governance, tax policy and tax administration reforms
Authors Uyanga Berkel-Dorlig
AbstractAuthor's information

    The emergence of global tax governance was triggered by common tax problems, which are now still being faced by international society of nation-states. In the creation of this framework, international institutions have been playing a major role. One of these institutions is the World Bank (Bank). However, those who write about the virtues and vices of the main creators of the framework usually disregard the Bank. This article, therefore, argues that this disregard is not justified because the Bank has also been playing a prominent role. Since two informal decisions taken in the past have contributed to this position of the Bank, the article gives in addition to it answers to the following two related questions: whether these informal decisions of the Bank were legal and if so, what implications, if any, they have for the Bank’s legitimacy.


Uyanga Berkel-Dorlig
Ph.D. candidate in the Department of Tax Law, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.
Article

Codification in a Civil Law Jurisdiction: An Italian Perspective

Journal European Journal of Law Reform, Issue 4 2017
Keywords civil law jurisdictions, codification, consolidation, legislative drafting, judicial review
Authors Enrico Albanesi
AbstractAuthor's information

    The aim of this article is to describe the mechanism of codification in a civil law jurisdiction. The case study will be based on the Italian system. The history and developments of the Italian codification will also be described here.
    In Italy codification is called riassetto, it is normally carried out by the government but the changes to existing law must be within the strict boundaries of the principles and criteria set out by the parliament. By contrast, the mechanism to amalgamate existing texts dealing with a single topic without radical changes is called consolidamento. It is carried out by the government as delegated by parliament. However, as the tools to carry out riassetto and consolidamento are the same (decreto legislativo: a decree issued by the government, which is delegated by the parliament), it is not always easy to understand when the government is allowed to carry out consolidamento only or riassetto too. Actually, how fundamentally the government is allowed to change existing legislation depends on what the principles and criteria of the enabling Act of Parliament allows.
    A decreto legislativo that is not in compliance with the principles and criteria established by the Act of Parliament, could be declared void by the Corte costituzionale (the Italian Constitutional Court). Therefore, if the government exceeds the boundaries of consolidamento or riassetto, the decreto legislativo could be declared void.
    This essay will also focus on the different drafting techniques of consolidamento and riassetto from a theoretical perspective and from the point of view of the jurisprudence of the Consiglio di Stato and the Corte costituzionale. Finally, it will look at the drafting process for codes in Italy, underlying the differences with systems where law reform agencies have been established.


Enrico Albanesi
Lecturer in Constitutional Law at the University of Genoa (Italy) and Associate Research Fellow at the Institute of Advanced Legal Studies (IALS), University of London. Co-leader of the IALS Law Reform Project.
Article

Codification in a Civil Law Jurisdiction: A Northern European Perspective

Journal European Journal of Law Reform, Issue 4 2017
Keywords codification, types, civil law, legal certainty, ICT
Authors Patricia Popelier
AbstractAuthor's information

    In western civil law jurisdictions, 19th century large-scale codification projects have made way for more specific, technical operations. While several terms for various operations are used – from coordination to consolidation or recasting – they all serve to compile normative texts within one single document for the sake of clarity and legal certainty. A more fundamental distinction can be made between formal and substantial codifications, the one more technical, the other large and fundamental. Substantial law reforms are problematized in this era of multilevel governance and digitalization. Nowadays, substantial codifications are essentially non-exhaustive, inconsistent, and fragmentized. Also, they rely upon formal consolidations, and generate new formal consolidations. While formal consolidations are still treated as logistic projects, more developed ICT tools may enable their transformation into continuous processes.


Patricia Popelier
Professor Constitutional Law and Legislative Studies, University of Antwerp.
Article

Time for a Code: Reform of Sentencing Law in England and Wales

Journal European Journal of Law Reform, Issue 4 2017
Keywords Law Commission, codification, consolidation, consultation, criminal procedure
Authors Harry O’Sullivan and David Ormerod
AbstractAuthor's information

    The Law Commission of England and Wales is currently working to produce a New Sentencing Code that will seek to remedy problems with one of the most heavily used and unsatisfactory areas of statutory law. It responds to the problems of complexity and inaccessibility in the current sentencing legislation, and more fundamentally in the process by which sentencing legislation is created and implemented. The aim is to introduce the new Code as a consolidation Bill in 2018 with a view to it being in force from early 2019. This article provides an overview of the problems endemic to the current law and how the Commission envisages that the new Sentencing Code will provide not only a remedy, but a lasting one.
    It is important to understand from the outset that the scope of the Commission’s work on sentencing is to reform procedure. The project and the resulting legislation will not alter the length or level of sentence imposed in any case. The penalties available to the court in relation to an offence are not within the scope of the project and will not change. The change will be in the process by which each sentence is arrived at.


Harry O’Sullivan
Harry O’Sullivan is a pupil at Goldsmith Chambers and was formerly a research assistant at the Law Commission.

David Ormerod
Professor David Ormerod QC is the Criminal Law Commissioner.

Anita Rozália Nagy-Nádasdi
PhD researcher at Pázmány Péter Catholic University Faculty of Law and Political Sciences.
Article

Access_open The Integrity of the Tax System after BEPS: A Shared Responsibility

Journal Erasmus Law Review, Issue 1 2017
Keywords flawed legislation, tax privileges, tax planning, corporate social responsibility, tax professionals
Authors Hans Gribnau
AbstractAuthor's information

    The international tax system is the result of the interaction of different actors who share the responsibility for its integrity. States and multinational corporations both enjoy to a certain extent freedom of choice with regard to their tax behaviour – which entails moral responsibility. Making, interpreting and using tax rules therefore is inevitably a matter of exercising responsibility. Both should abstain from viewing tax laws as a bunch of technical rules to be used as a tool without any intrinsic moral or legal value. States bear primary responsibility for the integrity of the international tax system. They should become more reticent in their use of tax as regulatory instrument – competing with one another for multinationals’ investment. They should also act more responsibly by cooperating to make better rules to prevent aggressive tax planning, which entails a shift in tax payments from very expert taxpayers to other taxpayers. Here, the distributive justice of the tax system and a level playing field should be guaranteed. Multinationals should abstain from putting pressure on states and lobbying for favourable tax rules that disproportionally affect other taxpayers – SMEs and individual taxpayers alike. Multinationals and their tax advisers should avoid irresponsible conduct by not aiming to pay a minimalist amount of (corporate income) taxes – merely staying within the boundaries of the letter of the law. Especially CSR-corporations should assume the responsibility for the integrity of the tax system.


Hans Gribnau
Professor of Tax Law, Fiscal Institute and the Center for Company Law, Tilburg University; Professor of Tax Law, Leiden University, The Netherlands.
Article

Access_open Corporate Taxation and BEPS: A Fair Slice for Developing Countries?

Journal Erasmus Law Review, Issue 1 2017
Keywords Fairness, international tax, legitimacy, BEPS, developing countries
Authors Irene Burgers and Irma Mosquera
AbstractAuthor's information

    The aim of this article is to examine the differences in perception of ‘fairness’ between developing and developed countries, which influence developing countries’ willingness to embrace the Base Erosion and Profit Shifting (BEPS) proposals and to recommend as to how to overcome these differences. The article provides an introduction to the background of the OECD’s BEPS initiatives (Action Plan, Low Income Countries Report, Multilateral Framework, Inclusive Framework) and the concerns of developing countries about their ability to implement BEPS (Section 1); a non-exhaustive overview of the shortcomings of the BEPS Project and its Action Plan in respect of developing countries (Section 2); arguments on why developing countries might perceive fairness in relation to corporate income taxes differently from developed countries (Section 3); and recommendations for international organisations, governments and academic researchers on where fairness in respect of developing countries should be more properly addressed (Section 4).


Irene Burgers
Irene Burgers is Professor of International and European Tax Law, Faculty of Law, and Professor of Economics of Taxation, Faculty of Business and Economics, University of Groningen.

Irma Mosquera
Irma Mosquera, Ph.D. is Senior Research Associate at the International Bureau of Fiscal Documentation IBFD and Tax Adviser Hamelink & Van den Tooren.
Article

Consultations, Citizen Narratives and Evidence-Based Regulation

The Strange Case of the Consultation on the Collaborative Economy

Journal European Journal of Law Reform, Issue 1-2 2017
Keywords Better Regulation, consultations, evidence-based lawmaking, sharing economy, narratives
Authors Sofia Ranchordás
AbstractAuthor's information

    The 2015 Better Regulation Communication advocates an evidence-based approach to regulation, which includes better consultations and broader civic engagement. In this article, I consider the recent EU public consultation on the regulatory environment of online platforms and the collaborative economy. I enquire in this context whether citizens were seriously regarded as evidence providers and how their knowledge that materialized in individual narratives could contribute to more legitimate and thus better regulation. I argue that an evidence-based approach to regulation should also include citizen narratives as they can provide first-hand and diverse perspectives, which might not be considered in standard consultation questions. I contend that citizen narratives can be particularly useful in complex and rapidly evolving fields where there is still little empirical evidence and where participants are likely to have diverse personal experiences. Drawing on the literature on narratives, I contend that this method of collecting information can help regulators identify new problems and structure solutions in rapidly changing and diverse regulatory fields such as the collaborative economy.


Sofia Ranchordás
Sofia Ranchordás is an Assistant Professor of Administrative and Constitutional Law at Leiden Law School, the Netherlands, and Affiliated Fellow of the Information Society Project at Yale Law School.

George Anthony Long
Fountain Hills, AZ United States, gal@legalparallax.com.

Jean-François Mayence
Belgian Federal Science Policy Office (BELSPO), Belgium, maye@belspo.be.
Article

New Space Activities and Legislation

A General Overview with a Specific Reference to the Ongoing Debate in Italy

Journal International Institute of Space Law, Issue 2 2017
Authors Marina Gagliardi, Nicoletta Bini, Cristina Marabottini e.a.
Author's information

Marina Gagliardi
Marina Gagliardi, Legal Affairs Unit, Italian Space Agency, Rome, Italy.

Nicoletta Bini
Nicoletta Bini, Legal Affairs Unit, Italian Space Agency, Rome, Italy.

Cristina Marabottini
Cristina Marabottini, Legal Affairs Unit, Italian Space Agency, Rome, Italy.

Gianfranco Gabriele Nucera
Gianfranco Gabriele Nucera, Department of Political Sciences, Sapienza University of Rome.
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