A nation’s role in addressing base erosion and profit shifting : balancing sovereignty with international collaboration and coordination

The notion of sovereignty is central to any international tax issue. While a nation is free to design its tax laws as it sees fit and raise revenue in accordance with the needs of its citizens, it is not possible to undertake such a task in isolation. In a world of cross-border investments and business transactions, all tax regimes impact on one another. Tax interactions between sovereign states cannot be avoided. Ultimately, the interactions mean that a nation must decide whether to engage in both collaboration and coordination with other nations and supranational bodies alike or maintain an individualised stance in relation to its tax policy. Whatever the decision, there is arguably an exercise in national sovereignty in some form. In the context of an international tax regime, whether that regime is interpreted broadly as meaning international norms generally adopted by nations around the world or domestic regimes legislating for cross-border transactions, rhetoric around national fiscal sovereignty takes on many different forms. At one end of the spectrum it is relied upon by financial secrecy jurisdictions (tax havens) as a defence to their position on the basis that ‘other’ nations cannot interfere with the fiscal sovereignty of a jurisdiction. At the other end of the spectrum, it is argued that profit shifting and international tax avoidance if not stopped is, in and of itself, a threat to a nation’s fiscal sovereignty on the basis that it threatens the ability to tax and raise the revenue needed. This paper considers a modern conceptualisation of sovereignty along with its role within international tax coordination and collaboration to argue that a move towards a more unified approach to addressing international base erosion and profit shifting may be the ultimate exercise of national fiscal sovereignty. By using the current transfer pricing regime as a case study, this paper posits that it is not merely enough to have international agreement on allocation rules to be applied, but that the ultimate exercise of national sovereignty is political agreement with other states to ensure that it is governments which determine the allocational basis of worldwide profits to be taxed. In doing so, it is demonstrated that the arm’s length pricing requirement of the current transfer pricing regime, rather than providing governments with the ability to determine the location of profits, is providing multinational entities with the ultimate power to determine that location. If left unchecked, this will eventually erode a nation’s ability to capture the required tax revenue and, as a consequence, may be deemed a failure by nation states to exercise their fiscal sovereignty.

What further benefit, if any, might Australia get from the ALI-III Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases?

In 2006, the American Law Institute (ALI) and the International Insolvency Institute (III) established a Transnational Insolvency Project and appointed Professor Ian Fletcher (United Kingdom) and Professor Bob Wessels (Netherlands) as Joint Reporters. The objective was to investigate whether the essential provisions of the ALI Principles of Cooperation among the NAFTA Countries (ALI-NAFTA Principles) and the annexed Guidelines Applicable to Court-to-Court Communication in Cross-border Cases (ALI-NAFTA Guidelines) may, with certain necessary modifications, be acceptable for use by jurisdictions across the world. In 2012, Professor Fletcher and Professor Wessels presented the report Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases (“ALI-III Report”) to the Annual Meetings of the American Law Institute and the International Insolvency Institute. In 2013, the Australian Academy of Law (AAL) provided support to the authors to undertake research on the possible benefits for Australia of courts and insolvency administrators of referring to the ALI-III Report when addressing international insolvency cases. This AAL project was at the request of the Council of Chief Justices of Australia and New Zealand. This research Report compares the Global Principles for Cooperation in International Insolvency Cases with the Cross-border Insolvency Act 2008 and the UNCITRAL Model Law as it has been adopted and has force of law in Australia. Further, it examines the Global Guidelines for Court-to-Court Communications in International Insolvency Cases in light of Australian cross-border insolvency and procedural law. Finally, it makes brief reference to and commentary on the Global Rules on Conflict–of-Laws Matters in International Insolvency Cases annexed to the ALI-III Report from the perspective of Australian choice of law rules.

Winning the phishing war : a strategy for Australia

Phishing, a form of on-line identity theft, is a major problem worldwide, accounting for more than $7.5 Billion in losses in the US alone between 2005 and 2008. Australia was the first country to be targeted by Internet bank phishing in 2003 and continues to have a significant problem in this area. The major cyber crime groups responsible for phishing are based in Eastern Europe. They operate with a large degree of freedom due to the inherent difficulties in cross border law enforcement and the current situation in Eastern Europe, particularly in Russia and the Ukraine. They employ highly sophisticated and efficient technical tools to compromise victims and subvert bank authentication systems. However because it is difficult for them to repatriate the fraudulently obtained funds directly they employ Internet money mules in Australia to transfer the money via Western Union or Money gram. It is proposed a strategy, which firstly places more focus by Australian law enforcement upon transactions via Western Union and Money gram to detect this money laundering, would significantly impact the success of the Phishing attack model. This combined with a technical monitoring of Trojan technology and education of potential Internet money mules to avoid being duped would provide a winning strategy for the war on phishing for Australia.

Global start-ups profile : one size fits all?

Our research aims to answer the research questions “How do we commonly describe the global start-ups profile as evidenced in prior inductive research?” and “Does this global start-ups profile can effectively explain phenomena in Australian global start-up firms?” We systematically review 29 global start-ups (144 firms) qualitative articles to understand descriptive definitions of global-startup firms. We then triangulate this finding with an Australian high-tech firm. Our contribution is to form a descriptive profile of global start-up phenomenon and raise interesting issues that have potentially fruitful findings for both research and practice. This profile might well be just a deviant from the traditional model that describes how firms establish their footprints, first in their domestic markets followed by moves into cross-border activities. Regardless, government agencies, consultants, and entrepreneurs need to understand the phenomenon. Thus we anticipate that this phenomenon will continue to provide interesting issues for pursuit, both by researchers as well as the practitioner community.

Mapping mountains : a morphological study of traditional highland settlements in Chittagong Hill tracts of Bangladesh

This thesis is a morphological study of the settlement patterns of the diverse hill groups in Chittagong Hill Tracts – a mountainous borderland of Bangladesh in South Asia. It examines the settlement morphology of a hill town, using a combination of both quantitative and qualitative methods, and explains the recurrent neighbourhood types of the highland groups in relation to their urbanisation. The research findings related to the settlements of diverse cultural groups in a cross-border region of the Asian uplands are also relevant to similar contexts and enquiries. Furthermore, the developed methodological framework that facilitated the data collection process in CHT's culturally diverse regions is also applicable to the investigation of geographic areas with similar socio-cultural complexities. Finally, this research specifically contributes to the literature of cross-cultural studies of highland towns and vernacular settlements in the Asian context.

An Australian perspective on the ALI-III global principles for cooperation in International insolvency cases

In 2012, Professor Ian Fletcher (United Kingdom) and Professor Bob Wessels (The Netherlands) presented a Report to the American Law Institute and the International Insolvency Institute entitled Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases (“Global Principles”). This followed their appointment as Joint Reporters to investigate whether the essential provisions of the American Law Institute Principles of Cooperation among the North American Free Trade Agreement Countries with their annexed Guidelines Applicable to Court-to-Court Communication in Cross-border Cases may, with certain necessary modifications, be acceptable for use by jurisdictions across the world. This article comments on the Global Principles from the perspective of a jurisdiction which has adopted the UNCITRAL Model Law on Cross-border Insolvency (“Model Law”). In 2008, Australia enacted a standalone statute, the Cross-border Insolvency Act 2008 (Cth) to which is annexed the Model Law. In that process, it made minimal changes to the Model Law text. Against the background of the 2008 Act, related procedural laws as well as Australia’s general insolvency statutes and recent cross-border insolvency jurisprudence, this article comments on the potential relevance of the Transnational Insolvency Report as a point of reference for Australian courts and insolvency administrators when addressing international insolvency cases. By comparing the Global Principles with the Model Law as closely adopted in Australia, this analysis is a resource for other Model Law jurisdictions when considering the potential relevance of the Global Principles for their own international insolvency practice.

Developments in court to court communications in International insolvency cases

As business increasingly operates on a global basis, courts are called upon more often to adjudicate insolvency cases with international connections. The financial collapse of Lehman Brothers Holding Inc (‘Lehman Holdings’) provides a recent example where courts across many jurisdictions were called upon to determine issues arising from a multistate insolvent enterprise. Lehman Holdings filed for Chapter 11 bankruptcy protection in the United States on 15 September 2008. Lehman Brothers was the fourth largest investment bank in America and the largest company ever to file for bankruptcy in the United States. However the effects of its collapse were felt worldwide, including within Australia.

Insolvency academics contributing to the review of insolvency laws: An Australian perspective

Introduction 1 It gives me great pleasure to contribute to this publication to honour Professor Ian Fletcher on his retirement as Foundation Chair of the INSOL International Academic Group. A collection of essays that include topics on domestic, cross-border and international insolvency appropriately reflects the breadth of Professor Fletcher’s impact on the scholarship of insolvency law – not only in his “home” jurisdiction of England and Wales and closer to home in Europe, but also stretching around the globe, in this case, to Australia. 2 In the early 1990s when I first began to research in the area of cross-border insolvency law, a colleague mentioned that they had recently attended the XIIIth International Congress of Comparative Law in Montreal in August 1990 and heard the Cross-border Insolvency: General Report expertly delivered by an English academic, Ian Fletcher, who was widely regarded as an authority in the area. This was my first introduction to Professor Fletcher’s work and over the intervening years I have referred often to his scholarship....

Access To Justice In The ASEAN The Key Role Of UNCITRAL

UNCITRAL’s operation as a subsidiary of the UN General Assembly, tasked to unify and harmonise international trade law is a necessary and indispensable element of the UN’s mandate to maintain international peace and security. Strong legal frameworks which are compatible with those of international trading partners often accompany accelerated growth in economic capacity and stability. Over time, access to markets and resultant growth in economic and human development creates a disincentive for instability as incomes and standards of living rise. Human and economic development, facilitated by a modernised and just legal framework that is available to the broadest range of recipients goes hand in hand with the maintenance of domestic and regional peace, particularly in regions such as the ASEAN , one of the fastest growing in the world covering approximately 30% of global population and with a number of strong global economic neighbours including Japan, Korea, China (to the north), Australia (to the south) and Singapore (to the west). In an increasingly interconnected world, the ability of government, enterprise and individuals to participate in the global supply chain offers opportunities for economic growth and development. Over its almost 50 years of operations, UNCITRAL has produced a range of important texts that are designed to underpin world trade. A key implicit assumption underpinning the development of UNCITRAL texts is that the texts, once adopted can and will be applied in adopting states.

Should tax incentives for charitable giving stop at Australia's borders?

Around the world, philanthropic gifts are increasingly crossing borders, driven by globalisation and facilitated by liberalised cross-border tax incentives. Australia is considered to have one of the strictest regimes for the tax treatment of cross-border donations. With bipartisan political support for a significant reduction in the amount and scope of Australian foreign aid, the nation’s international presence through the ‘soft power’ of aid will fall increasingly upon private philanthropy. Are the current tax incentives for Australian cross-border philanthropy and the supervision of those incentives appropriate to both facilitate and regulate international giving? To address this question, this article analyses the amount of Australian cross-border philanthropy and explains the current legislative architecture affecting the tax deductibility of cross-border gifts. It then examines the Australian Government’s proposed ‘in Australia’ reform agenda against the underlying fiscal and regulatory policy imperatives, and makes recommendations for the future tax treatment of Australian cross-border philanthropy.

Planning mobile futures : the border artistry of International Baccalaureate Diploma choosers

This paper reports on a study of students choosing the International Baccalaureate Diploma (IBD) over state-based curricula in Australian schools. The IBD was initially designed as a matriculation certificate to facilitate international mobility. While first envisaged as a lifestyle agenda for cultural elites, such mobility is now widespread with more people living ‘beyond the nation’ through choice or circumstance. Beck (2007) and others highlight how the capacity to cross national borders offers a competitive edge with which to strategically pursue economic and cultural capital. Beck’s ‘border artistes’ are those who use national borders to their individual advantage through reflexive strategy. The study explored the rationales and strategy behind the choice of the IBD curriculum expressed by students in a focus group interview and an online survey. This paper reports on their imagined transnational routes and mobile orientations, and how a localised curriculum limits their imagined mobile futures.

Effects of opening in the cross girders of the flat bottom rail wagons to the load transferring mechanisms when used as road bridge deck

A Flat Bed Rail Wagon (FBRW) has been proposed as an alternative solution for replacing bridges on low traffic volume roads. The subject matter for this paper is to investigate the impediment to load transfer from cross girders to main girder, through visually identifiable structural flaws. Namely, the effect of having large openings at close proximity to the connection of the main girder to the cross girder of a FBRW was examined. It was clear that openings locally reduce the section modulus of the secondary members; however it was unclear how these reductions would affect the load transfer to the main girder. The results are presented through modeling grillage action for which the loads applied onto the FBRW were distributed through cross girders to the main girder.

A cross-sectional analysis of patterns of obesity in a cohort of working nurses and midwives in Australia, New Zealand, and the United Kingdom

Objective The aim of this study was to examine the prevalence of overweight and obesity and the association with demographic, reproductive work variables in a representative cohort of working nurses and midwives. Design A cross sectional study of self reported survey data. Settings Australia, New Zealand and the United Kingdom. Methods Measurement outcomes included BMI categories, demographic (age, gender, marital status, ethnicity), reproductive (parity, number of births, mother's age at first birth, birth type and menopausal status) and workforce (registration council, employment type and principal specialty) variables. Participants 4996 respondents to the Nurses and Midwives e-Cohort study who were currently registered and working in nursing or midwifery in Australia (n=3144), New Zealand (n=778) or the United Kingdom (n=1074). Results Amongst the sample 61.87% were outside the healthy weight range and across all three jurisdictions the prevalence of obesity in nurses and midwives exceeded rates in the source populations by 1.73% up to 3.74%. Being overweight or obese was significantly associated with increasing age (35–44 yrs aOR 1.71, 95% CI 1.41–2.08; 45–55 yrs aOR 1.90, 95%CI 1.56–2.31; 55–64 aOR 2.22, 95% CI 1.71–2.88), and male gender (aOR 1.46, 95% CI 1.15–1.87). Primiparous nurses and midwives were more likely to be overweight or obese (aOR 1.37, 95% CI 1.06–1.76) as were those who had reached menopause (aOR 1.37, 95% CI 1.11–1.69). Nurses and midwives in part-time or casual employment had significantly reduced risk of being overweight or obese, (aOR 0.81, 95% CI 0.70–0.94 and aOR 0.75, 95% CI 0.59–0.96 respectively), whilst working in aged carried increased risk (aOR 1.37, 95% CI 1.04–1.80). Conclusion Nurses and midwives in this study have higher prevalence of obesity and overweight than the general population and those who are older, male, or female primiparous and menopausal have significantly higher risk of overweight or obesity as do those working fulltime, or in aged care. The consequences of overweight and obesity in this occupational group may impact on their workforce participation, their management of overweight and obese patients in their care as well as influencing their individual health behaviours and risks of occupational injury and chronic disease.

Cross-correlations between weather variables in Australia

The information on climate variations is essential for the research of many subjects, such as the performance of buildings and agricultural production. However, recorded meteorological data are often incomplete. There may be a limited number of locations recorded, while the number of recorded climatic variables and the time intervals can also be inadequate. Therefore, the hourly data of key weather parameters as required by many building simulation programmes are typically not readily available. To overcome this gap in measured information, several empirical methods and weather data generators have been developed. They generally employ statistical analysis techniques to model the variations of individual climatic variables, while the possible interactions between different weather parameters are largely ignored. Based on a statistical analysis of 10 years historical hourly climatic data over all capital cities in Australia, this paper reports on the finding of strong correlations between several specific weather variables. It is found that there are strong linear correlations between the hourly variations of global solar irradiation (GSI) and dry bulb temperature (DBT), and between the hourly variations of DBT and relative humidity (RH). With an increase in GSI, DBT would generally increase, while the RH tends to decrease. However, no such a clear correlation can be found between the DBT and atmospheric pressure (P), and between the DBT and wind speed. These findings will be useful for the research and practice in building performance simulation.

The mechanical strength of phosphates under friction-induced cross-linking

Purpose: In the present study, we consider mechanical properties of phosphate glasses under high temperatureinduced and under friction-induced cross-linking, which enhance the modulus of elasticity. Design/methodology/approach: Two nanomechanical properties are evaluated, the first parameter is the modulus of elasticity (E) (or Young's modulus) and the second parameter is the hardness (H). Zinc meta-, pyro - and orthophosphates were recognized as amorphous-colloidal nanoparticles were synthesized under laboratory conditions and showed antiwear properties in engine oil. Findings: Young's modulus of the phosphate glasses formed under high temperature was in the 60-89 GPa range. For phosphate tribofilm formed under friction hardness and the Young's modulus were in the range of 2-10 GPa and 40-215 GPa, respectively. The degree of cross-linking during friction is provided by internal pressure of about 600 MPa and temperature close to 1000°C enhancing mechanical properties by factor of 3 (see Fig 1). Research limitations/implications: The addition of iron or aluminum ions to phosphate glasses under high temperature - and friction-induced amorphization of zinc metaphosphate and pyrophosphate tends to provide more cross-linking and mechanically stronger structures. Iron and aluminum (FeO4 or AlO4 units), incorporated into phosphate structure as network formers, contribute to the anion network bonding by converting the P=O bonds into bridging oxygen. Future work should consider on development of new of materials prepared by solgel processes, eg., zinc (II)-silicic acid. Originality/value: This paper analyses the friction pressure-induced and temperature–induced the two factors lead phosphate tribofilm glasses to chemically advanced glass structures, which may enhance the wear inhibition. Adding the coordinating ions alters the pressure at which cross-linking occurs and increases the antiwear properties of the surface material significantly.