The mutual agreement procedure and arbitration of double taxation disputes

It is in the interest of most states to eliminate double taxation (i.e. the payment of the same tax in two jurisdictions) of transnational commercial enterprises. Because such disputes involve, on the one hand, the state imposition of taxes, a right universally asserted by all states, and private entities on the other, taxation disputes between such parties are not, on their face, easily susceptible to arbitration. This article analyzes two dispute settlement procedures-the OECD First Model Tax Convention and a similar EU Convention-with the exclusive focus on disputes relating to the imposition of double taxation. It will look at the ways in which state roles may vary under these procedures from assisting in the negotiation process to taking a part similar to, but with important differences from, diplomatic protection on behalf of an affected enterprise. The article will examine the situations under which the settlement procedure is required and/or available, how the procedures are triggered, the obligations and parts played by the parties, the means by which the disputes are resolved (from negotiations to tribunals) and the limitations of the procedures. Are they “taxpayer friendly”? As a result the reader may draw comparisons between the two procedures. Finally, the article will look at the proposed OECD Arbitration Clause which is intended to be incorporated into Article 25 of the OECD Model Tax Convention as well as how these mechanisms relate and/or conflict with bilateral tax treaties and the GATS.

Examples of chapter 11 NAFTA disputes, a trade-investment-environment experience

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The “right way” of Hermetism: disputes on Gnostic’s, Pagan’s and Christian’s (re-)visions of the Hermetic phonomenon in late antiquity

This paper aims to understand the phenomenon of Hermetism though the perspective of its process of reception and reproduction in society. It will explore the phenomenon that was the transformation of the Hermetica into a social discourse. The so-called technical and philosophical Hermetica are texts. A text is the result of a production: it is composed by men, and addressed to men. It is important to consider the intentions and values present in a text’s production, and to understand that its process of reception and reproduction in society are, in fact, complex and dynamic.

EU membership of the WTO: international trade disputes and judicial protection of individuals by EU Courts

The European Union (EU) is embedded in a pluralistic legal context because of the EU and its Member States’ treaty memberships and domestic laws. Where EU conduct has implications for both the EU’s international trade relations and the legal position of individual traders, it possibly affects EU and its Member States’ obligations under the law of the World Trade Organization (WTO law) as well as the Union’s own multi-layered constitutional legal order. The present paper analyses the way in which the European Court of Justice (ECJ) accommodates WTO and EU law in the context of international trade disputes triggered by the EU. Given the ECJ’s denial of direct effect of WTO law in principle, the paper focuses on the protection of rights and remedies conferred by EU law. It assesses the implications of the WTO Dispute Settlement Understanding (DSU) – which tolerates the acceptance of retaliatory measures constraining traders’ activities in sectors different from those subject to the original trade dispute (Bananas and Hormones cases) – for the protection of ‘retaliation victims’. The paper concludes that governmental discretion conferred by WTO law has not affected the applicability of EU constitutional law but possibly shapes the actual scope of EU rights and remedies where such discretion is exercised in the EU’s general interest.

Economic evidence in regulatory disputes: revisiting the court-regulatory agency relationship in the US and the UK

This article examines the issue of the appropriate scope of review of economic evidence enshrined in the discretionary assessments of utility regulators in the US and the UK. It advances a balance of institutional competencies approach to the question of the degree of deference owed to the regulatory agency’s economic assessments. In doing so, it revisits the doctrinal positions advanced in the US and UK for the substantive review of administrative discretion, so as to become attuned to the challenges posed by economic evidence. Drawing on insights from political science and economics, the suggested approach illuminates the institutional disadvantages of the courts that may warrant a high degree of deference. At the same time, however, it remains sensitive to the polycentric elements of regulatory disputes as well as to a number of institutional realties that may attenuate the weight of such comparative institutional disadvantages.

Settlement of Disputes Within the World Trade Organisation: A Guide to the Jurisprudence

The Urugauy Round of Multilateral Trade Negotiations led to the development of a revised set of procedures on dispute settlement. These procedures dealt with a number of significant problems that had arisen under GATT dispute settlement experience. In spite of these important reforms, there are numerous, complex and contentious questions of legal adjudication that any formal dispute settlement system must face. The article outlines the aims and organs of dispute settlement under the WTO. It addresses some of the key questions as to standing, interpetation, evidence and adjudicatory practices and processes. While ongoing moitoring and reform is necessary, an important thesis is that the inherent nature of legal adjudication forces uncertain determinations that can too easily give rise to unwarranted criticism of the system as a whole.

Causal modelling of construction disputes

Disputes have become an inherent feature of the construction industry. A plethora of studies have been undertaken to identify the causes of disputes so as to determine the most appropriate prevention and resolution strategies. While it is widely known what the main causes of dispute are, they still remain prevalent in the Australian construction industry. This is because there is a need to better understand the complexity and interplay between causal variables. Using data derived from the
literature a conceptual causal model of construction disputes is developed. The model identifies the key causal variables and pathogens that can contribute to disputes.

Current findings on Australian children in postseparation disputes : outer conflict, inner discord

This paper sets out descriptive baseline data on the first 111 Australian families participating in a current study of the efficacy of child-focused and child-inclusive Family Law Mediation. The families come from the first of two treatment groups in that comparative study. While outcome data are not yet available on this group, the baseline data, gathered prior to intervention, are of interest and value. The paper describes the nature of parents' conflict with each other, the strength of their parental alliance, and the psychological functioning of their children at the time of presentation to the mediation service. High mental health risk for the children in these families is evident, both from parents' and children's perspectives. Uniquely, the paper includes the perceptions of 73 children about their parents' conflict and its impact on them. Implications are discussed, underscoring the imperative of early intervention with separating families that includes screening of the children's experience of conflict and their own needs for recovery.

'Murderous coppers': police, industrial disputes and the 1929 Rothbury shootings

Norman Brown, a coalminer engaged in picketing the Rothbury colliery, was shot dead by police in 1929. The Rothbury incident and the police suppression which followed became part of both union folklore and the personal legend of one police officer, William John MacKay, later New South Wales Police Commissioner. This article probes beneath the layers of myth that surround Rothbury and argues that the initial tragedy was largely the result of police incompetence, and that MacKay’s association with the shooting is deeply ironic. The more measured police actions that followed the shootings were Mackay’s responsibility, however, and they had damaging long-term consequences.

The role of emotional intelligence on the resolution of disputes involving the electronic health record

Numerous authors have expressed concerns that the introduction of the Personally Controlled Electronic Health Record (PCEHR) will lead to an escalation of disputes. Some disputes will concern the accuracy of the record whereas others will arise simply due to greater access to health care records. Online dispute resolution (ODR) programs have been successfully applied to cost-effectively help disputants resolve commercial, insurance and other legal disputes, and can also facilitate the resolution of health care related disputes. However, we expect that health differs from other application domains in ODR because of the emotional engagement patients have with their health and those of loved ones. In this study we will be looking at whether the success of an online negotiation is related to how people recognise and manage emotions, and in particular, their Emotional intelligence score.