Law and Development Review最新文献

{"title":"The Second War Between the States: How the United States Became the World’s Best Tax Haven","authors":"Beverly I. Moran","doi":"10.1515/ldr-2023-0050","DOIUrl":"https://doi.org/10.1515/ldr-2023-0050","url":null,"abstract":"Abstract We want government to help us prosper. For working people, prosperity requires employment and employment requires business. After World War II, most of the world was either devastated or underdeveloped leaving the United States without foreign competition. Local competition took its place. The States and local governments competed against one another on their natural resources, access to transportation, infrastructure, schools, and work force. These are the products of government spending. Some States did not have much to attract economic development. They created their own attributes instead. For example, right to work laws attracted companies that wanted to avoid unions and no usuary limits attracted credit card companies who wanted to charge high rates. Other States offered tax holidays. Move here and pay no tax for ten years. But saving money in taxes lost its appeal when other jurisdictions offered even more. Rather than build good sewage systems or roads for everyone, towns provided free infrastructure built to company specifications in addition to tax incentives. By the 1970s, firms learned that they could get States and localities to bid against one another. Each providing a package of bigger incentives. We can see the result of these races to the bottom in cities and towns that gave companies whatever they wanted only to find themselves with vacant factories and roads leading to nowhere. While the States were competing with one another, the rest of the world was emerging from war. Like the States, these countries wanted to help their citizens prosper. For those without natural resources or great infrastructure or educated workers, one alternative was to become a tax haven. A tax haven is the other side of a tax incentive. With tax incentives, a government gives up the right to tax in the hope that a firm's relocation will bring its citizens success. In a tax haven, a government hopes to improve its citizens’ fortune by helping a foreign taxpayer avoid another government’s taxes. Whether tax incentive or tax haven, in the end, the result is the same. The stakes get higher and higher. The companies and foreign taxpayers move from site to site. They take everything they can get and then convince another government to give more. Now a decade of investigative journalism shows that not only are the States in race to the bottom with their own tax revenues, but they are also transforming themselves into tax havens thus helping foreign taxpayers deplete their home countries’ revenues. This paper is a cautionary tale. It shows what makes the United States the world's favorite tax haven and examines what we can expect if this trend continues.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":"97 1","pages":"295 - 324"},"PeriodicalIF":0.3,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88293239","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}

{"title":"International Law and Sustainable Development: Grounds for Cancellation of Africa Debts","authors":"Brian-Vincent O Ikejiaku","doi":"10.1515/ldr-2023-0052","DOIUrl":"https://doi.org/10.1515/ldr-2023-0052","url":null,"abstract":"Abstract As of April 2020, the IMF categorised seven African countries as being in debt distress, whilst identifying twelve more that were at high risk of becoming distress. It is no longer a secret that considered immutable and eternally binding, debt by the global south (i.e., poor developing African countries) has become a tool for imperial powers in the post-colonial world to enforce and perpetuate their dominance over the global south. This is despite serious global crises that emerge from, and/or were caused by the rich countries of the global north; specifically, the negative effects of the global financial crisis of 2008, devastating impact of Covid-19 pandemic, and impact of Russia–Ukraine war on the African economies and contribution to these debt vulnerabilities. Yet, the rich countries of the global north have insisted on these poor countries to continue financing their debts. The paper considers how African countries could legally cancel the repayment of the debts by relying on the principles of international law (such as pacta sunt servanda, limit to legal obligation to pay, force majeure, State of Necessity or rebus sic stantibus) and States’ declarations to commitment to sustainable development agenda (such as the European Union’s response to the adoption of the 2030 Agenda featured in its Commission’s 2016 Communication) could be used as justifying grounds for cancellation of Africa debts. The paper draws on international law and development in the light of dependency and postcolonial theories and employs the human rights-based approach, interdisciplinary and critical-analytical perspective and using qualitative empirical evidence from rich countries and institutions of the global north and poor developing countries of the global south for analysis.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":"56 1","pages":"385 - 411"},"PeriodicalIF":0.3,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89509185","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}

{"title":"Tackling Corruption in Foreign Investment: Insights from Investment Arbitration Cases","authors":"J. Chaisse","doi":"10.1515/ldr-2023-0055","DOIUrl":"https://doi.org/10.1515/ldr-2023-0055","url":null,"abstract":"Abstract Over the last ten years, international investment tribunals have imported anti-corruption principles into the bilateral investment treaties (“BIT”) regime through the use of the doctrine of “unclean hands” and the requirement of “legality of the investment.” These principles have been invoked as a “trump card” defense by responding parties. In light of the rising case laws, the Article focuses on the success of the “trump card” defense of corruption invoked by host States. The Article makes several important findings. First, it shows that tribunals use the standard of a reasonable level of certainty to establish corruption – a standard below the “beyond reasonable doubt” standard employed in domestic criminal courts. At the same time, tribunals have discouraged mere insinuations of corruption without evidence. The Article also explains that this “trump card” defense is rarely successful owing to the minimal evidence offered by States in making allegations of corruption. Further, such a defense might place the entire burden of proof in rebutting corruption allegations on the investor even though the host State may have been complicit in the act. Fundamentally, the Article demonstrates that investment tribunals have not been able to effectively engage with corruption claims, due to the lack of enforceability of both the OECD Convention and the United Nations Convention against Corruption. However, this has not stopped the increasing use of the “trump card” defense. A separate mechanism such as introducing a corruption court could be a better alternative to deal with such claims.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":"44 5 1","pages":"253 - 293"},"PeriodicalIF":0.3,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87291896","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}

{"title":"Repeating the Mistakes of the Law and Development Movement in Afghanistan","authors":"Nandini Ramanujam, Alexander Agnello","doi":"10.1515/ldr-2023-0009","DOIUrl":"https://doi.org/10.1515/ldr-2023-0009","url":null,"abstract":"Abstract The rapid collapse of the Afghan state did not come as a surprise to those who are well-versed in the chequered history of the Law and Development Movement. While the Movement’s one-size-fits-all modernization project has been largely rejected, such misguided efforts continue under the aims of “building the Rule of Law” or “improving governance.” The fallout from the U.S. withdrawal from Afghanistan is a stark reminder for states and multilateral organizations not to overlook the lessons of the Movement that may have been obscured by the different banners under which state- and market-building efforts have been pursued. From the Movement’s sincere yet naïve efforts of state-building between the 1950s and 70s, to its swing to build and support markets under the Washington Consensus paradigm in the 80s and 90s, and a later emphasis on good governance through state institutions from the 2000s onwards, it is clear that top-down state-building efforts have had limited success. The paper argues that the failure of the Afghanistan mission may have been avoided if the U.S. had turned to the lessons learned from the law-and-institutions-building enterprises of the past 70 years. Instead, the failure to heed these lessons led to the building of a state akin to a house of cards. By overlooking the importance of embedded cultural institutions, the legitimacy of the state as perceived by its people, and the dynamic interaction between formal and informal institutions, the state-building project in Afghanistan was bound to fail. Following the takeover by the Taliban, the small gains made in Afghanistan over the past two decades on the issues of hunger, poverty, health, and education have seen rapid deceleration and require urgent attention. The critiques outlined in this paper, informed by the experience of the Law and Development Movement, are meant to inform, not discourage, global engagement in advancing the human development agenda in Afghanistan and other fragile contexts.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":"21 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77998459","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}

{"title":"Leveraging the Belt and Road Initiative for Green Investments: The Case of Bangladesh","authors":"Zakeri Ahmad, Sanjana Hoque","doi":"10.1515/ldr-2022-0098","DOIUrl":"https://doi.org/10.1515/ldr-2022-0098","url":null,"abstract":"Abstract Despite there being a well-documented need, as well as opportunity, to enhance foreign direct investment (‘FDI’) inflow to climate-friendly (‘green’) economic activities in Bangladesh, the reality portrays a stark contrast. Nowhere is it more obvious than the evolving investment relationship between China and Bangladesh under the Belt and Road Initiative (BRI). Originally under the rubric of the Bangladesh-China-India-Myanmar (BCIM) economic corridor, and later under the garb of the BRI, Chinese investments in Bangladesh have predominantly ended up in fossil fuel-based sectors. Even after the advent and expansion of the ‘green BRI’ initiative, reality has not changed much. This article offers an assessment of investment inflows from China to Bangladesh under the BRI umbrella against the backdrop of a growing green investment trend and the existing applicable legal framework. It finds that key legal and policy challenges that prevent leveraging of the BRI for green investment into Bangladesh include: an uncoordinated approach from the government, a disregard for the role of economic policy instruments for climate action, and politically motivated, as well as path-dependent decision-making with respect to investment promotion. This paper suggests that ambitious climate commitments combining economic policy tools, along with a more integrative and holistic domestic approach to climate action and investment promotion, can help shift the status quo.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":"82 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72907028","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}

{"title":"The Reform for Secured Transactions Regime with the Doing Business Indicator: A Case of Laos","authors":"Katsunori Irie","doi":"10.1515/ldr-2022-0105","DOIUrl":"https://doi.org/10.1515/ldr-2022-0105","url":null,"abstract":"Abstract The IFC, a member of the World Bank Group, intervened to recommend strongly that Laos adopt a system of computerized registration of secured transactions for movable assets into a new Civil Code. Central to the IFC’s preference for its digital system was the assertion that it would immediately raise Laos’ ranking in the Doing Business indicator prepared by the World Bank Group. A higher ranking would, in turn, significantly increase the amount of inward foreign investment in Laos. This article examines the issues raised by the IFC’s involvement in two categories. The first part focuses on concerns about the substance of the IFC’s interventions, namely the fact that the IFC paid little attention to Lao legal tradition, implementation, and social reality. The second part focuses on the reform process and the fact that the IFC placed undue pressure on the government to adopt its favored approach.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":"63 1","pages":"225 - 250"},"PeriodicalIF":0.3,"publicationDate":"2022-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76477060","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}

{"title":"The Nusantara Capital City Project: Why Development and Human Rights Do Not Always Mix","authors":"Mirza Satria Buana, Prischa Listiningrum, Prasetyo Nugroho, Ade Angelia Yusniar Marbun","doi":"10.1515/ldr-2022-0063","DOIUrl":"https://doi.org/10.1515/ldr-2022-0063","url":null,"abstract":"Abstract This article examines the Nusantara capital city project and its sociological impact on individuals and groups’ rights in the East Kalimantan regions of Penajam Paser Utara (PPU) and Kutai Kartanegara. The Nusantara Act was enacted to legalize the building of this mega-project and was finalized within a period of only 43 days. Thus, the legitimation of the Act is contentious. It is predicted that there will be widespread political, cultural, environmental and economic effects that will be likely to affect society in general and marginalized groups in particular. It raises two important questions, “what are the public rights that could potentially be breached by the Nusantara development project?” and “Is it possible to identify the influence of national and local elites on the process of promoting and legitimizing the Nusantara Act?” This article describes the concept of Nusantara as stipulated in the Act, which is linked to human rights values that are specifically related to the right to development. Based on the mentioned framework, this article finds evidence of autocratic practices in terms of the government’s efforts to acquire land for the project. It has been found that these dictatorial practices have been exacerbated by ‘cooperation’ with extractive industries and local elites. As a result, indigenous groups and the local communities in the area have suffered a loss of autonomy and land rights due to lack of legal protection within the Act.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":"30 1","pages":"185 - 223"},"PeriodicalIF":0.3,"publicationDate":"2022-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90793757","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}

{"title":"Using Competition Law to Link Regulation and Development","authors":"J. D. Gutiérrez, A. Suárez","doi":"10.1515/ldr-2022-0045","DOIUrl":"https://doi.org/10.1515/ldr-2022-0045","url":null,"abstract":"Abstract Regulatory processes and debates are often informed by competition assessments issued by antitrust agencies, who advocate against potentially anticompetitive governmental regulations. While these opinions are usually not binding for regulators, the participation of antitrust agencies may have significant influence over the outcome of regulatory processes. This article examines whether antitrust agencies use their competition assessments to link regulation and development. The research addresses two research questions: first, do antitrust agencies consider development, directly or indirectly, as a guiding criterion in their competition assessments of regulatory projects? And second, what does development mean for these agencies in the context of competition assessments? A case study approach was used to answer the research questions, analyzing the cases of three countries of Latin America: Argentina, Colombia, and El Salvador. Based on the examination of over 300 competition assessments published by the antitrust agencies and on the semi-structured interviews of antitrust agencies’ former and current officials, we report four main findings: (i) the studied agencies frequently used the term “development” in their competition assessments to explain the policy context, the objectives of the regulatory proposals, and the potential benefits of competitive markets.; (ii) the meaning of “development” that prevailed among the three cases studies corresponds to a narrow understanding of “economic development” (e.g. a synonym of economic growth); (iii) the case of Colombia stands out because some of the competition assessments explicitly recognize the importance of broader conceptions of development, including sustainability; and, (iv) competition advocacy was used by the studied agencies to link regulation and development through their reports and recommendations on regulatory projects.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":"22 1","pages":"145 - 184"},"PeriodicalIF":0.3,"publicationDate":"2022-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76712703","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}

{"title":"Harnessing African Free Trade Area and WTO for Clean Energy Transition","authors":"U. Turksen, A. Abukari","doi":"10.1515/ldr-2022-0043","DOIUrl":"https://doi.org/10.1515/ldr-2022-0043","url":null,"abstract":"Abstract In 2018, the African Union adopted the Agreement on the African Continental Free Trade Area (AfCFTA) with the aim of creating a common market for goods and services that would serve over 1.3 billion people in Africa. This is a paradigm shift towards a deeper continental integration in Africa whereby AfCFTA would be one of the biggest multilateral trading areas in the world. Although AfCFTA pursues sustainable development goals that embed reducing carbon dioxide emissions in line with international legal instruments on sustainability which applies to Member States of the WTO too, the legal provisions of AfCFTA and WTO that link trade and CET appear rather weak. This article provides a comparative analysis of AfCFTA and WTO legal frameworks with a focus on relationships, challenges and opportunities that incentivise clean energy transition (CET) as part of their sustainability agenda. The article contributes to the discourse on the interplay between regional trade and global trade laws in relation to climate change and sustainable development. As no previous study has compared the legal dynamics of the WTO and AfCFTA in relation to CET, the article provides a novel contribution to the efforts of unlocking the development potential of AfCFTA while enhancing global and regional multilateral trading systems.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":"141 1","pages":"107 - 144"},"PeriodicalIF":0.3,"publicationDate":"2022-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83169885","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}

{"title":"Foundations of the Digital Economy in Small States","authors":"A. Dahdal, G. Walker","doi":"10.1515/ldr-2022-0020","DOIUrl":"https://doi.org/10.1515/ldr-2022-0020","url":null,"abstract":"Abstract ‘Small states’ is a term of art with no fixed or official definition. It usually refers to countries that are small in land mass and/or population size. There are vast differences, however, among small states. Small Island Developing States (SIDSs) differ in many respects from more affluent small states; a common policy objective among the majority of small states (both developed and developing) is pursuing strategies to capture the economic growth and benefits of the digital economy. This article examines how small states can set frameworks for establishing digital infrastructure, the so-called ‘first pillar’ of the digital economy. Robust and inexpensive information and communications technology (ICT) is the sine qua non of the digital economy. Funding, ownership, control and competition with regard to digital infrastructure are common problems across all small states. This article considers the manner in which three small states approach the first pillar: the Kingdom of Tonga, a SIDS with a lower middle-income level; the Republic of the Seychelles, a SIDS with middle to high-income island nation and the State of Qatar, a high-income small state. For SIDS, we find that majority government ownership of ICT infrastructure is the critical success factor.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":"53 1","pages":"79 - 105"},"PeriodicalIF":0.3,"publicationDate":"2022-06-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85184437","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}