Showing papers in "Berkeley Journal of International Law in 1993"

Of Politics and Markets: The Shifting Ideology of the BITs

Abstract: The United States has concluded over twenty bilateral investment treaties (BITs) with foreign countries. The original purpose behind the treaties was the protection of U.S. investment in foreign countries. The treaties purported to accomplish their goal by facilitating a free market and by limiting government intervention. The author argues that the ideological principles underlying the BITs have changed over the years, and that the change threatens the goal of' investment protection. The author analyzes the changes in the basic principles underlying the bilateral investment treaties and evaluates the potential consequences. First, the author describes the ideology and the reasoning behind the early BITs. The author then demonstrates how the ideology has changed. The author concludes with an analysis of the potential consequences of these changes.

The North American Free Trade Agreement: An Overview

Abstract: The North American Free Trade Agreement, signed in December, 1992, creates a comprehensive structure for trade and investment among the United States, Mexico, and Canada. Once NAFTA is fully implemented, the Agreement will direct most of the economic activity among the three nations of North America. The author focuses solely on the opportunities for business that NAFTA will create. The author begins with an account of the political background to the formation of NAFTA. Next, he discusses the various rules and principles of trade and investment that will govern the transfer of goods and services. The author concludes with a descriptive overview of various product and service sectors, emphasizing the provisions of NAFTA that will have the most noticeable impact on trade and investment.

The Japanese Tax System: Due Process and the Taxpayer

Abstract: In this article, Professor Okamura addresses several issues concerning the structural organization of Japanese tax law. First, he examines the tensions resulting from the power struggle between the Diet's constitutionally enacted tax law and the tax authority's administratively implemented rules. Professor Okamura examines the conflicting roles of these two bodies, and demonstrates the consequences of this conflict to corporations subject to Japanese taxation. Second, Professor Okamura addresses the tax authority's attempt to increase its power by manipulating Japanese law. He questions the discretionary limit of the tax authority's ability to recharacterize a taxpayer's formulation in an effort to prevent taxpayers from escaping statutory taxing conditions. Professor Okamura shows that the tax authority also attempts to create new conditions by reinterpreting the Corporate Tax Act in order to deny international tax avoidance. Third, Professor Okamura addresses the relative scope of the power of the Diet and the tax authority. He illustrates the significance of the struggle between these two bodies by examining the deductibility of business expenses. Fourth, Professor Okamura questions the constitutionality of measures attempting to reconcile the divergent actions taken by these two bodies.

Drafting an Enforceable Guaranty in an International Financing Transaction: A Lender's Perspective

Abstract: A guaranty is valuable to a lender only if it is enforceable. This article provides practical advice for lenders on how to draft enforceable guaranties. Particular attention is given to the special problems of guaranties in international financial transactions. Recent developments in American case law also are considered. The article explains the language of guaranties, examining the legal implications of such terms of art as \"absolute, \" \"irrevocable, \" and \"continuing. \" The author suggests language that lenders can use to preclude legal challenges. Precise drafting, for example, can avoid defeat of a guaranty contract for lack of consideration, or loss to a lender due to guaranties being paid in a different currency. The author provides further advice on other issues that may arise with regard to guaranties such as choice of law and tax indemnity.