Showing papers in "Berkeley Journal of International Law in 1996"
33 citations
TL;DR: In this paper, the authors examine from the point of view of general policy the question of whether, and if so, to what extent, there are limits on the subject matter of intellectual property disputes that may be regulated by arbitration.
Abstract: Arbitration is the leading form of international commercial dispute resolution. However, public policy may be invoked to make certain subject matter inarbitrable. This article deals with one of these putatively inarbitrable areas: intellectual property. It examines from the point of view of general policy the question of whether, and if so, to what extent, there are limits on the subject matter of intellectual property disputes that may be regulated by arbitration. In addition, it surveys the current state of the law on the arbitrability of international intellectual property disputes in a selection of countries.
10 citations
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TL;DR: In this paper, the authors argue that commonly controlled corporations usually enter into transactions with each other for the good of the group but which may not maximize profit for each member individually, and transaction costs are adjusted to reflect the income an entity would have realized had it dealt with its affiliates at arm's length.
Abstract: There has been a long and frequently rancorous conflict over the method by which the states of the United States tax the income of multinational corporations. This debate centers on whether a state should tax the income of a component entity of a multinational corporation residing within its borders according to the \"separate accounting\" approach or the \"formulary apportionment\" approach. The separate accounting method, also known as the \"arm's length\" method, taxes the entity as though it were independent and separate from its corporate family. However, because \"commonly controlled corporations ... usually enter into transactions with each other for the good of the group but which may not maximize profit for each member individually,\" transaction costs are adjusted to reflect \"the income an entity would have realized had it dealt with its affiliates at arm's length.\"1 In contrast, the formulary apportionment method, also known as the \"unitary\" approach, requires the entity to report the income of the entire corporate family, and then takes a percentage of that income that roughly represents the percentage of the family's operations represented by the resident component entity. This formulary apportionment method rests on the theory that a corporate family functions actuarially as a \"unitary business,\" so that income from its component entities cannot accurately be calculated with the separate accounting method.2
6 citations
TL;DR: Vietnamese government initiated an economic reform program called Doi Moi in 1986 to convert from a centralized planned economy to a market economy as mentioned in this paper, in order to encourage investment from abroad, Vietnam enacted the sweeping Law on Foreign Investment (FIL) in 1987.
Abstract: The Vietnamese government initiated an economic reform program called Doi Moi in 1986 to convert from a centralized planned economy to a market economy.1 As part of this program, in order to encourage investment from abroad, Vietnam enacted the sweeping Law on Foreign Investment (FIL) in 1987.2 The FIL established a liberal framework to maximize the ability of Vietnam to attract much-needed foreign capital. The government focused on infrastructure development, which is traditionally funded through local government bodies and other public sources such as the World Bank.3 Vietnam also decided to seek private financing. In late 1993, following the lead of many South Asian nations, the government issued a decree permitting privately owned and operated infrastructure projects through an investment form known as Build-Operate-Transfer (BOT).4 Financiers created BOT in the 1980s as a form of project financing to fund infrastructure projects. Under a BOT contract, the project developer builds the
5 citations
TL;DR: The authors examines the relationship between traditional legal doctrine used in Canada for the protection of the First Nation Indian culture and the Canadian Constitutional Act of 1982 in light of the Province of Quebec's repeated promise to become its own sovereign.
Abstract: This article examines the relationship between traditional legal doctrine used in Canada for the protection of the First Nation Indian culture and the Canadian Constitutional Act of 1982,1 in light of the Province of Quebec's repeated promise to become its \"own sovereign.\"'2 Specifically, this article focuses on the legal obligations arising out of the James Bay Northern Quebec Agreement (JBNQA), a tripartite treaty under Canadian law among Canada, the Province of Quebec and the Cree Nation. The JBNQA governs the surrender of land in exchange for self-governance. 3 The treaty requires the three parties to mutually consent to any modification or amendment. 4
3 citations
TL;DR: In the face of a new breed of dangers, particularly the growing number of civil wars, a pronounced uncertainty prevails as discussed by the authors, and the growing instability has dramatic consequences for the political and
Abstract: Euphoria at the end of the Cold War was short-lived. The optimism of November 1989 regarding new operating assumptions for world politics now seems like ancient history. It is as if scholars and politicians awoke with a hangover. George Bush's \"new world order,\" and Bill Clinton's \"assertive multilateralism\" have ceded to more sober views. Yet the 1996 Presidential campaigns failed to produce new slogans about American national interests and global governance.' In the face of a new breed of dangers, particularly the growing number of civil wars, a pronounced uncertainty prevails. Aside from the inherent global political tensions arising from civil conflicts, the growing instability has dramatic consequences for the political and
2 citations
TL;DR: The North American Free Trade Agreement (NAFTA) as discussed by the authors creates a free trade zone between the United States, Canada, and Mexico, and the binational panel review system does not violate the principles and requirements of Article II.
Abstract: The North American Free Trade Agreement (NAFTA) creates a free trade zone between the United States, Canada, and Mexico. To safeguard against biased application of antidumping and countervailing duty law, NAFTA creates a binational panel review system. The novelty of the binational panel system, however, raises serious constitutional concerns. After examining Article II1 of the United States Constitution, the foreign relations power, and the decisions interpreting them, the author argues that NAFTA 's binational panel system does not violate the principles and requirements of Article II.
2 citations
2 citations
TL;DR: In this article, the authors compare and contrast the antitrust laws and enforcement regimes of the United States, South Korea, and Japan in the context of each countries' national economic policies, and examine how South Korea's consistently lax approach to enforcement of its antitrust laws has facilitated the growth of Korean industries and increased their international competitiveness.
Abstract: The success of the United States in curbing anticompetitive behavior in its domestic markets led South Korea and Japan to adopt antitrust laws similar to those of the United States. This article compares and contrasts the antitrust laws and enforcement regimes of the United States, South Korea, and Japan in the context of each countries' national economic policies. The author first examines how consistent enforcement of antitrust laws in the United States has enabled the government to achieve its goals of breaking existing monopolies and preventing their creation. The author then examines how South Korea's consistently lax approach to enforcement of its antitrust laws has facilitated the growth of Korean industries and increased their international competitiveness. Lastly, the author examines how the inadequacy of the measures and sanctions available to Japanese agencies acts as a major impediment to achieving the goals of Japan 's antitrust laws.
TL;DR: Tax treatment of international partnerships is often uncertain because entities that the U.S. treats as partnerships are chameleon-like as discussed by the authors, and it is often unclear whether a partnership should be viewed as a mere aggregate of its partners or as a stand-alone entity.
Abstract: As the use of partnerships as vehicles for international investment has increased, corresponding attention has been given to the U.S. tax issues associated with international partnerships.' The resolution of these tax issues, however, can be elusive. Tax treatment is often uncertain because entities that the U.S. treats as partnerships are chameleon-like. Although the distinguishing feature of a partnership (as opposed to a corporation) under U.S. tax law is that its profits and losses are recognized by its individual partners, in the analysis of subtler issues it is often unclear whether a partnership should be viewed as a mere aggregate of its partners or as a separate, stand-alone entity. Uncertain tax treatment also arises in the international context with respect to hybrid entities-the situation where one nation characterizes an entity as a partnership while another nation characterizes it as a corporation.' These issues have become more prominent since the IRS issued regulations that permit taxpayers to elect whether most domestic unincorporated business associations and many foreign business associations should be treated for federal tax purposes as corporations or partnerships (or in some cases as branches). 3