MJIL Online

MJIL Online brings you timely short-form articles that represent a wide range of views on contemporary issues in international and comparative law. The views and opinions expressed in these articles are those of the authors only.


 

Nausica Palazzo 
2017-2018 Fulbright Fellow at the University of Michigan Law School
The Court of Justice of the European Union has recently released a preliminary ruling[1] on the free movement of a same-sex couple in the Union.[2] For the first time, it has ruled that the third-country same-sex partner of the applicant (Mr. Coman), enjoys a derivative right of residence in the member state (Romania) of which the EU citizen is a member, upon his return. The right could be granted since the two partners contracted a marriage in another member state of the Union (Belgium.) The Court has adopted to this effect an autonomous definition of the term “spouse,” under Article 2(2)(a) of the citizens’ right directive,[3] that includes same-sex marital couples. The ruling has the practical consequence of precluding Romania, and similarly situated states, from denying right of residence to the third country national on the grounds that same-sex marriage is not legally recognized.



This decision is likely to mark a watershed moment in the acquis (case law) of the Court on same-sex couples’ recognition. On the one hand, the holding is doctrinally coherent with precedents conferring freedom of movement rights upon “static citizens.” The doctrine elaborated in these precedents

Nadia Alhadi
Vol. 39 Managing Article Editor
In early June, the Appeals Chamber of the International Criminal Court (“ICC”) issued its judgment in The Prosecutor v. Jean-Pierre Bemba Gombo, reversing the judgment of the Trial Chamber and acquitting Mr. Bemba. Mr. Bemba—the former president and commander-in-chief of the Mouvement de libération du Congo (“MLC”)—had been charged with two counts of crimes against humanity and three counts of war crimes between October 2002 and March 2003 in the Central African Republic (“CAR”).[1] More specifically, the charges alleged that Mr. Bemba, under the doctrine of command responsibility, failed to take all reasonable and necessary measures to prevent and punish MLC troops for committing rape, murder, and pillaging against the civilian population in the CAR.[2]



The shock of the acquittal reverberated through the international criminal law community. For one, many viewed the Appeals Chamber’s acquittal as a disappointment.[3] The tribunal, which aims to ensure that the perpetrators of the most serious crimes do not go unpunished,[4] failed to provide justice to the victims who suffered at the hands of the troops.

Also of concern is the majority’s claim that it evaluated the case in a manner consistent with prior international criminal jurisprudence. In reality, the majority deviated

Michael Goodyear
Vol. 39 Guest Editor
On May 8, 2018, President Donald J. Trump declared that the United States would withdraw from the Joint Comprehensive Plan of Action (“JCPOA”), the international agreement restricting Iran’s nuclear program.[1] The Iran deal set limits on Iran’s nuclear programs in exchange for releasing economic sanctions against Iran.[2] While President Trump made no efforts to hide his disdain for the deal, calling it “the worst deal ever negotiated,”[3] it was only on May 8 that he finally announced the U.S. withdrawal. The withdrawal will re-impose economic sanctions on Iran, but the withdrawal itself is very likely illegal under both treaty and trade law, providing a broader warning against such actions.



JCPOA

JCPOA, commonly known as the Iran nuclear deal, was negotiated by the Obama Administration and came into effect in early 2016.[4] In exchange for Iran implementing its nuclear commitments under JCPOA, the United Nations, the United States, and the European Union removed certain previously imposed economic sanctions.[5]

The United States agreed to lift economic sanctions, including ceasing efforts to reduce Iranian crude oil sales, allowing Iranian banks to reconnect to other global banking systems, and permitting third parties to trade with Iran in the automotive, shipping, insurance, and gold

Layne Smith Vol. 39 Associate Editor
Throughout most of the 19th century and into the first decades of the 20th, China’s interactions with the outside world were less than favorable to China’s interests. Western imperialist powers used, among other things, international law as an instrument to secure territory and legal rights in China, often to China’s detriment.[1] These experiences have helped to shape the modern Chinese approach to international law.



The unequal treaties that China signed with Western Powers, such as the treaties that allowed Western Powers to sell opium in China and indemnified them for any harm done, gave rise to an impression in China that international law was a tool used by powerful nations to maintain power. It was with this idea in mind, and the goal of recovering its sovereignty after a long period of humiliation and subjugation at the hands of Western Powers, that China began to take seriously the development of international law.

Of particular importance in modern China’s approach to international law is sovereignty. Sovereignty has become a core concept in modern China’s approach to international law. Former Premier Zhou Enlai summed this up succinctly, stating that “a basic position in the conduct of China’s foreign affairs

Lucas Minich
Vol. 39 Associate Editor
Over the last several years, the European Union has emerged as a worldwide leader in renewable energy generation. This is not by accident. Rather, it is the result of concerted effort on the part of the Union and its Member States. Because climate change is an inherently international problem, in which the negative effects of one nation’s activities are shared by the world, meaningful progress (“meaningful progress” being the progress necessary to avoid catastrophe) requires international solutions that are both aggressive and enforceable. This is not a radical proposition. Over thirty years ago, the world responded to the serious threat of ozone depletion by signing the Montreal Protocol; all 197 United Nations member states either accepted or ratified the agreement.[1] Today, the harmful gases depleting atmospheric ozone have all but been phased out and the ozone layer is expected to return to 1980 levels by 2060.[2]



The push toward clean energy in Europe roots back to 1990, when the Intergovernmental Panel on Climate Change released its first summary report that sounded the global alarm on the catastrophic effects of climate change on the planet.[3] The European Council responded modestly, agreeing to stabilize greenhouse gas (GHG) emissions at

Anna Rasmussen
Vol. 39 Executive Editor
Rubin et al. v. Islamic Republic of Iran et al. is a recent case about the ability of U.S. nationals to enforce a judgement against parties who would normally be afforded immunity. In dealing with foreign nations, the U.S. aims to respect “the careful balance between respecting the immunity historically afforded to foreign sovereigns and holding them accountable.”[1] Under the Foreign Sovereign Immunities Act of 1976 (FSIA), in general, foreign states are granted immunity from being subject to U.S. jurisdiction,[2] and any property of foreign states that is in the U.S. is granted immunity from “attachment arrest and execution” except under express exception.[3]



In this case, the petitioners currently hold a judgement against the Islamic Republic of Iran for damages resulting from three suicide bombings carried out by Hamas on September 4, 1977.[4] The attack left five people dead and almost two-hundred injured.[5] The petitioners brought suit in the District Court for the District of Columbia as U.S. citizens who were either injured or who had close relatives who were injured in the attack.[6] While foreign states typically enjoy immunity, an exception is provided where the foreign state is a “state sponsor of terrorism,” and the plaintiff

Zachary Simon
Vol. 39 Associate Editor
Anyone watching the peaceful protests in the Syrian towns of Homs, Aleppo, and others morph into an armed uprising in late 2011 and early 2012 could have seen a storm brewing on the horizon. It was obvious even then that the shear brutality with which Syrian dictator Bashar Al-Assad repressed the uprising—by wantonly and unrepentantly massacring Syrian civilians using barrel bombs and chemical weapons—would force people to leave their homes and desperately seek refuge in distant European capitals. Indeed, seven years on, the war in Syria has become the single-largest driver of the current refugee crisis, the largest since the Second World War.[1]



The influx of refugees from Syria, which peaked in 2015 and 2016 when more than one million people entered the European Union,[2] has profoundly reshaped both the European and the global political landscape. Nationalist, anti-immigrant, anti-refugee parties have surged in France, Germany, Italy, Hungary, Denmark, Austria, the Netherlands, and others.[3] In the United States, Donald Trump, who has claimed that terrorists were using the asylum system to gain entry to the United States, was elected and promptly slashed the statutory cap on refugee admissions in half.[4]

False Narratives

 Populist anti-refugee rhetoric has typically centered on three

Thomas Bourneuf
VOL. 39 Associate Editor
Introduction

As the United Kingdom (UK) prepares to leave the European Union (EU), a war is raging in Europe over which EU regulations will survive the exit. On the one side of this struggle are those that favor a “hard” Brexit, wherein the UK would devise their own regulatory standards and trade with the EU like any other non-EU-member country under World Trade Organization (WTO) rules.[1] On the other side, those that favor a “soft” Brexit, favor an outcome wherein the UK would retain membership of the EU single market for specific sectors of the economy, according to European Economic Area rules, so long as Britain adopts similar regulations as the EU.[2]



While there has been a notable lack of details to the exit,[3] both the UK and the EU have suggested broad solutions to this disagreement.[4] This article examines two prominent solutions: First, the “Three Baskets” approach, suggested by Theresa May, represents a “soft” Brexit; Second, the Free Trade Agreements represents a “hard” Brexit. This examination will cover the key features of both approaches, as well as the pros and cons of each approach, and examine why it is unlikely that the UK will have the pick

Hyun Lee
Vol. 39 Associate Editor
Access to voluntary family planning and reproductive healthcare play a key role in the protection of women’s reproductive rights around the world—it is not only central to gender equality and women’s empowerment, but also critical for reducing poverty.[1] However, many women in developing countries still lack even fundamental reproductive rights and health services, including contraception. As a result, approximately 303,000 women die annually during pregnancy or childbirth as a result of their lack of access to reproductive health services, and roughly one-third of such deaths could be prevented if those women had access to and used effective contraception.[2] Additionally, nearly 47,000 women also die from unsafe abortions on an annual basis.[3]



As one of the donor nations, the U.S. agreed during the 1994 International Conference on Population and Development (ICPD) to financially commit themselves to pay for one-third of the total funding needed to resolve issues related to the lack of contraceptives around the world.[4] One such commitment was to make monetary contributions to the United Nations Population Fund (UNFPA),[5] an agency which aims to provide reproductive healthcare to women and youth around the world, to prevent gender-based violence, and to protect people’s reproductive rights, such as

Sarah Syed
Vol. 39 Article Editor
Child marriage in humanitarian settings, particularly in Rohingya and Syrian refugee communities, has increased as a result of extreme poverty, rampant violence, fear of gender based-violence, and political strife.[1] Although the prevalence data for child marriage in regions of crisis are difficult to acquire, UNICEF has determined that child marriage has reemerged in some regions where the practice was previously nearly eradicated.[2] It is vital to understand the specific conditions that are increasing the prevalence of child marriage in Rohingya refugee camps in Myanmar and Bangladesh, as well as in Syrian refugee communities in Lebanon.



The issue of child marriage has been at the forefront of international human rights law for some time,[3] but the context-specific focus on the effect of humanitarian settings on child marriage has only recently been explored. The United Nations General Assembly defines “humanitarian settings” as, “humanitarian emergencies, situations of forced displacement, armed conflict and natural disaster.”[4] These conditions often make girls more vulnerable to early and forced marriage.[5] Nine out of the ten countries with the highest child marriage rates are under humanitarian conditions.[6]

International Law Addressing Child Marriage

Some of the most prominent international mechanisms that protect against child marriage are The

Sara Stappert
Vol. 39 Business and Development Editor
The United States Department of Justice charged thirteen Russian individuals and three Russian companies on February 16, 2018[1] with an impressive indictment alleging a sophisticated network designed to influence the 2016 presidential election.[2] Deputy Attorney General Rod J. Rosenstein described the indictment as such: “[T]he Russian conspirators want to promote discord in the United States and undermine public confidence in democracy…”[3] February’s indictment paints a picture of a sophisticated, multi-pronged, and well-financed Russian operation that sought to influence democratic electoral outcomes by targeting then-candidate Trump’s opponents in the 2016 presidential election.



The indictment details that Russian operatives traveled across the United States to gather intelligence and froth political discord. Those operatives worked with American citizens to focus their efforts on “purple” election battleground states like Colorado, Florida, and Virginia. Some of the Russians involved even posed as Americans in August of 2016 and coordinated with Trump campaign staff to organize rallies in Florida. The indictment alleges violations of U.S. election law that forbids foreign nationals from making certain expenditures in United States elections and that requires foreign agents to register with the Federal Election Commission.[4] The charges also include violations of computer fraud laws in which

Elizabeth Heise
Vol. 39 Online Editor
Poland has recently passed a law that would make it a crime, punishable by up to three years in prison, to use phrases such as “Polish death camps” to describe the Nazi death camps in Poland, or to blame Poland for its complicity in the Holocaust.[1] The bill, which passed in the Senate by a vote of 57-23[2] and was championed by the ruling Law and Justice Party,[3] contains a “clear and explicit exclusion of such activities related to artistic and scientific pursuits,”[4] which has done little to quell its critics’ concerns that it will suppress free speech and discourse in Poland.[5] This bill has created controversy both in Poland and abroad. Officials from Israel and the United States, in particular, have criticized the bill as a threat to free speech and to Poland’s international relations.[6] Other critics worry about historical inaccuracy, citing Polish citizens’ complicity in the Jedwabne massacre of Polish Jews, and the lesser-known post-World War II atrocities in Kielce,[7] and fear that this bill will be used to target historians and Holocaust survivors.[8]

The primary domestic concern is whether this bill violates Poland’s free speech laws. After signing the bill, President Andrzej Duda has

Jens Thomsen
Vol. 39 Associate Editor
On February 25, the Chinese Communist Party (CCP) moved to abolish the constitutional term limit on the presidency, clearing the way for Xi Jinping to stay in power indefinitely as he nears the end of his first five-year term as president.[1] The proposed amendment to the constitution must be approved by China’s CCP-controlled parliament, but this approval is expected to be a formality.[2] In addition to the removal of term limits, Xi Jinping Thought, a catchall term for Xi’s doctrines focused on strengthening the nation, the CCP, and Xi himself, will be enshrined in the preamble of China’s Constitution.[3] The effect of these changes will be a move away from collectivism toward a consolidation of power in a single leader not seen in China since the reign of Mao.[4]

This consolidation of power has raised obvious concerns for advocates of the liberalization of China. It’s nearly impossible to gauge public opinion of Xi’s power grab due to pervasive censorship and the nonexistence of public polling on sensitive issues. However, in rare displays of public dissent, a prominent businesswoman, Wang Ying, and a political commentator, Li Datong, posted open letters to WeChat, a popular social media app in

Xiangyu Ouyang
Vol. 39 Associate Editor
In his New Year’s address this year, Chinese President Xi Jinping said his heart was “most dearly attached” to people who still live in hardship—those who are faced with difficulties in employment, children’s education, medical care and housing.[1] Xi assured that “ceaselessly solving these problems remains an unshirkable responsibility for the party and the government.”[2] However, after a deadly fire on November 18, which claimed 19 lives at a residential-industrial compound in Daxing, a south Beijing suburb, the city authorities evicted thousands of tenants, mostly migrant workers, from their homes.[3]

The eviction was under an immediately-launched 40-day campaign of demolishing illegal construction and maintaining urban safety.[4] The campaign swept the whole city in a few days. Multiple districts or villages issued notices, demanding that residents move out within an extremely short period without any compensation. [5] There were multiple videos posted online showing groups of local policemen forcing people to relocate, huge crowds dragging bags and packages along the streets, and bulldozers tearing down buildings.[6]

In fact, the city’s authorities have been planning to get rid of these migrant workers for months. In September 2017, the CPC Central Committee and the State Council has set a 23 million

Erin Hoya
Vol. 39 Associate Editor
Emotions can provide valuable data by which to assess options. On the other hand, they can “can interfere with [the] ability to make rational judgments.”[1] While our feelings—particularly negative ones such as fear, anger, or disgust—serve us well as red flags, prompting us to examine issues with potential negative consequences more closely, their influence should generally be limited in decision-making. This is especially true in the case of judges, tribunals, and other authorities who bear the heavy responsibility of determining refugee claims that involve allegations of terrorism.

The case of Ahani v. Canada[2] illustrates how current decision-making approaches to allegations of terrorism in refugee law in several jurisdictions raise significant concerns for refugees and for the international refugee resettlement system overall. These concerns particularly emerge when considering cases under Article 1F(b)[3] of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (hereinafter “the Refugee Convention”).[4] Ahani was an Iranian national whom Canadian officials alleged had served in the Iranian Ministry of Intelligence Security (MOIS), essentially, Iran’s secret service. Canadian intelligence services asserted MOIS both sponsored and undertook “a wide range of terrorist activities, including the assassination of political dissidents world-wide.”[5] Though Ahani was

Ian Marshall Sander
Vol. 39 Articles Editor
Introduction:

In 2010, FIFA awarded hosting duties for the 2022 World Cup to Qatar.[1] Beyond accusations of corruption[2] and the questionable wisdom of Qatar hosting an event traditionally hosted in the summer,[3] a prominent issue regarding Qatar and the World Cup concerned labor, specifically the plight of construction laborers in the Gulf state. Most of these laborers are migrant workers; indeed, migrant laborers compose the vast majority—approximately 95%—of Qatar’s labor force[4], with Bangladesh, India, Nepal, and the Philippines providing most of the foreign workers.[5]

Critics immediately raised concern over the fact that Qatar’s labor system failed to provide construction laborers working on World Cup projects with adequate rights and protections.[6] In fact, Qatari labor practices violated international labor standards.[7] As construction for the World Cup in Qatar began, reports out of Qatar confirmed that concern: laborers were suffering—and dying.[8] Today, over seven years after Qatar earned the hosting rights to the 2022 World Cup, the labor situation remains unacceptable. But recent action by the International Labour Organization (ILO) provides reason to be optimistic about positive change.

Qatar’s Violations of the Prohibition of Forced Labor:

Heightened scrutiny stemming from the World Cup highlighted Qatar’s failure to eradicate forced labor practices

The views and opinions expressed in this article are those of the author only.
Anna Rasmussen
Vol. 39 Associate Editor
In 2008, two vitamin C U.S. corporate purchasers brought a multi-district antitrust class action suit against two entities which were incorporated under Chinese law, Hebei Welcome Pharmaceutical and North China Pharmaceutical Group Corporation in the case of In re Vitamin C Litigation.[1] The plaintiffs allege that the defendants “conspired to fix the price and supply of vitamin C sold to U.S. companies on the international market.”[2] The defendants argue that they were compelled to fix the quantity and price of vitamin C sold abroad under Chinese law.[3]

The court must determine whether the laws of China in fact did compel the defendants to engage in this behavior in violation of U.S. anti-trust law.[4] The Ministry of Commerce of the People’s Republic of China submitted an amicus curiae brief on behalf of the Chinese Government stating that the laws of China required the defendants to engage in quantity-fixing and price-fixing of vitamin C sold to the U.S.[5] The district court ruled that the law of China did not require the defendants to engage in price-fixing in violate U.S. antitrust law.[6] Central to this determination

The views and opinions expressed in this article are those of the authors only.
Nadia Alhadi
Vol. 39 Managing Articles Editor
Since the start of the Myanmar military’s targeted attacks against the Rohingya, the international community – both individual States and the United Nations – has been reluctant to call out the violence as an act of genocide. Both in this instance and in other targeted campaigns, it is imperative that the international community become more willing to call such acts out.

The evidence of a campaign of genocide is clear. Since August 2017, more than 650,000 Rohingya have fled to Bangladesh to escape the Myanmar military’s violent efforts to drive these individuals away from the area. Myanmar security forces, sometimes working in concert with local vigilantes, have encircled Rohingya villages in the northern part of the Rakhine State.[1] Soldiers and police officers open fire on the Rohingya men, women, and children attempting to flee the violence, killing or seriously injuring hundreds of people.[2]

Military personnel have set fire to Rohingya homes, burning to death those unable to escape, particularly the elderly and disabled.[3] They have laid mines at the border crossings used by Rohingya refugees attempting to flee violence,[4] and conducted a “scorched earth campaign,”

Thomas Bourneuf
Vol. 39 Associate Editor
Terrorist financing is the process by which terrorists fund their operations in order to perform terrorist acts. These funds can be used for several broad categories, including operations, propaganda, compensation, and providing social services to local communities.[1] Though dissimilar from tax evasion and money laundering, terrorist financers of­ten exploit similar weaknesses within the financial system to fulfil their objectives, a key weakness being the secrecy of various forms of financing.[2] Though the topic is important given the potential to save lives, there are numerous strategic and administrative barriers which have prevented meaningful progress in combating terrorist financing, despite international efforts.

Framing the Issue

Like many forms of financial misbehavior, secrecy is key to the success of terrorist financing. This secrecy can occur in many forms but is perhaps most potent in the form of the secrecy of anonymity.  This anonymity can result from (I) the liquidity, fungibility, and transportable nature of certain assets, (II) the often-small amounts of money being involved, and (III) the rise of self-financed terrorism.

There are certain assets which, because of their nature, are well suited to financing terrorism. For example, diamonds are highly liquid (i.e. easy to convert to cash), fungible (i.e. interchangeable to

The views and opinions expressed in this article are those of the authors only.
Maya Jacob
Vol. 40 Managing Editor, Online
Introduction

The world is currently facing the highest levels of human displacement ever recorded.[1] Those fleeing armed conflict, natural disaster, and persecution are estimated to number in the millions, many of whom are children.[2] In the face of this heightened need, President Trump signed an executive order in January 2017 barring U.S. entry by citizens from seven Muslim-majority countries.[3] Additional countries with minimal Muslim populations have since been banned.[4]

Since the executive order went into effect, it has been the source of constant litigation in federal courts.[5] In a 7-2 vote in December 2017, the U.S. Supreme Court said it would permit the travel ban to stay in place, at least until it hears oral argument on the issue in April.[6]

While the “Muslim Ban” and the DREAMers’ uncertain future have gotten the most immigration-related media attention, President Trump has also begun to dismantle the U.S.’s refugee policy. The U.S. has a long history of protecting persecuted individuals by providing asylum, but during the 2018 State of the Union, Trump announced plans to lower the cap on refugee admissions to 45,000—the lowest number since the

The views and opinions expressed in this article are those of the authors only.
Robert Kuhn
Vol. 40 Articles Editor
As vitally interlinked partners, the United States and China form one of the largest trading partnerships in the world. Total trade between the two states is worth an astounding $578.6 billion.[1] This vital trade relationship brings prosperity to both countries. However, many studies have reported troubling signs of Chinese economic espionage.[2] To sustain a healthy Chinese-American trading relationship, the United States should confront this problem through a World Trade Organization (WTO) complaint, not unilateral tariffs.

The politics of trade are especially difficult to maneuver. For free trade to be successful, as a practical matter, it must be perceived as fair by the relevant body politics. The very nature of free trade is disruptive: It dislocates long-standing domestic industries, leaving many previously thriving communities without a vital source of economic growth.[3] The disruptive impact of free trade has the potential to leave workers displaced with strong feelings of resentment.[4] This has a significant impact on trade policy because these losses can be concentrated in specific regions and specific industries while the benefits of free trade, usually in the form of enhanced competition, are dispersed.[5] In

The views and opinions expressed in this article are those of the authors only.
Hunter Davis
Vol. 39 Notes Editor
In the wake of the UK’s withdrawal from the European Union (“Brexit”), a challenge to British sovereignty over Gibraltar has emerged. On April 29, 2017, the European Council unanimously adopted the Framework for Negotiations Under Article 50 (“the Framework”).[1] While the bulk of the Framework lays out broad goals and timelines, the Framework also requires the UK to pre-clear with Spain any agreements relating to Gibraltar before taking them up with the EU.[2] This has been referred to as the “Spanish veto.”

This provision has been the cause of great controversy. Members of European Parliament (MEP) including Isabella De Monte, claim that Clause 24 is illegal. [3] Experts have also suggested that the European Court of Justice (ECJ) could rule that the veto is in breach of EU law.[4] The crux of this argument is that the veto would give Spain special status among EU nations without sufficient objective justification. This conflicts with the fundamental principle of Member State equality.[5]
Grounding Member State Equality in EU Law
Member State equality has emerged from a variety of sources. Borrowing heavily from equality and anti-discrimination precedents, the ECJ

The views and opinions expressed in this article are those of the authors only.
Lukas Kutilek*
The international tax regime as we know it today goes back to the beginning of the twentieth century. In 1923, the League of Nations reached a compromise on dividing the tax base between residence and source jurisdiction, which is usually called the Benefits Principle. Put simply, the Benefits Principle is the idea that active income should be taxed primarily at source and passive income should be taxed primarily at residency.[1] This principle is already embedded in the network of over 3,000 bilateral double tax treaties (“DTTs”). But the League of Nations also agreed on one other key principle of international tax regime. This second principle, sometimes called the Single Tax Principle, holds that although income should not be taxed twice, it should also not escape taxation altogether. The often-quoted language of the League of Nations states that:
“From the very outset, [the drafters of the model convention] realized the necessity of dealing with the questions of tax evasion and double taxation in co-ordination with each other. […] The most elementary and undisputed principles of fiscal justice, therefore, required that the experts should devise a scheme whereby all

The views and opinions expressed in this article are those of the authors only.
Gianluca Darena*
On June 7, 2017, seventy-one jurisdictions signed the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting ("MLI")[1] with the promise to thwart base erosion and profits shifting practices.[2]  On October 13, 2017, academics, experts, and practitioners from all over the world gathered at the University of Michigan Law School to debate about these recent developments that could potentially redefine the international tax regime (“Conference”).[3] 

Throughout the Conference, much attention was focused on the MLI’s dispute resolution mechanisms. Specifically, Part V of the MLI addresses the Mutual Agreement Procedure (“MAP”), while Part VI addresses the mandatory binding arbitration process.[4]

At the outset of the Conference, Professor Pasquale Pistone[5] engaged in an insightful comparison between the dispute resolution mechanisms in the MLI and under the new European Union (“EU”) Arbitration Directive.[6]  Specifically, Pistone argued that the fundamental difference between the EU and the OECD approach is that the EU Arbitration Directive considers taxpayers as “holders of rights”[7], while the MLI’s framework treats taxpayers only as “objects.” In other words, the E.U. Arbitration Directive aims to regulate States’ relationships as well as taxpayers’ rights,

The views and opinions expressed in this article are those of the authors only.
Eran Levy*
A summary and opinion on the session “Article 7 and Prevention of Treaty Abuse” by Mr. Richard Reinhold[1] and Prof. Reuven Avi-Yonah[2] as commentator (the “Session”), which took place at the “Perspective on the Multilateral Instrument” conference at the University of Michigan Law School on October 13, 2017.

Background

There is considerable debate on which type of anti-abuse rules should be used in the OECD Multilateral Instrument (the “MLI”).[3] The two types of anti-abuse rules which were discussed in the Session were (1) the “Limitation of Benefits” (“LOB”) provisions, which are used by the United States in its bilateral tax treaties,[4] and the Simplified LOB, currently offered in the MLI, and (2) the “Principal Purpose Test” (“PPT”), which is the default anti-abuse rule offered in the MLI.

Generally, LOB tests limit the availability of treaty benefits to entities that meet certain conditions based on legal nature, general activities, and ownership. These conditions seek to ensure that there is a sufficient link between the entity and its state of residence.[5] For example, according to the Simplified LOB provisions offered in the MLI, generally speaking, if at least fifty percent of

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