Cleaning Up After Chevron: A Proposed Cross-border Pipeline for the Transfer Pricing of Intra-group Debt Transactions

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The use of cross-border intra-group debt transactions to facilitate corporate tax planning faces heightened scrutiny by taxing authorities in light of the G20/Organization for Economic Cooperation and Development’s Base Erosion and Profit Shifting Project. This Note examines risks presented by the puzzling legal regime applicable to the transfer pricing of intra- group loans, using the recent Australian Chevron case as an illustrative vehicle, and proposes a solution through the Internal Revenue Service’s (“IRS”) Advance Pricing and Mutual Agreement (“APMA”) Program. The APMA Program facilitates the negotiation of binding contracts through which a taxpayer and at least one taxing authority delineate sanctioned transfer pricing methodologies applicable to specified transactions over a fixed term that generally spans at least five prospective years. IRS data suggests that taxpayers have not commonly leveraged the APMA Program to price intra-group loans, presumably owing in part to the bespoke nature of loans, the time and cost required to strike a deal with taxing authorities, and the difficulty of predicting financing needs years in advance. Nevertheless, this Note argues that the APMA Program is fundamentally a process that allows parties to agree on pricing methodologies—not standalone prices. Therefore, this Note suggests that certain multinational enterprises with high-volume or high-risk internal financing arrangements could benefit from locking in the underlying methodologies used to price their intra-group loans, thereby limiting the risks demonstrated by Chevron and the fluctuating regulatory environment. This Note also explores the possibility of establishing “mandatory” participation in the APMA Program where a taxpayer has already demonstrated a lack of compliance with arm’s length debt pricing. Download [365.60...

The Russian Constitutional Court versus the European Court of Human Rights: How the Strasbourg Court Should Respond to Russia’s Refusal to Execute ECtHR Judgments

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The European Court of Human Rights (ECtHR) and the Council of Europe face significant enforcement problems regarding Russia. These problems stem from Russia’s resistance towards implementing EC- tHR judgments. This resistance was formalized by a 2015 Russian law which granted the Russian Constitutional Court the power to review international human rights rulings to decide if they violate the Russian Constitution and are therefore “non-executable.” In April 2016, the Russian Constitutional Court used this power to refuse to implement the ECtHR judgment against Russia in the case of Anchugov and Gladkov v. Russia. This 2015 law and the Russian Constitutional Court’s subsequent ruling represents a significant development in how Russia views international law. Moreover, Russia’s actions pose a major problem for the legitimacy and future of the ECtHR. This Note examines the Russian Constitution’s treatment of international law and the broader context of Russian legal compliance with ECtHR judgments. By examining these relationships, this note seeks to determine the significance of Russia’s recent decisions and guide the Council of Europe and the ECtHR’s response go- ing forward. This note finds that, while Russian non- compliance with the ECtHR is not new, Russia’s re- cent actions against ECtHR judgments nevertheless pose a threat to the European Convention on HumanRights (ECHR) system. Therefore, the Council of Eu- rope and the ECtHR should assert the supremacy of the ECHR over Russian domestic law utilizing every mechanism within the current Council of Europe and ECHR framework. However, in doing so, this Note recommends that the Council of Europe and the EC- tHR acknowledge Russia’s position and, when possible, avoid further contradiction between ECtHR judgments...

Rights-Protection Lawyers in China: A Behavioral and Rational Choice Analysis of Lawyers in an Authoritarian State

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In the summer of 2015, the Chinese Communist Party (“CCP”) detained over 200 rights-protection lawyers, a human rights violation that many observers viewed as a retreat from prior commitments to the development of the rule of law. This Note uses two theoretical frameworks—rational choice theory and behavioral law & economics—in an attempt to explain why the CCP, an authoritarian regime, would allow this movement to develop in the first instance and why, after more than a decade, the CCP reversed course.

Macedonia’s Ohrid Framework Agreement Reexamined in Response to Internal and External Crises: Reason for Cautious Optimism on Europe’s Southeastern Border

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In recent years, a number of variables put Macedonia at an increased risk of instability. These factors include Macedonia’s tense relationship with Greece, the strain posed by the European migration crisis, the potential for domestic interethnic conflict, and Macedonia’s recent government scandals. Because of the security risks that an unstable Macedonia poses to the European Union, it is crucial for the EU to seek new ways to ensure Macedonia remains stable. This Note assesses the continued durability of the current set of legal tools – most importantly the framework established by the 2001 Ohrid Framework Agreement (“Ohrid”) – to cope with the increased strain posed by recent destabilizing crises in Macedonia.

What OLC Missed: Anwar al-Aulaqi and the Case for Citizenship Forfeiture

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As the nature of terrorism changes, so does the government’s response to the issue. This Note discusses one of the most significant changes undertaken by allied nations to address the terrorist threat. Western States have slowly adopted some form of citizenship revocation to address the threat of homegrown terrorism. Through the lens of the Anwar al-Aulaqi case, this Note argues that the Office of Legal Counsel should view a particular class of individuals as having forfeited the right to their U.S. citizenship as a result of their involvement in foreign terrorist activities.

Creating a Legal Framework for Terrorism Defectors and Detainees in Somalia

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Through multiple interviews with people working in Somalia on the national program for rehabilitating and reintegrating former terrorists, this Note maps out the current legal framework for handling terrorists and evaluates its effectiveness. It concludes that, while the current programs in Somalia are a positive step and likely to be more effective than traditional counter-terrorism models, there is still a need to ensure adequate safeguards for disengaging terrorists.

Rethinking the Employment Status of Refugees in the United States

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A change in the policy of barring refugees from jobs in the U.S. Federal Civil Service could mitigate challenges for the refugee population. The current policy is misguided from a humanitarian and economic perspective and potentially unconstitutional as it may be in conflict with U.S. obligations under the 1967 Protocol on the Status of Refugees.